Angel Richards v. Creston Nursing &
Court of Appeals of Iowa,
No. 2-1017 / 12-1120
The Claimant began working as a CNA with the defendant in
October of 2005. Prior to this, the Claimant had a history of back pain
starting in 2002. On February 13, 2006, the Claimant alleged a back injury that
occurred while she was moving a patient. She sought medical attention that day
and returned to light duty four days later. According to the attending
physician she was fully recovered on February 27, 2006.
The parties stipulated that the Claimant again injured her
low back while assisting a resident out of bed on October 10, 2006. She saw Dr.
John Hoyt who gave her epidural injections, muscle relaxers and physical
therapy. She was then assigned to half days with no lifting but continued to
experience some radiating right leg pain.
In early December 2006, Dr. Hoyt increased claimant’s
restrictions to being able to lift 50 lbs. The Claimant then apparently
aggravated her back while cleaning tables in late December at work. She was
then seen by Dr. Lynn Nelson, an orthopedic surgeon, in January. An MRI taken
at this time revealed that the claimant had very small disc bulges at L4-5 and
L5-S1, however she was not experiencing a significant degree of impingement.
Dr. Nelson opined that no surgery or injections were necessary; but did limit
the claimant to office work and a 15 lb lifting restriction.
In January 2007, the Claimant slipped in the defendant’s
parking lot and was again seen by Dr. Hoyt. Dr. Hoyt found the claimant’s
symptoms to be improving. Then in February of 2007, the claimant was fired for
excessive absenteeism. Soon thereafter, the Claimant was discharged from Dr.
Hoyt’s care in March of 2007. She was briefly employed as a telemarketer in
June, but then left to care for her father in law. Once he was improved, the
Claimant began as a CNA at Crest
Center in January of
2008. At her pre-employment physical the Claimant was reported as being pain
free in regards to her back. She worked without restrictions at Crest Haven and
ultimately left her employment there due to circumstances unrelated to her
In April of 2008, the Claimant began working as a cashier at
Kum & Go. In August of 2008, the Claimant fell in the Kum and Go parking
lot. She saw Dr. Gerdes complaining of severe tail bone and back pain. She was
diagnosed with acute lower back spasm and returned to work a week later with
lifting restrictions. In September of 2008, the Claimant reported another fall
at Kum & Go. An MRI taken revealed mild degenerative disc disease at L4-5
and L5-S1 with annular disc bulges, but no other maladies.
Kum & Go denied the claimant’s workers compensation
claim stemming from this September fall as there was no significant difference
in her MRI results from 2007 as to 2008. The employer also suspected the
Claimant may have lied about the fall to obtain time off from work.
In November of 2008, the Claimant sought an IME with Dr.
Robert Jones. Dr. Jones attributed the claimant’s pain primarily to her October
2006 injury. He opined that her improving symptoms did not mean the injury had
completely resolved, but could not apportion a percentage of pain between her
CNRC injury and the fall at Kum and Go. He assessed the claimant to have 5%
permanent impairment causally related to the two injuries.
The Claimant was fired from Kum and Go in October of 2008
for unexcused absenteeism. She has been unable to find work since. The Claimant
filed the current workers’ compensation action against CNRC in April of 2009.
In connection with the claim, Claimant’s counsel wrote to Dr. Nelson for his
opinion as to whether the Claimant’s injury was caused by her incident at CNRC
or the fall at Kum & Go. Dr. Nelson ultimately opined that the claimant’s
incident in October of 2007 did not result in permanent impairment.
At the claimant’s deposition she testified that she had
trouble sitting as well as using stairs due to her low back pain. Video
surveillance conducted of the claimant showed her ascending and descending
stairs with no problem. The deposition and surveillance footage, as well as
claimant’s medical records, were provided to Dr. Jones to obtain his opinion on
causation. He continued to opine that the claimant’s 2006 nursing home injury
was a significant causative factor in the claimant’s current complaints.
After the arbitration hearing, the deputy issued a ruling
which found the claimant failed to carry her burden of proof that her work
injury caused her permanent impairment. The conclusion was based largely on the
claimant’s lack of credibility while testifying. The deputy also found Dr.
Jones had relied on a very suspect history in rendering his opinions. The
opinion of the deputy was adopted by the commissioner which was affirmed on
appeal as being supported by substantial evidence.
The case was then appeal to the Court of Appeals. The Court
first noted that its review would be based upon the substantial evidence
standard as the case was based upon factual determinations which were vested in
the agency’s discretion. The Claimant challenged the findings of the agency in
regards to the Claimant’s credibility and the discounting of the opinion of Dr.
