West Central Cooperative and Farmland Mutual Insurance Company v. Brett V. Sullivan

IN THE COURT OF APPEALS OF IOWA

No. 21-1559
Filed August 31, 2022

WEST CENTRAL COOPERATIVE and FARMLAND MUTUAL INSURANCE
COMPANY,
Plaintiffs-Appellants,

vs.

BRETT V. SULLIVAN,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

The employer and its insurance company appeal from the district court

ruling affirming the decision of the workers’ compensation commissioner ordering

the employer to authorize a medical procedure requested by the employee.

AFFIRMED.

Jeffrey W. Lanz of Huber, Book, Lanz & McConkey, P.L.L.C., West Des

Moines, for appellants.

Thomas M. Wertz and Mindi M. Vervaecke of Wertz Law Firm, P.C., Cedar

Rapids, for appellee.

Considered by Bower, C.J., Chicchelly, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

POTTERFIELD, Senior Judge.

Brett Sullivan, who was injured in a workplace accident in 2011, sought

authorization from his former employer1 for a trial of a spinal cord stimulator (SCS)

to treat chronic back pain.2 The employer denied liability, arguing Sullivan’s

chronic back pain was not causally related to the 2011 accident. Alternatively, the

employer maintained the SCS trial was not a reasonable and necessary treatment

for the pain and claimed Sullivan should instead start a general flexibility exercise

program and a consistent walking program, as at least one doctor recommended.

The workers’ compensation commissioner concluded Sullivan’s chronic

back pain was causally related to the 2011 accident and that the SCS trial was a

reasonable and necessary treatment for the condition. On rehearing, the

commissioner also concluded that the employer did not actually authorize any

alternate treatment, which was unreasonable. The employer was ordered to

authorize the SCS trial.

On judicial review, the district court concluded substantial evidence

supported the conclusions that Sullivan’s chronic back pain is causally related to

the work injury and that Sullivan proved the treatment offered by the employer was

unreasonable. The court also concluded that, while the commissioner applied the

wrong test in the initial ruling, the commissioner corrected that mistake by applying

1 At the time of his injury, Sullivan was employed by West Central Cooperative.
The employer’s insurance company is Farmland Mutual Insurance Company. For
ease, we refer to West Central Cooperative and Farmland Mutual Insurance
Company collectively as “the employer” throughout this opinion.
2 Sullivan also sought authorization for surgery on his left knee. The workers’

compensation commissioner ruled in Sullivan’s favor; the employer does not
contest that ruling on appeal.
3

the correct test in the ruling on the motion for rehearing—to the same result. So,

the court affirmed the order to authorize the SCS trial.

The employer appeals.

I. Background Facts and Proceedings.

Sullivan experienced a workplace injury in October 2011 when the wheel

loader he was driving was struck by a train. His initial assessment showed injuries

including L3 and L4 fractures of the transverse processes, wedge fractures of T8

and T9 vertebral bodies, and a fracture of the T8 spinous process—among others.3

Sullivan’s injuries required a lengthy hospital stay and a number of surgeries. The

employer admitted the injury and paid Sullivan lost time and permanent partial

disability benefits.4

Sullivan returned to work at West Central Cooperative, where he remained

employed for a couple of years—until the parties entered into a mutual separation

agreement in 2013. Even after, Sullivan continued to need and receive medical

treatment for his injuries stemming from the 2011 accident.

As time progressed, Sullivan continued to report back pain to his treating

doctors. One of them, Dr. Devon Goetz, referred Sullivan to Dr. Christian Ledet

for pain management. Dr. Ledet evaluated Sullivan on June 22, 2018, ordering an

EMG and pelvic and lumbar spine MRIs. Dr. Ledet initially recommended

medication-based treatments. In December 2018, when Sullivan reported he had

3Sullivan also sustained injuries to his ribs, right hip, right shoulder, and head.
4 Six issues arising from the workplace injury were part of a contested case; the
commissioner’s decision was challenged, and a panel of this court issued a ruling
affirming on the issues raised on appeal. See Sullivan v. W. Cent. Coop., No. 18-
1811, 2019 WL 3946004, at *3–4 (Iowa Ct. App. Aug. 21, 2019).
4

not experienced significant improvement from the medication, Dr. Ledet suggested

Sullivan proceed with the SCS trial. This required Sullivan to first complete a

biopsychological evaluation and a thoracic spine MRI, which were done in

February 2019. Up to this point, the employer authorized and paid for all of

Dr. Ledet’s treatment recommendations. The employer then sent Sullivan to

Dr. Joseph Chen for an independent medical examination (IME).

