                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0653
                           Filed November 23, 2016


ABF FREIGHT SYSTEM, INC. and
ACE AMERICAN INSURANCE CO.,
     Petitioners-Appellants,

vs.

MARVIN VEENENDAAL,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David M. Porter,

Judge.



      ABF Freight System Inc. and its insurer appeal the district court’s

affirmance of the commissioner’s order requiring ABF to authorize surgery for its

employee. AFFIRMED.




      Stephen W. Spencer and Joseph M. Barron of Peddicord, Wharton,

Spencer, Hook, Barron & Wegman, LLP, West Des Moines, for appellants.

      Matthew J. Petrzelka of Petrzelka & Breitbach, P.L.C., Cedar Rapids, for

appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

      ABF Freight System Inc. and its insurer appeal a final workers’

compensation decision ordering them to authorize surgery for ABF’s employee.

I.    Background Proceedings

      A deputy workers’ compensation commissioner determined that ABF’s

employee, Martin Veenendaal, sustained a work-related injury in 2006.        The

deputy commissioner found in part:

      The claimant was scheduled to have surgery on September 11,
      2008.     However, the claimant was advised by the claims
      administrator at Gallagher Bassett that the surgery would not be
      covered under workers’ compensation due to Dr. Abernathey’s
      opinion that the L4-L5 herniated was not related to the work injury.
      Consequently, the claimant has never had surgery.

The deputy awarded permanent partial disability benefits.        The arbitration

decision was affirmed on intra-agency appeal and on judicial review. See ABF

Freight Sys., Inc. v. Veenendaal, No. 11-1862, 2012 WL 1860733, at *5 (Iowa Ct.

App. May 23, 2012).

      Veenendaal subsequently petitioned for review-reopening.       His petition

sought various forms of relief, including medical benefits under Iowa Code

section 85.27 (2011). At a hearing on the petition, Veenendaal testified, “[W]e

always was waiting on medical care, and it never did come.” He continued, “We

had it all set up to have surgery, and we were just waiting to be cleared by [the

benefits administrator] and never heard another word.” He stated he wished to

proceed with surgery but “[n]obody did anything.”

      A deputy commissioner issued a decision finding “a substantial change in

condition that is causally related to the October 26, 2006 work injury,” which in
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the deputy’s view, entitled Veenendaal to “an additional 5 percent industrial

disability 50 weeks of benefits.” The deputy next proceeded to Veenendaal’s

request for “medical care in the form of surgery.” The deputy found that the

“need for [surgery was] related to his work injury of October 26, 2006,” and

ordered the employer and its insurer to authorize surgery “promptly.”

           The commissioner sitting by designation reversed the portion of the

deputy’s decision finding an increased loss of earning capacity but affirmed the

order for surgery.       The commissioner noted that Veenendaal’s “lower back

condition and ongoing complaints” were “already found” to be “related to his work

injury.”     The commissioner ordered the defendants to “promptly authorize a

qualified surgeon to provide surgical care for claimant[’s] lower back.”

           ABF sought judicial review of the final agency decision. See Iowa Code §

17A.19. The district court affirmed the surgery order. This appeal followed.

II.        Analysis

           ABF argues “the sole issue is whether [Veenendaal] met his burden of

proof that his current condition and requested medical care are causally related

to the 10/23/06 injury.”1      ABF invokes the law governing review reopening

proceedings under Iowa Code section 86.14(2).           That provision states, “In a

proceeding to reopen an award for payments or agreement for settlement as

provided by section 86.13, inquiry shall be into whether or not the condition of the

employee warrants an end to, diminishment of, or increase of compensation so

awarded or agreed upon.” Iowa Code § 86.14(2).

1
  Although ABF initially argued the agency “failed to apply the proper burden of proof,”
the company later conceded the only question is whether Veenendaal “met this burden
of proof.”
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The provision “establishes a procedure for determining whether a change in the

employee’s employment condition warrants an increase in compensation benefits

previously awarded.” Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434

(Iowa 1999).    The claimant must “prove that subsequent to the date of the

settlement award he suffered an impairment or lessening of earning capacity or

an increase in industrial disability proximately caused by the injury.” Williamson

v. Wellman Fansteel, 595 N.W.2d 803, 805 (Iowa 1999).                As noted, the

commissioner determined Veenendaal failed to satisfy this review-reopening

burden and denied his request for increased workers’ compensation benefits.

