                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1629
                                Filed March 6, 2019


LYNCH LIVESTOCK, INC. and NATIONWIDE AGRIBUSINESS INS. CO.,
    Plaintiffs-Appellants,

vs.

KENNETH BURSELL,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

       Lynch Livestock appeals a district court order affirming final agency action

in a workers’ compensation proceeding. REVERSED AND REMANDED WITH

INSTRUCTIONS.



       Jeffrey W. Lanz of Huber, Book, Lanz, McConkey & Finch, P.L.L.C., West

Des Moines, for appellant.

       Robert M. Livingston and Rick D. Crowl of Stuart Tinley Law Firm LLP,

Council Bluffs, for appellee.



       Heard by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

      This appeal arises out of a drawn-out workers’ compensation proceeding.

Lynch Livestock appeals from the order of the district court affirming the agency’s

decision that Lynch Livestock should pay certain medical expenses incurred by

Kenneth Bursell for treatment of a work-related injury. On appeal, Lynch Livestock

contends it was error for the agency to order Lynch Livestock to pay for the medical

expenses.

                                           I.

      To fully address the issue of whether Lynch Livestock should have to pay

the challenged medical expenses, some background is necessary. This is the

second time the parties have been before this court regarding Bursell’s workers’

compensation claim. In the first appeal, this court reviewed an alternate-medical-

care decision.   See Lynch Livestock, Inc. v. Bursell, No. 14-1133, 2015 WL

2394143, at *1 (Iowa Ct. App. May 20, 2015). Our prior opinion recited the relevant

facts and procedural posture as follows:

             In December 2008, Bursell sustained a sprained left ankle
      while employed with Lynch Livestock, Inc. The employer accepted
      the compensability of injury and paid for the care Bursell selected.
      Bursell underwent two tarsal tunnel decompressions to alleviate the
      pain, one in January and one in July 2009. When the pain in Bursell’s
      ankle did not resolve, he was referred to John E. Cook, M.D., medical
      director of Siouxland Surgery Center Pain Clinic. The employer
      accepted the referral to Dr. Cook and paid for the treatment provided,
      including injections to control pain. Bursell was diagnosed with
      complex regional pain syndrome, and Dr. Cook recommended he
      undergo a laparoscopic lumbar sympathectomy for long-term relief
      and resolution of his pain, referring him to Dr. Kelly, a vascular
      surgeon.      On February 11, 2010, Dr. Patrick Kelly, M.D.,
      recommended conservative treatment, opining a lumbar
      sympathectomy would be a “last ditch effort/option.” The employer
      had Bursell evaluated by other physicians who concluded Bursell
      does not have complex regional pain syndrome and would not
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       benefit from the sympathectomy.    Instead, these physicians
       recommended conservative treatment including physical therapy
       and psychiatric referrals.

              When the employer did not authorize the sympathectomy,
       Bursell filed an application for alternate medical care on April 7, 2010.
       The matter came before the deputy workers’ compensation
       commissioner on April 19, 2010. In granting the alternate care, the
       deputy commissioner concluded Dr. Cook’s opinion recommending
       the surgery was “reasonable and necessary.”                The deputy
       commissioner ordered the employer to “provide and pay for the
       surgery recommended by Dr. Cook including any referrals he makes
       and any medication he prescribes to treat [Bursell’s] work injury.”

               The employer filed a petition for judicial review with the district
       court on June 16, 2010. After holding oral arguments, the district
       court issued its decision on June 16, 2014, reversing the agency’s
       decision to grant the treatment recommended by Dr. Cook. The
       district [court] concluded the agency failed to apply the correct legal
       test to Bursell’s alternate care request as the agency failed to decide
       whether the care authorized by the employer was “unreasonable.”
       The district court found the agency’s decision wholly unjustified and
       reversed the agency’s order.

Id. (footnote omitted).