Dr. Chen opined the physiological injuries sustained by Sullivan to his back

“have healed in the intervening 7 years.” Dr. Chen listed Sullivan’s “current

diagnosis of his back pain condition is chronic mechanical and myofascial thoracic

low back pain.” He continued:

The development of chronic pain is multifactorial and best
characterized within a biopsychosocial model of pain that includes
not only physical trauma, but also personal psychological and social
factors that contribute to an individual’s experience of pain. . . .
Mr. Sullivan’s complaints of severe pain that greatly interferes
with his life and subsequently leading to a high ODI score to be a
result of Fear Avoidance Beliefs and Behaviors along with cognitive
distortions as noted on his Pain Catastrophizing Scale responses.
Mr. Sullivan also reports severe anxiety and depression that further
contributes to his ongoing pain leading to further fear avoidance and
pain catastrophization.

Dr. Chen opined that the SCS trial was not causally related to Sullivan’s worked-

related back injury, noting that Sullivan’s “recovery took a downward course after

he separated from his employer nearly 2 years after his injury”—suggesting the

chronic pain was linked to his unemployment and the possible loss of his self-

identity, perceived self-worth, or a negative change in financial stability.

Additionally, Dr. Chen denied that the SCS was reasonable or necessary to treat

Sullivan’s chronic back pain because it would “not address [his] fear avoidance

beliefs and behaviors nor his pain catastrophization, rumination, anxiety, or
5

depression.” Rather than the SCS trial for treatment of his chronic back pain,

Dr. Chen suggested that Sullivan “may eventually be suited to pursue an intensive

cognitive behavior therapy [program] with a pain psychologist.” He questioned

whether the treatment would be effective at the time of his report because he was

“not convinced” Sullivan was “receptive towards understanding chronic pain in a

different manner,” namely that his “chronic pain [is] no longer actual tissue damage

which should have healed in the interim 7+ years post trauma but of more

neurological hypersensitivity that has evolved and intensified after failed or

unsuccessful treatments of isolated body parts.” He recommended Sullivan start

a general flexibility exercise program and a consistent walking program.

In March 2019, the employer denied Sullivan’s request for the SCS trial,

relying on Dr. Chen’s opinion to state “that the need for the [SCS] is not causally

related to the 10/02/2011 work injury.” Sullivan filed an application for alternate

medical care, seeking authorization for the SCS trial from the commissioner. See

Iowa Code § 85.27 (2019). The employer responded, disputing liability and

attaching the report from Dr. Chen.

The agency dismissed Sullivan’s application for alternate medical care due

to the employer’s denial that “the condition for which treatment is sought is causally

connected to the work injury” and because “[t]he summary provisions of Iowa Code

section 85.27 as more particularly described in [Iowa Administrative Code rule 876-

4.48] are not designed to adjudicate disputed compensability of a claim.”

Sullivan moved for rehearing, stating that “[m]edical benefits for [Sullivan’s]

low back were established by the adjudication in [the] arbitration decision filed

December 21, 2015,” and arguing the employer’s “denial of liability was
6

inappropriate given the judicial adjudication of the injury.” He noted it was

Dr. Ledet—whom the employer authorized as a treating physician—who

recommended the SCS trial. The employer resisted,5 and the agency denied the

motion.

