Kelly Brewer-Strong v. HNI Corporation

IN THE SUPREME COURT OF IOWA
No. 16–1364

Filed June 8, 2018

KELLY BREWER-STRONG,

Appellant,

vs.

HNI CORPORATION,

Appellee.

Appeal from the Iowa District Court for Muscatine County, John

Telleen, Judge.

A workers’ compensation claimant challenges the commissioner’s

denial of healing period benefits under Iowa Code section 85.34(1).

AFFIRMED.

Anthony J. Bribriesco, Andrew W. Bribriesco, and William J.

Bribriesco of Bribriesco Law Firm, Bettendorf, for appellant.

Valerie A. Landis of Hopkins & Huebner, P.C., Des Moines, for

appellee.

Jason D. Neifert of Neifert, Byrne & Ozga, P.C., West Des Moines,

for amicus curiae Iowa Association for Justice Workers’ Compensation

Core Group.
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Ryan G. Koopmans (until withdrawal) and Joseph A. Quinn,

Nyemaster Goode, P.C., Des Moines, for amicus curiae Iowa Association of

Business and Industry, the Iowa Insurance Institute, the Iowa Defense

Counsel Association, and the Iowa Self-Insurers Association.
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ZAGER, Justice.

Claimant Kelly Brewer-Strong contends the workers’ compensation

commissioner wrongly denied her healing period benefits under Iowa Code

section 85.34(1) (2016). Brewer-Strong filed a petition seeking workers’

compensation benefits after developing bilateral carpal tunnel injuries

allegedly arising out of and in the course of her employment with HNI

Corporation (HNI). HNI originally denied liability for the claimed injuries.

Brewer-Strong filed a petition for alternate medical care that was

dismissed on procedural grounds because HNI contested liability for the

injury. A physician chosen by HNI examined Brewer-Strong, and the

physician confirmed that the claimed injuries were work-related. HNI

subsequently amended its answer to admit liability and authorized

Brewer-Strong to undergo medical care with its chosen medical providers.

However, Brewer-Strong sought medical treatment from a different,

unauthorized physician who proceeded to perform two surgeries on

Brewer-Strong. HNI refused to pay Brewer-Strong healing period benefits

for the time she was recovering from the unauthorized surgeries.

The workers’ compensation commissioner decided Brewer-Strong

was not entitled to healing period benefits. Specifically, the commissioner

found that HNI provided a valid authorization defense, and Brewer-Strong

did not meet her burden to prove that her unauthorized care resulted in a

more favorable outcome than the care she would have received from the

authorized physician. On judicial review, the district court affirmed this

decision on the same grounds. Brewer-Strong appealed, and we retained

the appeal. For the reasons set forth below, we affirm the decision of the

district court.
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I. Background Facts and Proceedings.

Kelly Brewer-Strong became an HNI employee in 2007. Her position

required Brewer-Strong to use her left upper extremity to move fabric from

the left to right sides of her body over 700 times per day. She would also

carry equipment weighing around 140 pounds and, at times, lift this

equipment on to a shelf that was located above her shoulder level. Due to

this work, Brewer-Strong injured her left shoulder prior to the injuries

involved in this case.

On December 5, 2011, HNI authorized Dr. Tina Stec, an

occupational physician, to treat Brewer-Strong for a new injury that is the

subject of this case. HNI had previously authorized Dr. Stec to treat

Brewer-Strong for her left shoulder injury. Dr. Stec reexamined the left

shoulder and examined Brewer-Strong for her complaints of numbness in

the left arm. Due to her symptoms, Dr. Stec ordered a nerve test—an

EMG/NCV—for both of her arms. On January 26, 2012, the test results

revealed Brewer-Strong had mild bilateral carpal tunnel syndrome.

Dr. Stec subsequently opted to provide Brewer-Strong with a conservative

treatment and gave her bilateral rigid wrist braces to wear at night.

Dr. Stec did not refer Brewer-Strong for any further treatment or

evaluation for the bilateral carpal tunnel. In a note she wrote on January

30, Dr. Stec noted the bilateral carpal tunnel was unrelated to her prior

left shoulder injury, but she wrote that it could “potentially [be] work

related due to forceful gripping at work.”

On or about June 7, Brewer-Strong served her original notice and

petition on HNI. In her petition, she pled that she sustained cumulative,

bilateral arm injuries that arose out of and in the course of her

employment with HNI commencing on January 26, 2012. She also

requested workers’ compensation benefits, including medical benefits,
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pursuant to Iowa Code section 85.27. HNI answered on June 20 denying

liability for the bilateral arm injuries. HNI subsequently solicited and

received an opinion letter from Dr. Stec which stated, “I do believe carpal

tunnel can be/is related to her work activities.” HNI did not believe this

opinion letter served as a definitive assertion that Brewer-Strong’s

employment at HNI caused her bilateral carpal tunnel. Brewer-Strong

then again requested medical care to treat her bilateral arm injuries,

asserting that Dr. Stec’s opinion letter confirmed that her bilateral carpal

tunnel was work-related. On August 30, HNI declined this request and

again denied liability, asserting that Dr. Stec’s opinion letter did not

definitively establish that the bilateral carpal tunnel injury sustained by

Brewer-Strong was work-related.

On September 4, Brewer-Strong filed a petition for alternate medical

care asking the workers’ compensation commissioner to issue a ruling on

medical care for her injury and claiming an “abandonment of care” by HNI.

HNI answered and again denied liability for the bilateral carpal tunnel. As

a result, on September 10, the deputy workers’ compensation

commissioner dismissed the petition for alternate medical care. In issuing

its order of dismissal on alternate medical care, the deputy commissioner

stated, “[I]f claimant seeks to recover the charges incurred in obtaining the

care for which defendants deny liability, defendants are barred from

asserting lack of authorization as a defense for those charges.”

Following this order of dismissal, Brewer-Strong did not immediately

obtain any further medical treatment. However, HNI continued to

investigate the claimed injury. HNI arranged for Brewer-Strong to be seen

by Dr. Brian Adams at the University of Iowa Hospitals and Clinics for an

evaluation of her injury. HNI also sought an opinion from Dr. Adams on

whether the injuries suffered by Brewer-Strong were work-related and
 6

whether the injury required subsequent medical treatment. Brewer-

Strong was evaluated by Dr. Adams on October 22. Dr. Adams diagnosed

her with bilateral carpal tunnel syndrome, mild cubital tunnel syndrome,

and trigger finger. In his evaluation, Dr. Adams opined that the bilateral

carpal tunnel syndrome “is substantially aggravated by her work activities

or caused by her work activities and therefore a work-related disorder.”

Likewise, he noted the mild cubital tunnel syndrome “is most likely

substantially aggravated by her work activities and therefore a work-

related condition.” Nonetheless, Dr. Adams found that none of the

conditions required further examination or surgical treatment. Dr. Adams

recommended that she continue using her wrist splints, modify her

activity, and engage in certain exercises.

