Bell Brothers Heating And Air Conditioning And St. Paul Fire And Marine Insurance Company Vs. Robert Gwinn

IN THE SUPREME COURT OF IOWA
No. 07–0221

Filed March 5, 2010

BELL BROTHERS HEATING AND AIR CONDITIONING
and ST. PAUL FIRE AND MARINE INSURANCE COMPANY,

Appellants,

vs.

ROBERT GWINN,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Robert B.

Hanson, Judge.

Employer seeks further review of court of appeals decision affirming

district court’s affirmance of an award of workers’ compensation benefits to

an employee. DECISION OF COURT OF APPEALS VACATED; DECISION

OF DISTRICT COURT REVERSED AND CASE REMANDED.

Patrick V. Waldron of Patterson Law Firm, L.L.P., Des Moines, for

appellants.

Martin J. Ozga (until his withdrawal), Jean M. Mauss, and Max J.

Schott of Max Schott and Associates, P.C., Des Moines, for appellee.
 2

CADY, Justice.

In this appeal from a decision by the district court affirming an award

of benefits and an order for alternative medical care by the workers’

compensation commissioner following a contested case hearing, we primarily

consider the proof required by the employee to establish a claim for benefits

and expenses on account of medical care obtained by the employee, but not

authorized by the employer or the commissioner. The district court and

court of appeals affirmed the award for benefits made by the commissioner.

On our review, we vacate the decision of the court of appeals, reverse the

decision of the district court, and remand the case to the district court for an

order for remand to the workers’ compensation commissioner for further

proceedings.

I. Background Facts and Proceedings.

Robert Gwinn dismounted a ladder on April 25, 2001, while working

as a heating and cooling technician for Bell Brothers Heating and Air

Conditioning and injured his left Achilles tendon. On May 9, 2001, he was

examined by Dr. Lee Evans, a podiatrist. Dr. Evans diagnosed Gwinn with

Achilles tendinitis based on his physical examination of Gwinn and his

review of x-rays. Gwinn was released for work, but was restricted from using

a ladder. Over the course of the next four years, however, Gwinn continued

to experience periodic problems with his left ankle.

On May 14, 2001, Gwinn was examined by Dr. Robert Eells, a

podiatrist, after experiencing a popping sensation in his left foot while

walking. He eventually underwent a triple-phase bone scan. The scan was

normal in all phases, including the first phase directed to soft-tissue

injuries. Dr. Eells concluded Gwinn sustained no permanent impairment.

He anticipated Gwinn would require no further medical treatment.
 3

In June 2002, Gwinn was seen by Dr. Eells for pain in his left heel.

He experienced this pain while driving a truck with a manual transmission.

Gwinn was employed by a different employer at the time, but working in the

same field. Dr. Eells eventually ordered an MRI of the left heel. The MRI

report revealed the heel was normal.

In April 2003, Gwinn was seen by Dr. Jacqueline Stoken, M.D. and

Dr. Bruce Pichler on consecutive days for continuing pain and discomfort in

his left heel. Gwinn had obtained an attorney by this time and was referred

to Dr. Pichler by his attorney. Gwinn was seen by Dr. Stoken at the request

of Dr. Eells and the workers’ compensation carrier for the employer.

Dr. Stoken believed Gwinn suffered from Achilles tendinitis.

Dr. Pichler, a podiatrist, formed an impression that Gwinn suffered from

chronic tendinitis, aggravated by Haglund’s deformity. He acknowledged the

previous objective tests conducted by other physicians who had examined

Gwinn revealed no abnormal findings. Yet, Dr. Pichler observed Gwinn had

a difficult time responding to his requests to raise his left heel as compared

to his right heel. In his office notes, Dr. Pichler recommended two forms of

treatment. He recommended Gwinn be placed in a cast for six weeks. In the

event this treatment was unsuccessful, Dr. Pichler recommended surgery be

performed to “consider a resection of the posterior/superior aspect of the

calcaneus with possible superior translocation of the Achilles tendon to

further decrease the tension on the Achilles tendon fibers.” Without

additional therapy or treatment, Dr. Pichler believed Gwinn had reached

maximum medical improvement.

On May 20, 2003, Dr. Pichler wrote Gwinn’s attorney. This letter was

a response to a letter from Gwinn’s attorney and provided a different

diagnosis than the tendinitis documented in his office notes following his

initial examination. He opined, based on his review of the prior records and
 4

his examination, Gwinn suffered a “partial disruption of the fibers of his left

Achilles tendon.” Dr. Pichler found “pinpoint discomfort at the Achilles

tendon insertion” during his physical examination to support his diagnosis

of a “partial disruption.” Dr. Pichler also indicated Gwinn had reached

maximum medical improvement and, based on his office examination, found

he suffered a twenty-four percent impairment of the foot. Dr. Pichler

recommended Gwinn be placed in a cast for six weeks, followed by therapy

and possible surgery.

In June 2003, counsel for Gwinn made a request to the workers’

compensation carrier for Bell Brothers to pay for the treatment

recommended by Dr. Pichler. Gwinn considered the examination conducted

by Dr. Pichler to be an independent medical evaluation and requested

alternative medical care be provided. The insurance carrier informed Gwinn

that Dr. Pichler was not an authorized physician. It authorized Gwinn to see

an orthopedic physician specializing in ankle and foot care.

