Cedar Rapids Community School District and EMC Insurance Companies v. Christine Pease ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 09–0724
Filed December 16, 2011
CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT
and EMC INSURANCE COMPANIES,
Appellants,
vs.
CHRISTINE PEASE,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Scott D.
Rosenberg, Judge.
On further review, we address whether substantial evidence
supports the workers’ compensation commissioner’s findings of fact.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
Tina M. Eick and Wendy D. Boka of Hopkins & Huebner, P.C.,
Des Moines, for appellants.
Thomas M. Wertz and Daniel J. Anderson of Wertz & Dake, Cedar
Rapids, for appellee.
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APPEL, Justice.
In this workers’ compensation case, we consider whether the court
of appeals properly applied the “substantial evidence” test under Iowa
Code section 17A.19(10)(f) (2009) when it reversed an award of benefits
in an appeal of a decision of the workers’ compensation commission.
Based on our review of the record, we conclude substantial evidence
supports the commissioner’s findings. As a result, we vacate the
decision of the court of appeals and affirm the judgment of the district
court.
I. Factual and Procedural Background.
Christine Pease injured her right ankle when she slipped on ice
and fell in the course of her employment with the Cedar Rapids
Community School District (District) as a “job coach.” The position of job
coach involved working with disabled children, transporting them to
various locations in the community in the school van.
Pease filed a claim with the workers’ compensation commission
seeking benefits as a result of her alleged injuries. While the parties
stipulated that Pease suffered a right ankle injury as a result of the slip
and fall and that the injury arose within the scope of employment, the
District disputed “the nature, scope and effect of the injury.”
Pease’s ankle injury required her to undergo two surgeries related
to the placement and removal of a screw. In addition, Pease claimed that
her fall caused her to have an altered gait, which in turn caused her to
sustain an injury to her left ankle and back. Pease further maintained
that her injuries increased her preexisting state of depression.
At the hearing, Pease offered evidence in support of her claim that
her right ankle injury caused a change in gait which subsequently
caused injuries to her left ankle and back. With respect to her right
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ankle, Pease offered the testimony of a physician that she suffered “a
rather significant ligamentous injury to her right ankle involving both the
deltoid and syndesmotic ligament.” She then reported to another
physician that she began experiencing low back pain due to her altered
gait. Although Pease sought treatment for lower back pain before, her
physician noted that her back pain had become more difficult to control
after her fall. In addition, Pease reported that she began to experience
pain in her left ankle due to her altered gait. Pease, however, had a
history of problems with her left ankle, which included a chronic tear of
ligaments and two arthroscopic surgeries prior to her slip and fall
involved in this case.
According to Pease, after she had reached maximum medical
improvement she was asked to undergo a functional capacity evaluation.
The results of the functional capacity evaluation indicated that Pease
could stand or walk no more than fifty percent of her work shift and for
limited durations; could lift twenty pounds rarely, fifteen pounds
occasionally, and seven to eight pounds frequently; could tolerate a
maximum of ten to twelve stairs up and down once a day using handrails
for support; and should avoid ladder or step climbing greater than an
eight inch height. Her physician characterized these work restrictions as
“permanent.”
More than four months later, the District terminated Pease’s
employment. The District stated that Pease had been unable to return to
work since her injury and, in light of the permanent restrictions, she was
unable to perform the essential functions of the position of job coach or
any other job with the District in her pay range.
After her termination from employment, Pease became increasingly
depressed and sought medical help for this condition. Pease had a
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history of depression prior to her work injury, but testified her
depression became much worse following the injury. She testified that
her constant pain, inability to walk, loss of her job, and her increased
stress levels all contributed to her depression and that the depression
interfered with her concentration, her sleep, and her social life.
Pease offered expert medical testimony in support of her claim that
she suffered deeper depression as a result of her work injury.
Dr. William Stutts, a psychiatrist, concluded that Pease’s work injury
was a “substantial contributing factor[] in bringing about her current
level of depression.” Dr. Stutts asserted it was more likely than not that
the chronic pain resulting from her injuries was permanent and that the
pain would continue to contribute to Pease’s depression. Another
physician, Dr. John Brownell, characterized Pease as suffering from a
“pretty clear case of post-surgical depression” and further stated that the
depression was a result of both the stress of the surgery and her
decreased mobility.
Pease offered the opinion of Barbara Laughlin, a vocational expert,
in support of her claim that she was no longer employable. Laughlin
asserted that Pease suffered a ninety to one hundred percent loss of
access to the labor market as a result of her injuries. Laughlin stated
that Pease would have great difficulty finding and maintaining
employment in light of her inability to interact appropriately with peers,
the general public, and supervisors.
