IN THE COURT OF APPEALS OF IOWA

No. 21-1851

Filed September 21, 2022

BRIAN DENEMARK,

Petitioner-Appellant,

vs.

ARCHER DANIELS MIDLAND COMPANY,

Respondent-Appellee.

________________________________________________________________

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

Judge.

An employee appeals the district court’s ruling on judicial review, which

affirmed the workers’ compensation commissioner’s denial of two requests for 

alternate medical care. AFFIRMED.

Dennis Currell, Cedar Rapids, and Jeff Carter of Jeff Carter Law Offices, 

P.C., Des Moines, for appellant.

Jean Z. Dickson and Peter J. Thill of Betty, Neuman & McMahon, P.L.C., 

Davenport, for appellee.

Heard by Ahlers, P.J., and Badding and Chicchelly, JJ.
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CHICCHELLY, Judge.

Brian Denemark appeals the district court’s ruling on judicial review, which 

affirmed the workers’ compensation commissioner’s denial of two applications for 

alternate medical care. He alleges the district court committed legal error by 

finding the agency had discretion in determining whether to authorize alternate 

medical care and by finding his employer investigated causation. He also alleges 

the court erred by making its own legal findings and requiring him to prove his 

employer had an ulterior motive in denying care. Finally, Denemark contends the 

district court erred by finding the agency’s decision did not conflict with its prior 

precedent. Because the district court properly applied the law in conducting 

judicial review of the agency’s decision, we affirm.

I. Background Facts.

Denemark injured his left arm while working at Archer Daniels Midland 

Company (ADM)1in December 2019. His injury includes a longitudinal tear of the 

triangular fibrocartilage complex (TFCC). ADM authorized Denemark to receive 

treatment from Dr. Meiying Kuo at Physician’s Clinic of Iowa (PCI), which included 

two ulnocarpal joint injections. But Denemark reported that his pain began to 

return one month after the second injection and eventually worsened. As a result, 

Dr. Kuo recommended at an August 2020 appointment that Denemark undergo 

arthroscopic surgery and debridement of the TFCC. The surgery was scheduled 

for October 5.

1 Throughout the opinion, we will refer to both Denemark’s employer and its 

workers’ compensation carrier as ADM.
3

On September 18, ADM informed PCI that it had concerns about 

Denemark’s injury and intended to investigate causation before authorizing 

surgery. PCI thus cancelled the scheduled surgery. 

ADM authorized Denemark’s surgery on October 21. It then authorized 

PCI’s request to transfer Denemark’s care to the University of Iowa Hospitals and 

Clinics (UIHC) for the surgery. Denemark was originally scheduled for an 

appointment with Dr. Ericka Lawler at UIHC on November 24, but the UIHC 

rescheduled for December 3. ADM provided Denemark with transportation to the 

appointment. 

After the appointment with Dr. Lawler, Denemark scheduled the authorized 

surgery for December 29. Because of a scheduling conflict, Denemark later 

rescheduled the surgery for January 12. The UIHC required that Denemark have 

a pre-surgical screening for COVID-19 the day before surgery. 

Although ADM was to provide transportation to both Denemark’s COVID19 screening and surgery, it failed to schedule transportation to the screening. 

Because Denemark could not obtain a screening on his own in time to receive the 

results before the scheduled surgery, surgery had to again be rescheduled. The 

surgery took place on January 29.

II. Proceedings.

Denemark petitioned for workers’ compensation benefits on October 19, 

2020. Between then and his surgery three months later, Denemark filed two 

applications for alternate medical care. He filed the first application on November 

3, alleging that ADM intentionally interfered with the medical care recommended 

by (1) sending its safety manager to attend Denemark’s medical appointments until 
4

January 2020, (2) seeking an improper causation opinion to delay the surgery, and 

(3) transferring Denemark’s care to the UIHC. On November 17, after a hearing, 

a deputy workers’ compensation commissioner denied the application. Although 

two months had passed since Dr. Kuo recommended Denemark undergo surgery, 

the deputy commissioner noted that Denemark “[wa]s not seeking an order 

directing ADM to schedule the surgery or any other treatment” and instead 

requested to direct his own care. The deputy commissioner did not find the 

testimony about ADM’s safety manager attending medical appointments 

persuasive to support ongoing interference because the safety manager had not 

attended an appointment since January 2020. The deputy commissioner found 

Denemark failed to show ADM “abandoned care or that the care offered [was] 

ineffective, inferior, or less extensive than the care requested by Denemark.”

Denemark filed his second application for alternate care after the UIHC 

cancelled the January 12 surgery. He alleged ADM intentionally failed to provide 

transportation to interfere with his medical care. Denemark asked for an order for 

surgery with Dr. Lawler, uninterrupted follow-up care, and the ability to self-direct 

his care. During the January 26 hearing, ADM agreed to provide Denemark 

transportation to the COVID-19 screening and surgery, and follow all of Dr. 

