IN THE COURT OF APPEALS OF IOWA
No. 14-0202
Filed November 26, 2014
CATHOLIC HEALTH INITIATIVES
d/b/a MERCY MEDICAL CENTER,
Petitioner-Appellant,
vs.
WENDY HUNTER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II,
Judge.
An employer appeals from the judicial review ruling affirming the workers’
compensation commissioner’s award of benefits to an employee. AFFIRMED.
David Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des
Moines, for appellant.
Jason W. Miller and Michael J. Miller of Patterson Law Firm, L.L.P., Des
Moines, for appellee.
Heard by Potterfield, P.J., Sackett, S.J.,* and Eisenhauer, S.J.*
*Senior judges assigned by order pursuant to Iowa Code section 602.9206
(2013).
2
EISENHAUER, S.J.
An employer appeals from the district court’s ruling on judicial review,
which affirmed the workers’ compensation commissioner’s award of temporary
disability benefits and medical care to its employee. The employer challenges
the benefits award in four respects. First, it claims the employee is not entitled to
temporary disability benefits or healing period benefits because she is capable of
performing substantially similar employment. Second, it contends the employee
failed to prove a causal connection between her work injury and disability. Third,
it contends the employee did not sustain a work-related neck injury. Finally, the
employer contends the employee is not entitled to payment of medical expenses
for her unauthorized medical care. We affirm in all respects.
I. Background Facts and Proceedings. Wendy Hunter has systemic
lupus erythematosus, a condition she controls with prescription medication. Her
symptoms are joint pain, aches and pains throughout her body, stiffness, diffuse
discomfort, fatigue, and difficulty sleeping. She began receiving Social Security
disability benefits in 2001.
When Hunter’s Social Security benefits were terminated in 2003 or 2004,
she returned to school to become certified as a pharmacy technician. She
completed the pharmacy technician program at Mercy College and became
certified in May 2006. After graduating, she was hired as a Pharmacy Technician
II at Mercy Medical Center (Mercy). The job description for a Pharmacy
Technician II lists the following physical requirements: “Exerting up to 50 pounds
of force occasionally and/or up to 20 pounds of force frequently, and/or up to 10
pounds of force constantly to move objects.”
3
On May 25, 2009, Hunter slipped and fell while exiting the back door of
the pharmacy, landing on her left side. She reported the incident to Mercy the
following day, stating she landed on her “left wrist, hip, and knee.” She also
listed “constant headaches” and “wrist, hip + joint pain” as the nature of her
injury.
On May 27, 2009, Hunter was treated for her injuries by Dr. Vandivier,
whose notes of the visit state Hunter “[s]ays that today the hip is greatly improved
but she still has quite a bit of tenderness within her elbow and her upper arm.”
Dr. Vandivier returned Hunter to work without restrictions. In a follow-up
appointment on June 17, 2009, Hunter reported that she felt good in the morning,
but that her pain would progressively worsen throughout the day. By the end of
the shift, Hunter stated she was “quite sore” and required pain medication to
sleep or she would awaken when she rolled onto her left hip. Dr. Vandivier
referred her for physical therapy.
Sometime after her slip and fall at work, Hunter fell while vacuuming the
stairs in her home.1 She “landed on [her] bottom,” but claims she had no pain or
1
There is a discrepancy as to when the fall took place. On August 14, 2009, Hunter was
seen at Highland Park Family Physicians. The reason for her visit is listed in the medical
notes as follows: “Wendy is here due to falling down stairs with a vacuum cleaner
approx. 2 months ago. She continues to have joint pain and back pain since that time.”
Hunter’s arbitration hearing testimony on the matter does not clarify the matter. She
testified as follows:
Q. Your fall on the stairs with the vacuum, that was in August of
2009? A. I’m not sure.
Q. Assuming that was in August of 2009, would you have seen Dr.
Mahoney before you fell on these stairs? A. After my fall I would have
seen Dr. Mahoney, yes.
Q. How about after your fall on the stairs? A. No.
Q. You would’ve seen your—Dr. Mahoney before your fall on the
stairs—well before you fell down the steps at home with the vacuum? A.
Yes.
4
other symptoms following, though she reported the fall to healthcare providers as
a possible cause for her lower back pain. At her deposition, Hunter initially
denied her fall on the stairs, but later admitted she had fallen when her hip gave
out. She claims her hip began giving out after her May 25, 2009 fall at work.