The District countered by offering evidence that tended to
characterize Pease’s injuries as less substantial. After performing an
independent medical examination, Dr. Ray Miller opined that Pease had
an eight percent of the whole person impairment due to the right ankle
injury and the subsequent sequelae to the back and left ankle.
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With respect to the claim of depression, the District offered
evidence from Dr. Raymond Crowe indicating that Pease’s depressive
episode was not causally connected to the injury. Dr. Crowe later
asserted that Pease was malingering.
The District offered a vocational report prepared by Dr. Elizabeth
Mease and Dr. Janeen Montgomery. They opined that Pease was
employable at the sedentary physical level and was not psychiatrically
foreclosed from employment.
The deputy commissioner ruled in favor of Pease. The deputy
concluded that Pease suffered “an injury to the body as a whole.”
Additionally, the deputy found that Pease’s work injury was a
“substantial contributory factor in [Pease’s] current state of depression.”
Further, the deputy held that as a result of her physical and
psychological injuries, Pease was “unable to return to any job she ha[d]
previously held.” As a result, the deputy awarded Pease permanent total
disability, accrued benefits, and reimbursement for medical expenses.
The commissioner affirmed the decision of the deputy, but
modified and expanded on the deputy’s ruling. The commissioner noted
that the deputy had erroneously stated that Dr. Miller had assigned an
eight percent permanent disability rating to the injuries to the right
ankle, neck, lower back, and left ankle when, in fact, Dr. Miller assigned
the disability rating based only on the injuries to Pease’s lower back and
left ankle. The commissioner concluded that this error had no impact on
the case.
The commissioner further considered whether the deputy erred in
failing to apportion Pease’s alleged preexisting disability. The
commissioner noted that this issue was not raised before the deputy and
was not preserved for appeal.
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The district court affirmed in part and reversed in part. The
district court first concluded that the commissioner applied the
appropriate standard of review and correctly held the District failed to
preserve error on the apportionment issue. The district court also
upheld the commissioner’s findings of fact with respect to the causation
of Pease’s mental and physical injuries. The court observed that the
commissioner favored the findings of Dr. Miller and Dr. Stutts and
concluded that, on the whole, substantial evidence supported the
commissioner’s findings. Further, the district court held that substantial
evidence supported the commissioner’s findings regarding disability. The
court reversed, however, the commissioner’s award of medical expenses
for Pease’s neck injuries because there were no findings to establish that
the neck injuries were caused by the January 26 accident. The District
appealed, and the court of appeals reversed and remanded.
The court of appeals held substantial evidence did not support the
commissioner’s findings on causation. The court questioned the
reliability of Dr. Miller’s conclusions, observing that Dr. Miller’s reliance
on the history provided by Pease was misplaced because other evidence,
including video surveillance, undermined Pease’s credibility.
Additionally, the court noted that Dr. Miller incorrectly believed Dr. Kline
opined that Pease’s back pain was caused by the January 26 accident
when, in fact, Dr. Kline concluded the opposite. Further, the court
questioned the conclusions of Dr. Stutts, explaining that Dr. Stutts’
opinion rested, in part, on an inaccurate and incomplete history of
depression provided by Pease. Finally, the court discussed the
conflicting evidence and Pease’s “lengthy history of symptoms” relating to
the injuries and concluded medical causation was lacking between the
January 26 accident and the injuries to Pease’s left ankle, lower back,
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and postaccident level of depression. Pease applied for further review,
which we granted.
II. Standard of Review.
Our decision is controlled in large part by the deference we afford
to decisions of administrative agencies. Medical causation presents a
question of fact that is vested in the discretion of the workers’
compensation commission. See Dunlavey v. Econ. Fire & Cas. Co., 526
N.W.2d 845, 853 (Iowa 1995). We will therefore only disturb the
commissioner’s finding of medical causation if it is not supported by
substantial evidence. See Iowa Code § 17A.19(10)(f).
The Iowa Administrative Procedure Act defines “substantial
evidence” as follows:
[T]he 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.
Id. § 17A.19(10)(f)(1). When reviewing a finding of fact for substantial
evidence, we judge the finding “in light of all the relevant evidence in the
record cited by any party that detracts from that finding as well as all of
the relevant evidence in the record cited by any party that supports it.”
Id. § 17A.19(10)(f)(3). Our review of the record is “fairly intensive,” and
we do not simply rubber stamp the agency finding of fact. Wal-Mart
Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003).