Lawler’s treatment recommendations. The deputy commissioner denied 

Denemark’s request to self-direct his care, finding that ADM followed Dr. Lawler’s 

treatment recommendations and scheduled the recommended surgery, which was 

postponed by Denemark. Although the rescheduled surgery was cancelled when 

ADM failed to provide Denemark transportation to the COVID-19 screening, it was 

rescheduled to take place seventeen days later. The deputy commissioner found 
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Denemark failed to prove ADM engaged in ongoing interference, that ADM had 

abandoned care, or that the care ADM offered was ineffective, inferior, or less 

extensive than the care Denemark requested.

Denemark separately petitioned the district court for judicial review of the 

denial of both applications for alternate care. In March 2021, the district court 

consolidated the petitions. In July 2021, the district court entered its ruling on 

judicial review affirming both decisions. 

III. Discussion.

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). On appeal, our review is limited to determining whether the district 

court correctly applied the law in exercising its review. See Tyson Foods, Inc. v. 

Hedlund, 740 N.W.2d 192, 195 (Iowa 2007). 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). 

Beginning with our standard of review, Denemark claims the agency’s 

decisions violate four of the criteria in section 17A.19(10). He alleges the agency’s 

decision was: (1) based on “an erroneous interpretation of a provision of law whose 

interpretation has not clearly been vested by a provision of law in the discretion of 

the agency,” see Iowa Code § 17A.19(10)(c); (2) based on a determination of fact 

that is not supported by substantial evidence in the record before the court when 
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that record is viewed as a whole, id. § 17A.19(10)(f); (3) inconsistent with the 

agency’s prior practice or precedents, id. § 17A.19(10)(h); and (4) an otherwise 

unreasonable, arbitrary, capricious, or an abuse of discretion, id. § 17A.19(10)(n).

We next turn to the statute providing an employee with means of receiving

alternate medical care. Iowa Code section 85.27(4) states that under our workers’ 

compensation statute,

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 

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

citation omitted).

A. Agency discretion.

Denemark first alleges the district court erred by holding the commissioner’s 

authority to order alternate medical care is discretionary rather than mandatory. 

The district court based its determination on the use of “may” in the sentence 

stating that “the commissioner may, upon application and reasonable proofs of the 

necessity therefor, allow and order other care.” Iowa Code § 85.27(4) (emphasis 

added). When the word “may” is used in a statute, it confers a power. See id.

§ 4.1(30)(c). Usually, the use of “may” implies an act is discretionary. See Fortune 

v. State, 957 N.W.2d 696, 703 (Iowa 2021) (stating that “the term ‘may’ ordinarily 

vests [the actor] with discretion”); see also Biden v. Texas, 142 S. Ct. 2528, 2541 

(2022) (“This Court has ‘repeatedly observed’ that ‘the word “may” clearly connotes 

discretion.’” (citation omitted)); Kopecky v. Iowa Racing & Gaming Comm’n, 891 

N.W.2d 439, 443 (Iowa 2017) (“When the legislature uses the term “may” in a 

statute, it is usually permissive.”). There are occasions when “may” is interpreted 

to confer a mandatory duty. See Iowa Nat’l Indus. Loan Co. v. Iowa State Dep’t of 

Revenue, 224 N.W.2d 437, 440 (Iowa 1974) (noting that the court applies the 

construction that best carries the purpose of the statute into effect). But when both 

“may” and “shall” are used in the same statue, it suggests the legislature has used 

them in their usual and ordinary sense:

Where both mandatory and directory verbs are used in the same 

statute, or in the same section, paragraph, or sentence of a statute, 

it is a fair inference that the legislature realized the difference in 

meaning and intended that the verbs should carry with them their 

ordinary meanings. Especially is this true where ‘shall’ and ‘may’ are 
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used in close juxtaposition in a statutory provision, under 

circumstances that would indicate that a different treatment is 

intended for the predicates following them.

Id. at 442 (citation omitted). 

Section 85.27(4) uses “may” four times while “shall” appears six times, 

showing the legislature intended them to have different meanings. As used 

elsewhere in section 85.27(4), “may” is used in the discretionary sense to refer to: 

the possibility of an employer and an employee agreeing, an employee’s ability to 

choose medical care at the employer’s expense in certain emergencies, and the 

choice to have a hearing by telephone or in-person. Likewise, “shall” is used 

elsewhere in the section in the mandatory sense for the categorization of actions 

under the subsection as original proceedings, how the hearing is conducted, and 

the timeframe in which a decision is issued. 