Gwinn was eventually seen by Dr. Joseph Galles, M.D. on

February 10, 2004. Dr. Galles diagnosed Gwinn with tendinitis. He found

the Achilles tendon to be strong and intact with no relative weakness in the

foot and ankle. Dr. Galles recommended physical therapy. The insurance

carrier rejected physical therapy on the grounds that Gwinn had previously

received such treatment.

Gwinn filed a petition for workers’ compensation benefits based on the

April 25, 2001 injury. The petition was filed on April 13, 2004.

In August 2004, the insurance carrier authorized Gwinn to obtain

additional treatment with Dr. Galles, after Gwinn complained of continuing

problems. Gwinn also wanted to proceed with Dr. Pichler’s

recommendations.
 5

Gwinn made, but failed to keep, an appointment with Dr. Galles.

Instead, he was seen by Dr. Pichler on November 10, 2004. Dr. Pichler

performed an ultrasound test in his office and determined the ultrasound

“clearly indicate[d] a tear” of the Achilles tendon “at the distal insertion just

as it approaches the calcaneus.” In a later written report, Dr. Pichler

diagnosed Gwinn with a “longitudinal tear within the body of the Achilles

tendon.” Dr. Pichler placed him in a cast on November 22, 2004.

In December 2004, Gwinn filed an application for alternative medical

care. A hearing was conducted before the workers’ compensation

commissioner. The commissioner found Dr. Galles was providing reasonable

care and denied the application.

The hearing on the petition for workers’ compensation benefits was

scheduled for January 25, 2005. Gwinn returned to Dr. Galles for an

appointment on January 11, 2005. He arrived at Dr. Galles’ office with a

video camera and a family member. Dr. Galles examined Gwinn and found

he had normal range of motion in his ankle. He also determined Gwinn’s

Achilles tendon was intact and the muscle was normal. Dr. Galles

concluded Gwinn displayed symptoms disproportionate with the perceived

injury and the medical tests and examinations. Additionally, Dr. Galles

recommended a functional capacity work assessment and physical therapy,

but he believed surgery would not improve Gwinn’s condition. The following

day, Gwinn again consulted Dr. Pichler, who scheduled him for surgery on

January 19, 2005.

The arbitration hearing was held as scheduled on January 25, 2005.

Gwinn testified that Dr. Pichler performed the scheduled surgery, but Gwinn

did not present records or reports of the event other than a “surgical

schedule sheet.” Gwinn also failed to produce a report of the ultrasound

test, which Dr. Pichler relied upon to diagnose a tear in the Achilles tendon.
 6

The deputy commissioner found the injury Gwinn sustained on

April 25, 2001, caused a permanent impairment. The deputy primarily

based his conclusion on Dr. Pichler’s medical finding of a tear in the Achilles

tendon revealed by the ultrasound test. The deputy also found Gwinn was

entitled to total temporary disability benefits beginning on November 22,

2004, the date Dr. Pichler applied the cast to Gwinn’s foot. However, the

deputy determined that an award of permanent partial disability was

premature because the results of the surgery were unknown. The deputy

concluded that such an award would need to be determined in a review-

reopening proceeding. The deputy further determined Gwinn was entitled to

recover medical expenses for the unauthorized care provided by Dr. Pichler

consisting of the casting and surgery. This conclusion was based on a two-

pronged finding by the deputy. First, the deputy concluded the employer

and the employer’s insurance carrier were responsible for the unauthorized

care obtained by Gwinn because they denied liability for a permanent

impairment of the foot. Second, the deputy found the unauthorized care was

beneficial to improving Gwinn’s physical condition. Finally, the deputy

ordered Dr. Pichler to be the future medical care provider and established

the rate of compensation.

The workers’ compensation commissioner adopted the decision of the

deputy commissioner as a final agency decision on intra-agency appeal.

Additionally, the commissioner further explained why Bell Brothers denied

liability for the condition treated by Dr. Pichler. The commissioner’s appeal

decision determined Bell Brothers denied liability by denying causation of

the requested medical expenses of Dr. Pichler in the hearing report and by

failing to provide care or therapy to Gwinn despite his continuing

complaints. Bell Brothers sought judicial review. The district court affirmed

the decision of the commissioner.
 7

The employer and the employer’s insurance carrier appealed. They

raised four issues. First, they claimed the finding of a permanent

impairment by the commissioner was not supported by substantial evidence.

Second, they argued the award of healing-period benefits was not supported

by substantial evidence. Third, they argued the commissioner erred in

awarding Gwinn medical expenses because the casting and surgery

performed by Dr. Pichler constitute unauthorized medical care, and

alternatively, the award was not supported by substantial evidence. Finally,

they argued the decision by the commissioner to designate Dr. Pichler as an

authorized treating physician was not supported by substantial evidence.

We transferred the case to the court of appeals. It affirmed the

decision of the district court. We granted further review.