5 In paragraph (3) of his motion for rehearing, Sullivan claimed:
Medical benefits for Claimant’s low back were established by
adjudication in Arbitration Decision filed December 21, 2015, in File
No. 5050594. That decision recognized the medical opinions of
Dr. [Charles] Mooney wherein he established an 8% impairment to
the whole person applicable to the DRE Lumbar Category II due to
L3-L4 fractures of the transverse processes, as well as the opinions
of Dr. Kuhnlein.
In making this claim, Sullivan relies on the 2015 arbitration decision, which, in its
“findings of fact and conclusions of law” section, quoted Dr. Mooney. The
arbitration decision states:
On September 13, 2013, defendants sent claimant to Charles
Mooney, M.D., MPH, for an [IME]. Dr. Mooney provided the following
impairment ratings:
IMPAIRMENT RATINGS:
It is my opinion based on the 5th edition AMA Guide that Mr.
Sullivan demonstrates the following impairments as it relates to the
injuries discussed above:
THORACIC AND LUMBAR SPINE:
It is my opinion based on table 15-3, that Mr. Sullivan has an
8% impairment of the whole person applicable to DRE lumbar
category 2, due to L3-L4 fractures of the transverse processes,
Further, it is my opinion based on table 15-4, that he
demonstrates an 8% impairment rating of the whole person based
on DRE thoracic category 2, due to wedge fracture T9 vertebral body
and fracture of the T8 spinous process
The decision went on to quote other doctors who offered different opinions. And,
contrary to Sullivan’s assertion, the commissioner did not adopt Dr. Mooney’s
ratings or opinions. Still, in its resistance to Sullivan’s motion for rehearing, the
employer:
admit[ted] paragraph 3 to the extent that the Arbitration Decision
found claimant’s back condition related, found claimant suffered an
8% BAW impairment rating for the lumbar fractures, and awarded
future medical benefits for claimant’s back condition. However, the
Arbitration Decision does not preclude defendants from addressing
causation of claimant’s future back condition and need for ongoing
treatment at a date 3+ years after the Arbitration Decision.
7

Sullivan initiated the contested case at issue in this appeal, seeking

approval of the requested medical benefit. The arbitration hearing took place in

May 2020, at which Sullivan testified he “never” had “any low back problem” until

the October 2011 accident and that he did not have any “new injuries” to his low

back since the work injury. In contrast, he testified the severity and frequency of

the pain had worsened; he described it as “stabbing,” “burning,” and “the absolute

worst.” On cross-examination, Sullivan agreed that his back pain had gotten worse

in 2018 and 2019 and that a recent nerve test did not show any radiculopathy from

his back. The employer resisted, asserting Sullivan’s current back condition and

the need for the SCS trial were not caused by the work injury and the SCS trial

was not reasonable and necessary treatment for Sullivan’s chronic pain.

In the written arbitration decision, the deputy commissioner denied the

request for alternate medical care, concluding the SCS trial was not a reasonable

and necessary treatment and ruling, “Dr. Chen has outlined a reasonable course

of treatment that could serve as an alternative to a trial of a [SCS].”

Sullivan moved for rehearing, asking the deputy to address the question of

whether the 2011 work injury caused his chronic back pain. The employer

resisted, and the deputy denied the motion, concluding the cause of the back pain

did not need to be addressed because Sullivan failed to prove the SCS trial he was

requesting was a necessary treatment for the back pain.
8

Sullivan appealed the decision. In a May 2021 ruling, the commissioner6

first addressed the causation question that the deputy “leapfrogged,” reversing the

deputy and finding “while smoking and diabetes may contribute to [Sullivan’s] back

pain, it is undisputed that [his] back pain did not begin until after that incident and

was chronic thereafter. . . . [Sullivan’s] chronic pain symptoms are causally related

to [his] 2011 work injury.” Additionally, the commissioner concluded the SCS trial

was intended to treat Sullivan’s “work-related chronic pain symptoms” and so was

“causally related to [the] work injury.” The commissioner then turned to the

question of whether the SCS trial was reasonable and necessary to treat Sullivan’s

chronic pain. Given Dr. Ledet’s “specific expertise . . . when it comes to treatment

of chronic pain and implementation of neuromodulation devices,” the

commissioner found his opinion that the SCS trial is appropriate treatment “to be

most persuasive.” Because Sullivan met his burden to establish causation and

prove that the requested treatment was reasonable and necessary, the

commissioner ordered the employer to “promptly authorize and pay for the [SCS]

recommended by Dr. Ledet.”

The employer requested rehearing, challenging the credibility

determinations made by the commissioner as to the various experts and the

causation determination. Additionally, the employer claimed the commissioner

used the wrong standard when considering whether the SCS trial should be

authorized, arguing that because Sullivan sought alternate medical care, he had

6 The commissioner delegated authority to a different deputy commissioner to
issue the final agency decision on appeal. We ascribe all actions taken by the
deputy commissioner acting on behalf of the commissioner to the commissioner.
9

the burden of proving the care authorized by the employer was unreasonable.