Denemark argues that section 85.27(4) use of “may” does not provide the 

agency with “absolute discretion” when deciding to grant requests for alternate 

medical care. He claims that its use is given context by the conditional modifier 

that follows the term: “upon . . . reasonable proofs of the necessity thereof.” In 

Denemark’s view, “may” is used because an employee must first meet the requisite 

burden of proof. But section 85.27(4) uses “shall” in a similar way when describing 

how a hearing is conducted: “A request for an in-person hearing shall be approved 

unless the in-person hearing would be impractical because of the distance 

between the parties to the hearing.” Id. (emphasis added). The legislature could 

have required the commissioner grant a request for alternate medical care if an 

employee provides reasonable proof of its necessity by stating that “the 

commissioner shall, upon application and reasonable proofs of the necessity 
9

therefor, allow and order other care.” It did not. Instead, it allowed the 

commissioner discretion in deciding whether to grant an application for alternate 

medical care when an employee provides reasonable proof of its necessity. Of 

course, that discretion must be “reasoned rather than absolute.” Johnston v. Iowa 

Real Est. Comm’n, 344 N.W.2d 236, 239 (Iowa 1984) (noting that discretionary 

agency action depends on the facts before it and that “the applicant, the public and 

the courts upon judicial review are all entitled to know” the reason for the agency’s 

decision); see also Iowa Code § 17A.19(10)(n) (allowing the court on judicial 

review to grant relief when the agency’s action is “unreasonable, arbitrary, 

capricious, or an abuse of discretion”). 

The district court applied the proper standard on judicial review of 

Denemark’s application for alternate care.

B. Excusable delay.

Denemark next contends the district court applied the wrong legal standard 

to excuse ADM’s denials of or delays in providing care. He argues the court erred 

by finding that “ADM examined whether Denemark’s injury that needed surgery in 

August 2020 was the same workplace injury from December 2019, or whether 

there was some intervening cause, unrelated to the workplace injury, that 

necessitated surgery.” He claims that the record does not support a finding that 

ADM ever investigated causation.

The district court made the statement Denemark complains of in response 

to an argument advanced by Denemark. In his brief for judicial review, Denemark 

claimed that ADM intentionally interfered with his medical care by failing to approve 

the surgery before its scheduled date of October 5 and no evidence showed “the 
10

cancellation was unintentional or otherwise justifiable or excusable.” The district 

court disagreed, noting that once an employer’s right to control medical care 

attaches under section 85.27(4), “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.” Bell Bros. Heating & Air 

Conditioning v. Gwinn, 779 N.W.2d 193, 207 (Iowa 2010). Before losing the right 

to direct medical care, an employer must deny that the employee’s injury arose in 

the course and scope of employment. See id. A dispute over the extent of an 

injury that an employer concedes arose in the course and scope of employment 

“is not a ground, standing alone, for a determination that the employer has forfeited 

its right to select the medical care.” Id. In other words, any delay in approving the 

surgery for such an investigation would justify or excuse it. The communications 

documented by PCI and Denemark’s attorney show that the reason given for the 

delay was for investigation. However much investigation occurred, the overall 

delay was brief; ADM informed PCI of its concerns about causation on September 

18 but approved the surgery on October 21.2

Denemark had the burden of showing the medical care ADM authorized 

was ineffective, inferior, or less extensive than the care he sought. See PirelliArmstrong Tire Co., 562 N.W.2d at 437. The deputy commissioner found that 

2 Denemark claims a delay of 165 days from the time Dr. Kuo recommended 

surgery on August 18 until the surgery was performed on January 29. But this 

claim overlooks intervening delays that occurred during that period, which spanned 

two applications for alternate care, with UIHC rescheduling one appointment and 

Denemark rescheduling the December 29 surgery.
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Denemark failed to do so on the delay in surgery scheduled for October 5. The 

district court agreed, and we reach the same conclusion.

C. Improper fact-findings and legal elements.

Denemark contends the district court applied the wrong legal standard by 

engaging in its own fact-finding during the judicial review process. We disagree. 

The district court found substantial evidence supports the factual findings that led 

to the denial of Denemark’s application for alternative care. We reach the same 

conclusion.

We also reject Denemark’s claim that the district court required proof of an 

ulterior motive for ADM’s delay or denial of medical care. The district court’s ruling 

states there is “little or no evidence to suggest that ADM had ulterior motives to 

prevent Denemark from receiving proper care.” But rather than imposing this 

burden on Denemark, the district court was merely responding to Denemark’s 

argument on judicial review. 

D. Agency precedent.

Finally, Denemark contends the agency failed to explain its departure from 

prior precedents. See Iowa Code § 17A.19(10)(h) (allowing relief when an agency 

action “is inconsistent with the agency’s prior practice or precedents”).

In applying the provisions of the Iowa Administrative Act on prior agency 

precedent, the supreme court had distinguished a final decision in a contested 

workers’ compensation case from an agency decision rendered after a public 

hearing when there is no contested case. See Finch v. Schneider Specialized 

Carriers, Inc., 700 N.W.2d 328, 332 (Iowa 2005). In the latter, “[t]he controlling 

legal standards are those set out in the workers’ compensation statutes and in this 
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court’s opinions, not in prior agency decisions.” Id. The agency followed the 

statute in denying Denemark’s application for alternate care, and Denemark has 

failed to show the agency decision here conflicts with the precedent he cites.

IV. Conclusion.

The district court properly applied the law on judicial review of the agency 

action. Because we reach the same conclusions as the district court, we affirm.

AFFIRMED.