On August 14, 2009, Hunter sought medical treatment for joint and back
pain and was referred to Dr. Mahoney, who she saw on August 28, 2009.
Dr. Mahoney’s notes list Hunter’s symptoms as bilateral hip pain that was greater
on the left side and lower back pain. She reported that standing for long period
of times increased her pain. Dr. Mahoney’s notes from that visit state Hunter
“has a history of some pain in the hips and also Lupus,” but do not cite a more
specific history or any traumatic events. He assessed Hunter as having greater
trochanteric bursitis and recommended physical therapy and Celebrex.
Hunter received therapy through Accelerated Rehabilitation Centers with
Dr. Mahoney’s referral. The records from her October 6, 2009 visit list both her
May 25, 2009 work injury and the fall while vacuuming the stairs. The onset of
low-back pain was reported as occurring in May of 2009. Hunter was initially
inconsistent in attending her physical therapy sessions, claiming the exercises
increased her pain. She reported this complaint to Dr. Mahoney on January 7,
2010, and he recommended she undergo phonophoresis, manual massage, and
strengthening exercises during physical therapy. After doing so for the
remainder of the month, Hunter experienced dramatic improvement.
Because Hunter was not referred to Dr. Mahoney until her August 14, 2009 visit to
Highland Park Family Physicians, where she reported the fall on her stairs, her
testimony at the hearing was incorrect.
5
The symptoms caused by Hunter’s May 25, 2009 work injury had largely
resolved when on March 3, 2010, Hunter again slipped and fell at work. She
slipped on ice and fell on a sidewalk outside the building, again landing on her
left side. Hunter reported the incident to her employer and filled out an employee
incident report the same day, which states she experienced “hip, left elbow +
middle back pain.” On the figure provided on the form, she marked the site of
her injury as her left elbow, left hip, and from the side of her neck down to her
mid back.
As a result of her fall, Hunter sought treatment at Mercy’s emergency
department, describing pain in her left arm, left hip, and the middle of her back.
Upon arrival, Hunter’s fingers were purple and the pinky fingers of each hand
were blanched white. She was prescribed Vicodin for pain.
Hunter did not work on March 4, 2010. She returned to work on March 8,
2010. A return-to-work-activity status report states that until March 9, 2010,
Hunter was restricted from lifting, pushing, and pulling more than ten pounds,
and was to sit half an hour after standing two hours. Hunter reported her job
duties that night caused her pain, she needed to sit more frequently, and her hip
gave out when lifting thirty-five or more pounds. Her restrictions were altered on
March 10, 2010, to allow her to sit for fifteen minutes every two hours. On
March 22, 2010, Hunter’s restrictions were again altered to add a restriction on
repetitive pushing, pulling, twisting, stooping, bending, climbing, kneeling,
squatting, or lifting. She was also restricted from working more than eight hours
per day.
6
On March 23, 2010, Hunter met with her employer and was informed that
while a full-time, light-duty work schedule (five shifts of eight hours in length) was
available, it was only available during the day. Hunter’s family obligations
required her to work the night shift—ten-hour shifts, four nights per week.
Because Hunter’s work restrictions prevented her from working the night shift
and she refused the offer of a light-duty shift during the day, her employer placed
her on Family Medical Leave Act leave.
Unsatisfied with the care provided by her employee-referred doctor and
the restrictions placed upon her, Hunter saw Dr. Mahoney on March 25, 2010.
He assessed she was having a “[l]likely flare of greater trochanteric bursitis with
a slip at work,” prescribed three physical therapy sessions per week, and
released her to full-duty work without restrictions on March 29, 2010.
Hunter returned to work full-time, although her physical condition made it
difficult to perform some of her job duties, such as standing or lifting heavy
boxes. She received a cortisone injection in her left hip from Dr. Mahoney on
August 19, 2010, which provided her with approximately eight months of relief
from her symptoms. However, her symptoms gradually returned in the same
pattern as before.
Hunter took FMLA leave in September and October due to her father’s
cataract surgery. She returned to work on October 18, 2010. On December 3,
2010, Hunter was terminated for exceeding the amount of annual FMLA leave.
At the time, she was earning $18.05 per hour. She received unemployment
benefits following her termination and has been unable to find employment.