Sullivan resisted; he argued the employer was attempting to “reframe the issue as

an alternative care question,” which was inaccurate because the employer denied

liability for the chronic back pain and, as a result, Sullivan’s application for alternate

medical care was dismissed. He maintained that, because the employer denied

the 2011 injury was the cause of his chronic back pain, it “made no offer of

alternative care,” which precluded him from having to establish any such

alternative care was unreasonable. According to Sullivan:

There is no evidence, and at no time, did [the employer] offer any
alternative to the [SCS] trial. To so argue flies in the face of their
denial of liability/causation. [The employer’s] position essentially is
we have no liability for the current back pain and we are offering
treatment. [They] are attempting to have the best of both worlds.

The commissioner denied the petition for rehearing. First, the

commissioner concluded it did not use the wrong standard; this “case . . . [was]

not the traditional alternate medical care setting” because the employer denied

liability for Sullivan’s chronic back pain. In the alternative, the commissioner

determined that even if the proper question was whether the employer authorized

a reasonable alternative care—for which the employer relied on Dr. Chen’s

recommendations regarding stretching and walking—“the employer offered no

evidence that they were actually offering [Sullivan] the treatment recommended by

Dr. Chen. . . . By denying liability and not offering any care, including that

recommended by Dr. Chen, [the] defendants abandoned their obligation to provide

care.”

The employer sought judicial review.
10

The district court determined substantial evidence supported the

commissioner’s conclusion that Sullivan’s chronic back pain is causally connected

to his 2011 work injury. But the court ruled the commissioner was wrong to

conclude the employer forfeited its right to direct medical care when it denied

Sullivan’s chronic back pain was caused by the 2011 accident. Relying on case

law,7 the court drew a distinction between denying an injury completely—which it

found the employer had not done because it admitted Sullivan suffered a back

injury in the original accident and acknowledged future medical benefits were

awarded for his back condition—and denying the extent of the current injury was

causally related to the workplace injury. The court reasoned that because the

employer was not liable for Sullivan’s chronic back pain until the commissioner

ruled the back pain was causally related to the workplace injury, and because

Sullivan was seeking authorization for a future medical procedure—not

reimbursement for care he obtained during the time period compensability was at

question—Sullivan had to “establish the claim for alternative medical care by

proving the alternate medical care is reasonable and necessary, or that the

medical care provided by the employer is unreasonable.” The court concluded the

commissioner “correctly applie[d] the test and burden of proof” in the ruling on the

7 See Bell Bros. Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193, 201 (Iowa
2010) (“[W]e 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.”).
11

motion for rehearing when the court considered whether any treatment authorized

by the employer was unreasonable. The court continued:

Under [Long v. Roberts Dairy Co., 528 N.W.2d 122, 124 (Iowa
1995)], the test is not what is the most appropriate treatment plan or
the more desirable treatment plan, but whether the treatment plan
offered by [the employer is] unreasonable. [The commissioner]
found prompt care was not provided by [the employer] at the
inception of the injury had compensability been acknowledged. Due
to care not being offered promptly, the Agency has the authority to
order alternate care, including care from a doctor chosen by the
claimant. [The employer] argue[s] they did offer Dr. Chen’s
recommendations at the time of the hearing. They contend they
introduced evidence of reasonable care as recommended by four
physicians. The Court acknowledges there are references in the
record to Dr. Chen’s recommendation of a general flexibility program
being a reasonable treatment plan for Sullivan’s chronic back pain.
However, our task is not to determine whether there is evidence
supporting a different finding, but rather, viewing the record as a
whole, supports the findings actually made. As a result, [the
commissioner’s] findings are supported by substantial evidence

(Citations omitted). The district court affirmed the commissioner’s ruling ordering

the employer to authorize and pay for the SCS trial. The employer appeals.

