Alfonzo Penny v. Whirlpool ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0495
Filed February 8, 2017
ALFONZO PENNY,
Petitioner-Appellant,
vs.
WHIRLPOOL,
Respondent-Appellee.
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Appeal from the Iowa District Court for Linn County, Patrick R. Grady,
Judge.
Alfonzo Penny appeals the district court’s ruling on judicial review, which
affirmed the Iowa Workers’ Compensation Commission’s denial of his request for
alternate medical care. AFFIRMED.
William Dennis Currell of Currell Law Firm, Cedar Rapids, for appellant.
Steven T. Durick and Joseph M. Barron of Peddicord, Wharton, Spencer,
Hook, Barron & Wegman, L.L.P., West Des Moines, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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MULLINS, Judge.
Alfonzo Penny appeals the district court’s ruling on judicial review, which
affirmed the Iowa Workers’ Compensation Commission’s denial of his request for
alternate medical care.
I. Background Facts and Proceedings
Penny worked for Whirlpool when he suffered a work-related injury on
April 1, 2015. Beginning the next day, Penny received treatment for his injury
from Dr. Peter Matos, a Whirlpool-authorized physician. Dr. Matos later referred
Penny to Dr. Chad Abernathey, a neurosurgeon, after an MRI revealed a disc
contusion and annular tear that contacted portions of a nerve root.
Dr. Abernathey did not believe surgery was a good option at that time, favoring
conservative treatment and allowing time for the injury to heal.
Despite receiving treatment, Penny’s pain continued to persist in May
2015. Drs. Matos and Abernathey discussed Penny’s condition and determined
Penny should undergo additional testing to determine his radicular symptoms
while receiving pain management from a pain clinic. Whirlpool made the
necessary appointments and arranged transportation for Penny, but Penny failed
to attend the appointments under the belief that Whirlpool did not consider his
back injury to be work-related.
On June 2, 2015, Penny filed a petition for alternate medical care with the
Iowa Workers’ Compensation Commission, seeking transfer of care to Dr. Darin
Smith, a neurosurgeon. The commission denied his petition following a June 12
evidentiary hearing, finding: “Whirlpool has authorized treatment with two
physicians, one a neurosurgeon. They have authorized an MRI, physical
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therapy, and acupuncture. They also authorized EMG/NCS and for claimant to
treat at a pain clinic. Given this record, I cannot find the care offered by
defendant is unreasonable.” The commission denied Penny’s request for
rehearing.
Penny filed a petition for judicial review. The district court denied the
petition, finding “no error in the agency’s ultimate conclusion.” Penny appeals.
II. Record on Appeal
Penny complains the district court considered evidence and matters
outside the record. Although Penny’s petition concerned only the denial of his
June 2, 2015 petition for alternate medical care, Penny asserts the district court
considered evidence regarding a second petition for alternate medical care he
filed in July 2015.
“In judicial review of a contested case proceeding the district court is
limited to the record made before the agency.” Mary v. Iowa Dep’t of Transp.,
382 N.W.2d 128, 131 (Iowa 1986). Matters that arise in another hearing or case
are not to be considered. See id. Because we correct errors of law made by the
district court, we will review the agency action solely on the record of the June 2,
2015 petition for alternate medical care. See id.III. Analysis
Judicial review of agency action is governed by Iowa Code chapter 17A
(2015), which provides the district court the ability to review agency action in an
appellate capacity. See Neal v. Annette Holdings, Inc., 814 N.W.2d 512, 518
(Iowa 2012). The court may affirm the agency’s action or, if it determines the
substantial rights of the person seeking judicial review have been prejudiced, it
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may grant such relief as is appropriate. See Iowa Code § 17A.19(10). Section
17A.19(10)(a) through (n) provides the grounds on which relief may be granted
from agency action; the standard of review to be applied is governed by the
ground alleged. See Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196
(Iowa 2010).
Penny sought alternate care under Iowa Code section 85.27(4), which
was enacted to balance the interests of injured employees against the interests
of their employers. See Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759,
770–71 (Iowa 2016). It requires an employer who concedes the compensability
of an employee’s work injury to pay for that employee’s medical care, and in
return, it grants the employer the power to decide which medical professionals
are best suited to diagnose and treat the injury. See id. at 171. However,
section 85.27(4) in no way restricts the care that an injured employee receives
for that injury; the employee may still obtain unauthorized care, and if the
employee can show the medical care was necessary and reasonable, the
employer must reimburse the employee for the cost of that care. See id.
Additionally, it allows an injured employee to seek authorization from the workers’
compensation commissioner to receive alternate care at the employer’s expense.
See id.
Penny alleges the denial of his petition for alternate care was based on
the commission’s erroneous legal interpretation of section 85.27(4), see Iowa
Code § 17A.19(10)(c), was inconsistent with the commission’s prior precedent,
see id. § 17A.19(10)(h), and was based on a determination of fact that is not
supported by substantial record evidence, see id. § 17A.19(10)(f). Penny’s
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arguments on each ground are premised on the same claim—that Whirlpool or
its workers’ compensation carrier not only directed his treatment by determining
which providers he was authorized to receive treatment from but also by directing
the specific medical treatments those authorized providers could furnish.
The district court disagreed with Penny’s claims, finding “no indication”
Whirlpool or its workers’ compensation carrier made any medical decisions
regarding Penny’s treatment. Rather, the court determined that substantial
evidence showed Drs. Matos and Abernathey made Penny’s treatment decisions
and the workers’ compensation carrier’s only involvement was to follow up with
the providers regarding payment. The record indicates that after Drs. Matos and
Abernathey determined Penny should undergo additional testing and receive
pain management treatment, Whirlpool made the necessary appointments and
transportation arrangements. Penny failed to attend the appointments. He has
likewise failed to show the treatment Whirlpool authorized was unreasonable to
treat his injury.
After reviewing Penny’s claims and the record properly before us, we
agree Penny has failed to show the commission’s decision was based on an
erroneous legal interpretation, was inconsistent with its prior precedent, or was
based on a determination of fact that is not supported by substantial record
evidence. Having reached the same conclusion as the district court, we affirm
the ruling denying Penny’s petition for judicial review. See Neal, 814 N.W.2d at
518.
AFFIRMED.