Upon receiving this opinion from Dr. Adams, HNI amended its

answer on November 8 and admitted Brewer-Strong sustained her

bilateral carpal tunnel syndrome in the course of her employment with

HNI on January 26, 2012. Between November 8, 2012 and January 15,

2013, Brewer-Strong sought no medical care for her bilateral upper

extremity complaints. On January 15, 2013, Brewer-Strong was seen and

examined by Dr. Kreiter. In his examination, Dr. Kreiter noted that her

complaints had worsened since her evaluation with Dr. Adams.

Dr. Kreiter recommended Brewer-Strong undergo another EMG/NCV test,

and he suggested surgery. Upon receipt of Dr. Kreiter’s report, HNI

arranged for Brewer-Strong to return to Dr. Adams for another evaluation

to determine the appropriate course of medical care. HNI advised Brewer-

Strong of these arrangements on March 12. HNI also made clear that

Dr. Adams was the authorized medical provider to provide Brewer-Strong

with the medical care required to treat her bilateral upper extremity

complaints. However, Brewer-Strong refused to attend any appointments
 7

with Dr. Adams. She testified at her hearing that her symptoms had

significantly worsened since her October 2012 evaluation. She testified

she did not know whether Dr. Adams would have suggested surgery or a

more conservative course of treatment if she attended the scheduled April

2013 appointment.

Brewer-Strong was deposed on April 16. It was through this

deposition that HNI discovered that Brewer-Strong planned to seek

medical care for her bilateral upper extremities from Dr. Thomas

VonGillern. As of the deposition date, Brewer-Strong had not yet set up

an appointment with Dr. VonGillern or received any treatment from him.

Brewer-Strong also asserted her opposition to returning to Dr. Adams for

treatment, calling Dr. Adams a “high educated idiot” and proclaiming that

she disliked him because he did not speak to her in layman’s terms.

During the deposition, HNI discovered that Brewer-Strong had also sought

medical treatment from Dr. Atwell on March 25. As a result of his

examination, Dr. Atwell agreed with Dr. Adams’ diagnosis and did not

think surgery was necessary to treat her injuries. Brewer-Strong

subsequently opted not to seek further medical treatment from Dr. Atwell.

On April 22, HNI again advised Brewer-Strong that Dr. Adams was

the authorized physician for her care. It also reiterated that it would not

cover the costs of her medical expenses and weekly benefits if she was

treated by Dr. VonGillern since he was not the authorized physician. At

that time, there was no doubt that Brewer-Strong knew that HNI had

accepted liability for her bilateral upper extremity claim. HNI also filed a

motion to compel examination on April 22, seeking to have Dr. Adams

conduct another evaluation of Brewer-Strong. The commissioner granted

this motion on April 25, ordering Brewer-Strong to attend a second

evaluation with Dr. Adams. However, this second evaluation was never
 8

scheduled with Dr. Adams. Instead, Brewer-Strong decided to proceed

with treatment from Dr. VonGillern. On the same day that the

commissioner granted the motion to compel examination, Brewer-Strong

filed her second alternate medical care petition. In this petition, she

sought an order for HNI to authorize another EMG/NVC nerve test that

doctors could use to determine her appropriate medical treatment. In its

response, HNI again admitted liability for the bilateral upper extremity

injury consistent with its November 2012 amended answer.

On May 6, Brewer-Strong dismissed her petition for alternate

medical care before any hearing was held on the merits. That same day,

HNI learned Brewer-Strong planned to undergo surgeries with

Dr. VonGillern for her bilateral upper extremity issues. HNI discovered

this when she requested a leave of absence due to the planned surgeries.

Before the first scheduled surgery, HNI again advised Brewer-Strong that

Dr. Adams was the authorized physician to treat her bilateral upper

extremity injury. HNI also advised her that she might not receive short-

term disability benefits or medical expense payments through her health

insurance if she continued with her unauthorized care through

Dr. VonGillern since HNI had accepted liability for her work-related injury.

On May 7, HNI filed its own petition for alternate medical care with the

commissioner to voice its concern about Brewer-Strong’s continued

treatment with Dr. VonGillern and the upcoming surgeries. The deputy

commissioner dismissed the petition finding it was not allowed under Iowa

Code section 85.27(4). The deputy commissioner’s order of dismissal

explained that a workers’ compensation claimant has three options when

the employer accepts liability for the worker’s injury: accept the care

offered and authorized by the employer, file a petition for alternate medical

care, or pursue unauthorized medical care at her own expense. The
 9

deputy commissioner also explained HNI “may elect to assert an

authorization defense should [Brewer-Strong] refuse the treatment offered

without an order of this agency transferring care.”

Brewer-Strong did not file any further alternate medical care petition

that would require HNI to pay for the medical care and treatment provided

by Dr. VonGillern, nor did she appeal the order of dismissal. Brewer-

Strong subsequently underwent surgery with Dr. VonGillern on her upper

right extremity on May 10, and on her left upper extremity on June 10.

Thus, Brewer-Strong was off work from May 10 through July 21, 2013,

creating a period of possible entitlement to healing period benefits for this

time under Iowa Code section 85.34(1). HNI refused to pay Brewer-Strong

any healing period benefits during the time she was off work based on

these unauthorized surgeries. However, Brewer-Strong did receive a total

of $2990 in short-term disability benefits. In its refusal to pay healing

period benefits, HNI reiterated that Dr. VonGillern was an unauthorized

physician to provide treatment to Brewer-Strong.

Prior to the hearing on her claim for healing period benefits,

Dr. VonGillern was deposed. When asked whether his treatment of

Brewer-Strong provided a more favorable outcome than that which would

have been provided by Dr. Adams, Dr. VonGillern answered, “I don’t know

that his would—his procedures would have been any different.” Similarly,

Dr. VonGillern explained that Dr. Adams likely would have recommended

surgery similar to what Dr. VonGillern had performed if Dr. Adams had

evaluated Brewer-Strong for a second time in April 2013. Finally,

Dr. VonGillern could not say that his treatment of Brewer-Strong provided

a more favorable outcome than the possible treatment by Dr. Adams.

Dr. VonGillern estimated Brewer-Strong had a two percent impairment

rating of each upper extremity, though he could not yet determine whether
 10

Brewer-Strong had reached maximum medical improvement for her

cumulative bilateral upper extremity injury. Dr. VonGillern was the only

physician to testify about the course of treatment Dr. Adams might have

chosen had he reexamined and treated Brewer-Strong.

On May 22, 2014, HNI issued a check to Brewer-Strong for

permanent partial disability benefits and accrued interest in the amount

of $4987.96. However, it refused to issue her a check for healing period

benefits for her time off work from May 10 through July 21, 2013, the time

she was off work after the unauthorized surgeries. A bifurcated arbitration

hearing took place on August 22. The issues before the deputy workers’

compensation commissioner were threefold: (1) whether Brewer-Strong

was entitled to healing period benefits, (2) whether the healing period was

the result of unauthorized medical care, and (3) whether Brewer-Strong

was entitled to penalty benefits. Brewer-Strong testified that she still had

complaints about her bilateral upper extremities, but she did not know if

her symptoms were related to her January 26 injury. She also testified

that she was unsure whether she was satisfied with the results of the

surgeries that Dr. VonGillern performed.

