IN THE COURT OF APPEALS OF IOWA
No. 17-0742
Filed January 10, 2018
APRIL DENISE ORRIS,
Petitioner-Appellant,
vs.
COLLEGE COMMUNITY SCHOOL DISTRICT
and EMC INSURANCE COMPANY,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
Judge.
April Orris appeals a district court ruling on her petition for judicial review
of a determination of the workers’ compensation commissioner. AFFIRMED.
Thomas M. Wertz of Wertz, Dake & Anderson, P.C., Cedar Rapids, for
appellant.
Valerie A. Landis of Hopkins & Huebner, P.C., Des Moines, for appellees.
Considered by Danilson, C.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
April Orris appeals a district court ruling on her petition for judicial review
of a determination of the workers’ compensation commissioner. She contends
the district court erred in finding substantial evidence supported the
commissioner’s rejection of an uncontroverted expert opinion regarding the
causation of her worsened condition.
I. Background Facts and Proceedings
In May 2005, Orris was injured in the course of her employment with
College Community School District (CCSD). Coll. Cmty. Sch. Dist. v. Orris, No.
11-1848, 2012 WL 2407558, at *1 (Iowa Ct. App. June 27, 2012), further review
denied (Aug. 21, 2012). In 2008, Orris filed a workers’ compensation claim
against CCSD and its workers’ compensation insurance carrier, EMC Insurance
Company. See id. at *2. Following agency and judicial-review proceedings, this
court affirmed (1) the agency’s initial arbitration determination that, among other
things, “Orris suffered from fibromyalgia aggravated by the work injury, as well as
chronic pain” and (2) the resulting award of “permanent partial disability benefits
equal to thirty-percent industrial disability.” Id. at *2–4.
In December 2013, Orris filed a review-reopening petition seeking an
increase of her award. See Iowa Code § 86.14(2) (2013). She contended her
fibromyalgia condition had substantially worsened since the 2009 arbitration
hearing and her award should therefore be increased. Following hearing, the
deputy commissioner concluded Orris proved “by a preponderance of the
evidence that her fibromyalgia condition or symptoms have substantially changed
and worsened since the 2009 arbitration hearing.” However, the deputy
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commissioner went on to conclude Orris “failed to prove that her increase or
exacerbation of fibromyalgia symptoms is causally related to her initial work
injury in May 2005.” The deputy commissioner therefore denied Orris’s request
for an increase in benefits. On appeal, the commissioner affirmed the deputy
commissioner’s ruling in its entirety.
Orris filed a petition for judicial review of the agency decision. The district
court ultimately affirmed the agency determination, concluding:
It was appropriate for [the agency] to find that Ms. Orris failed in her
burden to prove that the worsening of her fibromyalgia symptoms
was causally related to her 2005 injury. The Court has reviewed
the entire record and concludes that the final agency action in this
matter is sufficiently stated and supported by substantial evidence
in the record and should not be disturbed on judicial review.
As noted, Orris appeals.
II. Standard of Review
“Judicial review of agency decisions is governed by Iowa Code section
17A.19.” Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 530 (Iowa 2017)
(quoting Kay-Decker v. Iowa State Bd. of Tax Review, 857 N.W.2d 216, 222
(Iowa 2014)); accord Warren Props. v. Stewart, 864 N.W.2d 307, 311 (Iowa
2015). The district court acts in an appellate capacity in judicial-review
proceedings. Iowa Med. Soc’y v. Iowa Bd. of Nursing, 831 N.W.2d 826, 838
(Iowa 2013) (quoting City of Sioux City v. GME, Ltd., 584 N.W.2d 322, 324 (Iowa
1998)). On appeal, this court “appl[ies] the standards of section 17A.19(10) to
determine if we reach the same results as the district court.” Brakke, 897 N.W.2d
at 530 (quoting Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10 (Iowa
2010)); accord Des Moines Area Transit Auth. v. Young, 867 N.W.2d 839, 842
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(Iowa 2015). Relief in a judicial-review proceeding is appropriate only “if the
agency action prejudiced the substantial rights of the petitioner and if the agency
action falls within one of the criteria listed in section 17A.19(10)(a) through (n).”
