Opinion
No. 2-256 / 01-1510
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
The petitioners appeal from the deputy workers' compensation commissioner's decision dismissing the respondent's petition for alternate medical care under Iowa Code section 85.27 (1999). AFFIRMED AS MODIFIED.
Charles E. Cutler and Ryan M. Clark of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker Ordway, L.L.P., Des Moines, for appellants.
Martin Ozga of Max Schott Associates, P.C., Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ., considered en banc.
The employer, R.R. Donnelley and Sons, and its workers' compensation insurance carrier, Gallagher Basset Services, (collectively "employer") appeal the decision of the district court on judicial review affirming the decision of the workers' compensation commissioner to dismiss the claimant, Cathleen Barnett's, application for alternative medical care. The employer claims the commissioner erred when as a part of its dismissal without prejudice of Barnett's claim for alternate care it denied the employer the right to raise an authorization defense to any medical care in future proceedings. The employer further contends the district court erred in affirming the commissioner.
I. Background facts and proceedings
Barnett, injured her fingers on her left hand March 8, 1998. The employer admitted Barnett's problems with her left hand and arm were compensable and began paying benefits. During Barnett's course of treatment she saw Dr. M. S. Iqbal in October of 2000, who diagnosed Barnett as having Complex Regional Pain Syndrome (CRPS) of the left upper extremity. Barnett received treatment and medication for the pain. On December 19, 2000 Dr. Iqbal suggested that Barnett have a SynchroMed pump implanted.
On December 21, 2000 Barnett's attorney wrote the employer's attorney advising him if the insertion of the pump were not immediately authorized that an application for alternate medical care would be filed that day or the next. The employer's attorney faxed a return letter on December 22, 2000, saying a reasonable time was needed to investigate the request, but the employer remained willing to work it out. Barnett filed an application for alternate medical care under Iowa Code section 85.27 (1999) on December 26, 2000, and the expedited procedures of Iowa Administrative Code rule 876-4.48 came into play. A telephone hearing was held. Neither the employee nor her attorney participated. They indicated later this was due to a telephone malfunction. They did not request another hearing. The deputy's order says no evidence was taken. On January 10, 2001 the deputy commissioner addressed the application and found:
Section 85.27 provides, in part:
For purposes of this section, the 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, in writing if requested, 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. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. An application made under this paragraph shall be considered an original proceeding for purposes of commencement and contested case proceedings under section 85.26. The hearing shall be conducted pursuant to chapter 17A.
Iowa Code § 85.27 (2001), fourth unnumbered paragraph.
This rule provides, in part:
Employer liability. Application cannot be filed under this rule if the liability of the employer is an issue. If an application is filed where the liability of the employer is an issue, the application will be dismissed without prejudice. (Petitions for alternate care where liability of the employer is an issue should be filed pursuant to rule 4.1(85, 85A, 85B, 86, 87, 17A).)
Iowa Admin. Code r. 876-4.48(7) (1998).
No evidence was taken. The fighting issue is whether certain medical treatment should be ordered for the purpose of pain management. Defendants do not dispute that Barnett sustained an upper extremity injury and that some of her continuing pain symptoms are related. However, defendants continue to contend that some portion of her pain is psychologically mediated and dispute any causal nexus to the work injury. In short, liability is denied . . . .
Under 876 IAC 4.48(7), the expedited procedure of section 4.48 is not available where liability of the employer is in issue. Since it is impossible to separate out what, if any, portion of Barnett's pain management needs is physical as opposed to mental, defendants are accordingly barred from raising an authorization defense to associated medical care in any future proceedings filed under Iowa Code section 85.27 and 876 IAC 4.1(3).
The deputy then dismissed Barnett's petition for alternate medical care without prejudice, but went on to bar the employer from asserting "lack of authorization" as a defense to disputed medical treatment in future proceedings.
The district court affirmed the agency action.
II. Scope of review
On judicial review of agency action, the district court functions in an appellate capacity, applying the standards of Iowa Code section 17A.19. Iowa Planners Network v. Iowa State Commerce Comm'n, 373 N.W.2d 106, 108 (Iowa 1985). The court has no original authority to declare the rights of the parties. Office of Consumer Advocate v. Iowa State Commerce Comm'n, 432 N.W.2d 148, 156 (Iowa 1988). Iowa Code section 17A.19(10)(f) provides that, in a contested case, the court shall grant relief from an agency decision if substantial rights of a person have been prejudiced because agency action is unsupported by substantial evidence in the record made before the agency when the record is viewed as a whole. Iowa Code section 17A.19(8)(e) provides the court may reverse an agency decision that is affected by error of law. Iowa Code § 17A.19(8)(e) (1999). The court is "not bound by an agency's interpretation of pertinent statutes." Gaffney v. Iowa Dep't of Employment Servs., 540 N.W.2d 2d 430, 433 (Iowa 1995). The court gives "only limited deference" to an agency's "interpretation of law, including statutory and agency rule interpretations." Madrid Home for the Aging v. Iowa Dep't of Human Servs., 557 N.W.2d 507, 510-11 (Iowa 1996).