Brewer-Strong explained that because she was having some of the

same symptoms that she had prior to her surgeries with Dr. VonGillern,

she had arranged for an independent medical examination with Dr. Milas

in March. Dr. Milas suggested Brewer-Strong undergo another round of

electrodiagnostic studies on her upper extremities and noted that she may

also need an MRI of the nerves to further assess her condition. Moreover,

while Brewer-Strong returned to work following her surgeries, Dr. Milas

believed that she would never be able to return to work or find significant

employment in the future. Nothing in the evidence suggests Brewer-

Strong pursued Dr. Milas’s course of action, and she testified at the
 11

hearing that she did not know whether she would pursue additional

treatment. However, she testified that she decided not to pursue the

additional EMG/NCV testing that Dr. VonGillern had suggested.

On November 12, the deputy commissioner denied Brewer-Strong

healing period benefits, finding the medical care provided by

Dr. VonGillern was unauthorized under Iowa Code section 85.27. The

deputy commissioner found HNI proved a valid authorization defense. It

found that Brewer-Strong had failed to prove her entitlement to payment

for the unauthorized medical care and any healing period benefits

stemming from such care. Brewer-Strong filed an application for

rehearing, but the deputy commissioner affirmed its previous decision to

deny Brewer-Strong healing period benefits. The deputy commissioner

also rejected a new argument forwarded by Brewer-Strong that the

authorization defense was prohibited by the law-of-the-case doctrine, as

well as her claim that she met her burden of proof set forth in Bell Bros.

Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193 (Iowa 2010). Brewer-

Strong subsequently appealed to the Iowa Worker’s Compensation

Commissioner, who affirmed the arbitration decision of the deputy

commissioner as a final agency decision on intraagency appeal. Brewer-

Strong then filed an action for judicial review with the district court. The

district court affirmed the final decision of the commissioner on the same

grounds. Brewer-Strong filed a timely notice of appeal, which we retained.

II. Standard of Review.

We apply the standards set forth in Iowa Code chapter 17A in our

judicial review of agency decision-making to determine whether our

conclusion is the same as the district court. Burton v. Hilltop Care Ctr.,

813 N.W.2d 250, 255–56 (Iowa 2012). “The district court may properly

grant relief if the agency action prejudiced the substantial rights of the
 12

petitioner and if the agency action falls within one of the criteria listed in

section 17A.19(10)(a) through (n).” Brakke v. Iowa Dep’t of Nat. Res., 897

N.W.2d 522, 530 (Iowa 2017). We affirm the district court decision when

we reach the same conclusion. Westling v. Hormel Foods Corp., 810

N.W.2d 247, 251 (Iowa 2012).

“We defer to the agency’s interpretation of a statute when the

legislature has clearly vested the agency with the authority to interpret a

statute.” Id. Thus, in cases where the legislature has clearly vested the

workers’ compensation agency with the authority to interpret a statute, we

will only reverse the agency’s statutory interpretation if it is “irrational,

illogical, or wholly unjustifiable.” Id. (quoting Xenia Rural Water Dist. v.

Vegors, 786 N.W.2d 250, 252 (Iowa 2010)). However, when the legislature

has not vested the agency with such authority, we review an agency’s

interpretation of a statute for correction of errors at law. Id.

Here, we are reviewing the commissioner’s interpretation of Iowa

Code section 85.34(1), which deals with healing period benefits for work-

related injuries. We have previously held that Iowa Code chapter 85 “does

not reveal any basis for concluding that the legislature clearly vested the

workers’ compensation commissioner with authority to interpret the

subsection at issue.” Id. Therefore, we review the commissioner’s

interpretation of Iowa Code chapter 85 for correction of errors at law

instead of deferring to the agency’s interpretation. Id. Finally, “application

of the workers’ compensation law to the facts as found by the

Commissioner is clearly vested in the Commissioner.” Lakeside Casino v.

Blue, 743 N.W.2d 169, 173 (Iowa 2007). Thus, we “may only disturb the

agency’s application of the law to the facts of the particular case if that

application is ‘irrational, illogical, or wholly unjustifiable.’ ” Burton, 813

N.W.2d at 256 (quoting Iowa Code § 17A.19(10)(m)).
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III. Analysis.

Brewer-Strong presents three issues on appeal. First, she asserts

that the commissioner and the district court erred in finding that an

employer can regain control of an employee’s medical care after the

employer initially denied liability for a work injury. Second, she claims

that the “more favorable medical outcome” test set forth in Bell Bros.

establishes a burden of proof that is nearly impossible for claimants to

meet and should thus be abandoned or modified. Finally, if we do not

abandon or modify the test in Bell Bros., 779 N.W.2d at 208, Brewer-

Strong maintains that the “more favorable medical outcome” test should

not apply to the issue of entitlement to healing period benefits.

Alternatively, should we decide the Bell Bros. test is applicable to the issue

of healing period benefits, Brewer-Strong asserts that the Bell Bros. test

should still not apply in this case due to facts distinguishable from Bell

Bros. We address each of these issues in turn.

A. An Employer’s Ability to Regain Control of an Employee’s

Medical Care Following Initial Denial of Liability. Brewer-Strong

claims the district court erred in ruling that HNI could regain its right to

control her medical care and treatment by admitting liability for her work-

related injuries after it had initially denied liability. Her argument is two-

fold. First, she asserts HNI forfeited its right to control her medical care

when it denied liability for her injury in response to the petition for

alternate medical care she filed on September 4, 2012. Second, Brewer-

Strong maintains HNI was barred from raising its authorization defense

under the law-of-the-case doctrine. Specifically, in the September 10

dismissal of the petition for alternate care, the commissioner stated, “[I]f

claimant seeks to recover the charges incurred in obtaining the care for

which defendants deny liability, defendants are barred from asserting lack
 14

of authorization as a defense for those charges.” Her argument presents

an issue of first impression for us. That is, whether an employer who

initially denies liability for an employee’s work-related injury can then

amend its answer to admit liability and regain control of the employee’s

medical care.

In R.R. Donnelly & Sons v. Barnett, we explored the scope of an

employer’s authorization defense derived from the employer’s rights and

obligations under Iowa Code section 85.27. 670 N.W.2d 190, 196–98 (Iowa

2003). We stated that this authorization defense “generally means an

employer who is providing reasonable medical care to an employee is not

responsible to pay for unauthorized medical care.” Id. at 196. The

authorization defense is applicable when the commissioner has denied a

claimant’s petition for alternate care on its merits. But it is inapplicable

where the claimant’s petition for alternate care was denied on procedural

grounds such that the commissioner could not adjudicate the petition’s

merits, as is the case when the employer disputes the compensability of

the injury. Id. at 197. Where the employer disputes compensability and

the commissioner denies the claimant’s petition for alternate care on

procedural grounds, “there can be no implicit finding that the employer

has satisfied its duty to furnish reasonable medical care and has no

obligation to furnish alternate care.” Id. at 197–98. Moreover, we

explained,

Once an employer takes the position in response to a claim for
alternate medical care that the care sought is for a
noncompensatory injury, the employer cannot assert an
authorization defense in response to a subsequent claim by
the employee for the expenses of the alternate medical care.
Of course, this approach does not mean the authorization
defense may not be available for other forms of alternate
medical care obtained by an employee not authorized by the
employer or not submitted to the commissioner under section
85.27.
 15

Id. at 198. Applying these principles to the facts of R.R. Donnelly, we held

that an employer was barred from asserting an authorization defense

where the commissioner’s denial of the employee’s request for alternate

medical care was based on substantial evidence in the record

demonstrating the employer denied compensability for at least a portion

of the employee’s injury for which she sought alternate medical treatment.

