Angel Richards v. Creston Nursing & Rehabilitation Center, 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 Haven Care 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 back.

 

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.

Mercy Hospital 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 fatigue.

 

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 syndrome.

 

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 this state.

 

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 that time.

 

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 proceeding.

 

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] perform.”

 

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 proceeding.

 

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 findings made.

 

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 beneficial.

 

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 affirmed.



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