Brakke, 897 N.W.2d at 530.
“Our review of a decision of the workers’ compensation commissioner
varies depending on the type of error allegedly committed by the commissioner.”
Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa 2010). Where, as
here, the alleged “error is one of fact, we must determine if the commissioner’s
findings are supported by substantial evidence.” Id.; see Iowa Code
§ 17A.19(10)(f). This court is not entitled to reweigh the evidence in a
substantial-evidence review—we only determine whether substantial evidence
supports the agency finding. Arndt v. City of Le Claire, 728 N.W.2d 389, 394–95
(Iowa 2007). “Evidence is substantial when a reasonable person could accept it
as adequate to reach the same findings.” Bearinger v. Iowa Dep’t of Transp.,
844 N.W.2d 104, 106 (quoting Ludtke v. Iowa Dep’t of Transp., 646 N.W.2d 62,
65 (Iowa 2002)). “If the agency’s findings are supported by substantial evidence,
those findings are binding upon us.” Fed. Express Corp. v. Mason City Human
Rights Comm’n, 852 N.W.2d 509, 510–11 (Iowa Ct. App. 2014).
III. Analysis
Orris argues the district court erred in finding substantial evidence
supported the commissioner’s rejection of an allegedly uncontroverted expert
opinion regarding the causation of her worsened condition.
“[T]he workers’ compensation commissioner is authorized to ‘reopen an
award for payments or agreement for settlement . . . [to inquire] into whether or
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not the condition of the employee warrants an . . . increase of compensation so
awarded or agreed upon.” Kohlhass v. Hog Slat, Inc., 777 N.W.2d 387, 391
(Iowa 2009) (first ellipsis and alteration in original) (quoting Iowa Code
§ 86.14(2)). “The workers’ compensation statutory scheme contemplates that
future developments (post-award and post-settlement developments), including
the worsening of a physical condition . . . , should be addressed in review-
reopening proceedings.” Id. at 392. Although a claimant is not required to show
his or her current condition was not contemplated by the commissioner at the
time of the original hearing, when an increase in compensation is sought, “the
employee bears the burden of establishing by a preponderance of the evidence
that his or her current condition was ‘proximately caused by the original injury.’”
Id. at 392–93 (quoting Simonson v. Snap-on Tools Corp., 588 N.W.2d 430, 434
(Iowa 1999)). “A cause is proximate if it is a substantial factor in bringing about
the result”—“[i]t only needs to be one cause, it does not have to be the only
cause.” Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
Where the worsened condition underlying the request for an increase in benefits
is a result of factors independent of the original work injury, there is no causal
nexus between the injury and the worsened condition. See US West Commc’ns,
Inc. v. Overholser, 566 N.W.2d 873, 877 (Iowa 1997). The burden is on the
claimant to prove the original injury was a proximate cause of his or her
subsequent condition; “a possibility is insufficient; a probability is necessary.”
Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 1974). Whether the
worsened condition has a direct causal connection with the employment or arose
independently thereof is essentially within the domain of expert testimony, and
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“the weight to be given such an opinion is for the finder of fact.” Bodish v.
Fischer, Inc., 133 N.W.2d 867, 870 (Iowa 1965). “If the agency’s findings are
supported by substantial evidence, those findings are binding upon us.” Fed.
Express Corp., 852 N.W.2d at 510–11.
At the review-reopening hearing, Orris characterized her fibromyalgia as
causing her severe muscle pain, fatigue, insomnia, and headaches. She has
been prescribed several different medications over the years to assist in
alleviating her symptoms. Despite these measures, Orris testified her
fibromyalgia symptoms have worsened since the arbitration hearing. Her flare
ups were initially mild, lasting from a few days to a few weeks, but now her “flares
are a lot more frequent, and they last a lot longer.”