Id.

Brewer-Strong relies on our holding in R.R. Donnelly to support her

claim that HNI could not regain its right to control her medical care based

on its amended answer accepting compensability of her injury since HNI

initially denied compensability. While R.R. Donnelly may support this

basic principle on first blush, there are dispositive differences between the

facts in R.R. Donnelly and the facts here. Unlike the employer in R.R.

Donnelly, which never admitted liability, HNI did admit liability for the

injuries to Brewer-Strong in its amended answer on November 8, 2012,

thereby acquiring a valid authorization defense consistent with its rights

under Iowa Code section 85.27.

We have never held that an employer forever forfeits its rights and

obligations under Iowa Code section 85.27 by initially denying liability for

an injury, and it does not make sense that we would. Even after an initial

determination, it is incumbent on an employer to continue to monitor and

investigate any claim for benefits. When, as here, sufficient proof justifies

a reexamination of an initial determination of nonliability, the employer

should be encouraged to change its position to accept liability for an

employee’s work-related injury. Holding otherwise would run contrary to

the very purpose of Iowa Code chapter 85 to resolve “workplace-injury

claims with minimal litigation” by forcing employers to reach a conclusion

about their liability for an employee’s injury without thoroughly
 16

performing their duty to investigate the claims, potentially creating more

litigation and expenses in the process. Ramirez-Trujillo v. Quality Egg,

L.L.C., 878 N.W.2d 759, 770 (Iowa 2016) (“[C]hapter 85 encourages

employers to compensate employees who receive workplace injuries

promptly and provides a forum for efficient resolution of workplace-injury

claims with minimal litigation.”).

This interpretation of Iowa Code chapter 85 is also supported by our

holding in Bell Bros., where we held

The employer’s right to control medical care attaches under
[Iowa Code section 85.27] 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.

779 N.W.2d at 207. Thus, the workers’ compensation commissioner and

the district court correctly found HNI acquired its authorization defense

and the statutory rights and obligations to provide and choose appropriate

medical care pursuant to Iowa Code section 85.27 once it amended its

answer to acknowledge compensability for her injury. HNI then retained

its right to control medical care throughout the course of treatment for her
compensable injury since it did not subsequently contest whether the

injury was work-related or withdraw its authorization of care, and the

commissioner did not order alternative care for Brewer-Strong. See id. at

207.

Notably, HNI did attempt to provide Brewer-Strong with reasonable

and beneficial medical care and treatment for her work-related injury.

Likewise, HNI repeatedly warned Brewer-Strong that it would not cover the

costs of any unauthorized care, including the unauthorized care she

sought from Dr. VonGillern. Upon admitting its liability, and attempting
 17

to furnish Brewer-Strong with reasonable medical care, HNI acquired the

right to assert an authorization defense in this case.

Brewer-Strong claims that our holding in R.R. Donnelly prohibits an

employer from defending “against any future claims by the employee for

alternate care on the basis that the care was not authorized” once the

employer denies liability for the employee’s injury. This overlooks an

essential part of our R.R. Donnelly holding. We held that an employer is

barred from asserting an authorization defense for the employee’s

subsequent claims for alternate medical care on that specific injury after

the employer has taken the position that the specific injury is

noncompensatory. R.R. Donnelly, 670 N.W.2d at 198. However, we also

explained that this “does not mean the authorization defense may not be

available for other forms of alternate medical care obtained by an employee

not authorized by the employer or not submitted to the commissioner

under section 85.27.” Id. Accordingly, an employer only loses its

authorization defense with regard to the medical care that the employee

requested in his or her specific petition for alternate medical care, and not

for those petitions in the future requesting forms of care that were not

included in the prior, specific petition for alternate medical care. See id.

Here, the initial petition for alternate medical care never specified

any alternate medical care she was seeking at that time. Instead, she

simply claimed that she was seeking alternate medical care due to HNI’s

“abandonment of care.” Likewise, she never actually sought treatment for

the injury complained of in her initial petition for alternate medical care

until well after HNI filed its amended answer admitting liability for her

injury. Hence, HNI did not lose its right to assert its authorization defense

with regard to the unauthorized care at issue here. Therefore, we find no

errors at law by the district court in its interpretation of Iowa Code section
 18

85.27. HNI did not forfeit its right to control the medical care provided to

Brewer-Strong, even after it initially denied liability for her work-related

injury.

Brewer-Strong also asserts that the law-of-the-case doctrine bars

HNI from asserting any authorization defense. The law-of-the-case

doctrine “represents the practice of courts to refuse to reconsider what has

once been decided.” State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987).

Under this doctrine, a reviewing court’s legal principles and views

expressed become binding throughout the case as it progresses, regardless

of their accuracy. Lee v. State, 874 N.W.2d 631, 646 (Iowa 2016).

Although “[t]he doctrine generally applies only to issues raised and passed

on in a prior appeal,” it also “extends to ‘matters necessarily involved in

the determination of a question’ settled in a prior appeal for purposes of

subsequent appeals.” Id. (quoting In re Lone Tree Cmty. Sch. Dist., 159

N.W.2d 522, 526 (Iowa 1968)). Nevertheless, the law of the case doctrine

is inapplicable “if the facts before the court upon the second trial are

materially different from those appearing upon the first,” or the party

raises “issues that could have been, but were not, raised in the first

appeal.” Grosvenor, 402 N.W.2d at 405. To illustrate, in Winnebago

Industries, Inc. v. Haverly, we held that the law-of-the-case doctrine did

not bar an employer’s denial of liability based on a deputy commissioner’s

order requiring the employer to furnish alternate medical care because the

deputy commissioner could not decide the employer’s liability in an

alternate care proceeding. 727 N.W.2d 567, 573 (Iowa 2006). The agency

had to actually decide the issue of liability for the law-of-the-case doctrine

to apply. Id.

Brewer-Strong reasons her case is different from Winnebago Indus.

Unlike the issue of the employer’s liability, Brewer-Strong asserts HNI
 19

should be barred from asserting an authorization defense in her case

because it lost that defense under the law-of-the-case doctrine on

September 10, 2012, when the deputy commissioner issued the order

dismissing the petition for alternate care. That order stated, “[I]f the

claimant seeks to recover the charges incurred in obtaining the care for

which defendants deny liability, defendants are barred from asserting lack

of authorization as a defense for those charges.” Brewer-Strong reads this

language much too broadly. First, the order of dismissal noted that it was

not based on the merits, but was dismissed on procedural grounds.

Moreover, no specific medical care was identified in the petition, and no

medical care was provided that is at issue in this case. The language in

the order dismissing the original petition for alternative care never

precluded HNI from continuing to investigate the claimed injury. Nor did

it preclude HNI from presenting an authorization defense in the event that

it would subsequently admit liability for the claimed injury or in response

to a different petition for alternate medical care. It simply prevented HNI

from arguing this defense at this time if medical care had been sought. As

noted, no such medical care or expenses were incurred as a result of this

initial petition.