Our review in an appeal of a district court's ruling on judicial review "is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function." Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001). "Our review is for correction of errors of law, not de novo." Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 198 (Iowa 2001) "[W]e apply the standards of section 17A.19 to the agency action and determine whether our conclusions are consistent with those of the district court." Brown v. Quik Trip Corp., 641 N.W.2d 725, 727 (Iowa 2002).
After a 1998 amendment, the provisions for judicial review formerly in subsection 8 are now in subsection 10.
III. Analysis/Discussion
The employer claims the district court erred in finding it disputed Barnett's entire claim and in affirming the deputy's ruling the employer was barred from using an authorization defense to claims for any medical care. The employer further argues that the employee failed to meet her burden of showing further treatment was causally related to the March 1998 injury. Barnett does not cross appeal, but responds that the court correctly affirmed the deputy's ruling.
The employer argues the deputy's decision is not supported by substantial evidence. The deputy determined,
Defendants do not dispute that Barnett sustained an upper extremity injury and that some of her continuing pain symptoms are related. However, defendants continue to contend that some portion of her pain is psychologically mediated and dispute any causal nexus to the work injury. In short, liability is denied. . . .
The language of Iowa Administrative Code rule 876-4.48(7) requires dismissal without prejudice if "the liability of the employer is an issue."
No one argues the application should not have been dismissed or that it should not have been dismissed without prejudice and we agree. Iowa Administrative Code rule 876-4.48(7) provides:
Employer liability. Application cannot be filed under this rule if the liability of the employer is an issue. If an application is filed where the liability of the employer is an issue, the application will be dismissed without prejudice. (Petitions for alternate care where liability of the employer is an issue should be filed pursuant to rule 4.1 (85, 85A, 85B, 8, 87, 17A).
A dismissal without prejudice is not ordinarily res judicata of the merits of the controversy. Venard v. Winter, 524 N.W.2d 163, 167 (Iowa 1994). A dismissal without prejudice leaves the parties as if no action had been instituted. Id. It ends the particular case but is not such an adjudication itself as to bar a new action between the parties. Id.; Windus v. Great Plains Gas, 254 Iowa 114, 124, 116 N.W.2d 410, 415-16 (1962). A dismissal without prejudice under Iowa Rule of Civil Procedure 215 ordinarily deprives the court of jurisdiction. See Darrah v. Des Moines General Hosp., 436 N.W.2d 53, 55 (Iowa 1989). However, in Darrah the court carved out an exception to allow the court to adjudicate a collateral problem created by prior wrongful conduct of the dismissing party warranting Iowa Rule of Civil Procedure 80(a) sanctions where the rule 80(a) sanction motion was filed after plaintiff voluntarily dismissed the case. Id.
Current Iowa Rs. Civ. P. 1.943 and 1.944.
Current Iowa R.Civ.P. 1.413.
Generally, the rules of civil procedure govern contested case proceedings before the workers' compensation commissioner unless the provisions are in conflict with department rules on the provisions of the Iowa Code. Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 419 (Iowa 1994).
The review of the administrative rules and applicable case authorities would lead one to believe that if the liability of the employer is an issue (1) this summary procedure is not available to the claimant, and (2) if filed it should be dismissed without prejudice such as it is not an adjudication of any issues nor is it a bar to a new action between the parties. There is a fairness in such a resolution as the employee is given another forum in which to seek resolution of the issue namely a contested case proceeding and both parties are provided with the opportunity there to fully, rather than summarily, litigate issues of the employer's liability.
What has happened here is that the employee has been given the right to relitigate the issues both as to employer's liability and the application for alternate medical care by dismissal without prejudice. However, the employer has been precluded from challenging any additional application for alternate care filed by the employee.
The employer was denying the care sought by this application on the basis that some of the care sought was related to the claimant's mental problems for which it was denying liability though it continued to accept responsibility for care for injured members of the claimant's body. Under the statute the employer is permitted to choose the care for work-related injuries. Iowa Code § 85.27; Long v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa 1995); Harned v. Farmland Foods, Inc., 331 N.W.2d 98, 101 (Iowa 1983). By seeking alternate care the employee assumes the burden of proving that the authorized care is unreasonable. Long, 528 N.W.2d at 123. Determining what care is reasonable under the statute is a question of fact. Id. Here the deputy took no evidence therefore the agency's factual findings are not at issue. Nor could the deputy have found nor can we find that the employee assumed the burden of proving the authorized care was not reasonable nor that it was the result of the work-related injury.