Jones. In regards to the Claimant’s credibility, the Court found that even
despite possible overstatements by the deputy in regards to the claimant’s
tendency to deceive, the determination regarding credibility withstood a
substantial evidence challenge. This was based upon numerous inconsistencies in
the claimant’s testimony, both in her deposition and at hearing.
The Court then turned its attention to the issue of Dr.
Jones’ opinion regarding causation. The Court found that the deputy had
explained his reasoning for discounting the opinion of Dr. Jones as it was based
upon the claimant’s statements which were found to lack credibility, and as
such was relying upon a suspect history. The Court opined that it was within
the purview of the deputy to weigh expert opinion testimony and the deputy did
not abuse his discretion in finding the opinion of Dr. Jones’ unconvincing. As
such, the Court affirmed the findings of the deputy.
Iowa City and Cambridge Integrated Services v. Susan Goodner, Court of
Appeals of Iowa,
No. 2-933 / 12-0186
The Claimant was a family
practice physician who treated two patients with mono in January of 2000. On
January 18th, one of those patients vomited on the claimant’s hands
during the examination. The Claimant began experiencing symptoms on February 4th
and when they did not subside she performed a mono spot test on February 13
which came back positive.
The Claimant sought medical treatment from Dr.
Wools-Kaloustian, an infectious disease specialist who diagnosed the claimant
with mono. On February 25th, the claimant reported her illness to
her employer and remained off work or worked reduced hours due to extreme
The Claimant was eventually referred to Dr. Minner by the
workers’ compensation carrier in July of 2000 to determine if there was a
work-related condition and if further treatment was necessary. Dr. Minner found
the infectious disease to be causally related to the claimant’s employment and
referred further care to Dr. Ovrom. Dr. Minner also opined that the long term
prognosis for complete recovery was good.
In November of 2000, the Claimant was seen by Dr. Gervich
for a second opinion at the request of the claimant’s private disability
company. Dr.Gervich expressed doubt that the
Claimant ever contracted infectious mononucleosis, though he could not disprove
it. This was based upon the incubation period of the claimant’s disease. Dr.
Minner subsequently referred the Claimant to Dr. Wesner, a psychiatrist, due to
possible depression. Dr. Wesner diagnosed the claimant with depression which
was related to the chronic fatigue syndrome following her infection. She was
referred to individual and family therapy which he believed were reasonable and
necessary treatment for her major depressive disorder and the chronic fatigue
The Claimant’s symptoms of fatigue
waxed and waned over the next few years and she continued to see Drs. Ovrom,
Wesner, and Minner. Dr. Ovrom’s initial diagnosis was post viral fatigue, but
he revised his diagnosis in April of 2002 because he believed Goodner’s
condition met the criteria for chronic fatigue syndrome, and recommended
consideration of permanent partial disability. On July 24, 2002, Dr. Minner
placed the claimant at MMI. At that time Goodner was able to work twenty hours
per week and was “overall at approximately 70% of full-time productivity.” Dr.
Minner retired soon thereafter and care was transferred to Dr. Buck.
The Claimant first saw Dr.
Buck in October of 2002. Dr. Buck concurred with Dr. Minner’s assessment of
maximum medical improvement, stating, “Clearly her condition has and will
continue to have mild episodic relapse, but the overall pattern has been quite
stable now for some time.” He anticipated her needing periodic care with both
Dr. Wesner and Dr. Ovrom, and he authorized additional visits with both providers.
At his deposition, Dr. Buck stated that he believed there was a significant
possibility that the Claimant had never contracted mono.
In November of 2002, the
claimant was seen by Dr. Meier for a second opinion. She was diagnosed with
chronic fatigue syndrome triggered by infectious mononucleosis. He further
opined that he did not believe the claimant had reached MMI as her condition
remained in a state of flux. Goodner underwent a series of studies including a
sleep study, hormonal study, and immune disorder study at the prompting of the
board of medical examiners. These studies came back normal, ruling out other
conditions causing the fatigue.
The Claimant gained
approximately thirty-three pounds during the course of her illness. She attributed
this weight gain to her fatigue as she was unable to exercise regularly or plan
healthy meals. She also developed type 2 diabetes, high cholesterol, and
hypertension. She sought assistance from a weight loss clinic. When her
attempts to lose weight were unsuccessful, she underwent bariatric surgery in
May of 2007.
In October of 2008, the
claimant was referred to Dr. Pocinki, an expert on fatigue syndrome. It was Dr.