Likewise, the law-of-the-case doctrine is not applicable because the

facts before the workers’ compensation commissioner became materially

different after HNI accepted liability for the injury. See Grosvenor, 402

N.W.2d at 405. HNI then assumed its obligations to provide Brewer-Strong

with reasonable medical care and acquired an authorization defense for

future claims for alternate medical care, such as those now in dispute

involving Dr. VonGillern. At the time the deputy commissioner dismissed

the original petition for alternative care on September 10, 2012, HNI had

denied liability for the injury. Thereafter, HNI obtained a medical opinion
 20

from Dr. Adams causally connecting the work injury, and HNI admitted

liability and attempted to provide Brewer-Strong with authorized medical

treatment through Dr. Adams. Because of the material changes that

occurred between the September 10 dismissal of the petition for alternative

care and the subsequent arbitration proceedings, the law-of-the-case

doctrine does not apply to make the September 10 order of dismissal

binding throughout the progress of this case. The district court correctly

concluded that the law-of-the-case doctrine did not bar HNI from choosing

the medical care for Brewer-Strong once it accepted liability, or from

asserting an authorization defense to the medical care Brewer-Strong

obtained from Dr. VonGillern and to the healing period benefits resulting

from his care.

B. A Claimant’s Burden of Proof to Show Unauthorized Medical

Care Is Beneficial. Brewer-Strong claims she was unreasonably denied

her entitlement to healing period benefits because the Bell Bros. test sets

forth a nearly impossible burden of proof. Brewer-Strong argues either

that we should overrule the Bell Bros. test or that the test should not be

applied to the facts of her case. However, Brewer-Strong proposes no

alternative test, nor does she present compelling evidence to support her

request for us to overrule or modify Bell Bros. It is still important that we

evaluate her claim.

Once an employer acknowledges that the injured employee is

seeking medical care for an injury compensable under the workers’

compensation statute, Iowa Code section 85.27(4) provides that an

“employer is obliged to furnish reasonable services and supplies to treat

an injured employee, and has the right to choose the care.” Iowa Code

§ 85.27(4). We have previously noted the rationale for allowing the

employer to choose medical care for the injured employee is because an
 21

injured employee might “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.” Bell Bros., 779 N.W.2d

at 203 (quoting 5 Arthur Larson & Lex K. Larson, Larson’s Workers’

Compensation Law § 94.02[2], at 94-13 (2009)). However, Iowa Code

section 85.27(4) also outlines situations in which an employee may select

his or her own medical care, including those situations where a dispute

may arise between the employer and injured employee over the employer’s

choice of medical care. Specifically, Iowa Code section 85.27(4) provides,

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.

Iowa Code § 85.27(4).
This statutory provision essentially provides three situations in

which employees may receive alternate medical care paid for by the

employer. First, employees may choose their own medical care at the

employer’s expense during an emergency in which the employer “cannot

be reached immediately.” Id.; see also Bell Bros., 779 N.W.2d at 203–04.

Second, an employee may receive alternate medical care at the employer’s

expense when the employee and employer consent to such an agreement.

Iowa Code § 85.27(4); Bell Bros., 779 N.W.2d at 204. Third, “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
 22

care furnished by the employer was unreasonable.” Bell Bros., 779 N.W.2d

at 204; see also Iowa Code § 85.27(4).

Outside of these situations, the employer retains the right to choose

the employee’s medical care. However, the employer’s statutory right to

choose medical care for the employee’s compensable injuries does not

prohibit the employee from seeking his or her own medical care, at his or

her own expense, when the employer denies compensability for the injury

or the employee “abandons the protections of section 85.27 or otherwise

obtains his or her own medical care independent of the statutory scheme.”

Bell Bros., 779 N.W.2d at 204. Thus, in Bell Bros., we held an employer’s

duty to furnish reasonable medical care includes those claims for care by

the employee that are unauthorized if the employee can prove “by a

preponderance of the evidence that such care was reasonable and

beneficial” under the totality of the circumstances. Id. at 206.

“[U]nauthorized 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.” Id. This burden of proof honors the

employer’s statutory right to choose the injured employee’s medical care

under Iowa Code section 85.27(4), yet provides the employee with

reimbursement for unauthorized medical care when he or she can show

by a preponderance of the evidence that the care was reasonable and

beneficial. Id. It also aligns with the balance Iowa Code section 85.27(4)

seeks to maintain between the employer’s right to control medical care and

the medical needs of the employee. See Ramirez-Trujillo, 878 N.W.2d at

770–71.

Coinciding with Iowa Code section 85.27(4), Iowa Code section

85.34(1) provides an injured worker with healing period benefits to replace

lost wages “[i]f an employee has suffered a personal injury causing
 23

permanent partial disability for which compensation is payable.” Iowa

Code § 85.34(1). These healing period benefits shall be for a period

“beginning on the first day of disability after the injury” and continuing

until either the employee returns to work or the employee’s medical care

indicates “that significant improvement from the injury is not anticipated

or until the employee is medically capable of returning to employment

substantially similar to the employment in which the employee was

engaged at the time of injury, whichever occurs first.” Id. Nonetheless, a

claimant who misses work in connection with unauthorized medical care

or procedures is not entitled to healing period benefits. Bell Bros., 779

N.W.2d at 209. Consequently, in Bell Bros., we held that there was no

evidence to support a finding that the healing period benefits the employee

sought for his recovery time from an unauthorized medical procedure were

causally related to his injury because there was not “substantial evidence

to support a finding that the unauthorized medical care was reasonable

and beneficial under the totality of the circumstances.” Id.

Brewer-Strong asks us to overrule the Bell Bros. test because of the

“nearly impossible” burden of proof it imposes on claimants to receive

healing period benefits stemming from unauthorized care. She argues it

requires the court or commissioner to speculate about hypothetical results

and medical care. While Brewer-Strong does not propose an alternative

test, the Iowa Association for Justice Workers’ Compensation Core Group

(IAJ), writing as amicus curiae, proposes that we modify the Bell Bros. test.

It proposes that an employee need only show by a preponderance of

evidence that the unauthorized medical care was reasonable and

beneficial in some way under the totality of the circumstances. This test

would be in lieu of an employee needing to prove by a preponderance of

the evidence that the unauthorized medical care provided a more favorable
 24

medical outcome than would have been provided by the employer

authorized physician. Neither Brewer-Strong nor the IAJ provide the

compelling justification we require to overrule precedent.

“From the very beginnings of this court, we have guarded the

venerable doctrine of stare decisis and required the highest possible

showing that a precedent should be overruled before taking such a step.”

McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005) (quoting Kiesau v.

Bantz, 686 N.W.2d 164, 180 n.1 (Iowa 2004) (Cady, J., dissenting),

overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699,

708 & n.3 (Iowa 2016) overruled on other grounds by Alcala v. Marriott Int’l,

Inc., 880 N.W.2d 699, 708 & n.3 (Iowa 2016)). This highest possible

showing requires a demonstration that the precedent is clearly erroneous.

