                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0236
                            Filed January 11, 2017


DONALD A. WESTLING,
    Petitioner-Appellant,

vs.

HORMEL FOODS CORPORATION,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



      A workers’ compensation claimant seeks to overturn the commissioner’s

denial of alternative care under Iowa Code section 85.27(4) (2011). AFFIRMED.




      Mark S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines, for

appellant.

      Valerie A. Landis of Hopkins & Huebner, P.C., Des Moines, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                           2


TABOR, Judge.

          Claimant   Donald   Westling   contends    the   workers’   compensation

commissioner wrongly denied his application for alternate medical care under

Iowa Code section 85.27(4) (2011). Westling’s application sought treatment for

his right knee, which he injured in 1993 and 1996 while working at Hormel Foods

Corporation. After several surgeries, including a total knee replacement in 2005,

Westling continued to experience pain in his knee and received authorization

from Hormel to see orthopedic surgeon Michael Crane.               After examining

Westling’s knee, Dr. Crane recommended Westling wait until he had “more

trouble” before considering revision surgery.        Westling asserts Dr. Crane’s

August 9, 2011 “diagnostic examination” did not constitute “treatment” under

section 85.27(4).

          The commissioner decided Westling did not meet his burden to show he

was entitled to alternate medical care. In the commissioner’s view, reasonable

care included services “necessary to diagnose the condition” and Westling did

not show the services provided by Dr. Crane were unreasonable. The district

court ruled the commissioner identified sufficient facts to justify her denial of

alternate care.       Because the record amply supports the commissioner’s

conclusion Westling did not show the authorized care was unreasonable, we

affirm.

          I.    Facts and Prior Proceedings

          Westling worked for Hormel for thirty years, starting in 1976. During that

time, Westling twice injured his right knee at the meatpacking plant and received

workers’ compensation payments for those injuries, including ongoing medical
                                        3


benefits. Westling underwent several surgeries on his knee, including one in

1998 performed by Dr. Crane. Westling suffered deep venous thrombosis (DVT)

as a result of that surgery. After those complications, Westling opted to be seen

by Dr. Adrian Wolbrink, who performed a total knee replacement in 2005.

Westling retired from Hormel the following year and moved to Milford, Iowa.

      Experiencing continued problems with his knee, Westling went to his

Milford family-care provider in June 2011, and he was referred to Dr. Gregory

Alvine with Core Orthopedics in Sioux Falls, South Dakota.         Hormel instead

approved an appointment with Dr. Crane in Mason City. On October 19, 2011,

Dr. Crane performed a clinical examination of Westling’s knee, as well as

ordering and reviewing x-rays. Westling testified Dr. Crane spent “probably ten

minutes” talking to him during the appointment.

      Dr. Crane made the following notes regarding the appointment:

              Donald Westling is seen today for evaluation of his right total
      knee replacement done in 2005. Prior to that he had a proximal
      tibial osteotomy in 1996-1997. He states the knee hurts off and on.
      It feels like it will give out on occasion. It clicks and makes noise.
      He is [sixty-two] years old.

      Dr. Crane reported on the physical examination:

              On examination of the knee he extends well to 0 degrees
      and flexes to 100-105 degrees. Medial and lateral instability is not
      a significant problem, but he does have some anterior posterior
      instability. He also has a bit of an effusion I believe. He has no
      evidence of redness to suggest an infectious type process. The
      right leg also shows signs of brawny edema. He has apparently
      had two blood clots on that side.

      Dr. Crane also compared Westling’s new x-rays to his previous images:

“His x-rays look pretty good, although there is some lucency about the medial

aspect of the tibial component. This has not changed since 2006.”
                                            4


       Dr. Crane offered the following impression and recommendations:

       I would not suggest a revision at this point—with the lucency medial
       there is a potential it could fracture . . . . With his previous
       complications I would suggest he wait until he has more trouble to
       consider revision . . . . He should be seen in about [two] years with
       an x-ray.

