Rachel Lovan v. Broadlawns Medical Center and Safety National Casualty Corporation (EMC Risk Services, LLC-TPA) ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0511
Filed April 1, 2020
RACHEL LOVAN,
Petitioner-Appellee.
vs.
BROADLAWNS MEDICAL CENTER and SAFETY NATIONAL CASUALTY
CORPORATION (EMC RISK SERVICES, LLC-TPA),
Respondents-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
The appellants appeal the ruling of the district court reversing the alternate
medical care decision of the Iowa Workers’ Compensation Commissioner.
REVERSED.
Valerie A. Landis of Hopkins & Huebner, P.C., Des Moines, for appellants.
Richard R. Schmidt of Mueller, Berg & Schmidt, PLLC, Des Moines, for
appellee.
Heard by Bower, C.J., and Greer and Ahlers, JJ.
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AHLERS, Judge.
Broadlawns Medical Center and Safety National Casualty Corporation
(EMC Risk Services, LLC-TPA)1 appeal the judicial-review ruling of the district
court. Broadlawns argues the Iowa Workers’ Compensation Commissioner
properly denied Rachel Lovan’s application for alternate medical care (AMC) and
the court erred in reversing that decision. We find the record on appeal is
insufficient for us to review the agency decision, and we reverse the district court’s
ruling.
I. Background Facts and Proceedings
Following a contested hearing, a deputy commissioner with the Iowa
Workers’ Compensation Commission issued an arbitration decision finding in favor
of Lovan on her workers’ compensation claim against Broadlawns. The deputy
accepted the causation opinion of Dr. Eugene Cherny over that of Dr. Benjamin
Paulson in finding Lovan’s injury was related to her employment with Broadlawns.
The deputy awarded permanent partial disability benefits and ordered Broadlawns
to “provide reasonable and necessary medical treatment causally connected to the
work injury.” Neither party appealed the arbitration decision.
After the arbitration decision was issued, Lovan filed an application for AMC
seeking “to authorize Dr. Cherny as treating physician.” After a telephonic hearing,
another deputy commissioner issued the AMC decision. The deputy noted Lovan
“provided testimony” and “[n]o other witnesses were called” during the AMC
hearing. The deputy found Broadlawns “offered treatment with Dr. Paulson” but
1 We will collectively refer to the appellants as “Broadlawns.”
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Lovan “no longer trusts” Dr. Paulson due to his earlier causation opinion. The
deputy concluded treatment with Dr. Paulson was reasonable and Lovan’s
“misgivings have nothing to do with [Dr. Paulson’s] actual examination or his
treatment recommendations.” Accordingly, the deputy denied the application for
AMC.
Lovan sought judicial review. The district court reversed the AMC decision,
finding Dr. Paulson’s earlier causation opinion “is so contrary to all previous
medical testimony in the this matter that it rises to the level of the employer
choosing improper medical care for the employee.” Broadlawns appeals, arguing
the agency correctly denied the application for AMC.
II. Standard of Review
“Judicial review of the decisions of the workers’ compensation
commissioner is governed by Iowa Code chapter 17A” (2018). Neal v. Annett
Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012). “A district court acts in an
appellate capacity when it exercises its judicial review power.” Id. “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.’” Id. (quoting
Mycogen Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa 2004)).
III. Analysis
When an employer accepts responsibility for an employee’s injury, the
employee may seek alternate medical care by filing an application with the agency.
See Iowa Code § 85.27(4); R.R. Donnelly & Sons v. Barnett, 670 N.W.2d 190, 195
(Iowa 2003). The employee has the burden to prove “the treatment provided by
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the employer is not prompt, not ‘reasonably suited to treat the injury,’ or is unduly
inconvenient to the employee.” Barnett, 670 N.W.2d at 195 (quoting W. Side
Transp. V. Cordell, 601 N.W.2d 691, 693 (Iowa 1999)). The AMC hearing before
the agency is by telephone or in person, and the agency is responsible for
recording the hearing. See Iowa Code § 85.27(4); Iowa Admin. Code r. 4.48(12).
If either party seeks judicial review of the AMC decision, “the appealing party is
responsible for filing a transcript of the hearing” with the agency. Iowa Admin.
Code r. 4.48(12). After the petitioner notifies the agency of the petition for judicial
review, the agency “shall transmit to the reviewing court the original or a certified
copy of the entire record of the contested case.” Iowa Code § 86.26(1).