II. Standard of Review.

“We review a district court decision reviewing an agency action to determine

if we would reach the same result as the district court in our application of the Iowa

Administrative Procedure Act.” Staff Mgmt. v. Jimenez, 839 N.W.2d 640, 653

(Iowa 2013). Like the district court, we apply the standards of judicial review set

forth in Iowa Code chapter 17A—the Iowa Administrative Procedure Act. See Iowa

Code § 17A.19(10); see also Taylor v. Iowa Dep’t of Human Servs., 870 N.W.2d

262, 266 (Iowa 2015). “The applicable standard of review depends upon the error

asserted by the petitioner.” Colwell v. Iowa Dep’t of Human Servs., 923 N.W.2d

225, 231 (Iowa 2019).
12

III. Discussion.

Here on appeal, the employer argues there is not substantial evidence to

support the commissioner’s ruling that (1) Sullivan’s chronic back pain is causally

related to his 2011 work injury or (2) that the SCS trial is reasonable and necessary

treatment for the back pain. The employer also challenges whether the

commissioner’s determination that the treatment being provided by the employer

was unreasonable constitutes an abuse of discretion or an error at law.

A. Whether substantial evidence supports the conclusion Sullivan’s

chronic back pain is causally related to his 2011 workplace injury.

“Medical causation presents a question of fact that is vested in the discretion

of the workers’ compensation commission.” Cedar Rapids Cmty. Sch. Dist. v.

Pease, 807 N.W.2d 839, 844 (Iowa 2011). “We will therefore only disturb the

commissioner’s finding of medical causation if it is not supported by substantial

evidence.” Id. (citing Iowa Code § 17A.19(10)(f)). “‘Substantial evidence’ means

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 the fact are understood to be

serious and of great importance.” Iowa Code § 17A.19(10)(f)(1). In conducting

our review, we “determine whether substantial evidence, viewing the record as a

whole, supports the findings actually made.” Pease, 807 N.W.2d at 845. In other

words, “[e]vidence is not insubstantial merely because different conclusions may

be drawn from” it, and “evidence may be substantial even though we may have

drawn a different conclusion” than the commissioner. Id.
13

Here on appeal, the employer challenges the commissioner’s conclusion

that Sullivan’s chronic back pain is causally connected to the 2011 workplace

accident. The employer argues the commissioner should have given more weight

to the opinions of Dr. William Boulden, Dr. Eden Wheeler, and Dr. Chen—who

each opined that Sullivan’s current back condition is not related to the trauma from

the 2011 accident. The employer argues these experts’ opinions are more credible

than those of Dr. Ledet and Dr. John Kuhnlein—who each opined there was a

causal connection—and offers a variety of reasons it believes this to be true.

“Medical causation ‘is essentially within the domain of expert testimony.”’

Pease, 807 N.W.2d at 845 (citation omitted). And it is the commissioner, as the

trier of fact, who determines “whether to accept or reject an expert opinion.” Id.;

see also Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 464 (Iowa 1969)

(“Acceptance or rejection of the expert’s testimony is within the ‘peculiar province’

of the . . . commissioner.”). Nothing in our standard of review gives us the authority

to make credibility findings anew. See Taylor, 870 N.W.2d at 266 (noting it is the

agency’s duty to determine the credibility of witnesses and we “must give

appropriate deference to the agency’s findings”). Because the commissioner

found the opinions of Dr. Ledet and Dr. Kuhnlein to be more credible, and those

opinions support the conclusion that Sullivan’s chronic back pain is causally related

to his workplace injury, substantial evidence supports the commissioner’s

causation determination.
14

B. Whether substantial evidence supports the conclusion the SCS trial

is reasonable and necessary treatment for Sullivan’s chronic back pain.

Next, the employers argue that even if Sullivan’s chronic back pain is

causally related to the workplace injury, there is not substantial evidence to support

the commissioner’s determination that the SCS trial is reasonable and necessary

treatment for the back pain.8 See Iowa Code § 85.27(1)(a). But as it was in the

prior argument, the employer’s challenge boils down to reasons we should credit

the opinions of some experts over those the commissioner found to be credible

and more persuasive—Drs. Kuhnlein and Ledet. As we stated before, “the weight

to be given conflicting expert opinions is within the provision of the commissioner.”

Pease, 807 N.W.2d at 852. And because our “review is not de novo, [we] must

not reassess the weight to be accorded various items of evidence.” Burns v. Bd.

of Nursing, 495 N.W.2d 698, 699 (Iowa 1993).

Therefore, substantial evidence supports the commissioner’s determination

that the SCS trial is a reasonable and necessary treatment for Sullivan’s chronic

back pain.