7
In May of 2011, Dr. Mahoney expressed his opinion that Hunter suffered
from bursitis, which was traceable to her falls at work on May 25, 2009, and
March 3, 2010. He also opined these work-related injuries materially aggravated
her pre-existing condition of lupus. Dr. Mahoney was of the opinion Hunter had
not yet reached maximum medical improvement. As a result, he was not in a
position to place any permanent restrictions on her activity at that time.
Dr. Epp performed an independent medical examination of Hunter. In her
October 18, 2011 report, Dr. Epp diagnosed Hunter with left hip trochanteric
bursitis and cervical pain with radicular symptoms as a result of her May 25,
2009 and March 3, 2010 falls. With regard to her left hip, Dr. Epp opined Hunter
achieved maximum medical improvement on August 18, 2011. She believed
Hunter had not yet reached maximum medical improvement for her neck injury
and recommended a course of treatment be followed to achieve maximum
medical improvement; however, if those recommendations were not followed,
Dr. Epp opined Hunter could be found to have reached maximum medical
improvement on March 3, 2011, one year after the date of injury. Dr. Epp
assessed Hunter with a fifteen-percent impairment to the whole person as a
result of her neck injury and a three-percent impairment to the whole person as a
result of the left hip injury for a total impairment rating of eighteen-percent to the
whole person. Dr. Epp recommended restrictions on lifting, pushing, pulling, and
carrying ten pounds on a rare basis from floor to waist, twenty pounds on an
occasional basis from waist to shoulder, and ten pounds on a rare basis over the
shoulder. She recommended Hunter sit “occasionally,” and rarely stand, walk,
stoop, or bend. Dr. Epp further recommended against crawling, kneeling,
8
walking on uneven surfaces, or using ladders, and recommended Hunter rarely
use stairs.
Dr. Mahoney treated Hunter again on February 23, 2012, for increased
pain in her left hip. Dr. Mahoney opined Hunter had still not reached maximum
medical improvement for her left hip, which he opined was causally related to her
March 3, 2010 fall. He was again unable to determine if Hunter required any
physical restrictions as a result of her left hip bursitis.
Hunter filed contested case petitions with the Iowa Workers’
Compensation Commissioner for her May 25, 2009 and March 3, 2010 injuries.
Following a hearing, an arbitration decision was entered on October 24, 2012,
concluding Mercy owed medical expenses and costs incurred for both injuries.
The decision awarded Hunter temporary disability benefits on March 4, 2010,
and from March 11 through March 28, 2010. It further awarded Hunter healing
period benefits from December 3, 2010, continuing as long as Hunter remains
temporarily disabled.
Mercy’s application for rehearing was denied. On August 13, 2013, the
workers’ compensation commissioner affirmed the arbitration decision and
adopted it as the final agency decision. Mercy then filed a petition for judicial
review, and the district court affirmed the agency decision on January 14, 2014.
Mercy appeals.
II. Scope of Review. Iowa Code chapter 17A (2013) governs our review
of the agency’s action. See Mike Brooks, Inc. v. House, 843 N.W.2d 885, 888
(Iowa 2014). The district court acts in an appellate capacity to correct errors of
law in the commissioner’s decision. Id. We then apply the standards of chapter
9
17A to determine if our conclusions are the same as those reached by the district
court. Id. at 889. If they are, we affirm; if not, we reverse. Id.
The legislature vests the commissioner with the discretion in making
factual determinations. Id. We are bound by those determinations if there is
“substantial evidence in the record before the court when that record is viewed as
a whole.” Substantial evidence is “the quantity and quality of evidence that would
be deemed sufficient by a neutral, detached, and reasonable person, to establish
the fact at issue when the consequences resulting from the establishment of that
fact are understood to be serious and of great importance.” Iowa Code
§ 17A.19(10)(f)(1). Evidence is not insubstantial merely because different
conclusions may be drawn from it. Mike Brooks, 843 N.W.2d at 889. We do not
determine whether the evidence supports different findings, but rather whether it
supports the findings actually made. Id.
III. Temporary Disability and Healing Period Benefits. Mercy first
contends the workers’ compensation commissioner erred in awarding Hunter
temporary disability benefits or healing period benefits because it claims she is
capable of performing substantially similar employment.
An employer is required to pay an employee temporary disability benefits
“until the employee has returned to work or is medically capable of returning to
employment substantially similar to the employment in which the employee was
engaged at the time of the injury, whichever occurs first.” Iowa Code § 85.33(1).