       Westling expressed dissatisfaction with Dr. Crane’s recommendations and

again requested a referral to Dr. Alvine, which Hormel denied. Instead, Hormel

had Dr. Crane’s recommendations reviewed by Dr. John Albright, a professor of

orthopedic surgery at the University of Iowa Hospitals and Clinics. Dr. Albright

concurred with Dr. Crane’s assessment and plan, writing:

       I agree that Mr. Westling should follow with regular Xrays done
       every year or two. I would not recommend any revision surgery
       without any significant clinical or radiographic evidence indicating
       further surgical intervention. In addition, medical co-morbidities
       necessitating chronic Coumadin therapy increase the risks
       associated with any surgical procedure, especially a revision
       surgery, and should be seriously considered in any surgical
       recommendation. This is another reason to avoid further surgery
       as long as possible.

       In October 2011, Westling filed an original petition with the workers’

compensation commissioner for alternate medical care, specifically seeking a

referral to Dr. Alvine.1    At an administrative hearing in April 2012, Westling

testified he wanted to see Dr. Alvine because he was a knee specialist and

Westling believed he would provide “better care” than Dr. Crane. Westling said

the distance to the appointments was not a factor. Westling acknowledged he

had not previously filed any documents indicating his dissatisfaction with the

treatment provided by Dr. Crane “because that was Hormel’s primary doctor they


1
  Westling later re-captioned his petition as a review-reopening, but he still pursued the
alternate-care issue.
                                         5


told me to go to.” Westling testified he did not know what to expect to receive

from Dr. Alvine as far as suggestions for further care.

       The deputy commissioner determined Westling had not met his burden to

prove the medical care provided by Hormel was unreasonable or ineffective and

denied Westling’s application for alternate medical care.      The commissioner

affirmed the deputy’s decision in April 2013. Westling sought judicial review, and

the district court noted the commissioner’s findings of fact were “not extensive.”

The judicial review decision stated: “It is unclear to the court how these findings

of fact are relevant to the issues of whether the authorized care was (1) prompt,

(2) reasonably suited to treat the injury, and (3) without undue inconvenience to

the claimant.” The district court remanded for the commissioner to set forth the

facts relied upon in determining Westling had failed to meet his burden of proof

on the alternate-medical-care issue.

       In February 2015, the commissioner filed a remand decision, adding

additional references to the evidence presented at the April 2012 hearing.

Westling again sought judicial review. On January 31, 2016, the district court

upheld the commissioner’s decision, concluding “the agency acted as directed on

remand and supplied sufficient facts to justify its decision to deny alternate care

benefits” to Westling. Westling now appeals that judicial review order.

       II.    Scope and Standards of Review

       Iowa Code chapter 17A governs judicial review of rulings from the

workers’ compensation commissioner.          Baker v. Bridgestone/Firestone, 872

N.W.2d 672, 675 (Iowa 2015). Our scope of review is for correction of errors at

law. See Oswald v. Bulkmatic Transp., No. 02-2043, 2003 WL 22461737, at *1
                                           6


(Iowa Ct. App. Oct. 29, 2003). Both the district court and our court act in an

appellate capacity when reviewing an agency decision.             See Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012). If our appellate assessment is

the same as the district court, we will affirm, and if not, we will reverse. See id.

       The particular standard of review from section 17A.19(10) that we apply

depends on the issues raised on appeal. See Jacobson Transp. Co. v. Harris,

778 N.W.2d 192, 196 (Iowa 2010). Because those standards of review vary

widely, it is “essential for counsel to search for and pinpoint the precise claim of

error on appeal.” Id. (citation omitted). In his appellant’s brief, Westling fails to

pinpoint the standard of review, instead listing seven subsections—(c), (d), (f), (i),