II. Standard of Review.

We apply the standards of judicial review set forth in the Iowa

Administrative Procedure Act in our review of workers’ compensation

decisions. Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192, 195 (Iowa 2007).

The claims raised for review in this appeal primarily require us to apply the

substantial-evidence standard. We may reverse, modify, or grant other relief

when agency action is based on fact determinations “not supported by

substantial evidence in the record before the court when that record is

viewed as a whole.” Iowa Code § 17A.19(10)(f) (2001). “Substantial

evidence” is statutorily defined as

the quantity and quality of evidence that would be deemed
sufficient by a neutral, detached, and reasonable person, to
establish the fact at issue when the consequences resulting from
the establishment of that fact are understood to be serious and
of great importance.

Id. § 17A.19(10)(f)(1). To the extent error is predicated on an erroneous

interpretation of the law, we do not give deference to the workers’
 8

compensation commissioner. Schadendorf v. Snap-On Tools Corp., 757

N.W.2d 330, 334 (Iowa 2008).

III. Permanent Impairment.

We begin our resolution of this appeal with the claim by Bell Brothers

that the commissioner’s finding that Gwinn suffered a permanent

impairment was unsupported by substantial evidence. In light of the weight

of the medical opinions that contradict the opinion by Dr. Pichler, Bell

Brothers asserts there was no substantial evidence to support the

conclusion by the commissioner that Gwinn suffered a permanent

impairment. More specifically, Bell Brothers argues the commissioner

improperly relied on the ultrasound test to accept the medical opinion of

Dr. Pichler over the conflicting opinions of the other doctors when there was

no evidence in the record that the surgery performed by Dr. Pichler following

the ultrasound test confirmed the existence of a tear in the Achilles tendon

and when its own doctors had no opportunity to review and scrutinize the

results of the ultrasound test prior to the arbitration hearing.

The arguments by Bell Brothers not only challenge the sufficiency of

the evidence, but also imply that the hearing on the claim for permanent

partial disability benefits and the finding of a permanent impairment were

premature. We begin our resolution of this issue with the latter two points

because we believe they lead us to the conclusion that, in this case, it was

improper for the commissioner to make a finding of a permanent impairment

without first finding Gwinn had achieved maximum medical improvement.

This conclusion can best be explained by first considering the differences

between temporary and permanent disability awards.

Although early workers’ compensation law made no distinction

between temporary and permanent disability, our workers’ compensation law

now provides for separate awards based on the temporary and permanent
 9

nature of a disability. See 4 Arthur Larson & Lex K. Larson, Larson’s

Workers’ Compensation Law § 80.03[1], at 80–4 (2009) [hereinafter Larson]

(recognizing the earliest compensation laws simply paid benefits during a

period of wage loss); see also Iowa Code § 85.33 (providing for temporary

total disability and temporary partial disability); id. § 85.34 (providing for

permanent disability). The difference between awards for temporary and

permanent disability can be best illustrated by considering a typical

industrial injury.

Normally, an industrial injury gives rise to a period of healing

accompanied by loss of wages. 4 Larson § 80.03[2], at 80–5. During this

period of time, temporary benefits are payable to the injured worker. Id.

Generally, these benefits attempt to replace lost wages (and provide medical

and hospitalization care) consistent with the broad purpose of workers’

compensation: to award compensation (apart from medical benefits), not for

the injury itself, but the disability produced by a physical injury. See also id.

§ 80.02, at 80–2 (recognizing distinctive feature of workers’ compensation

system to make awards for disability). In Iowa, these benefits are spelled out

in Iowa Code sections 85.33, 85.34, and 85.37. These temporary benefits

include temporary total disability benefits and healing-period benefits. They

refer to the same condition, but have separate purposes depending on

whether the injury leads to a permanent condition. Clark v. Vicorp Rests.,

Inc., 696 N.W.2d 596, 604–05 (Iowa 2005). If the injury results in a

permanent partial disability, payments made prior to an award of permanent

partial disability benefits are healing-period benefits. If the award does not

result in permanent disability, the payments are called total temporary

disability benefits. Id. at 604. Nevertheless, an award for healing-period

benefits or total temporary disability benefits are only temporary benefits

and do not depend on a finding of a permanent impairment.
 10

The period of healing is then followed by recovery or stabilization of the

condition “and probably resumption of work.” 4 Larson § 80.03[2], at 80–6.

Any disability that remains after stabilization of the condition gives rise to

“either a permanent partial or a permanent total award.” Id. In other words,

maximum physical recovery marks the end of the temporary disability

benefits, and at that point, any permanent disability benefits can be

considered.

This review of temporary and permanent disability awards reveals that

a fundamental component of a permanent impairment is stabilization of the

condition or at least a finding that the condition is “not likely to remit in the

future despite medical treatment.” American Medical Association, Guides to

Evaluation of Permanent Impairment 27 (6th ed. 2008). In other words,

stabilization is the event that allows a physician to make the determination

that a particular medical condition is permanent. Municipality of Anchorage

v. Leigh, 823 P.2d 1241, 1242 n.3 (Alaska 1992) (“ ‘A physician can

determine . . . whether or not a particular medical condition has become

permanent because it is static or well-stabilized.’ ” (quoting American

Medical Association, Guides to Evaluation of Permanent Impairment, Preface

at x (2d ed. 1984))).