Neither side appealed this determination. Accordingly, the question of whether

Veenendaal was entitled to increased weekly compensation based on additional

lost earning capacity is not before us.      See Kohlhaas v. Hog Slat, Inc., 777

N.W.2d 387, 393 (Iowa 2009) (“[W]e emphasize the principles of res judicata still

apply—that the agency, in a review-reopening petition, should not reevaluate an

employee’s level of physical impairment or earning capacity if all of the facts and

circumstances were known or knowable at the time of the original action.”).

       The crux of this appeal is the commissioner’s order requiring ABF to

authorize back surgery.     The operative statutory provision is not Iowa Code

section 86.14 but section 85.27. That provision states, “The employer, for all

injuries compensable under this chapter or chapter 85A, shall furnish reasonable

surgical,   medical,   dental,   osteopathic,   chiropractic,   podiatric,   physical

rehabilitation, nursing, ambulance and hospital services and supplies therefor.”

Iowa Code § 85.27(1). This provision addresses “compensable” injuries. The

compensability of Veenendaal’s back injury was determined in the original
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proceeding. “[I]n those cases where compensability of the injury is not at issue

and the employer furnishes medical care to the employee, the commissioner is

authorized to order the employer to provide alternate care if the employee

establishes the alternate medical claim upon reasonable proof of necessity for

the care.” R.R. Donnelly & Sons v. Barnett, 670 N.W.2d 190, 197 (Iowa 2003).

In other words, as the commissioner stated, the only question before him was

whether the requested services were “reasonable.”2 See Bell Bros. Heating & Air

Conditioning v. Gwinn, 779 N.W.2d 193, 208 (Iowa 2010) (“[T]he dispute in this

case involved a difference of opinion over the diagnosis and treatment of [the

claimant’s] medical condition.       The dispute did not involve [the employer’s]

liability for the injury.”).   “The issue of whether the unauthorized care was

reasonable and beneficial presents fact questions.”            Id.   Our review of the

agency’s resolution of the fact questions is for substantial evidence. See Iowa

Code § 17A.19(10)(f).

       The commissioner made the following findings and determination on

Veenendaal’s surgery request:

       Claimant requested surgical intervention in 2006.        He was
       dissuaded from having surgery by [the third party administrator].
       Dr. Brady opined in 2008 claimant would be a good candidate for
       lower back surgery. Dr. Abernathey’s opinions, detailed in Exhibit
       B, page 1, have been found by prior decisions to be unconvincing
       and untrue. Dr. Abernathey’s opinions (Exhibit B, page 3) are also
       found not to be convincing. Claimant has requested medical
2
   This is not a situation where the employer “claims the alternate care is unreasonable
. . . because it is sought for a medical condition that is not compensable.” R.R. Donnelly,
670 N.W.2d at 197 n.2. The medical condition involved in this proceeding was identical
to the medical condition involved in the original proceeding and Veenendaal sought the
same medical care discussed in that proceeding. But even if we were to read ABF’s
brief as suggesting this was a separate, un-compensable medical condition, substantial
evidence supports the deputy’s finding, affirmed on intra-agency appeal, that the
condition was related to the 2006 injury.
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      authorization for surgery since approximately late 2012. The record
      indicates defendants ignored claimant’s request for care from
      approximately September of 2012 through February of 2013. The
      record suggests those requests again for care were ignored
      between late February of 2013 to August 2013. Given this record,
      claimant has carried his burden of proof that defendants’ care is
      unreasonable. Claimant is entitled to the requested alternate
      medical care consisting of surgery with a qualified back surgeon.

These findings and determination are supported by substantial evidence.

Accordingly, we affirm the district court’s affirmance of the commissioner’s final

decision on Veenendaal’s request for alternate medical care.

      AFFIRMED.