Id. “The rule of stare decisis ‘is especially applicable where the

construction placed on a statute by previous decisions has been long

acquiesced in by the legislature, by its continued use or failure to change

the language of the statute so construed . . . .’ ” In re Estate of Vajgrt, 801

N.W.2d 570, 574 (Iowa 2011) (quoting Iowa Dep’t of Transp. v. Soward,

650 N.W.2d 569, 574 (Iowa 2002)). Hence, when the legislature does not

respond to our cases interpreting a statute, we apply the doctrine of

legislative acquiescence and assume the legislature has acquiesced in our

interpretation. State v. Iowa Dist. Ct., 902 N.W.2d 811, 818 (Iowa 2017).

For example, we recently applied the doctrine of legislative

acquiescence to uphold our 2009 interpretation of Iowa Code section

903A.2 under the doctrine of stare decisis, noting the Iowa Legislature was

presumably aware of our interpretation, yet never altered it. Id. Similarly,

we presume the legislature is aware of our 2010 decision in Bell Bros.

interpreting Iowa Code sections 85.27(4) and 85.34(1). See id. Last year,

the legislature made significant changes to much of the workers’
 25

compensation scheme set forth in Iowa Code chapter 85. Yet, it declined

to make any changes to Iowa Code sections 85.27(4) and 85.34(1). See

generally 2017 Iowa Acts ch. 23. Thus, eight years have passed without a

legislative response altering these sections, which we embrace as the

legislature’s acquiescence to our statutory interpretation of these Code

sections in Bell Bros. See Iowa Dist. Ct., 902 N.W.2d at 818.

Further, the language of the relevant statutory provisions clearly

supports our interpretation of Iowa Code sections 85.27(4) and 85.34(1)

set forth in Bell Bros. “When interpreting the statutory provisions

contained in chapter 85 of the Iowa Code, our goal is to determine and

effectuate the legislature’s intent.” Ramirez-Trujillo, 878 N.W.2d at 770.

We make this determination by looking at the legislature’s language rather

than speculating about what the legislature might have said. Id. In this

case, the legislature’s chosen language precludes any notion that we

should modify the Bell Bros. test to require an employer to pay for the

employee’s unauthorized medical care as long as it is reasonable and

beneficial in some way. It is reasonable to require a showing that the

unauthorized medical care provided a more favorable medical outcome

than the employer’s authorized care.

Iowa Code section 85.27(4) requires the employer “to furnish

reasonable services and supplies to treat an injured employee” and

provides the employer with “the right to choose the care.” Iowa Code

§ 85.27(4) (emphasis added). Nonetheless, this right would no longer exist

under the IAJ’s modified version of the Bell Bros. test. Employers would

be obliged to pay for the employee’s choice of medical care whenever that

care is reasonable and beneficial in some manner to the employee,

regardless of the reasonable and beneficial care an employer’s authorized

physician might provide. Under our statutory scheme governing workers’
 26

compensation, it is no longer up for debate whether the employee or

employer gets to choose the injured employee’s care. Rather, “[o]ur

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.” Bell Bros., 779

N.W.2d at 202. The burden of proof established in Bell Bros. for an injured

employee to receive healing period benefits after unauthorized medical

care is a difficult, but not impossible, standard to meet. However, it

respects the balance between the employer’s rights to control medical care

and the employee’s right to seek alternative medical care under the

statute. The mere fact that this creates a heightened burden for the

employee does not require a modification of the test. This is all part of the

balancing found within our workers’ compensation statute.

Finally, it is worth noting that the reason Brewer-Strong failed to

meet her burden of proof stems from her own actions rather than the test

established in Bell Bros. Brewer-Strong cannot establish that the medical

care provided by Dr. VonGillern was more favorable than the outcome she

would have received with Dr. Adams, let alone whether it provided any

favorable benefit at all. Brewer-Strong refused to be seen by Dr. Adams

for a second evaluation. The only testimony was from Dr. VonGillern who

speculated that Dr. Adams likely would have recommended the same

surgery and performed the same procedures he had performed on Brewer-

Strong. However, Dr. VonGillern also testified that he could not say

whether his treatment of Brewer-Strong provided any more favorable

outcome than the treatment Dr. Adams would have provided. Also, on

March 25, 2013, prior to the surgeries, Brewer-Strong had also been

treated by Dr. Atwell. Dr. Atwell agreed with Dr. Adams’ diagnosis and

likewise opined that surgery was not necessary to treat her injuries.
 27

Further, the testimony of Brewer-Strong suggests she did not receive

a beneficial result from the surgeries. She testified that she still struggled

with some of the same symptoms she had prior to her surgeries and sought

further medical evaluation from another physician to relieve these

symptoms. Other than Dr. VonGillern, no other physician testified that

the surgeries performed on Brewer-Strong were reasonable or necessary,

or that a more favorable outcome was obtained from the possible treatment

Dr. Adams would have provided. Even Dr. VonGillern could not opine to

this fact.

Given the postsurgery complaints by Brewer-Strong, the district

court properly determined that she failed to prove by a preponderance of

the evidence that her unauthorized care was reasonable, beneficial, and

provided a more favorable medical outcome than the authorized care

would have provided. Brewer-Strong and the IAJ both fail to present

compelling evidence supporting their requests for us to overrule or modify

the burden of proof established in Bell Bros. Therefore, we reaffirm our

unanimous decision in Bell Bros. and reiterate that it provides the proper

burden of proof for a claimant seeking his or her employer’s payment for

unauthorized medical care. That is, the claimant must show “upon proof

by a preponderance of the evidence that such care was reasonable and

beneficial” and that such care “provide[d] a more favorable medical

outcome than would likely have been achieved by the care authorized by

the employer.” Id. at 206. Consequently, we affirm the district court

decision on this issue.

C. The Applicable Test to Determine a Claimant’s Entitlement

to Healing Period Benefits. Brewer-Strong maintains the “more

favorable medical outcome” test established in Bell Bros. should not apply

to the issue of entitlement to healing period benefits and, instead, should
 28

be limited solely to the issue of entitlement to reimbursement for costs of

unauthorized medical care. Under this narrow application of the Bell Bros.

test, she claims it would be error to apply the Bell Bros. test to the issue

of healing period benefits. Alternatively, should we decide the Bell Bros.

test is applicable to the issue of healing period benefits, Brewer-Strong

asserts that the Bell Bros. test should still not apply in this case due to

facts distinguishable from Bell Bros.

Brewer-Strong’s argument that she is entitled to healing period

benefits stems from the plain language of Iowa Code section 85.34(1),

which states,

If an employee has suffered a personal injury causing
permanent partial disability for which compensation is
payable as provided in subsection 2 of this section, the
employer shall pay to the employee compensation for a healing
period, as provided in section 85.37, beginning on the first day
of disability after the injury, and until the employee has
returned to work or it is medically indicated that significant
improvement from the injury is not anticipated or until the
employee is medically capable of returning to employment
substantially similar to the employment in which the
employee was engaged at the time of injury, whichever occurs
first.