The symmetry of the process reveals that a claim for permanent

disability benefits is not ripe until maximum medical improvement has been

achieved. See 4 Larson § 80.03D[3] n.10, at D80–43 to D80–48.2

(recognizing cases generally holding it is premature to award permanent

impairment benefits when medical stabilization has not yet been reached).

Until that time, only temporary benefits are available. A finding by the

commissioner that the injuries sustained by a worker produced a permanent

impairment is only relevant in determining an award for permanent

disability benefits. Thus, it is only necessary for the commissioner to
 11

determine the existence of a permanent impairment once a claim for

permanent disability benefits is ripe.

We acknowledge it is possible, in many cases, for the commissioner to

decide the existence of a permanent impairment, as the commissioner did in

this case, in advance of maximum medical improvement and before the

claim for permanent disability benefits is ripe for adjudication. Yet, this

approach should be limited to those instances when the period of recovery

and stabilization will only produce evidence relevant to the degree of

permanent disability. When the period of recovery and stabilization will

provide relevant evidence to make a full and fair assessment of conflicting

medical opinions over the existence of a permanent impairment, the decision

must not be made until maximum medical improvement has occurred. If the

commissioner decides the issue of permanency before an award is ripe, the

commissioner risks making a final decision that could be undermined by

later relevant evidence. Thus, a procedure that allows for the adjudication of

issues before the relevant evidence is known could undermine the entire

system of workers’ compensation by creating the risk of either denying

permanent disability benefits to a deserving claimant or requiring an

employer to pay permanent disability benefits to a worker who did not suffer

a permanent impairment.

In this case, prior to the time Dr. Pichler conducted his ultrasound

test and performed surgery, the various physicians had rendered their

medical opinions on permanency based on their examination of Gwinn, a

review of the records, and a review of the results of medical tests. At that

time, the issue of permanency appeared ripe for adjudication. The

physicians had rendered their opinions based on maximum medical

improvement. Just prior to the hearing, however, Dr. Pichler conducted the

ultrasound test and performed surgery based on his findings derived in part
 12

from the test. The commissioner then relied on the ultrasound test results

as the justification to accept the medical opinion of Dr. Pichler over the other

medical opinions without evidence from the surgery confirming the existence

of a tear and without giving the other doctors an opportunity to review the

ultrasound test results. The premature resolution of the issue of whether

Gwinn suffered permanent impairment undermined Bell Brothers’ evidence

of no permanent impairment by leaving it with no meaningful opportunity to

challenge the diagnostic reliability of the ultrasound test or assess whether

the surgery performed less than a week before the arbitration hearing

confirmed the presence of a tendon tear. More importantly, the

commissioner knew evidence would be forthcoming relevant to the nature

and extent of Gwinn’s permanent impairment and a resolution of the

conflicting medical opinions. The commissioner also knew no award for

permanent disability benefits could be made until maximum medical

improvement had been achieved.

Under the circumstances of this case, we refrain from applying the

substantial evidence test on appeal to reach a final determination of the

issue of a permanent impairment when the issue should not have been

addressed by the commissioner at the arbitration hearing due to an

incomplete record. Instead, the issue of a permanent impairment should be

addressed when the issue of an award of permanent disability benefits is

ripe for adjudication. This approach is consistent with the needed symmetry

in the process, and it protects the interests of the parties, as well as the

integrity of the system of awarding benefits to injured workers.

IV. Unauthorized Medical Care.

The commissioner awarded healing-period benefits or total temporary

benefits for the period of Gwinn’s recovery from the unauthorized casting

and surgery, together with the expenses of the unauthorized casting and
 13

surgery. Bell Brothers claims Gwinn was not entitled to such benefits under

the statute because the care provided to him was unauthorized, and the

awards either resulted from an erroneous interpretation of the statutes

governing the benefits or were not supported by substantial evidence. Thus,

we must consider whether an employer can be liable for medical benefits

under section 85.27 based on unauthorized medical care to treat a work

injury.

A common provision found in most workers’ compensation laws

requires the employer to furnish medical care to injured employees “in the

first instance.” 5 Larson § 94.02[1], at 94–11. This provision is consistent

with one of the basic tenets of our workers’ compensation system to provide

prompt compensation to employees who receive a work injury. See

Stufflebean v. City of Fort Dodge, 233 Iowa 438, 441–42, 9 N.W.2d 281, 283

(1943). In Iowa, the medical-care provision is found in Iowa Code section

85.27, and it requires the employer to furnish a wide range of reasonable

medical services for compensable injuries to employees.

The duty of an employer to furnish medical care following notice of

injury, prior to an order by the commissioner, is predicated on the

employer’s acknowledgement that the employee sustained an injury

compensable under the workers’ compensation statute. Iowa Code § 85.27.

Once compensability is acknowledged, the statute contemplates the

employer will furnish reasonable medical care and supplies following an

injury and will subsequently pay the workers’ compensation benefits

described in the statute. Id. See generally id. §§ 85.33, 85.34.

