Alfonzo Penny v. Whirlpool

IN THE COURT OF APPEALS OF IOWA

No. 16-0495
Filed February 8, 2017

ALFONZO PENNY,
Petitioner-Appellant,

vs.

WHIRLPOOL,
Respondent-Appellee.
________________________________________________________________

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.