In or around Novermber 2011, Orris’s sister was diagnosed with breast
cancer. Orris moved to Texas in August 2012 to be closer to her sister. The
stress associated with the move caused a flare in her fibromyalgia symptoms. In
November 2014, Orris’s husband was also diagnosed with cancer. Her family
members’ diagnoses have caused Orris a great deal of stress. Sometime after
moving to Texas, Orris spent a brief period of time working as a tutor for a local
school district. Working in this position was “strenuous,” “fatiguing,” and “painful.”
Orris testified she is “quite aware” that the negative stressors in her life can
aggravate her fibromyalgia. She specifically testified that stressors in her life
have caused her fibromyalgia symptoms to flare up in the past. In August 2014,
Orris was diagnosed with psoriatic arthritis. She conceded at the hearing that
this diagnosis is unrelated to her work injury. This condition causes Orris “very
intense, stinging” pains in her joints.
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Orris’s expert, Dr. Bansal, completed an independent medical evaluation
of Orris in October 2014. On the issue of causation, Dr. Bansal reported:
Ms. Orris’[s] clinical course has followed a typical pattern for
post traumatic fibromyalgia, initiating from the work injury on May
20, 2005.
....
. . . [F]rom both mechanistic and temporal standpoints, her
current fibromyalgia is related to her May 20, 2005 injury at College
Community Schools. Her continued symptomology has followed a
logical medical progression, and is consistent with the medical
literature on the subject.
In November 2014, counsel for the appellees sent a letter to Dr. Bagheri,
Orris’s treating rheumatologist prior to 2011, requesting he review Orris’s medical
records since her last visit with him and prepare a report reflecting his opinions
on Orris’s condition. Dr. Bagheri subsequently provided an opinion based on his
review of Orris’s medical records since he last treated her in December 2011.
Dr. Bagheri, discussed a number of studies in his report and ultimately advised,
in relevant part, the following:
Fibromyalgia in general is a condition with occasional, and
sometimes frequent, flare-ups. It is not unusual for patients to
experience wax and wane in their symptoms, including pain, fatigue
and sleep problems. Most patients with fibromyalgia continue to
have chronic pain and fatigue . . . .
....
. . . “[C]atastrophizing” about the pain of fibromyalgia is
associated with increased awareness of pain (as indicated by
increased brain activation in response to painful stimuli in functional
magnetic resonance images) and also is associated with worsening
of, rather than improvement in, symptoms.
Although fibromyalgia is lifelong, it does not get worse and is
not fatal. Some studies show that fibromyalgia symptoms remain
stable over the long term, while others report that more than a
quarter of patients see improvement in their pain symptoms over
time. Studies suggest that regular exercise improves the outlook.
People with a significant life crises or who are on disability have a
poorer outcome based on their:
Ability to work
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Depression
Disturbed sleep
Fatigue
Feelings about their condition
Pain
In his ruling, the deputy commissioner noted both Dr. Bansal and Dr.
Bagheri’s reports offered opinions on the issue of causation. The deputy
commissioner acknowledged Dr. Bansal’s opinion that Orris’s 2005 injury was
causally related to the increased severity of Orris’s symptoms but noted its
review of the authorities cited by Dr. Bansal, one of which stated “increased
stress can increase symptoms related to fibromyalgia.” As to Dr. Bagheri’s
report, the deputy commissioner noted he “is qualified to provide opinions about
the cause of any current symptoms or worsening of [Orris’s] condition.” In
weighing the respective doctors’ opinions, the deputy commissioner stated:
Considering the credibility and accuracy of these competing
opinions requires evaluation of the physicians’ respective
credentials, training, as well as their perspective and ability to
assess claimant’s condition. Clearly, Dr. Bansal has an
advantageous position having evaluated claimant in 2011 and
again in 2014. He has clearly evaluated claimant most recently and
had a chance to take a recent history from Ms. Orris. Dr. Bansal
cites certain medical studies and articles, though he does not really
explain the outcomes of those studies or their significance and
applicability to this case.
