Court of Appeals Decides Potentially Destructive Alternate Medical Care Case

A series of commissioners has held that when an authorized treating physician recommends treatment that treatment is deemed to be authorized under 85.27(4) of the Iowa Code.  In Lynch Livestock v. Bursell, No. 14-1133 (Iowa App. May 20, 2015), the Iowa Court of Appeals turns this longstanding agency rule on its head and concludes that in the context of an alternate medical care proceeding, the claimant must demonstrate that the care offered by the employer is unreasonable, notwithstanding that the care sought is recommended by the authorized treating physician.  The decision of the court of appeals could well sound the death knell of a large portion of alternate medical care proceedings by destroying the authorized physician rule.

In Mr. Bursell's case, Dr. Cook, an authorized treating physician, diagnosed claimant with CRPS and referred him to Dr. Kelly, a vascular surgeon.  Dr. Kelly recommended a lumbar sympathectomy.  Defendants subsequently sent claimant to other physicians, who recommended conservative treatment including physical therapy and psychiatric referrals.

At the alternate medical care hearing, the deputy concluded that the care sought by claimant, the lumbar sympathectomy, was reasonable and necessary.  The deputy ordered that defendants pay for the surgery.  On judicial review, the district court reversed the agency, finding that the agency applied the wrong legal test.  The district court found that since the agency had not found the care offered by the employer unreasonable, the agency's ordered was in error.  The court reversed the agency's order.
The Court of Appeals noted that the employer generally has the right to select medical care.  If claimant protests the care offered, an alternate medical care hearing may be filed.  The court, citing R.R. Donnelly & Sons v. Barnett, 670 N.W.2d 190, 195-196 (Iowa 2003), found that claimant has the burden of proving that the care offered by the employer was unreasonable.  Ultimately, because the agency nowhere concluded that the care being offered by the employer was unreasonable, the court found claimant failed to meet his burden of proof.

The court only elliptically addressed the fact that the care sought by claimant was recommended by the employer's own authorized treating physician and thus should have been authorized under section 85.27 of the statute.  The court noted in a footnote that the agency held that the employer was not to interfere with the medical judgment of its own treating physician.  The court, however, indicated that because the decision was a review-reopening decision and not an alternate medical care proceeding, it was not governing.  The court also noted that because this was simply an agency statement, it was not governing law and not binding on the court.

The court ultimately remanded the decision to the agency to make factual findings as to whether the actions of the employer were unreasonable.

Although the court articulated the general rule that claimant has the burden of proving that the care offered by the employer was unreasonable, the court elided the actual issue in the case, which was whether care that is recommended by an authorized treater must be provided. Under the decision of the court, the employer can with impunity ignore the treatment recommendations of its authorized physician and could cast around until they found a doctor who recommended other care more to the employer's liking.  So long as this care was not "unreasonable" according to the court, alternate medical care would not be appropriate.  The decision of the Court of Appeals completely ignores the underpinning of the authorized physician rule, and also completely ignores the fact that the workers' compensation act is to be interpreted liberally to the benefit of workers.

The underlying alternate medical care decision decided only Pote v. Mickow Corp., No. 694639 (Review-Reopening June 17, 1986) in support of the assertion that "reasonable care includes care necessary to diagnose the condition and defendants are not entitled to interfere with the medical judgment of its own treating physician."  This, of course, could be seen as a finding that the care offered by defendants was unreasonable, because it ignored the recommendations of the authorized treating physician.  On its face, however, the decision in Bursell ignores the treating physician rule.

In Berns v. CRST, No. 5034602 (Alt. Med. Care Aug. 27, 2012), the treating physician rule was described as follows, in light of the employer's right to select care:

An employer's right to select the provider of medical treatment to an injured worker does not include the right to determine how an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assman v. Blue Star Foods, No. 866389 (Dec. Ruling May 18, 1988).  An employer's failure to follow recommendations of an authorized physician in matters of treatment is commonly a failure to provide reasonable treatment. Boggs v. Cargill, Inc., No. 1050396 (Alt. Med. Care Jan. 31, 1994.… The right to choose the care means the right to choose the provider, not the treatment modalities recommended by the provider. Employer cannot disregard treatment recommendations of authorized treating physician, even if a consulting physician disagrees with those recommendations. Cahill v. S & H Fabricating & Engineering, No. 1138063, (Alt. Med. Care May 30, 1997 [work hardening program]); Hawxby v. Hallett Materials, No. 1112821, (Alt. Med. Care February 20, 1996). Leitzen v. Collis, Inc., No. 1084677, (Alt. Med.  Care September 9, 1996). The right to choose the care does not authorize the employer to interfere with the medical judgment of its own treating physician.  Boggs v. Cargill, Inc., No. 1050396, (Alt. Med. Care January 31, 1994).

Numerous agency cases come to the same conclusion, and is supported by the historical application of the treating physician principle over the past 30 years.  The Court of Appeals cavalierly ignored this principle, finding that since the courts had not enunciated the same principle, it did not govern.  The court made nothing more than a passing reference to this history, in the context of one decision of the agency.  

It is unknown whether the Supreme Court will be asked to take further review of Bursell.  The decision carries the possibility of overturning decades of agency precedent finding that if an authorized physician orders treating, that treatment is itself authorized.