Under the record made we agree with the employer that the part of the deputy's ruling which precluded it from raising a subsequent authorization defense in any further proceeding should be modified by striking it, and we do so. Because of our resolution of this issue, we need not address other issues raised by the parties concerning the merits of this case.
AFFIRMED AS MODIFIED.
All judges concur except Vogel, J. concurs in part, dissents in part; Hecht, J. dissents.
I agree with the majority's decision with one exception. At the hearing for alternate care, the employer disputed liability for the psychological component of Barnett's injury, but admitted liability for the physical injury. I would therefore, bar the employer from claiming authorization as a defense for any care related to the Barnett's claimed psychological injuries, but not bar the defense as it relates to Barnett's physical injuries. In all other respects, I concur.
Iowa Code section 85.27 (1999) obliges employers to "furnish reasonable [medical] services" and gives employers the "right to choose the care" provided to workers' compensation claimants. The care must be offered promptly and be reasonably suited to treat the employee's injury. Iowa Code § 85.27. In the event the employer and employee disagree whether the authorized treatment is reasonably suited to treat the injury, the employee may request the agency to order alternate care. Id.
The statute and agency rules establish an expedited procedure to address disputes about the reasonableness of medical care provided by the employer's authorized provider or in some instances, the reasonableness of medical care recommended by an unauthorized provider. The procedure was conceived to provide a comparatively prompt remedy for claimants whose circumstances render it impractical to wait for months or perhaps years for an adjudication of whether the care provided is reasonably suited to treat an injury. In this case, Barnett sustained an injury to her left hand on March 8, 1998. Dr. Iqbal, Barnett's treating physician, subsequently diagnosed CRPS of the left upper extremity and treated the condition with a temporary catheter dispensing medication for pain management. The doctor later opined that Barnett urgently needed surgery to replace the catheter with a pump. Apparently believing Dr. Iqbal's opinion that the timing of the recommended surgical procedure was of the essence, and that a timely authorization would not be forthcoming from the employer or its insurance carrier, Barnett filed her petition for alternate care.
Although the employer and insurance carrier did not dispute that claimant sustained a work-related injury to her hand, they did contend during the hearing on Barnett's petition for alternate care that some portion of the upper extremity impairment was of mental origin and without causal nexus to the work injury. The presiding deputy workers' compensation commissioner concluded Barnett's petition must be dismissed without prejudice pursuant to Iowa Administrative Code rule 876-4.48(7) because the "liability of the employer is in issue."
Because I disagree with the majority's conclusion that the "agency's factual findings are not at issue," I find no error in the district court's judicial review decision affirming the agency's ruling. In this case, the employer's claim rests upon the proposition that the physical aspect of Barnett's injury can be bifurcated from its mental aspect. My view is that this proposition is without merit on appeal. The question of whether such medical bifurcation is even possible is a fact question. The agency's alternate medical care decision of January 10, 2001 includes a finding that "it is impossible to separate out what, if any, portion of Barnett's pain management needs is physical as opposed to mental." The finding is supported by substantial evidence in the record and should not be disturbed on appeal.
I note parenthetically that the deputy who made the agency finding on January 10, 2001, had recently presided at the arbitration hearing on the merits of Barnett's claim and filed an arbitration decision on December 28, 2000. Although the arbitration decision is not included in the appendix, the deputy's finding of inseparability of physical and psychiatric components of the injury in the alternate care decision is consistent with his causal connection determination in the arbitration decision following consideration of all the medical evidence.
The majority opinion expresses concern about the apparent asymmetry of a rule which would permit an employee to file a new petition for alternate care after dismissal without prejudice of a prior such proceeding, but preclude the employer "from challenging any additional application. . ." I find this concern unfounded for two reasons. First, as a practical matter, as long as the employer continues to deny liability for a claim, the employee will not file an additional application for alternate care because she will expect it to be summarily dismissed under the same agency rule. Second, the price paid by the employer for denying liability (loss of right to authorize the care) is controlled to the extent that the claimant retains the burden of proving the care she chose after the employer denied liability was necessary to treat the injury and reasonable in amount. Thus, despite the loss of the right to authorize medical care, the employer can put the claimant to her proof on these issues.
The agency's rule divesting employers of the right to choose the medical care if they deny liability is longstanding. See Freels v. Archer Daniels Midland Co., No. 1151214 (Industrial Commissioner, July 30, 2000) (citing Pickett v. Davenport Lutheran Home, No. 760739 (Industrial Commissioner, October 30, 1987); Kindhart v. Fort Des Moines Hotel, I State of Iowa Industrial Commissioner Decision 611 (App. 1985); Barnhart v. MAQ Inc., I Iowa Industrial Commissioner Report 16 (App. 1981). This rule undergirds the remedial purposes of section 85.27 in general and the alternate medical care remedy in particular. The rule is clearly within the agency's authority. The agency's application of the rule is supported by substantial evidence, and I would accordingly affirm.