Dr. Bagheri is a rheumatologist. Treatment of fibromyalgia is
clearly within his medical specialty. Dr. Bagheri is familiar with
claimant’s work injury, her symptoms, and her medical care having
served as her rheumatologist. However, he has not observed or
examined claimant since 2011.
The deputy commissioner additionally reviewed one of the authorities
contemplated in the initial arbitration decision, a brochure issued by the Arthritis
Foundation. This brochure provided, “[F]actors such as infectious illness,
physical trauma, emotional trauma, or hormonal changes may trigger the
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development of generalized pain, fatigue, and sleep disturbances that
characterize the condition.” The deputy commissioner concluded the “brochure
appears to be consistent with the findings and studies cited and discussed by Dr.
Bagheri.”
The deputy commissioner went on to discuss a number of emotional
traumas the record indicated Orris experienced since the arbitration hearing:
losing her relationship with her mother due to the stressfulness of the
relationship, the stress of moving from Iowa to Texas in 2012, her sister’s
terminal-cancer diagnosis, her husband’s cancer diagnosis, her nephew’s illness,
and her own diagnosis of psoriatic arthritis. The deputy commissioner
concluded:
These are clearly additional personal life stressors that are
unrelated to the original work injury. In fact, claimant admits that
personal stressors can and do aggravate her fibromyalgia
symptoms.
....
Dr. Bagheri’s explanation of the typical course of
fibromyalgia symptoms as remaining the same or decreasing with
time is supported by the medical research he cites. Dr. Bagheri’s
explanation that stress can cause an increase or exacerbation of
fibromyalgia symptoms is supported by the medical research he
cites and by claimant’s own admission. Dr. Bagheri’s opinions
appear most consistent with the facts of this case, particularly given
the number of stressors in Ms. Orris’[s] life and those stressors
temporal relationship to claimant’s increase in fibromyalgia
symptoms since 2011.
Therefore, when I weigh the competing causation opinions
offered by Dr. Bansal and Dr. Bagheri, I find the opinions of Dr.
Bagheri to be more convincing in this case. Having accepted Dr.
Bagheri’s opinions, I find that Ms. Orris has failed to prove that her
increase or exacerbation of fibromyalgia symptoms is causally
related to her initial work injury in May 2005.
Orris argues Dr. Bagheri’s report is a “non-opinion,” and therefore Dr.
Bansal’s allegedly “uncontroverted” opinions should prevail. We find no error in
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the deputy commissioner’s finding that Dr. Bagheri’s written report included an
opinion concerning causation of Orris’s current condition. The deputy
commissioner then considered the weight to be given to the opinions of Drs.
Bansal and Bagheri. Although couched in other terms, Orris is asking us to find
Dr. Bansal’s opinion should carry more weight than Dr. Bagheri’s opinion. As
noted above, however, this court is not entitled to reweigh the evidence in a
substantial-evidence review of an agency determination—we only determine
whether substantial evidence supports the agency finding. Arndt, 728 N.W.2d at
394–95. Based on our review of the record, Dr. Bansal’s opinion was clearly
contradicted by Dr. Bagheri’s opinion, supporting authorities, and the factual
circumstances of this case. Dr. Bagheri’s opinion was supported by substantial
evidence, and the findings flowing from the deputy commissioner’s adoption of
the same are therefore binding upon us. Fed. Express Corp., 852 N.W.2d at
510–11. Giving those findings effect, we conclude Orris failed to meet her
burden to prove her original work injury proximately caused her worsened
condition. We therefore agree with the district court that the agency’s causation
finding is sufficiently supported by substantial evidence in the record and should
not be disturbed on judicial review. We affirm the district court’s denial of Orris’s
petition for judicial review.
AFFIRMED.