8 The employer has a duty to “furnish reasonable surgical, medical, dental,
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance,
and hospital services and supplies” for all compensable injuries and a duty to
“furnish reasonable and necessary crutches, artificial members, and appliances.”
See Iowa Code § 85.27(1)(a) (emphasis added). Presumably both parties are in
agreement that the device involved in an SCS trial is an “appliance” within the
meaning of section 85.27. See Iowa Admin. Code r. 876-8.5 (“Appliances are
defined as hearing aids, corrective lenses, orthodontic devices, dentures,
orthopedic braces, or any other artificial device used to provide function or for
therapeutic purposes.”).
15

C. Whether the commissioner’s determination that the treatment being

provided by the employer was unreasonable constitutes an abuse of

discretion or an error at law.

In its decision, the commissioner determined the SCS trial was reasonable

and necessary treatment for Sullivan’s chronic back pain and ordered the employer

to authorize and pay for it. The employer moved for rehearing; it argued the

commissioner had not applied the correct standard, asserting, “By seeking

alternate medical care in challenging the employer’s choice of treatment, the

claimant has the burden of proving that the care authorized by the employer is

unreasonable.” See Long, 528 N.W.2d at 123 (“The ultimate question is whether

. . . the employer met its obligation under Iowa Code section 85.27 . . . . By

challenging the employer’s choice of treating—seeking alternate care—[the

claimant] has assumed the burden of proving that the authorized care is

unreasonable.”). The commissioner denied the motion for rehearing; it recognized

this was “not the traditional alternate medical care setting” as presented in Long

but also ruled in the alternative that if Long applied, the employer’s denial of liability

and failure to offer any care was unreasonable. The district court affirmed this

ruling on judicial review.

As it did in its motion for rehearing to the commissioner, the employer

advocates that we apply the standards of an alternate medical care proceeding to

this case—i.e., determining whether the treatment actually authorized by the

employer was unreasonable before ordering the treatment requested by Sullivan—

and that we apply those standards to the employer’s actions as of March 2021—

when compensability had already been determined by the commissioner and the
16

employer suggested Sullivan should utilize the walking and stretching regimen

instead of the SCS trial. The employer argues that because it had no obligation to

provide reasonable treatment until compensability was decided, it would be wrong

to hold its earlier denial of treatment against it.

In an alternate medical care setting, the employee has the burden to prove

the care actually being offered by the employer is unreasonable. See Pirelli-

Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 436 (Iowa 1997). The

employer’s right to direct care—and the presumption that the care is reasonable—

stems from the employer’s duty to provide reasonable care. Bells Bros., 779

N.W.2d at 204 (“The right to control medical care emanates entirely from the duty

to furnish medical care for injuries compensable under the workers’ compensation

laws.”). But once the employer denies liability, the employer no longer has the

right to direct care and a proceeding for alternate medical care is no longer proper.

See R.R. Donnelly & Sons v. Barnett, 670 N.W.2d 190, 197 n.2 (Iowa 2003) (“We

emphasize that the commissioner’s ability to decide the merits of a section

85.27(4) alternate medical care claim is limited to situations where the

compensability of an injury is conceded, but the reasonableness of a particular

course of treatment for the compensable injury is disputed.”); see also Bells Bros.,

779 N.W.2d at 207 (“The employer’s right to control medical care attaches under

the statute when the employer acknowledges compensability . . . and it remains

with the employer under the statute until the employer denies the injury is work-

related . . . .”).

In demanding that the Long standard applies to this case, the employer is

attempting to—as Sullivan charged in his resistance to the employer’s motion for
17

rehearing—“have the best of both worlds.” The employer denied liability for

Sullivan’s chronic back pain.9 It filed an answer to Sullivan’s application for

alternate medical care, checking the box on the form to show it disputed liability of

the claim. Attached to its answer was the report of Dr. Chen, which opined the

physiological injuries sustained by Sullivan to his back “have healed in the

intervening 7 years” and suggesting other causes for the condition. And there

could be no misunderstanding about what it was doing because once the agency

dismissed Sullivan’s application, he sought rehearing and argued the denial of

liability was inappropriate. The employer resisted, explicitly stating it “denied

[Sullivan’s] current back complaints and the need for the [SCS] trial are causally

related to the work injury.” In response to Sullivan’s claim that the employer could