       In our prior opinion, we affirmed the district court’s judicial-review decision

but remanded the case to the district court for remand to the agency to apply the

correct legal standard to the petition for alternate medical care. See id. at *4. In

our prior opinion, we also noted the issue of who bore responsibility for payment

of the medical treatment was still at issue:

              Counsel for the employer explained at oral argument that
       things occurred in the intervening time period that are not part of our
       record. Counsel did explain that the sympathectomy Bursell
       requested in this case was in fact performed before the case was
       decided on judicial review. While this would appear to render this
       appeal moot, as Bursell has already received the medical care he
       was requesting, counsel asserted the fighting issue that remains is
       who is responsible for paying for that medical treatment. If the
       medical care was correctly ordered as part of the alternate medical
       care decision—i.e., the care offered by the employer was
       unreasonable—the employer is responsible for the cost. If, however,
                                          4


       the medical care was not correctly ordered as part of the alternate
       medical care decision, the treatment performed would be considered
       unauthorized treatment, and in order to require the employer to pay
       for this treatment, Bursell must then prove the treatment was
       reasonable and beneficial under the case of Bell Bros. Heating & Air
       Conditioning v. Gwinn, 779 N.W.2d 193, 206 (Iowa 2010).

Id. at *1 n.1.

       In August 2016, the agency issued its remand decision in the alternate-

medical-care proceeding. The agency denied the petition for alternate medical

care, concluding:

              Dr. Kelly recommended surgery only after conservative care
       had been exhausted and failed. The record indicates claimant did
       not undergo the conservative care recommended by Dr. Blow, and
       other physicians. As a result, claimant has failed to carry his burden
       of proof the care authorized by the employer has not been effective,
       that the care is inferior or less extensive, or that the care
       recommended by defendants is unreasonable.

Bursell did not appeal the denial of his petition for alternate medical care.

       While the alternate-medical-care case was wending its way through the

agency and the courts, the parties conducted an arbitration hearing regarding

weekly, medical, and penalty benefits. In December 2014, the agency issued its

appeal decision in the arbitration case. The agency concluded Bursell was entitled

to medical benefits for the treatment that ultimately was unauthorized following our

remand in the alternate-medical-care case:

               Given that Dr. Rash, Dr. Ung, Dr. Cook, and Dr. Kelly were
       authorized at some point, the decision to de-authorize them is an
       interference in the professional judgment of authorized treating
       physicians and claimant is entitled to have those bills paid.

              Further the care provided by Dr. Rash, Dr. Ung, Dr. Cook, and
       Dr. Kelly provided pain relief, pain management, diagnosis of CRPS,
       and treatment of CRPS.
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              “[T]he duty of the employer to furnish reasonable medical care
       supports all claims for care by an employee that are reasonable
       under the totality of the circumstances, even when the employee
       obtains unauthorized care, upon proof by a preponderance of the
       evidence that such care was reasonable and beneficial.” Bell Bros.
       Heating v. Gwinn, 779 N.W.2d 193 (Iowa 2010).

               The substantial evidence supports a finding that the care
       provided by Dr. Rash, Dr. Ung, Dr. Cook, and Dr. Kelly was
       reasonable and beneficial. Dr. Fitzgibbons, whom [t]he defendants
       argue took the place of all the previous doctors, began to see
       claimant on February 11, 2010, for an IME and then claimant had his
       first visit with Dr. Fitzgibbons for actual treatment November 20,
       2010. Claimant was seen by Dr. Kelly on June 2, 2010, who
       performed a laparoscopic lumbar sympathectomy to ease the left leg
       pain. According to the medical reports, it provided some pain relief.
       On August 3, 2010, Dr. Ung performed a third tarsal tunnel surgery
       and in December 1, 2010, Dr. Cook performed facet block injections.
       Dr. Cook provided additional pain management. While it is
       unfortunate claimant did not have a better result, at the time, the care
       was reasonable and beneficiary.

               Dr. Fitzgibbons did not perform the surgeries or administer the
       injections. He took no exceptions to the care that was provided
       Dr. Ung, Dr. Cook, or Dr. Kelly. There appears to no specific mention
       of Dr. Rash’s care.