Pocinki’s opinion that the claimant met all the criteria for chronic fatigue
syndrome, and he believed the condition was triggered by the mononucleosis
infection. He determined she was not yet at maximum medical improvement and
anticipated it would be another two to three years before she would achieve
The claimant was then seen by
Dr. Risk, for an independent medical exam at the request of her attorney in
February 2009. Dr. Risk opined the claimant developed post viral fatigue
syndrome as a result of her exposure to mononucleosis. Although her obesity
predated her symptoms, her subsequent fatigue lead to inactivity and poor diet.
This condition resulted in her gaining the additional weight and developing
diabetes, hypertension, and high cholesterol. He also believed the fatigue led
to depression. He did not believe she was at maximum medical improvement at
At the request of Mercy Hospital,
a records review was performed by Dr. Katz. He opined that while the claimant may
have a fatigue syndrome, the fatigue did not develop from mononucleosis, and he
did not believe she contracted mononucleosis at all. He stated the likelihood
of contracting mononucleosis in the way the claimant described was essentially
zero. He also asserted the incubation period reported in the claimant’s case,
seventeen days, was out of the question for this virus, which has a typical
incubation period of forty to sixty days. He also stated the claimant’s clinical
symptoms did not fit with infectious mononucleosis, which in older patients is
typically characterized by a prolonged fever and liver involvement. Finally, it
was Dr. Katz’s opinion that there was no specific concrete connection as to the
cause of chronic fatigue syndrome; therefore, he doubted the causal link
between mononucleosis and chronic fatigue syndrome.
Dr. Lutz also performed a records review at the request of Mercy Hospital.
Like Dr. Katz, Dr. Lutz opined, in his March 2,
2009 report, there is no medical literature support for the way Goodner claims
the mononucleosis virus was transmitted to her. He also found the incubation
period in this case was too short for mononucleosis, which typically has an
incubation period of one to three months.He
asserted the claimant’s case likely was the result of “VIP syndrome” where a
physician treats a patient differently when the patient is an important person
such as a doctor. Dr. Lutz believed this was why no initial treating doctor
tested for mononucleosis, but just accepted her description and self-diagnosis.
He states that her treating providers assumed causation in this case rather
than establishing it based on her history. He also opined that there was no
data to support a viral cause of chronic fatigue syndrome as the cause of
chronic fatigue is unknown. Finally, he was concerned with the level of
medications the claimant was taking, because many of the medications could be
the cause of her fatigue and have a sedating effect.
Finally, Mercy Hospital
had Dr. Stutts conduct a psychiatric evaluation of the claimant in January
2009. After conducting a review of the medical records and a patient examination,
Dr. Stutts recommended that the claimant discontinue many of the medications
she was on because he believed the medications were contributing to her chronic
fatigue syndrome in a significant fashion and likely perpetuating her problems.
Dr. Stutts believed the psychotropic medication had so muddied the water that
he could not tell if the claimant had chronic fatigue or if the symptoms were
caused by the medication.
The Claimant’s employment status during this time was quite
up and down. Ultimately the claimant took a full year off from practicing
medicine in 2006 on the advice of her treating physicians. The Claimant stated
this year off greatly helped her and she returned to practice at a clinic in Kalona, Iowa.
However she was forced to resign this position in January of 2008 due to
fatigue.She was advised by the medical board to
stop seeing patients, and her medical license was placed on inactive status by
mutual agreement in January of 2008. For the claimant to once again practice
medicine, her treating physicians would need to recommend to the board of
medicine that her license be reactivated, she would need to present a plan for
how she would see patients without becoming fatigued, and the board would need
to approve her plan.
The Claimant initially
reported her workers’ compensation claim in February of 2000. The claim was accepted,
and treatment and benefits were provided with no agency intervention until September
of 2006. At that time the claimant filed a petition for alternate medical care
asking the workers’ compensation commissioner to order Mercy Hospital
to pay for physical therapy for strengthening and conditioning, and massage
therapy for muscle aches. At hearing, counsel for Mercy Hospital
admitted liability for the claimant’s February 2000 injury. Counsel also
admitted that the claimant had a case of chronic fatigue syndrome “that has
been accepted as a work injury.” During the hearing, Mercy Hospital
agreed to provide the physical therapy requested, but asserted the massage
therapy prescribed by Dr. Ovrom was “not causally related to the work injury.”
The deputy commissioner authorized the care requested.