9 The employer attempts to recharacterize its denial of liability as challenging just
the “nature and extent” of Sullivan’s disability. In Bell Brothers, an employee
suffered a foot injury while at work and, over the course of years, continued to
experience pain. 779 N.W.2d at 196. The doctor authorized by the employer
diagnosed the employee with tendinitis and recommended physical therapy; the
employee’s doctor—who was not authorized to treat the employee—made a
different diagnosis and recommended surgery. Id. at 197. Without receiving
approval from the employer or seeking an order from the commission for alternate
medical care, the employee underwent surgery with his unauthorized doctor. Id.
at 198. When the employee sought reimbursement after the fact, the commission
found he was entitled to recover the medical expenses because the employer
disputed liability. Id. at 198–99. Our supreme court reversed, concluding the
employer had acknowledged compensability and provided the employee care; the
right to control medical care attached at that point and it remained with the
employer because it had never “denie[d] the injury is work-related, withdraw[n]
authorization of the care, or [had] the commissioner order[] alternative care.” Id.
at 207.
In Bell Brothers, the employer disagreed with the nature and extent of the
employer’s injury as diagnosed by the employee’s chosen doctor, but the employer
never denied it was liable for the employee’s foot injury. In contrast, in this case,
the employer not only disagreed with the extent and nature of Sullivan’s injury—
as Drs. Ledet and Kuhnlein diagnosed it—but also repeatedly, in writing denied
liability for the injury once Sullivan sought medical care.
18

not disregard the treatment recommendations of an authorized treating

physician—Dr. Ledet—the employer responded that it “had the right to question

an authorized treating physician’s recommendations by having an IME and then

deauthorize the authorized treating physician based upon the opinions of the IME

physician.”

Because of the employer’s denial of liability, Sullivan had to file a contested

case petition—moving the issue outside the fast-tracked alternate-medical-care

proceedings. See Iowa Code § 85.27(4) (requiring the commissioner to issue a

decision on a request for alternate medical care “within ten working days of receipt

of an application for alternate care made pursuant to a telephone hearing or within

fourteen working days of receipt of an application for alternate care made pursuant

to an in-person hearing”); see also R.R. Donnelly, 670 N.W.2d at 195 (“The

procedure [outlined in section 85.27(4)] permits disputes over the medical care for

compensable injuries to be quickly resolved . . . .”). And it took almost two years

after he filed his application for alternate medical care before the commissioner

issues its appeal decision, which concluded the employer was liable for Sullivan’s

chronic back pain.

The employer does not get the deference it is afforded in an alternate-

medical-care proceeding after it denied liability and caused that proceeding to be

dismissed; this case was not decided in an alternate medical care proceeding. See

R.R. Donnelly, 670 N.W.2d at 195 (Iowa 2003) (recognizing that section 85.27(4)

both obligates the employer to furnish reasonable services and supplies to treat

an injured employee and gives the employee the right to choose the care). And

once the commissioner determined Sullivan’s chronic back pain was
19

compensable, it could order the employer to authorize the care sought by

Sullivan—without forcing Sullivan to restart the alternate-medical-care proceeding

over again with a new application upon which the employer could not dispute

liability or giving the employer the benefit of allowing it to offer up what it would

now authorize as treatment and considering whether that treatment was

unreasonable. See Bell Bros., 779 N.W.2d at 204 (“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.”); cf. R.R.

Donnelly, 670 N.W.2d at 197 (noting that when a compensability issue arises in an

alternate-medical-care proceeding, “the commissioner cannot order that the

alternate care sought by the employee be furnished by the employer” until there is

“a determination of the compensability of the injury in a contested case proceeding

or some other proceeding”).

Insofar as the commissioner—and the district court—applied Long to this

case, it was in error. Because the employer denied liability for Sullivan’s chronic

back pain, the proper question was not whether the employer was meeting its

obligation to provide reasonable treatment—and it couldn’t be; the employer was

not offering any. See Long, 528 N.W.2d at 123 (“The ultimate question is whether

. . . the employer met its obligation under Iowa Code section 85.27 . . . . By

challenging the employer’s choice of treating—seeking alternate care—[the

claimant] has assumed the burden of proving that the authorized care is

unreasonable.”). However, we agree with the district court and the commissioner
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that Sullivan met his burden to establish his chronic back pain is causally related

to his 2011 injury and the SCS trial is reasonable and necessary to treat the

condition. We affirm.

AFFIRMED.