              When Dr. Fitzgibbons saw claimant again on January 20,
       2011, he did not provide any additional care but instead
       recommended claimant stop having surgeries and possibly any
       additional treatment. In a sense, Dr. Fitzgibbons recommended no
       care. Thus the alternative to the care provided by Dr. Rash, Dr. Ung,
       Dr. Cook and Dr. Kelly was no treatment. In light of that, the so called
       unauthorized treatment was more reasonable and beneficiary [sic]
       than the no treatment.

       Lynch Livestock sought rehearing on the question of who was responsible

for paying for the unauthorized care. In January 2015, the agency denied the

petition for rehearing.

       Lynch Livestock sought judicial review of the agency decision. In its petition

for judicial review, Lynch Livestock argued the award of medical benefits for the

unauthorized care was contrary to the controlling standard set forth in Bell
                                         6

Brothers. See 779 N.W.2d at 206. The district court agreed with the substance of

the legal argument. The district court concluded substantial evidence did not

support the agency’s finding that the unauthorized care was reasonable and

beneficial within the meaning of Bell Brothers. Thus, the district court concluded,

Lynch Livestock was not liable for medical expenses incurred: “Lynch is not liable

for medical expenses incurred because upon application of the correct standard,

conservative care was not unreasonable and undergoing the sympathectomy was

unreasonable.” The district court’s decision was internally inconsistent, however.

After concluding Lynch Livestock was not liable, the district court also concluded

Bursell should not be “liable for medical expenses incurred because at the time

Bursell underwent the sympathectomy, alternate medical care was authorized by

the commissioner and employees are not obligated to make sure care

authorizations remain in force before accepting care.” After concluding that neither

party was liable for the medical expenses, the district court nonetheless affirmed

the agency’s decision imposing the costs on Lynch Livestock. The district court

reasoned that, as between the employer and the employee, the employer should

bear the responsibility for payment of medical expenses incurred for unauthorized

care where the employee sought the care pursuant to an agency decision that was

subsequently reversed.

      Lynch Livestock timely filed this appeal. Bursell did not file a cross appeal.

                                         II.

      This appeal is governed by the Iowa Administrative Procedure Act. See

Iowa Code section 17A.19 (2010); Int’l Paper Co. v. Bueker, No. 08-1536, 2009

WL 1218693, at *2 (Iowa Ct. App. May 6, 2009). “A district court acts in an
                                        7

appellate capacity when it exercises its judicial review power.” Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012); accord IBP, Inc. v. Al-Gharib,

604 N.W.2d 621, 627 (Iowa 2000). “When reviewing a district court’s decision ‘we

apply the standards of chapter 17A to determine whether the conclusions we reach

are the same as those of the district court. If they are the same, we affirm;

otherwise, we reverse.’” Neal, 814 N.W.2d at 518 (quoting Mycogen Seeds v.

Sands, 686 N.W.2d 457, 464 (Iowa 2004)). “Our review of the commissioner’s

decision is for errors at law, not de novo.” Robertson/Star Bldg. & Ins. Co. of the

State of Pa. v. Coohey, No. 09-0615, 2009 WL 3775151, at *1 (Iowa Ct. App. Nov.

12, 2009); accord Day v. R.G. Elder & Son Co., No. 00-1724, 2002 WL 21967, at

*2 (Iowa Ct. App. Jan. 9, 2002).

      Under Iowa workers’ compensation law, “the employer is obliged to furnish

reasonable services and supplies to treat an injured employee, and has the right

to choose the care.” Iowa Code § 85.27(4). However:

      If the employee has reason to be dissatisfied with the care
      offered, . . . the employer and the employee may agree to alternate
      care . . . . 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).     Before the agency can authorize alternate care, the

employee must show the care offered by the employer was unreasonable. See

Bell Bros., 779 N.W.2d at 204.