The claimant filed an
arbitration petition with the agency on May 18, 2007, alleging she was
permanently and totally disabled as a result of her work injury, which
developed on February 4, 2000. On February 18, 2009, after consulting with Drs.
Katz and Lutz, Mercy
Hospital amended its
answer to generally deny the injury. After hearing, the deputy issued a ruling
finding Mercy Hospital judicially estopped from contesting liability for the
injury due to the position Mercy Hospital took at the alternate care
The deputy went on to
conclude the claimant sustained an injury in the course and scope of her
employment and that the chronic fatigue syndrome was causally related to that
injury. The deputy commissioner found Mercy Hospital
responsible for one-half of the cost of the family counseling ordered by her
treating physicians. He also ordered Mercy
Hospital pay the full
cost of the bariatric surgery after concluding, “there is no evidence in the
record that claimant ever had any weight problem before her exposure to [the
virus].” The deputy finally concluded that the injury caused the claimant to be
permanently and totally disabled as an odd-lot employee because her injury made
her unable to perform work “that her experience, training, education,
intelligence, and physical capabilities would otherwise permit her [to]
The findings of the deputy
were adopted by the commissioner on appeal. The district court then affirmed
the agency’s decision did not preserve error on its claim nor did it prove the
agency acted irrationally, illogically, or without justification in finding Mercy Hospital
should be judicially estopped from contesting liability for the injury after
having admitted liability in the alternate care petition. The district court
also found substantial evidence supported the findings of the agency. The case
was then appealed to the Court of Appeals.
The Court first opined that
the decision of the agency in regards to judicial estoppel would be reviewed de
novo and the Court was free to substitute its interpretation of the law for
that of the agency. The issue of whether the medical evidence supported the
finding that the claimant contracted mono resulting in chronic fatigue syndrome
would then be reviewed according to the substantial evidence standard as
question of medical causation is a fact question vested within the purview of
the agency. As to whether the claimant was permanently and totally disabled,
this would be reviewed based on the irrational, illogical or wholly
unjustifiable standard as it involved the agency’s application of law to the
facts which is vested within the discretion of the agency.
The Court first took up the
issue of whether Mercy
Hospital was estopped
from contesting liability for the claimant’s injury based upon its position at
the alternate care hearing. The Court first looked to the established precedent
fromWinnebago Industries, Inc. v. Haverly, which
stated that an employer cannot change its position regarding liability
subsequent to an alternate medical hearing barring a significant change in
facts after the admission of liability. The Court stated that it could not
overrule the holding inHaverly as it
was Iowa Supreme Court precedent. The Court then took up the next argument of
Mercy that the holding inHaverly had
been limited by subsequent case law.
Mercy argued that a case
known asTyson Foods, Inc. v. Hedlund, limited the
application ofHaverly in this case.
In Hedlund, a claimant had mistakenly
filed an alternate care petition to which the employer had admitting liability.
Once the claimant realized the mistake, the petition was dismissed. The
claimant then later filed a second alternate care petition in which the
employer denied liability. The Supreme Court held thatHaverly did not have preclusive effect in this instance as the
deputy had not decided the first petition based on the admission of liability
by the employer and as such it was a nonevent. In the present case, the Court
differentiated the facts from those in Hedlund
and found thatHedlund did not
apply to the current situation as the deputy had accepted the admission of Mercy Hospital
in ruling on the alternate care petition.
Mercy also tried to argue that Haverly should have no effect on the current situation as the
alternate care petition was filed prior to the contested case proceeding (the
alternate care petition in Haverly
was filed after the contested case proceeding began). The Court found no merit
to this argument as the doctrine of judicial estoppelis intended to prevent a party from asserting a position in a
subsequent proceeding that is inconsistent with its position in a prior
Mercy next argued that the
exception applied in this case as there had been a significant change in facts
based upon Mercy’s receipt of the opinions of Dr. Katz and Dr. Lutz which
caused them to change their stance on liability. The Court found that the
agency appeared to have rejected the “significant change in facts” exception on
the basis that Mercy
Hospital could have
obtained the medical opinions from Drs. Lutz and Katz earlier. The Court did
not further address the issue as to whether the exception applied in this case
as the Court found the agency also decided the case on the merits, thus dodging
the issue as to whether the exception applied in this case.