The obligation of the employer to furnish reasonable medical care

produced an understandable controversy between employers and employees

over who should select the physician to provide the care. See 5 Larson

§ 94.02[2], at 94–13. This “choice of doctor” debate aligned the value of
 14

allowing the injured worker, derived from the nature and closeness of the

doctor-patient relationship, to self-select a care provider against the value “of

achieving the maximum standards of rehabilitation by permitting the

compensation system to exercise continuous control of the nature and

quality of medical services from the moment of injury.” Id.

Our legislature ultimately resolved the debate by giving the right to

choose medical care to the employer, subject to certain employee protections

monitored by the workers’ compensation commissioner. 1 See Iowa Code

1Iowa adopted the right-to-choose provisions of Iowa Code section 85.27 in 1976.
See 1976 Iowa Acts ch. 1084, § 3. Since that time, these provisions have been amended
and enlarged from time to time to further define the nature of the right and are now
contained in section 85.27(4). At the time of the injury sustained by Gwinn in this case, the
right-to-choose provisions were contained in an unnumbered paragraph of section 85.27.
The legislature placed the provisions in section 85.27(4) in the 2003 Code and added two
additional provisions. These provisions clarified that an employee who chooses care must
hold the employer harmless for the cost of the care and further clarified that the employer is
not liable for emergency care obtained by the employee if the employee’s condition was not
related to work. There have been no amendments to the right-to-choose provisions that
affect the issues in this appeal since the date of Gwinn’s injury. Thus, we will proceed using
the most recent version’s structure. Section 85.27(4) (2009) reads as follows:
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. If the employer chooses the care, the employer shall hold the
employee harmless for the cost of care until the employer notifies the
employee that the employer is no longer authorizing all or any part of the care
and the reason for the change in authorization. An employer is not liable for
the cost of care that the employer arranges in response to a sudden
emergency if the employee's condition, for which care was arranged, is not
related to the employment. 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 alternative care reasonably suited to treat the injury.
If the employer and employee cannot agree on such alternative 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 subsection 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. Before a hearing is
scheduled, the parties may choose a telephone hearing or an in-person
 15

§ 85.27(4) (2009). The author of the leading treatise on workers’

compensation law has characterized the rationale for giving the employer,

rather than the employee, the right to choose the provider of medical care:

If the injured employee has completely unlimited free choice of
doctor, in some cases he or she may select a doctor, because of
personal relationship or acquaintance, who is not qualified to
deal with the particular kind of case, or who at any rate is
incapable of providing service of the quality required for the
optimum rehabilitation process. 2

5 Larson § 94.02[2], at 94–13.

The protections for employees provided under this statute basically

modify the employer’s right to choose medical care in three ways. First, an

employee is permitted to choose his or her own medical care at the

employer’s expense “[i]n an emergency” when the employer “cannot be

reached immediately.” Iowa Code § 85.27(4). Second, the employee and

employer may consent to alternative medical care paid by the employer. Id.

Finally, the workers’ compensation commissioner may order alternative care

paid by the employer following a prompt, informal hearing when the

employee is dissatisfied with the care furnished by the employer and

establishes the care furnished by the employer was unreasonable. Id.

Beyond these circumstances, the employer has the right to select the

medical care. Nevertheless, the employer’s right to choose medical care does

not prevent the employee from choosing his or her own medical care at his or

hearing. A request for an in-person hearing shall be approved unless the in-
person hearing would be impractical because of the distance between the
parties to the hearing. The workers' compensation commissioner shall issue a
decision within ten working days of receipt of an application for alternative
care made pursuant to a telephone hearing or within fourteen working days
of receipt of an application for alternative care made pursuant to an in-
person hearing. The employer shall notify an injured employee of the
employee's ability to contest the employer's choice of care pursuant to this
subsection.
2We observe that the costs of medical care to the employer, as well as other
considerations, have emerged to further fuel the debate over the right to choose and to
produce tension between employers and employees over the choice of medical care.
 16

her own expense under two circumstances. Both of these circumstances

normally arise when a dispute occurs between the parties.

The first circumstance in which an employee can select his or her own

medical care is when the employer denies compensability of the injury. The

right to control medical care emanates entirely from the duty to furnish

medical care for injuries compensable under the workers’ compensation

laws. See id. (describing employer’s duty to furnish reasonable medical care

for compensable injuries). Without the duty to furnish care, the employer

has no right to control care. Thus, if the employer contests the

compensability of the injury following notice, the statutory responsibility of

the employer to furnish reasonable medical care to the employee or pay

other employee benefits described in the workers’ compensation statute is

not imposed until the issue of compensability is resolved in favor of the

employee. Likewise, the employer has no right to choose the medical care

when compensability is contested. Instead, the employee is left to pursue

his or her own medical care for the injury at his or her own expense and is

free to pursue a claim against the employer to recover the reasonable cost of

medical care upon proof of compensability of the injury. If the employee

establishes the compensability of the injury at a contested case hearing,

then the statutory duty of the employer to furnish medical care for

compensable injuries emerges to support an award of reasonable medical

care the employer should have furnished from the inception of the injury had

compensability been acknowledged.