Iowa Code § 85.34(1). Brewer-Strong contends that the Bell Bros. test is

inconsistent with the plain language of Iowa Code section 85.34(1). She

claims nothing in the language of that section supports the interpretation

that an employer is only responsible for healing period benefits when the

healing period stems from authorized medical care. However, this

interpretation would be inharmonious with a reading of Iowa Code chapter

85 as a whole.

When an examination of the statutory provisions taken together in

context creates ambiguity regarding the interpretation of a certain

provision, we rely on our rules of statutory construction to guide our
 29

interpretive analysis. Ramirez-Trujillo, 878 N.W.2d at 770. “We assess the

statute in its entirety rather than isolated words or phrases to ensure our

interpretation is harmonious with the statute as a whole.” Id.

Additionally, “we presume the legislature included every part of the statute

for a purpose” and “avoid construing statutory provisions in a manner that

will lead to absurd results.” Id. Thus, while Iowa Code section 85.34(1)

does not expressly provide that an employer is only responsible for

covering healing period benefits stemming from authorized care, an

assessment of Iowa Code chapter 85 in its entirety makes clear that

healing period benefits are dependent upon the injured worker receiving

treatment by an employer-authorized physician.

As we noted previously, Iowa Code section 85.27(4) requires an

employer to provide reasonable and necessary medical care for an

employee who suffers a compensable, work-related injury. It also gives the

employer the right to choose the medical provider for work-related injuries.

See Iowa Code § 85.27(4). This provision seeks “to balance the interests

of employers and the interests of injured employees” by allowing employers

who fulfill their compensation obligations “ ‘to substitute their judgment

for that of their injured employees on the important question of which

medical professionals are best suited to diagnose and treat work-related

injuries.’ ” Ramirez-Trujillo, 878 N.W.2d at 771 (quoting Baker v.

Bridgestone, 872 N.W.2d 672, 678 (Iowa 2015) (second quote)). It would

be inconsistent with the intent of the legislature to allow employers the

right to choose an injured employee’s medical care for compensable

injuries, and then require the employer to compensate the injured

employee for benefits stemming from unauthorized medical care after the

employee “abandon[ed] the protections of section 85.27.” Bell Bros., 779

N.W.2d at 204. Similar to the facts in Bell Bros., Brewer-Strong rejected
 30

the employer’s authorized care to “obtain[] alternative medical care with

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

the workers’ compensation commissioner.” Id.

Clearly, Iowa Code section 85.34(1) does not explicitly state that an

employee cannot receive healing period benefits for unauthorized care.

However, such an interpretation is consistent with the overall intent of the

workers’ compensation statutory scheme. It is the employer’s obligation

to compensate employees for work-related injuries, and the employer has

the right to choose the employee’s medical care. An interpretation that

requires an employer to provide injured employees with healing period

benefits for their unauthorized care when they knowingly abandoned the

protections of Iowa Code section 85.27 would be inconsistent with the

overall intent of the statute.

We have previously noted the relationship between authorized

medical care and healing period benefits, stating that once an employer

acknowledges compensability of an injury, Iowa Code section 85.27

contemplates that the employer will provide reasonable medical care and

will also pay benefits as described in other portions of the overall statute

including Iowa Code sections 85.33 and 85.34. Id. at 202. We interpreted

Iowa Code section 85.34(1) consistent with the statutory scheme

established in Iowa Code chapter 85 to hold that a claimant cannot receive

healing period benefits resulting from unauthorized care unless he or she

can meet the burden of proof outlined in the more favorable medical

outcome test. See id. at 209.

Because we determine the Bell Bros. test is applicable to healing

period benefits, we must next consider the claim by Brewer-Strong that

our holding in Bell Bros. is inapplicable to her case due to the factual

differences between her case and those of the claimant in Bell Bros.
 31

Specifically, Brewer-Strong claims her case is distinguishable from Bell

Bros. She claims the merit and value of the treatment offered by the

authorized physician in comparison to the unauthorized physician—

namely, surgery verses physical therapy—was at issue in Bell Bros.,

whereas her case involves an issue surrounding the performance of the

same surgery by different physicians. See id. at 197–98. Therefore,

Brewer-Strong reasons she would have required healing period benefits

regardless of whether she received treatment from Dr. VonGillern or

Dr. Adams. She claims denying her healing period benefits because she

received the surgery from Dr. VonGillern amounts to a penalty for having

received unauthorized care in contradiction of our rule to “liberally

construe workers’ compensation statutes in favor of the worker.” Des

Moines Area Reg’l Transit Auth. v. Young, 867 N.W.2d 839, 842 (Iowa 2015)

(quoting Ewing v. Allied Constr. Servs., 592 N.W.2d 689, 691 (Iowa 1999)).

We disagree.

Our holding in Bell Bros. did not focus on the respective form of

treatments that the authorized and unauthorized physicians

recommended. Rather, it focused on the ability of the claimant to recover

costs for unauthorized medical care and the healing period benefits that

resulted from such care. This is exactly the issue here: the payment of

healing period benefits hinges on whether her healing period resulted from

authorized care. The facts here fall squarely within the circumstances we

discussed in Bell Bros. A claimant may select her own medical care,

independent of the employer’s choice of care, with the risk that she will

not be able to recover the costs of medical expenses or healing period

benefits resulting from such care, if she cannot meet the burden of proof

that her care was reasonable and beneficial. See Bell Bros., 779 N.W.2d

at 204, 206. Finally, while Brewer-Strong is correct that we interpret
 32

workers’ compensation statutes in favor of the worker, we still must

interpret the provisions within the workers’ compensation statutory

scheme “to ensure our interpretation is harmonious with the statute as a

whole.” Ramirez-Trujillo, 878 N.W.2d at 770. As we noted previously, this

rule of statutory construction requires us to apply the Bell Bros. test to a

claimant’s request for healing period benefits stemming from unauthorized

care. To find otherwise would create an asymmetrical law that is

inconsistent with the rest of the statute—namely, Iowa Code section

85.27(4) that provides employers with the right to choose medical care for

an injured employee's compensable work-related injuries.” Therefore, we

affirm the application of the Bell Bros. test to this case and the denial of

healing period benefits related to her unauthorized medical care as ordered

by the district court.

IV. Conclusion.

For the aforementioned reasons, we affirm the judgment of the

district court.

AFFIRMED.

All justices concur except Hecht, J., who dissents.
 33

#16–1364, Brewer-Strong v. HNI Corp.

HECHT, Justice (dissenting).

Because I believe the definition of beneficial adopted by this court in

Bell Bros. Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193, 206 (Iowa

2010), has established an impractical legal standard requiring parties,

witnesses, and the commissioner to engage in sheer speculation, I

respectfully dissent.

In Bell Bros. we explained the general parameters controlling an

employer’s liability for the cost of medical care provided by an

unauthorized provider in a workers’ compensation case:

We do not believe [Iowa Code section 85.27] 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.

Id. We further explained this standard

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.

Id. at 206–07. We noted that “[t]his interpretation is . . . consistent with

our approach to interpret workers’ compensation statutes liberally in favor

of the worker.” Id. at 207 (citing Myers v. F.C.A. Servs., Inc., 592 N.W.2d

354, 356 (Iowa 1999)).