After its discussion of the
issue of judicial estoppel, the Court next turned its attention to whether the
medical evidence supported the findings made by the agency. The Court in
finding that substantial evidence supported the findings of the agency
articulated that it was within the purview of the agency, under Iowa case law, to
determine how much weight to give to an expert opinion. It was not for the
Court on appeal to reweigh the evidence which was considered by the agency. The
Court could only determine whether or not substantial evidence supported the
findings made. The Court opined that several of the claimant’s treating
physicians testified, based on their knowledge and experience the mechanism of
injury, the incubation period, and the causal connection between mononucleosis
and chronic fatigue syndrome all supported a finding that the claimant suffered
a work-related illness—mononucleosis—and her current condition—chronic fatigue
syndrome—was causally related to work; thus substantial evidence supported the
The Court then took up the
issue as to whether the claimant was permanently and totally disabled. The
Court noted that Mercy Hospital claims the claimant in her deposition admitted
that if she exercised and did the right things she would regain the ability to
work at least part time as she had from the onset of her illness until quitting
her job at the clinic in 2008. Mercy
Hospital argued that the
agency cannot award total disability to a claimant who admits she can take
action to return to work, but refuses to do so. The Court found this argument
appealing but noted that the expert testimony supported the finding of
permanent and total disability.
The Court noted that the
finding of permanent disability was based upon claimant’s classification as an
odd lot employee. The Court opined that an odd-lot employee is totally disabled
if “the only services the worker can perform are ‘so limited in quality,
dependability, or quantity that a reasonably stable market for them does not
exist.’” The Court then stated that even assuming the claimant was able to
obtain her license to practice medicine again and could practice medicine part
time if she “exercised and did the right things” as Mercy Hospital contends she
should do, this does not foreclose the agency’s determination she is an odd-lot
employee entitled to an award of permanent total disability. The Court noted
that the agency gave greater weight to the claimant’s vocational expert than
Mercy’s and the Court would not disturb that on appeal.
The final issue addressed by
the court was whether the agency erred in ordering Mercy to pay for the
Claimant’s bariatric surgery and family therapy sessions. The Court first
examined the issue of the bariatric surgery and determined that it was
unauthorized care for an accepted injury; which meant that for Mercy to be
responsible for paying for this care the Claimant had to show that it was both
reasonable and beneficial. In reaching this conclusion, the court had to first
determine whether the liability position of the employer at the time the
treatment was sought controls or if it is when the claim is fully presented to
the deputy (as Mercy had changed their position to full deny compensability,
this would mean the claimant would only have to establish compensability for
the injury and reasonableness of treatment). Ultimately, the Court found that the
liability position at the time treatment is sought controls. Therefore, because
Mercy Hospital had accepted the injury and
maintained control of the medical care at the time the claimant obtained the
bariatric surgery, she must prove the treatment was both reasonable and
In deciding the issue as to
whether the care was reasonable and beneficial, the court stated T]he concept
of ‘reasonableness’ in this analysis includes the quality of the alternative
care and the quality of the employer-provided care.” It includes “the
reasonableness of the employer-provided care, and the reasonableness of the
decision to abandon the care furnished by the employer in the absence of an
order from the commissioner authorizing alternative care.” Id.The medical care is
“beneficial if it provided a more favorable medical outcome than would likely
have been achieved by the care authorized by the employer.”
The Court ultimately found
that Based on the record before it, they were unable to conclude substantial
evidence supports the determination that the weight-loss surgery was both
reasonable and beneficial to the work-related injury. There is no
employer-provided care in order to compare the reasonableness of the
alternative care sought. This is not a case where an employee abandoned the
care provided by the employer to seek alternative care as a result of a
disagreement of her diagnosis or treatment. Most importantly, the Claimant had
not made a successful return to the labor market following the bariatric surgery
and has instead been found to be permanently and totally disabled. The surgery
therefore could not be said to have been beneficial. Thus the finding in
regards to compensability for the bariatric surgery was reversed.
In regards to the family
therapy sessions, Mercy argued that the medical care contemplated by section
85.27 is for the worker alone, not the worker’s family. The Court first noted
the deputy agreed with Mercy Hospital that it could only order Mercy Hospital
to pay for medical care to the claimant, not her family. However it found the
family therapy was recommended by the treating physicians to treat the
claimant’s depression. Part of the family therapy benefited the claimant and
part benefited her family. Because the deputy was unable to dissect out what
part of the therapy benefited the claimant alone, it ordered Mercy Hospital
to pay for one-half of the cost. The Court found no error in the deputy’s
decision. The court held the deputy did not order Mercy Hospital
to pay for care given to the family. The deputy reduced the amount payable by
half in order to hold Mercy
Hospital responsible for
a portion of the therapy that benefited the claimant. Thus the issue was
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