Iowa Supreme Court asked: Is it possible to say the road not taken would have led to better place?

By: Rox Laird on November 8th, 2017

A southeast Iowa woman is asking the Iowa Supreme Court to overturn its 2010 decision that she says imposes an impossible burden on workers’ compensation claimants:  proving that the outcome of the medical procedure they chose is better than a hypothetical alternative.

Her employer says the court’s precedent is a correct reading of state law and strikes the right balance between the interests of employees and employers.

The Iowa Supreme Court will hear arguments on the question Tuesday in Kelly Brewer-Strong v. HNI Corp.

Brewer-Strong appealed a Muscatine County District Court ruling upholding a decision of a deputy Workers’ Compensation Commissioner that she was not eligible for benefits during the nine-week period while she was recovering from surgery for a work-related injury.

She argues she is eligible for “healing-period benefits” under state law because the company admitted the injury was work-related.

Her employer, HNI Corp., disagrees, pointing to an Iowa Code provision that says employers are not liable for medical benefits when an employee uses a medical provider not authorized by the employer to treat a work-related injury. Brewer-Strong thus forfeited the healing-period benefit by choosing to have surgery performed by a doctor of her choice rather than following the medical advice of the doctor chosen by HNI.

The Iowa Supreme Court, however, addressed that provision in Bell Bros. Heating & Air Conditioning v. Gwinn (2010), and said employees in some cases may be eligible for healing-period benefits following treatment from an unauthorized medical provider where the procedure was “reasonable and beneficial.” The Court added that such unauthorized care is beneficial if it results in “more favorable outcomes than would likely have been achieved by the care authorized by the employer.”

That puts an impossible burden on claimants such as Brewer-Strong, her legal counsel argues in a brief submitted to the Court, because she must speculate about the outcome of a chosen medical procedure over a hypothetical one she did not choose.

HNI dismissed that argument in its brief, pointing to at least 10 recent Iowa cases where injured employees met the burden of proof under the Gwinn test.

Two amicus curiae (friend of the court) briefs submitted to the Court joined the argument from opposite perspectives:

The Iowa Association for Justice Workers’ Compensation Core Group agreed with Brewer-Strong’s call for the Court to abandon the Gwinn burden of proof. “It is simply an impossible burden to require an injured worker to show that the outcome of a course of care that actually took place produced a more favorable outcome than a course of care that never occurred,” the brief argues.

In response, an amicus brief filed by the Iowa Association of Business and Industry (ABI), the Iowa Insurance Institute, the Iowa Defense Counsel Association and the Iowa Self-Insurers Association, urges the court to stand by its Gwinn decision. [Disclosure: The ABI brief was written by former Nyemaster Goode attorney Ryan Koopmans while he was with the firm.]

The “reasonable and beneficial” test “isn’t just some procedural rule that this Court created to fill in the gaps of a vague statute,” the brief argues, “it is dictated by the terms of Iowa Code section 85.27(4), which states that the employer ‘has the right to choose the care’ of an employee who is injured on the job.”

So it seems clear that, in addition to the parties, the outcome of this case will be closely watched by advocates for employers and employees alike.

Go to On Brief’s Cases in the Pipeline page to read the parties brief. The oral argument is scheduled for 1:30 p.m. Tuesday, November 14.


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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.



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