Waterloo Community School District and United Wisconsin Insurance Company v. Graciela DeMaldonado

IN THE COURT OF APPEALS OF IOWA

No. 22-0845
Filed February 8, 2023

WATERLOO COMMUNITY SCHOOL DISTRICT and UNITED WISCONSIN
INSURANCE COMPANY,
Plaintiffs-Appellants/Cross-Appellees,

vs.

GRACIELA DeMALDONADO,
Defendant-Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg

(dismissal) and Heather L. Lauber (merits), Judges.

An employer appeals the denial of its petition for judicial review of the

agency decision to order alternate medical care and challenges the cross-appeal

as untimely. The employee cross-appeals the denial of her motion to dismiss the

petition for judicial review. AFFIRMED ON APPEAL AND CROSS-APPEAL.

Laura Ostrander of Accident Fund Holdings, Inc., Lansing, Michigan, for

appellants.

Gary Nelson and Casey Steadman of Rush & Nicholson P.L.C., Cedar

Rapids, for appellee.

Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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TABOR, Presiding Judge.

A school district appeals the district court’s denial of its petition for judicial

review of an agency decision that authorized alternate care for an employee

injured on the job. The employee cross-appeals arguing the petition for judicial

review should have been dismissed as untimely. Like the district court, we find the

employer timely challenged the agency decision. But also like the district court,

we find that the school district should have authorized the alternate care.

I. Facts and Prior Proceedings

Graciela DeMaldonado worked as a custodian for the Waterloo Community

School District. In 2017, she fell at work and injured her back, hips, legs, and

knees. She asserts she also developed anxiety, depression, and chronic pain.

After several years of treatment, she petitioned the Iowa Workers’

Compensation Commission for alternate care. She was dissatisfied with the care

provided because the school district refused to authorize pain management,

referred her to providers unsuited to treating her condition, “lie[d] about

authorization,” and interfered with the care she sought from her own selected

providers. She sought referral to pain management services with Dr. Stanley

Mathew “or another pain management specialist.” Finally, she asked the agency

to find that the school district’s “offered care is not suitable treatment” and that it

“abandoned care for ongoing interference.”

In a September 2021 ruling, the deputy commissioner granted her petition

in part and denied it in part. On the one hand, that ruling found the offered care

was not reasonable treatment for DeMaldonado’s condition and ordered the school

district to authorize pain management with Dr. Mathew. On the other hand, the
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ruling found insufficient proof that the school district abandoned DeMaldonado’s

care. Still, it cautioned the school district that “reasonable care includes care

necessary to diagnose the condition” and not to “interfere with the medical

judgment of its own treating physician.”

The school district petitioned for judicial review. The district court affirmed

the agency. The school district appeals; DeMaldonado cross-appeals.

II. Scope and Standard of Review

The district court may grant relief to a petitioner seeking judicial review of

an agency action only when the agency action (1) prejudiced the petitioner's

substantial rights and (2) falls within one of the criteria set forth in Iowa Code

section 17A.19(10) (2020). See Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 256

(Iowa 2012). “[T]he commissioner as the fact finder has the responsibility for

determining credibility of the witnesses, and we are bound by the commissioner’s

findings if supported by substantial evidence.” Sherman v. Pella Corp., 576

N.W.2d 312, 320 (Iowa 1998). “Ultimately, the question is not whether the

evidence might support a different finding, but whether the evidence supports the

findings actually made.” Id. If we reach the same conclusions as the district court,

we affirm; if not, we reverse or modify. See id. Our standard of review therefore

depends on the issues raised on appeal. See Jacobson Transp. Co. v. Harris, 778

N.W.2d 192, 196 (Iowa 2010).

“We review a district court’s ruling on a motion to dismiss for the correction

of errors at law.” Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533, 538

(Iowa 2022) (citation omitted).
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III. Analysis

The most logical way to proceed is to first address DeMaldonado’s cross-

appeal from the denial of her motion to dismiss the judicial review petition. After

that, we will review the school district’s appeal of the alternate care decision.

A. Timeliness of judicial review petition

On cross-appeal, DeMaldonado contends the district did not timely petition

for judicial review.1 Here, we must digress for a little more background. In spring

2021, DeMaldonado applied for alternate medical care, but then voluntarily

dismissed the application without prejudice (case number 5059882.03).

DeMaldonado refiled in September (case number 5059882.04) and the deputy

commissioner entered the alternate care order on September 23.