Thus, the statute contemplates that an injured employee may select

his or her own medical care when the employer abandons the injured

employee through the denial of compensability of the injury. When this

circumstance occurs, the employee may subsequently recover the costs of

the reasonable medical care obtained upon proof of compensability of the
 17

injury derived from the statutory duty of the employer to furnish reasonable

medical care and supplies for all compensable injuries.

The second circumstance under which an injured employee may select

his or her medical care is when the employee abandons the protections of

section 85.27 or otherwise obtains his or her own medical care independent

of the statutory scheme. This circumstance would ordinarily occur when the

employer admits compensability of the injury and assumes responsibility for

furnishing medical care, but the employee disagrees with the care provided

or otherwise rejects the care, and obtains alternative medical care with

neither the consent of the employer nor an order for alternative care from the

workers’ compensation commissioner. Unlike the first situation, this

circumstance would normally occur when a difference of opinion over a

diagnosis or treatment arises, “as when the employer’s doctor recommends

conservative measures while the claimant thinks he or she should have

surgery.” 5 Larson § 94.02[5], at 94–19.

The commissioner concluded Gwinn fell within the first circumstance,

reasoning a denial of permanent disability by an employer is tantamount to

a denial of compensability. Nevertheless, the commissioner alternatively

held Gwinn could recover even if he fell within the second circumstance

because the alternative care obtained by Gwinn was beneficial. Thus, the

commissioner concluded Bell Brothers is responsible for the cost of

Dr. Pichler’s care despite the fact that it was unauthorized.

We have previously said an employer is not responsible for the cost of

alternative medical care that is not authorized by section 85.27. R.R.

Donnelly & Sons v. Barnett, 670 N.W.2d 190, 196 (Iowa 2003). In doing so,

we indicated an employer has a lack-of-authorization defense against claims

for unauthorized care brought by the employee. Id. However, these general

pronouncements in Donnelly were not intended to relate to contested-
 18

hearing claims for unauthorized care brought by an employee against an

employer as part of a claim for benefits. Instead, these general

pronouncements addressed the responsibility of the employer for claims of

unauthorized medical care against the employer prior to an adjudication of

compensability of the claim. The lack of statutory authorization for medical

care only relieves the employer of its statutory obligation to pay for medical

care at the time it is obtained by the employee. Unlike authorized medical

care, an employer is not required to hold an employee harmless for the

expense incurred by an employee for unauthorized medical care prior to an

adjudication of compensability.

In Donnelly, we did address the viability of the lack-of-authorization

defense at the final hearing, but only in the limited context of a claim by an

employee for medical care obtained by the employee after the commissioner

had dismissed the employee’s application for alternative care based on the

employer’s denial of compensability. Id. at 197–98. We held the employer

had no lack-of-authorization defense under that circumstance. Id. at 198.

Instead, the employee can recover on a claim for reasonable medical care

upon proof of compensability of the injury. We suggested lack of

authorization could have merit in a case when the alternative medical care

was obtained after the commissioner dismissed an employee’s application for

alternative care on the merits, but we did not have the opportunity to further

explain the extent of or manner in which the lack of authorization influences

a claim for unauthorized medical care asserted by an employee at a

contested-case hearing. Id. This case, however, provides such an

opportunity. Thus, we proceed to determine the impact of the lack of

authorization on a claim for reimbursement of unauthorized medical

expenses at a contested-case hearing.
 19

We begin by recognizing that nothing in the statute prohibits an

injured employee from selecting his or her own medical care at his or her

own expense at any time following an injury. Id. at 197. Additionally, the

statute contains no language to indicate the basic duty of an employer to

furnish reasonable medical care for compensable injuries is discharged once

an employee deprives an employer of its right to control medical care by

obtaining alternative care not authorized by the statute. Clearly, the

legislature has not specifically addressed the issue of reimbursement for

unauthorized medical care. Instead, the claim that an employer is not

responsible for expenses based on unauthorized care resonates solely from

the employer’s loss of the statutory right to choose care when an employee

abandons the care provided by the employer and obtains unauthorized

alternative care without the employer’s consent or the commissioner’s

authorization.

While it may, in some circumstances, be unreasonable for an employee

to seek unauthorized medical care, we recognize that legitimate differences of

opinion over the diagnosis and treatment of an injury can arise between an

employer and employee, as well as between medical doctors. See 5 Larson

§ 94.02[5], at 94–19. Moreover, these differences of opinion may support two

or more reasonable courses of action that only the benefit of hindsight can

best resolve. See id. at 94–19 to 94–20 (citing cases that impose liability on

employers for unauthorized medical care that proved more successful than

treatment by employer’s physician). Yet, the reasonableness of unauthorized

treatment can normally only be fully evaluated in light of the effectiveness of

the treatment. Linn Care Ctr. v. Cannon, 704 P.2d 539, 540 (Or. App. 1985).