Notably, these excerpts from Bell Bros. are consistent with how the

workers’ compensation commissioner had addressed claims for
 34

reimbursement for the cost of unauthorized medical treatment since 2002.

Under the commissioner’s interpretation of section 85.27, a claimant could

obtain reimbursement for the cost of unauthorized medical expenses upon

proof that they were reasonable and helpful in addressing the symptoms

of a work-related injury. Haack v. Vono Hoffman Graphics, Iowa Workers’

Comp. Comm’n No. 1268172, 2002 WL 32125588, at *7 (July 31, 2002)

(“When there has been no abandonment of care and liability is admitted,

an injured worker may be reimbursed for unauthorized care without

initiating an alternate care proceeding upon a showing that the

unauthorized care was successful and beneficial toward improving the

employee’s condition in a way that benefited the employer as well as the

employee.”); accord Fitzgerald v. Barker Apartments, Iowa Workers’ Comp.

Comm’n No. 5028294, 2009 WL 3683667, at *5–6 (Nov. 3, 2009) (same);

Mechaelsen v. Electrolux, Iowa Workers’ Comp. Comm’n No. 5025049,

2009 WL 5704641, at *8 (Apr. 21, 2009) (employer ordered to pay for care

provided by an unauthorized surgeon where surgery “did in fact provide

claimant with relief and improved his condition”).

This standard requiring proof that the unauthorized medical care

was helpful to the claimant generally advanced the interests of both the

employer and the injured employee. Both parties had an interest in

achieving prompt medical diagnosis and therapeutic treatment for work-

related injuries. The employer’s interest in choosing a qualified provider

of medical care was naturally aligned with the interest of the employee

who—wishing to be healed—was inclined, in choosing her own provider,

to consult one capable of diagnosing and treating the injury.

The employer’s statutory right to choose providers was protected by

the burden of proof allocated to claimants seeking reimbursement for the

cost of unauthorized care. Reimbursement for the cost of such care would
 35

be ordered only if the claimant proved the care was reasonable and

beneficial. The reasonableness requirement provided assurance that an

employer would not be required to reimburse an employee for the cost of

treatment not calculated to address the claimed injury. As I have already

noted, the burden of proving the unauthorized treatment was beneficial

gave employees further incentive to seek treatment only from providers

likely to provide services that would promote healing and recovery of their

preinjury capacity. Most importantly, the standard applied prior to our

decision in Bell Bros. advanced the overarching purpose of section 85.27:

to promptly provide injured employees with medical treatment for work-

related injuries.

But this standard was radically changed by a single sentence in our

Bell Bros. opinion. In attempting to define the word beneficial in the

context of unauthorized medical care, we said, “[U]nauthorized 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.”

Bell Bros., 779 N.W.2d at 206. The commissioner’s decision in the case

now before the court reveals that this single sentence has created an

unrealistic and impractical burden of proof for workers’ compensation

claimants. In applying the Bell Bros. definition of beneficial and denying

Kelly Brewer-Strong’s claim for reimbursement of unauthorized medical

expenses, the deputy commissioner explained,

This result seems unfair because claimant was likely to
have the bilateral arm surgeries performed by either
Dr. Adams or Dr. VonGillern. If the surgeries were performed
by Dr. Adams, claimant would be entitled to be compensated
with healing period benefits for the disputed period of time.
Having had the exact same surgeries performed by Dr.
VonGillern, it becomes a harsh result to deny claimant
benefits simply because she cannot prove she achieved a
better result from the same treatment.
 36

But the unfairness and harshness of the Bell Bros. standard, as

aptly perceived by the deputy commissioner, is only one of its most

unfortunate features. The standard as applied in this case requires

Brewer-Strong to prove the surgeries performed by Dr. VonGillern

provided a more favorable outcome than treatment that was not provided

by the authorized physician, Dr. Adams. This is a standard requiring the

parties, their witnesses, and the agency to engage in pure speculation.

As the majority has noted, the employer (HNI) authorized care by

Dr. Adams in September of 2012. Following an examination of Brewer-

Strong in October 2012, Dr. Adams opined that Brewer-Strong should

continue the conservative care (arm splints and exercises) she was then

following. Brewer-Strong was at that time willing to continue the

conservative approach and endure the considerable bilateral upper-

extremity symptoms she was experiencing.

Nevertheless, her bilateral arm symptoms worsened in the ensuing

weeks, and by May of 2013, she was willing to consider the surgical option

recommended by Dr. VonGillern. The uncontroverted record reveals that

the surgeries produced beneficial results relieving the bilateral arm

symptoms.

Given the worsening of Brewer-Strong’s symptoms between October

2012 and May 2013, the deputy commissioner astutely concluded the

surgeries would have been performed by an authorized physician if they

had not been performed by Dr. VonGillern. 1 But the Bell Bros. standard

unrealistically and nonsensically demands proof that the successful,

relief-producing surgeries performed by Dr. VonGillern were more

beneficial than treatment not actually provided by an authorized

1Notably, there is no evidence that the surgeries performed by Dr. VonGillern were
not medically necessary at the time they were performed.
 37

physician. As a practical matter, this is an impossible standard to meet.

I would therefore acknowledge that we got it wrong in Bell Bros. and

overrule that standard.

Turning now to the factual record in this case, it must be noted the

uncontroverted evidence established the surgeries relieved Brewer-

Strong’s bilateral upper-extremity symptoms so effectively that she was

deemed ready to return to work without physical restrictions. I

acknowledge that the beneficial outcomes of the surgeries performed by

Dr. VonGillern were not permanent. But in my view, it is grossly

inappropriate to attribute the duration of the beneficial outcomes to the

reasonableness or quality of care provided by the unauthorized physician.

Indeed, it should come as no surprise that some—but not all 2—of Brewer-

Strong’s bilateral upper-extremity symptoms recurred after she was

returned to the very job that caused the injuries for which the surgeries

were performed. It was a job that required repetitive motion of her upper

extremities—grasping fabric and moving it across her workstation and

through a sewing machine hundreds of times per day—as well as carrying

and lifting several times per day. 3 We cannot be shocked that many of the

symptoms alleviated by the successful surgeries returned when she was

again exposed to that work environment. Hence, the fact that the

beneficial effect of the surgeries was not of longer duration should not be

2Brewer-Strong had a trigger finger defect prior to the surgeries that did not recur
after her return to work.
3At the workers’ compensation hearing, HNI offered as an exhibit its official
description of Brewer-Strong’s job—the technical sewer position. The official description
specifies the job requires, among other things, “[f]requent use of hand, arms, legs and/or
back in a push/pull motion,” “[c]ontinuous movement of hand, hand together with arm,
or two hands to grasp, manipulate, or maneuver fabric through the sewing process,” and
“[c]ontinuous and repetitive use of wrists, hands, arms, and legs including bending, lifting
and gripping.”
 38

attributed to the quality or reasonableness of the care provided by the

unauthorized medical provider, Dr. VonGillern.

In sum, because our decision in Bell Bros. established a flawed

standard requiring proof based on sheer speculation and because I believe

the record does not support a finding that the surgeries performed by

Dr. VonGillern were not beneficial to Brewer-Strong, I would reverse.