      The responsibility for the costs of alternate care is well-established. If the

agency orders alternate care, the employer must cover the cost of the care. See

id. If the employee seeks unauthorized alternate care, the employer may still be
                                          8

liable for the medical expenses of such care. See id. at 208. The employer is

required to cover the cost of unauthorized alternate care if the employee can show

that the care is both reasonable and beneficial. See id. “[R]easonableness in this

analysis includes the quality of the alternative care and the quality of the employer-

provided care.” Id.; accord Mercy Hosp. Iowa City v. Goodner, No. 12-0186, 2013

WL 104888, at *17 (Iowa Ct. App. Jan 9, 2013). “[U]nauthorized medical care is

beneficial if it provides a more favorable medical outcome than would likely have

been achieved by the care authorized by the employer.” Bell Bros., 779 N.W.2d

at 206; accord Verizon Bus. Network Servs., Inc. v. McKenzie, No. 11-1845, 2012

WL 4899244, at *10 (Iowa Ct. App. Oct. 17, 2012). The court has found that this

standard presents a “significant burden to the claimant.” Bell Bros., 779 N.W.2d

at 206. If the employee does not show that unauthorized alternate care was

“reasonable and beneficial” within the meaning of Bell Brothers, then the employee

is responsible for the medical expenses incurred. See id.; Lynch Livestock, 2015

WL 2394143, at *1 n.1.

       Although this case presents some procedural complexity, the resolution of

the ultimate issue is rather straight-forward. Here, Bursell sought and obtained

medical treatment that ultimately was unauthorized. Under Bell Brothers, Bursell

is responsible for the costs of that treatment unless he showed the care was

“reasonable and beneficial.” The agency found the alternate care was reasonable

and beneficial.   The district court found there was not substantial evidence

supporting the agency’s finding that Bursell’s unauthorized treatment was

“reasonable and beneficial” within the meaning of the controlling law. Bursell did

not cross-appeal that conclusion. An issue must be appealed in order to preserve
                                           9

that issue. See Beef Products Inc. v. Rizvic, No. 10-2083, 2011 WL 3688976 at

*4 (Iowa Ct. App. Aug. 24, 2011) ("Beef Products asks that we alter and expand

the scope of its victory by reversing that portion of the district court's ruling finding

substantial evidence existed to support the finding of a work-related rotator cuff

injury...We reject Beef Product's claim it was not required to cross appeal to

preserve error on this issue."); In re A.C., No. 03-1314, 2003 WL 22455895, at *1

(Iowa Ct. App. Oct. 29, 2003) (“We agree that any claim of error in the dispositional

order is not properly before us because no appeal was taken from the order.”); In

re J.S.E., No. 00-0136, 2000 WL 1027240, at *1 (Iowa Ct. App. July 26, 2000).

Independently, we agree with the district court that there was not substantial

evidence supporting the finding that Bursell’s unauthorized treatment was

“reasonable and beneficial.” There was no evidence showing the unauthorized

care “provide[d] a more favorable medical outcome than would likely have been

achieved by the care authorized by the employer.” Bell Bros., 779 N.W.2d at 206.

Accordingly, there was no legal basis for the district court to award medical benefits

for the unauthorized care.

       The district court nonetheless concluded the employer should bear the

responsibility for payment of medical expenses. With this we disagree. “The

workers’ compensation code is a creature of compromise, reflecting the

legislature’s determination of the proper allocation of rights and responsibilities

between employees and employers with respect to work-related injuries.” Hoyt v.

Welding Quarries, No. 14-0800, 2015 WL 576174, at *2 (Iowa Ct. App. Feb. 11,

2015). “[T]he primary purpose of the workers’ compensation statute is to benefit

the worker and the worker’s dependents insofar as the statute permits. Thus the
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statute is to be interpreted liberally with a view toward that objective.” Caterpillar

Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981). However, the obligation

to interpret the workers’ compensation law consistent with its legislative purpose

does not give us leave to ignore the plain language of the statute. See Neal, 814

N.W.2d at 519; Kaiser Aluminum & Chem. Sales, Inc. v. Hurst, 176 N.W.2d 166,

168 (Iowa 1970) (stating even where statute directs the court to construe a chapter

liberally to promote its underlying purpose, the court “cannot ignore the plain

language” of the statute).      “Fidelity to the text best honors the legislature’s

expressed policy determination.” Hoyt, 2015 WL 576174, at *2. Here, section

85.27, as interpreted by our cases, apportions the provision of care and the

financial responsibility for the same between the employer and the employee.