Similarly, healing period benefits are to be paid for any injury causing permanent
partial disability
10
until the employee has returned to work or it is medically indicated
that significant improvement from the injury is not anticipated or
until the employee is medically capable of returning to employment
substantially similar to the employment in which the employee was
engaged at the time of injury, whichever occurs first.
Id. § 85.34(1).
Because Hunter had not returned to work or reached maximum medical
improvement at the time of the hearing, the question is whether she is medically
capable of returning to substantially-similar employment. Mercy argues Hunter is
capable of returning to substantially similar employment because she had
returned to her job as a pharmacist technician and was performing her regular
job duties up until the time she was terminated for excessive absenteeism. It
also notes Dr. Mahoney released Hunter to return to work without restrictions.
Although there were no formal restrictions on Hunter’s work from
March 29, 2010, to her termination in December 2010, the agency found
modifications were made to allow Hunter to complete her work.
At the time of her termination, claimant remained under
active medical care. She credibly testified that although she was
completing her full duty work without formal restrictions, she did so
with modifications. Modifications included intermittent sitting and
assistance from co-workers with heavy lifting. Such modifications
are consistent with the work restrictions previously imposed by
multiple providers. The restrictions were not accommodated by
defendant-employer, leaving claimant with the option of remaining
off work without compensation or procuring a full duty work release.
These limitations are also consistent with claimant’s post-
termination job search and subsequent imposition of restrictions by
Drs. Mahoney and Epp.
The district court concluded this finding amounted to informal restrictions on
Hunter’s work after March 29, 2010, and therefore, “Hunter was not able to return
to work or perform substantially similar employment.”
11
We reach the same conclusion as the district court. Hunter’s symptoms
worsened after she performed her job duties, specifically standing and lifting,
without the informal accommodations. Those accommodations are similar in
nature to the work restrictions in place before March 29, 2010, and those
imposed by Dr. Epp in 2011. Because the agency’s finding is supported by
substantial evidence, we affirm on this issue.
IV. Hip Condition. Mercy next contends the commissioner erred in
finding Hunter’s hip condition is causally connected to her work injuries. It
argues Hunter’s testimony was not credible, pointing to discrepancies between
her deposition testimony and medical records. It argues the evidence supports a
finding Hunter’s condition was caused by the fall at home, rather than by either
workplace injury.
As the trier of fact, the commissioner has a duty to determine witness
credibility. Arndt v. City of Le Claire, 728 N.W.2d 389, 395 (Iowa 2007). “[W]e
give due regard to the commissioner’s discretion to accept or reject testimony
based on his assessment of witness credibility.” Schutjer v. Algona Manor Care
Ctr., 780 N.W.2d 549, 558 (Iowa 2010). It is not for this court to determine the
relative strength of the evidence before it; rather, it is our job to determine
“whether substantial evidence supports a finding ‘according to those witnesses
whom the [commissioner] believed.’” Arndt, 728 N.W.2d at 394.
Although the agency recognized there was “some variation” between
Hunter’s testimony and medical records, it determined it was “not outside the
range of what is to be expected for a claim involving two stipulated work-related
falls for which claimant received care with the same physicians and the existence
12
of a preexisting lupus condition which admittedly caused symptoms prior to the
work-related injuries.” We agree. Hunter’s deposition testimony is more
indicative of someone confusing a timeline of events or forgetting specific details
in a lengthy medical history rather than a purposeful attempt to mislead or
conceal.
Most important are the agency’s findings relating to personal observations
at the arbitration hearing, wherein the deputy commissioner noted: “Claimant’s
demeanor, body position, and posture were good, with excellent eye contact.
The undersigned observed the claimant display pain behaviors. Near the end of
cross-examination, claimant sat with her right hand placed upon the right side of
her neck. Claimant’s presentation was indicative of a truthful witness.” We defer
to these findings for good reason, as Justice Harris noted:
These determinations are more apt to be just when the objective
facts are squared with the judge’s subjective impressions, gained
from close personal observations. One who personally observes
holds a clear advantage over us who learn the case from a cold
record. The first-hand observer can translate that advantage into a
more just disposition. It is not in the public interest for appellate
courts to strain to seek out fine-tune adjustments in these matters.
See In re Marriage of Wegner, 434 N.W.2d 397, 400 (Iowa 1988) (Harris, J.,
dissenting).