When the school district petitioned for judicial review, DeMaldonado moved

to dismiss. In its petition, the school district cited case number 5059882.03. That

application was dismissed without prejudice on July 19. Judicial review petitions

must be filed within thirty days. Iowa Code § 17A.19(3). So, DeMaldonado

argued, the judicial review petition—dated September 29—was untimely.

The district court denied the dismissal motion on December 9. It found the

school district’s petition for judicial review “can only be in reference to the [deputy

commissioner’s] [d]ecision filed on September 23, 2021, case No. 5059882.04.”

So it allowed the petition to proceed. DeMaldonado insists the district court should

1 The school district argues that DeMaldonado “did not preserve error” on the
cross-appeal. But its argument contests the timeliness of the cross-appeal, not
error preservation. And the argument lacks merit. DeMaldonado timely filed her
cross-appeal from the April 28, 2022 ruling on the merits. See Iowa R.
App. 6.101(2)(b). The December 9, 2021 order was not a final appealable ruling.
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have dismissed the school district’s petition for judicial review as untimely

appealing case number 5059882.03. According to DeMaldonado, “There should

be limitations for how far a ‘scrivener error’ can be extended.”

We look to the content of a filing to determine its real nature. See Iowa

Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393, 395 (Iowa 1988). True, the

petition makes one reference to the wrong case number. But it also discusses the

commissioner’s alternate care decision in some detail. It prays for a reversal of

that alternate care decision based on Dr. Mathew being an “inappropriate”

authorized treating physician and “after the Claimant and Claimant’s Counsel

withheld medical records from this physician.” Those details were not relevant to

the 5059882.03 case dismissal. The content shows the school district petitioned

for judicial review of the final agency decision authorizing alternate care, not the

agency decision granting a voluntary motion to dismiss an application for alternate

care. We find no error in the court’s decision.

B. Alternate Care Decision

Having found the judicial review petition to be timely, we proceed to the

merits of the school district’s claims. We begin with the workers’ compensation

statute providing injured employees with a way to receive alternate medical care.

Iowa Code section 85.27(4) states

the employer is obliged to furnish reasonable services and supplies
to treat an injured employee, and has the right to choose the
care. . . . The treatment must be offered promptly and be reasonably
suited to treat the injury without undue inconvenience to the
employee. If the employee has reason to be dissatisfied with the
care offered, the employee should communicate the basis of such
dissatisfaction to the employer, in writing if requested, following
which the employer and the employee may agree to alternate care
reasonably suited to treat the injury. If the employer and employee
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cannot agree on such alternate care, the commissioner may, upon
application and reasonable proofs of the necessity therefor, allow
and order other care.

This procedure “permits disputes over the medical care for compensable

injuries to be quickly resolved in advance of a contested case hearing on a claim

for workers’ compensation benefits.” R.R. Donnelly & Sons v. Barnett, 670 N.W.2d

190, 195 (Iowa 2003). The commissioner may order alternate care if the treatment

provided by the employer is not prompt or reasonably suited to treat the injury or if

the treatment causes “undue inconvenience to the employee.” Id. The employee

bears the burden of proving the medical care authorized by the employer is

unreasonable. Id. “[W]hen evidence is presented to the commissioner that the

employer-authorized medical care has not been effective and that such care is

‘inferior or less extensive’ than other available care requested by the employee,

the commissioner is justified by section 85.27 to order the alternate care.” Pirelli-

Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 437 (Iowa 1997) (internal

citation omitted).

Here, the school district disputes the agency’s findings and objects to the

deputy commissioner’s designation of Dr. Mathew to treat DeMaldonado. The

agency found

[T]he care offered by [the school district] is not reasonable. First, [the
school district] ha[s] offered physical therapy. Ms. DeMaldonado has
declined this offer. Ms. DeMaldonado has already attended over 120
physical therapy visits. Even Dr. Fields has concluded those visits
are enough. I conclude that the physical therapy offered by the
defendants is inferior to the treatment sought by the claimant.
Second, [the school district] ha[s] offered an appointment with a
clinical psychologist. There is no evidence in this case that any
medical provider has recommended Ms. DeMaldonado see a clinical
psychologist. Dr. Field recommended a neuropsychiatrist, but that is
different than what [the school district] ha[s] offered. I conclude [the
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school district’s] offer to send Ms. DeMaldonado to Daniel Tranel,
Ph.D., is not reasonable. I further conclude that [the school district’s]
offer is inferior to the treatment claimant is seeking.