Here, Lovan filed her application for AMC with the agency. The matter
proceeded to a hearing, during which the deputy admitted the following exhibits:
(1) a report from Dr. Cherny regarding Lovan’s injury and its relation to her work,
impairment, recommended care and treatment, and work restrictions; (2) the
arbitration decision; (3) emails between the parties’ attorneys regarding the
authorization of medical care with Dr. Paulson; (4) a letter from Broadlawns to Dr.
Paulson, issued after the arbitration decision was filed, authorizing treatment of
Lovan; and (5) a medical ethics opinion regarding physicians who have
responsibilities to both a patient and to a third party contracting with the physician.
Our record on appeal includes these exhibits before the agency, but the record
does not include a transcript or recording of the AMC hearing. At oral argument,
attorneys for both parties confirmed no transcript or recording of the AMC hearing
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was provided to the district court.2 Lovan’s own words are essential for
understanding why she is dissatisfied with Dr. Paulson’s care and why she wishes
to treat with Dr. Cherny instead. The importance of Lovan’s testimony at the AMC
hearing is highlighted by the fact the deputy repeatedly cited to Lovan’s testimony
in the AMC ruling. Exacerbating the problem of the absence of a transcript is the
fact the parties had some disagreement about what arguments were made and
what testimony was provided at the AMC hearing. Without a transcript of the
hearing, including Lovan’s testimony and the arguments presented by the parties,
we cannot review the agency’s decision that Lovan failed to prove the offered care
with Dr. Paulson was not prompt, was not reasonably suited, or was unduly
inconvenient. See Barnett, 670 N.W.2d at 195.
The party seeking judicial review bears the ultimate responsibility to ensure
the agency record is before the district court on judicial review. Alvarez v. IBP,
2 During oral argument, the attorneys for both parties asserted that not providing a
transcript on judicial review of an AMC decision was an accepted standard
practice. Our review of other cases involving AMC decisions causes us to be
skeptical of the assertion that not providing a transcript on judicial review is a
routine practice, as numerous cases clearly reveal that the testimony from the
AMC hearing was available to the reviewing courts. See, e.g., Huff v. CRST
Expedited, Inc., No. 18-0336, 2019 WL 106812, at *1 (Iowa Ct. App. Mar. 6, 2019)
(quoting the claimant’s testimony at the AMC hearing); Westling v. Hormel Foods
Corp., No. 16-0236, 2017 WL 108572, at *2 (Iowa Ct. App. Jan. 11, 2017) (referring
to and quoting the claimant’s testimony at the AMC hearing); Newt Marine Serv. v.
Abitz, No. 15-1957, 2016 WL 4036185, at *2 (Iowa Ct. App. July 27, 2016)
(referring to and quoting the claimant’s testimony at the AMC hearing); Annett
Holdings, Inc. v. Roland, No. 15-0043, 2016 WL 541265, at *4 (Iowa Ct. App. Feb.
10, 2016) (repeatedly referring to the claimant’s testimony at the AMC hearing).
Furthermore, even if failure to provide a transcript is an accepted or standard
practice among practitioners, the practice is in direct conflict with the rule requiring
the party seeking judicial review to file a transcript of the hearing. See Iowa Admin.
Code r. 4.48(12). We choose to follow the administrative rule rather than the
claimed standard practice.
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Inc., 696 N.W.2d 1, 2 (Iowa 2005). The lack of a record of the AMC hearing
prevents us from making “an informed consideration of the issue presented.” Id.
at 4; see also McGowan v. Brandt Constr. Co., No. 07-1224, 2009 WL 485029, at
*1 (Iowa Ct. App. Feb. 27, 2009) (“Without transfer of the administrative record,
the district court has nothing to review.”). At oral arguments, the parties urged us
to look to the agency decisions themselves for the factual basis behind this appeal,
but our role is to review the agency decision to ensure it is supported by the record
before us. See Smith v. Iowa Bd. of Med. Exam’rs, 729 N.W.2dd 822, 827 (Iowa
2007) (“The district court’s recitation of these matters in its ruling is not a substitute
for the required appellate record.”).
Due to the lack of a transcript of the AMC hearing, neither the district court
nor we had an adequate record upon which to make an informed consideration of
the issue presented. When presented with an inadequate agency record on
judicial review, the proper action is to dismiss the petition. See Alvarez, 696
N.W.2d at 4. Therefore, we reverse the district court and dismiss Lovan’s petition
for judicial review, thus reinstating the decision by the agency denying Lovan’s
application for AMC.
REVERSED.