Additionally, the statute only requires the employer to furnish reasonable

medical care. See Iowa Code § 85.27(4) (referring to “reasonable” medical

care and services); Long v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa
 20

1995) (recognizing employee must show employer’s choice of treatment was

unreasonable to establish claim for alternative care). Thus, without the

opportunity to make a later claim for unauthorized alternative care at a

contested-case hearing, an employee with a reasonable dispute over the

choice of care would either be forced to accept the employer-provided care

and be deprived of an opportunity for a better medical outcome with

alternative care, or be forced to override the employer-provided care at his or

her own financial burden. Furthermore, if denied an opportunity to make a

claim for unauthorized care at a contested-case hearing, an injured

employee could face this predicament even if the unauthorized alternative

care proved to be more beneficial than the care offered by the authorized

provider(s) would likely have produced and even if the employee’s decision to

pursue alternative care did not implicate the purpose and concerns of the

statute giving the employer the right to choose care. See Zomer v. W. River

Farms, Inc., 666 N.W.2d 130, 133 (Iowa 2003) (stating the workers’

compensation statutes are to be interpreted consistently with their purpose).

We do not believe the statute can be narrowly construed to foreclose

all claims by an employee for unauthorized alternative medical care solely

because the care was unauthorized. Instead, the 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. In this context,

unauthorized 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. The allocation of this significant burden to the

claimant maintains the employer’s statutory right to choose the care under

section 85.27(4), while permitting a claimant to obtain reimbursement for
 21

alternative medical care upon proof by a preponderance of the evidence that

such care was reasonable and beneficial.

This approach allows the employer to maintain control when the care

provided is reasonable and beneficial, but recognizes there are times when

multiple, apparently reasonable courses of medical treatment coexist. As

such, it gives the employee a chance to recover for reasonable and beneficial

but unauthorized medical care when the purposes of allocating to the

employer the power to select medical care are not jeopardized. This

interpretation of the statute is consistent with the overall approach of section

85.27(4) to balance the control given to the employer with safeguards for the

employee. This interpretation is also consistent with our approach to

interpret workers’ compensation statutes liberally in favor of the worker.

Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). Thus, we

proceed to examine the sufficiency of the evidence to support the finding by

the commissioner that Gwinn is entitled to recover benefits and expenses for

alternative medical care.

A. Claim for Expenses of Medical Care Based on the Denial of

Compensability. The commissioner found Gwinn was justified in obtaining

medical care from Dr. Pichler because Bell Brothers denied that his injury

caused a permanent condition and denied the injury caused the condition

treated by Dr. Pichler. Having found such denials were tantamount to a

denial of compensability, the commissioner found the care provided by

Dr. Pichler was recoverable as reasonable and necessary. In other words,

the commissioner found Gwinn’s claim for the reasonable expense of his self-

selected medical care fell within the first circumstance that permits an

employee to choose his or her own care and to seek a subsequent claim for

reimbursement of the reasonable expense of the care.
 22

Although the analysis adopted by the commissioner draws upon our

discussion in Trade Professionals, Inc. v. Shriver, 661 N.W.2d 119, 124 (Iowa

2003), of a claim for self-selected medical care obtained by an employee after

the employer concluded the continuing problems experienced by the

employee were not work-related, we reject the notion that an employer loses

the right to choose medical care under section 85.27 when the employer

acknowledges the compensability of a work-related injury and furnishes care

but later disputes the nature and extent of the disability. The employer’s

right to control medical care attaches under the statute when the employer

acknowledges compensability following notice and furnishes care to the

employee, and it remains with the employer under the statute until the

employer denies the injury is work-related, withdraws authorization of the

care, or until the commissioner orders alternative care. Iowa Code § 85.27.

Thus, a denial of compensability that results in the employer’s loss of the

right to choose the medical care is a denial that the claimed injury arose in

the course and scope of employment. A dispute between the parties as to

the nature or extent of a physical or mental disability arising from an injury

for which the employer has acknowledged liability during the time medical

care is controlled by the employer, is not a ground, standing alone, for a

determination that the employer has forfeited its right to select the medical

care. If a dispute as to the nature and extent of the injury were tantamount

to a denial of compensability (liability), then the right of the employer to

choose medical care under the statute would be virtually meaningless. Such

an interpretation would mean an employer only controls care until an

employee disagrees with the authorized provider’s assessment of the nature

and extent of the injury or the reasonableness of the provider’s medical care.

It would mean an employer would be required to accept the employee’s view

of these matters in order to maintain the right to control the care. We
 23

refrain from interpreting statutes in a way that would lead to absurd results.

Schadendorf, 757 N.W.2d at 338.

Clearly, the dispute in this case involved a difference of opinion over

the diagnosis and treatment of Gwinn’s medical condition. The dispute did

not involve Bell Brothers’ liability for the injury.

Under the proper analysis, there was no substantial evidence to

support the conclusion by the commissioner that Bell Brothers denied

compensability of the injury. Consequently, we turn to consider whether

substantial evidence supports the alternative finding by the commissioner

that the expenses of the unauthorized medical care by Dr. Pichler were

recoverable as beneficial and necessary.