(j), (m), and (n). Because Westling’s argument mentions “substantial evidence”

three times and does not challenge or discuss specific legal interpretations made

by the commissioner, we can only assume he is limiting his challenge to section

17A.19(10)(f).2 Where the appellant is alleging factual error, we must determine

if the commissioner’s findings are supported by substantial evidence.3              See

Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006) (explaining question on


2
  Iowa Code section 17A(10) states:
                The court shall reverse, modify, or grant other appropriate relief
        from agency action . . . if it determines that substantial rights of the
        person seeking judicial relief have been prejudiced because the agency
        action is . . . :
                ....
                (f) Based upon a determination of fact clearly vested by a
        provision of law in the discretion of the agency that is not supported by
        substantial evidence in the record before the court when that record is
        viewed as a whole.
3
  The legislature defined “substantial evidence” as “the quantity and quality of evidence
that would be deemed sufficient by a neutral, detached, and reasonable person, to
establish the fact at issue when the consequences resulting from the establishment of
that fact are understood to be serious and of great importance.” Iowa Code
§ 17A.19(10)(f)(1).
                                                7


appeal is not whether the evidence supports a finding different from the factual

finding made by the commissioner but whether the evidence supports the finding

actually made); Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004)

(recognizing “factual determinations in workers’ compensation cases are clearly

vested by a provision of law in the discretion of the agency” (citation omitted)).

To the extent Westling is challenging the commissioner’s interpretation of the

word “treatment” and other terms in section 85.27(4), our level of deference

depends on whether the legislature “clearly vested” the authority to interpret the

term “in the discretion of the agency.”             See Burton v. Hilltop Care Ctr., 813

N.W.2d 250, 256 (Iowa 2012). Compare Iowa Code § 17A.19(10)(c), with id. §

17A.19(10)(l). “If the agency has not been clearly vested with the authority to

interpret a provision of law,” then we must reverse if the agency’s interpretation is

erroneous. Burton, 813 N.W.2d at 256. “If the agency has been clearly vested

with the authority to interpret a statute,” then we may only disturb the agency’s

interpretation if it is “irrational, illogical, or wholly unjustifiable.”         Id. (quoting

17A.19(10)(l)).       Our supreme court has declined to give deference to the

commissioner’s interpretation of various provisions in chapter 85. See Evenson

v. Winnebago Indus., Inc., 881 N.W.2d 360, 369 (Iowa 2016) (collecting

examples). We follow that same course here.

          Westling also disputes whether the commissioner’s February 2015

remand decision complied with the district court’s instructions.4 The purpose of


4
    Westling’s brief asserts:
          Suffice it to say that in the district court’s 1/31/16 second judicial review
          decision, . . . it neither adhered to the law of the case or the rationale of
          the prior district court decision, nor actually scrutinized whether the acting
                                         8


section 17A.16(1) is to allow the reviewing court to determine when the

commissioner is making a determination of fact and when the commissioner is

engaging in the application or interpretation of law so that reviewing courts may

properly review the relevant portion of the decision. See Dodd v. Fleetguard,

Inc., 759 N.W.2d 133, 137 (Iowa Ct. App. 2008). Our supreme court has held the

commissioner “need not discuss every evidentiary fact and the basis for [her]

acceptance or rejection so long as the commissioner’s analytical process can be

followed on appeal.” Bridgestone/Firestone v. Accordino, 561 N.W.2d 60, 62

(Iowa 1997).

      III.     Analysis

      Alternate medical care is governed by the following statute:

      [T]he employer is obliged to furnish reasonable services and
      supplies to treat an injured employee, and has the right to choose
      the care . . . . The treatment must be offered promptly and be
      reasonably suited to treat the injury without undue inconvenience to
      the employee. If the employee has reason to be dissatisfied with
      the care offered, the employee should communicate the basis of
      such dissatisfaction to the employer, . . . following which the
      employer and the employee may agree to alternate care
      reasonably suited to treat the injury. If the employer and employee
      cannot agree on such alternate care, the commissioner may, upon
      application and reasonable proofs of the necessity therefor, allow
      and order other care.