Accepting the finding regarding Hunter’s credibility, we are then left to
determine whether substantial evidence supports the agency’s finding on
causation. “Medical causation is a question of fact vested in the commissioner’s
discretion.” Mike Brooks, 843 N.W.2d at 889. It is “within the domain of expert
testimony.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa
2011). The weight given to an expert’s testimony depends on the accuracy of
13
the facts the expert relied upon and other surrounding circumstances; if it is
based on an incomplete history, the opinion is not binding upon the
commissioner. Id. Ultimately, the decision to accept or reject an expert’s opinion
is within the “peculiar province” of the commissioner. Id.
We conclude substantial evidence supports the agency’s finding Hunter’s
hip condition was caused by her 2009 and 2010 workplace injuries. Both
Drs. Mahoney and Epp gave opinions within a reasonable degree of medical
certainty to support this finding. No expert witness evidence was offered to rebut
their opinions. Hunter disclosed the fall in her home to her medical providers as
a possible cause of her condition, but maintains she never had any pain as a
result of that fall. She testified the fall occurred when her “hip gave out” while
carrying her vacuum downstairs. She further testified at the hearing her hip
started giving out only after her fall on May 25, 2009.
Because we agree with the district court’s determination substantial
evidence supports the agency’s finding on causation, we affirm on this issue.
V. Neck Injury. Mercy also contends there is insufficient evidence to
support the conclusion she sustained a work-related injury to her neck on
March 3, 2010. It argues Hunter never indicated she had neck pain following her
fall.
Substantial evidence supports the finding Hunter suffered a work-related
injury to her neck on March 3, 2010. On that day, Hunter filled out an employee
incident form in which she indicated an injury from the right side of her neck
radiating downward into the middle of her back. Dr. Epp determined the fall
caused an injury to Hunter’s neck and assessed her with a fifteen-percent
14
impairment to the whole body as a result. While Dr. Epp is the only expert to
attribute a neck injury to Hunter’s fall at work, the opinion is unrebutted in the
record. Having reached the same conclusion as the district court, we affirm on
this issue.
VI. Unauthorized Medical Care. Finally, Mercy contends the
commissioner erred in awarding medical expenses Hunter incurred in seeking
treatment from Dr. Mahoney. It argues the commissioner erred in determining
Hunter was entitled to such an award “solely because the care improved Hunter’s
condition.”
When an employer acknowledges an employee sustained an injury
compensable under the workers’ compensation statute, the employer is to furnish
reasonable medical care and supplies. Bell Bros. Heating & Air Conditioning v.
Gwinn, 779 N.W.2d 193, 202 (Iowa 2010). However, the legislature has
bestowed the right to choose medical care to the employer, subject to certain
employee protections. Id. at 203. If an employee obtains unauthorized medical
care, an employer may be required to reimburse the cost of that care if the
employee proves “the unauthorized care was reasonable and beneficial under all
the surrounding circumstances, including 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. at 208. When considering what is reasonable
under this analysis, we must consider the quality of the alternative care and the
quality of the employer-provided care. Id. “[T]he question of whether the
unauthorized care was beneficial focuses on whether the care provided a more
15
favorable medical outcome than would likely have been achieved by the care
authorized by the employer.” Id.
In determining Hunter was entitled to compensation for unauthorized
medical care, the agency notes the parties stipulated Hunter sustained a work-
related injury. It goes on to find the unauthorized care “was entirely reasonable”
given Dr. Mahoney’s familiarity with Hunter’s prior left hip injury, his familiarity
with the treatment of that injury, and the “beneficial physician-patient relationship”
he had established with Hunter. It found Mercy’s choice to retain Dr. Mahoney’s
opinion regarding Hunter’s disability further buttressed the determination the care
he provided was reasonable, and noted Dr. Mahoney’s care proved beneficial “as
claimant was able to return to work, whereas under defendant-authorized care,
claimant’s restrictions prevented claimant from engaging in her pharmacy
technician duties.”
The district court questioned the agency’s determination Dr. Mahoney’s
care was beneficial because it allowed Hunter return to work without restrictions,
noting “beneficial refers to medically beneficial.” However, the district court
agreed Dr. Mahoney’s treatment was more medically beneficial than the
treatment provided by the authorized provider. We reach the same conclusion
as the district court, and accordingly, we affirm.
AFFIRMED.
Catholic Health Initiatives D/B/A Mercy Medical Center v. Wendy Hunter
Combined Opinion