The school district argues the record lacked substantial support for the agency’s

finding that a neuropsychological consult was unreasonable and inferior to the care

that DeMaldonado was seeking from Dr. Mathew. The school district insists that

it complied with recommendations from Dr. Jonathan Fields, DeMaldonado’s

treating physician.

But the agency record is not as clear as the school district contends. Dr.

Fields examined DeMaldonado and determined she had “completed a full course

of physical therapy with no change in symptoms.” He stated, “I would not

recommend any further physical therapy.” Dr. Fields could not determine the

cause of her ongoing back and knee pain and had no further treatment

recommendations. Instead, he recommended she “be evaluated by a

neuropsychologist such as Dr. [Daniel] Tranel at the University of Iowa.” 2 The

school district authorized that evaluation, but DeMaldonado declined to go. In his

deposition, Dr. Fields also recommended referral to a neuropsychiatrist and a

physiatrist who could identify other ongoing issues and non-physical sources of

her pain. When asked whether a pain specialist would be appropriate, he

acknowledged that a neuropsychiatrist could identify issues treatable by a pain

specialist. When asked whether Dr. Tranel was qualified to treat DeMaldonado,

Dr. Field reiterated that “at this point we need a referral to a neuropsychiatrist.”

And he repeated his belief that DeMaldonado had sufficient physical therapy.

2 Dr. Tranel had a doctoral degree in clinical psychology.
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Several years earlier, DeMaldonado had seen Dr. Mathew. His opinion was

that her pain had neurological, not psychiatric, origin. He believed DeMaldonado

would benefit from pain medication management supervised by a physiatrist and

pain specialist like himself. In her alternate care application, DeMaldonado asked

for authorization to begin treatment with Dr. Mathew, which the agency granted.

Substantial evidence supports the agency’s conclusion that DeMaldonado

has had ample physical therapy without significant improvement. She continued

to experience pain in her back and legs. In her affidavit, she described an

examination with Dr. Nicholas Bingham. Dr. Bingham told her she “could not be

diagnosed” and offered her a course of physical therapy. She declined, explaining

that past physical therapy made her feel worse. In response, Dr. Bingham

withdrew his suggestion. Assuming that physical therapy was still on the table, it

was not a reasonable service offer.

The school district next disputes the agency’s finding that no medical

provider has recommended she see a clinical psychologist. Like the district court,

we agree that finding is not supported by substantial evidence. Dr. Fields did make

that recommendation in a July 2021 examination report. And he did suggest Dr.

Tranel. But in depositions, that recommendation changed to emphasize the need

for a psychiatric evaluation first. And Dr. Fields agreed that a physiatrist could

make that determination. Dr. Fields also agreed he could not explain “how Dr.

Tranel does his work.” The record contains no evidence that Dr. Tranel is qualified

to evaluate or treat DeMaldonado. Instead, DeMaldonado requested treatment by

Dr. Mathew, who has already seen her, and determined that her pain is

neurological and that she could benefit from pain medication and management.
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Substantial evidence supports the agency conclusions that physical therapy and a

clinical psychology evaluation with Dr. Tranel are not reasonable offers of further

treatment under the circumstances and treatment with a pain specialist is the

superior treatment option.

We turn now to the authorization of Dr. Mathew as DeMaldonado’s

physiatrist and pain specialist. The school district claims it was inappropriate for

the agency to approve Dr. Mathew because he was willing to “issue multiple check-

the-box opinions” drafted by DeMaldonado’s counsel even though counsel

withheld documents about their client’s lifting restrictions in an earlier case. The

school district believes that history should disqualify Dr. Mathew as an expert and

treatment provider in this case.

The district court found no merit in these accusations. Nor do we. At the

hearing on alternative care, the school district mentioned document withholding.

DeMaldonado’s counsel explained that during an earlier proceeding, they

discovered medical records dating from 2001 and promptly provided those records

to Dr. Mathew. Because no other evidence speaks to this situation, it does not

disqualify Dr. Mathew as an expert in DeMaldonado’s case or from treating her.

According to Dr. Fields, a physiatrist and pain specialist would provide

appropriate evaluation and treatment for DeMaldonado. Thus, the agency properly

determined that Dr. Mathew was a suitable alternate care option considering

DeMaldonado’s needs.

AFFIRMED ON APPEAL AND CROSS-APPEAL.