Iowa Code § 85.27(4).

      Under this statute, the employer must provide medical treatment that is

(1) prompt, (2) reasonably suited to treat the claimant’s injury, and (3) without

undue inconvenience to the claimant. Good v. Tyson Foods, Inc., 756 N.W.2d



      commissioner complied with the 1/14/14 remand instructions, section
      17A.16(1) . . . . Instead, it essentially utilized a substantial-evidence
      “rubberstamp.”
                                         9


42, 45 (Iowa Ct. App. 2008). If the employer’s offerings do not meet these three

criteria, the commissioner may order alternate care. See R.R. Donnelly & Sons

v. Barnett, 670 N.W.2d 190, 195 (Iowa 2003).

       By challenging Hormel’s choice of Dr. Crane as the treating physician,

Westling assumed the burden of proving the authorized care with Dr. Crane was

unreasonable.     See Long v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa

1995) (“Determining what care is reasonable under the statute is a question of

fact.”). Westling’s desire for care by a different doctor is “not determinative” on

the issue of alternate care. Id. at 124. “[T]he employer’s obligation under the

statute turns on the question of reasonable necessity, not desirability.” Id.

       On appeal, Westling does not seriously allege he was entitled to

alternative care because his appointment with Dr. Crane was not prompt or

convenient.    Instead, Westling maintains his appointment with Dr. Crane “(in

which no treatment whatsoever was offered), did not and could not constitute

treatment, let alone reasonable or effective treatment per section 85.27(4).”

Westling contends: “On 8/19/11, Dr. Crane did nothing to improve Westling’s

condition.    Ergo, the district court erred prejudicially by affirming the acting

commissioner’s 2/11/15 remand decision, and alternate care should be granted

to Westling as a matter of law.”

       We disagree that as a matter of law a diagnostic appointment—where the

doctor takes a patient history, performs a clinical examination, orders new x-rays

and compares those images to prior x-rays, and considers this particular patient’s

previous complications before recommending against revision surgery at the

present time and scheduling additional x-rays in two years—cannot be
                                       10


considered treatment under section 85.27(4). The employer’s obligation under

section 85.27(4) is to “furnish reasonable services and supplies” to treat the

injured employee. Medical services include making a diagnosis. See generally

Baker, 872 N.W.2d at 678 (“In promptly furnishing reasonable medical care to

injured employees under chapter 85, employers are empowered to substitute

their judgment for that of their injured employees on the important question of

which medical professionals are best suited to diagnose and treat work-related

injuries.” (emphasis added)).

      The test for the commissioner to order alternate care is whether the care

authorized by the employer was effective, that is, reasonably suited to treat the

claimant’s injury. Pirelli–Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 437

(Iowa 1997). Care by a physician of the claimant’s choosing is appropriate after

“the physician selected by his employer has failed or refused to give necessary

treatment or has been unsuccessful in his treatment.” Id.

      Westling did not present evidence to the commissioner that the wait-and-

see approach advocated by Dr. Crane was unreasonable. Westling offered no

proof Dr. Crane refused to give “necessary treatment.” In fact, the commissioner

relied on Hormel’s “second opinion regarding the reasonableness of Dr. Crane’s

medical treatment” in deciding “the treatment offered to claimant was reasonable

care.” Like Dr. Crane, Dr. Albright did not recommend further surgery based on

the current condition of the knee, instead recommending follow-up x-rays every

year or two. The commissioner also considered Westling’s testimony that he did

not know whether “he would consider surgery even if Dr. Alvine would
                                        11


recommend additional surgical procedures, given claimant’s preexisting DVT

condition.”

       The commissioner identified the essential information in the record

supporting her rejection of Westling’s request for alternate care. We, like the

district court, conclude the commissioner’s decision denying alternate care

complied with section 17A.16(1) and was supported by substantial evidence.

Therefore, we affirm the judicial review order.

       AFFIRMED.