B. Claim for Unauthorized Medical Care. Although an employee

may assert a claim for expenses of the unauthorized medical care, the

employee must prove the unauthorized care was reasonable and beneficial

under all the surrounding circumstances, including the reasonableness of

the employer-provided care, and the reasonableness of the decision to

abandon the care furnished by the employer in the absence of an order from

the commissioner authorizing alternative care. Consistent with the rationale

for giving the employer control over medical care, the concept of

reasonableness in this analysis includes the quality of the alternative care

and the quality of the employer-provided care. As we have already noted, the

question of whether the unauthorized care was beneficial focuses on whether

the care provided a more favorable medical outcome than would likely have

been achieved by the care authorized by the employer. The commissioner

found Gwinn could recover because the care rendered by Dr. Pichler was

necessary and beneficial. The commissioner made this finding based on

evidence that the surgery was expected to improve Gwinn’s physical

condition, an outcome that would benefit Bell Brothers by reducing the
 24

amount of permanent partial disability benefits it would ultimately be

required to pay.

We conclude there was no substantial evidence in the record to

support a finding that the alternative medical care claim was reasonable and

beneficial under all the circumstances. Three reasons primarily support this

conclusion.

First, there was no substantial evidence that the results of the surgery

were beneficial. Gwinn was in a wheelchair at the time of the hearing and

was still recovering from surgery. There was a complete absence of any

evidence in the record that the surgery performed by Dr. Pichler improved

Gwinn’s condition. The commissioner’s finding that the surgery was

beneficial was clearly premature and based on speculation.

Second, there was no evidence offered by Gwinn that Dr. Pichler’s

diagnosis of a torn Achilles tendon was in fact reasonable or accurate. In

particular, there was no evidence in this record that the surgical procedure

performed by Dr. Pichler confirmed a tear in the Achilles tendon for which

the casting and surgery were prescribed and undertaken. The lack of this

type of evidence directly impacts the rationale for giving the employer the

right to choose.

Third, under the factual scenario presented here, Bell Brothers was

denied an opportunity to review the ultrasound study and the reports from

the surgery performed by Dr. Pichler, crucial evidence bearing upon whether

the alternative care was reasonable in this case. Bell Brothers’ ability to

assess and litigate the reasonableness of the alternative care for which

Gwinn sought reimbursement and its right to control the medical care were

consequently undermined.

The issue of whether the unauthorized care was reasonable and

beneficial presents fact questions. See Manpower Temp. Servs. v. Sioson,
 25

529 N.W.2d 259, 263 (Iowa 1995) (“Because it is disputed, the

reasonableness part of the question is factual.”). Reviewing the record as a

whole, there is an absence of substantial evidence to support findings as to

the reasonableness and beneficial effects of the alternative medical care

provided by Dr. Pichler. See Iowa Code § 17A.19(10)(f). As a result, the

commissioner’s conclusion undermined the statutory right of the employer to

choose care and conflicted with the purpose of giving the right to the

employer.

C. Claim for Healing-Period Benefits Based on Unauthorized Care.

The commissioner awarded healing-period benefits for the period that Gwinn

missed work in connection with the unauthorized medical procedures

administered by Dr. Pichler. In a related context, we have held a claimant

who misses work to attend unauthorized medical care appointments is not

entitled to healing-period benefits. Thilges v. Snap-On Tools Corp., 528

N.W.2d 614, 617 (Iowa 1995). We observed that the applicable statutes

provide no indication that the legislature intended workers to receive awards

for unauthorized medical appointments in the normal course of events. Id.

The healing-period benefits awarded by the commissioner in this case

were based solely on Gwinn’s recovery time from the unauthorized casting

and surgery performed by Dr. Pichler. Without substantial evidence to

support a finding that the unauthorized medical care was reasonable and

beneficial under the totality of the circumstances, there was no evidence to

support a finding that the temporary disability on account of the

unauthorized casting and surgery was causally related to the injury.

V. Alternative Medical Care.

To establish a claim for alternative medical care, an employee must

show that the medical care furnished by the employer is unreasonable.

Long, 528 N.W.2d at 123. Here, the commissioner found the employer-
 26

provided care was unreasonable. Because we find no substantial evidence

supports a finding of reasonableness of the unauthorized alternative care, we

also find no substantial evidence to designate an alternative-care provider.

VI. Conclusion.

We conclude the contested findings of the commissioner were not

supported by substantial evidence in the record. Under section

17A.19(10)(f), we may reverse, modify, or grant other appropriate relief when

important findings of a workers’ compensation decision were not supported

by substantial evidence. This case should be remanded for additional

evidence to allow for a full and complete resolution of the issues presented

under the legal standards clarified in this decision. The arbitration hearing

that served as a basis for this appeal was premature. Not only was Gwinn’s

claim for permanent partial disability benefits premature, but so were his

claims for temporary benefits and the cost of Dr. Pichler’s unauthorized

medical care. These claims can only be properly evaluated when Gwinn has

reached maximum medical improvement, and the results of the

unauthorized surgery are known. We reverse the decision of the district

court and remand the case to the district court for an order of remand for

further proceedings before the workers’ compensation commissioner.

DECISION OF THE DISTRICT COURT REVERSED AND CASE

REMANDED.

All justices concur except Baker, J., who takes no part.