There is no basis for holding the employer responsible for the payment of alternate

medical care when the employer resisted the alternate care, when the alternate

care was not authorized, and when there is no evidence the alternate care was

reasonable and beneficial to the treatment of the work-related injury. We conclude

the district court erred in holding to the contrary.

       Bursell argues Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759

(Iowa 2016), requires Lynch Livestock to pay for his medical treatment because

the treatment was authorized by the agency for a period of time. We disagree.

Ramirez-Trujillo did not change the general rule established in Bell Brothers. 878

N.W.2d at 773 (discussing the rule established in Bell Brothers with approval).

Ramirez-Trujillo affirmed that an employer is not liable for unauthorized care in the

absence of proof the unauthorized care was reasonable and beneficial. See id.

(“[A]n employee generally may recover medical expenses incurred in seeking
                                         11


unauthorized care upon proving by a preponderance of the evidence the care was

reasonable and beneficial under the totality of the circumstances.”). In addition,

unlike Ramirez-Trujillo, the employer in this case never acquiesced to the provision

of alternate medical care. Here, Lynch Livestock immediately resisted Bursell’s

petition for alternate medical care. It continued to resist the request in the agency,

on appeal to the district court, and on appeal to this court. Ramirez-Trujillo does

not support Bursell’s position.

       Our conclusion that nothing in Ramirez-Trujillo altered Bell Brothers’s

general rule is buttressed by the supreme court’s recent decision in Brewer-Strong

v. HNI Corp. 913 N.W.2d 235 (Iowa 2018). In that case, the court explained as

follows:

               Outside of these situations, the employer retains the right to
       choose the employee’s medical care. However, the employer’s
       statutory right to choose medical care for the employee’s
       compensable injuries does not prohibit the employee from seeking
       his or her own medical care, at his or her own expense, when the
       employer denies compensability for the injury or the employee
       “abandons the protections of section 85.27 or otherwise obtains his
       or her own medical care independent of the statutory scheme.” Bell
       Bros., 779 N.W.2d at 204. Thus, in Bell Bros., we held an employer’s
       duty to furnish reasonable medical care includes those claims for
       care by the employee that are unauthorized if the employee can
       prove “by a preponderance of the evidence that such care was
       reasonable and beneficial” under the totality of the circumstances.
       Id. at 206. “[U]nauthorized medical care is beneficial if it provides a
       more favorable medical outcome than would likely have been
       achieved by the care authorized by the employer.” Id. This burden
       of proof honors the employer’s statutory right to choose the injured
       employee’s medical care under Iowa Code section 85.27(4), yet
       provides the employee with reimbursement for unauthorized medical
       care when he or she can show by a preponderance of the evidence
       that the care was reasonable and beneficial. Id. It also aligns with
       the balance Iowa Code section 85.27(4) seeks to maintain between
       the employer’s right to control medical care and the medical needs
       of the employee. See Ramirez-Trujillo, 878 N.W.2d at 770-71.
                                        12

Id. at 248.

       In this case, Bursell sought and obtained alternate medical care. The

alternate medical care was disallowed by the agency. Bursell is responsible for

the payment of this unauthorized care in the absence of proof the unauthorized

care was reasonable and beneficial within the meaning of Bell Brothers and Brewer

Strong.   Bursell failed to prove the unauthorized care was reasonable and

beneficial within the meaning of our case law. The district court thus erred in

holding the employer shall be liable for those expenses.

                                        III.

       For the above-stated reasons, we reverse the judgment of the district court

and remand to the district court with instructions to remand this matter to the

agency for entry of a corrected decision.

       REVERSED AND REMANDED WITH INSTRUCTIONS.