Evidence is not insubstantial merely because different conclusions
may be drawn from the evidence. John Deere Dubuque Works of Deere &
Co. v. Weyant, 442 N.W.2d 101, 105 (Iowa 1989). To that end, evidence
may be substantial even though we may have drawn a different
conclusion as fact finder. Ardnt v. City of Le Claire, 728 N.W.2d 389, 393
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(Iowa 2007); Missman v. Iowa Dep’t of Transp., 653 N.W.2d 363, 367
(Iowa 2002). Our task, therefore, is not to determine whether the
evidence supports a different finding; rather, our task is to determine
whether substantial evidence, viewing the record as a whole, supports
the findings actually made. See Iowa Code § 17A.19(10)(f); Schutjer v.
Algona Manor Care Ctr., 780 N.W.2d 549, 557–58 (Iowa 2010).
III. Discussion.
At the heart of this case is the issue of the extent to which expert
testimony constitutes substantial evidence in a workers’ compensation
claim. Experts for the parties gave conflicting opinions regarding the
causation of Pease’s postaccident physical and psychological injuries.
The commissioner ultimately determined the expert opinions offered by
Pease were more credible and gave their opinions more weight. The
District now asks us to hold that the opinions relied upon by the
commissioner were so flawed that they failed to constitute substantial
evidence supporting the commissioner’s findings. We decline to do so.
Medical causation “is essentially within the domain of expert
testimony.” Dunlavey, 526 N.W.2d at 853. The commissioner, as trier of
fact, has a duty to weigh the evidence and measure the credibility of
witnesses. Id. The weight given to expert testimony depends on the
“accuracy of the facts relied upon by the expert and other surrounding
circumstances.” Schutjer, 780 N.W.2d at 560 (internal quotation marks
omitted). Also, an expert’s opinion is not necessarily binding upon the
commissioner if the opinion is based on an incomplete history.
Dunlavey, 526 N.W.2d at 853. Ultimately, however, the determination of
whether to accept or reject an expert opinion is within the “peculiar
province” of the commissioner. Deaver v. Armstrong Rubber Co., 170
N.W.2d 455, 464 (Iowa 1969). The District challenges the
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commissioner’s medical causation findings relating to Pease’s left ankle
and lower back as well as her postaccident level of depression. We
discuss each separately.
A. Medical Causation of Pease’s Left Ankle and Lower Back
Injuries. The commissioner primarily relied upon the opinions of
Dr. Miller in concluding Pease’s work injury aggravated the injuries to
her left ankle and lower back. Dr. Miller performed an independent
medical examination of Pease in March 2006. Dr. Miller reviewed
medical records from Physicians’ Clinic of Iowa, the University of Iowa
Orthopedic Department, Dr. Brownell, Dr. Fortson, St. Luke’s Hospital,
Dr. Kline, St. Luke’s Therapy Plus, University of Iowa Psychiatry
Department, and Jennifer Bradley ARNP from Mercy Psychiatric Center.
He also had x-rays available from St. Luke’s Hospital and the Physicians
Clinic of Iowa. In addition to reviewing Pease’s medical records,
Dr. Miller personally performed a physical examination of Pease. Based
on his review of the medical records and his personal examination,
Dr. Miller opined to a reasonable degree of medical certainty that Pease’s
left ankle and lower back injuries were aggravated by the January 26,
2005 accident.
Dr. Miller explained that the injury to Pease’s right ankle
aggravated her “preexisting osteoarthritis of the left ankle.” Dr. Miller
observed that Pease experienced “an increase in . . . symptoms of pain
related to weight-bearing that have continued since the time of the fall of
01/26/2005, and, therefore, are felt to be an aggravation of a preexisting
condition.” Dr. Miller’s observations of an increase in symptoms of pain
following the accident are consistent with the medical reports submitted
to him for his evaluation.
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Pease’s ankle symptoms appeared to progress after the accident so
she returned to the University of Iowa and was evaluated by
Dr. Saltzman on March 16, 2005. Dr. Saltzman’s notes state that Pease
met with Dr. Saltzman because of a “new problem in her left ankle.”
According to the notes, Pease was “beginning to develop more problems
with the left side. . . . What has added to this is that she fell on the ice
and tore the syndesmosis and deltoid ligament on her right ankle.” After
a CT scan and radiological examination, Dr. Saltzman’s impression was
that Pease suffered central heel pain and left ankle pain.
In April 2005, Dr. Amendola assumed the care for Pease’s left
ankle. Pease visited Dr. Amendola on three occasions between April and
August 2005. According to Dr. Amendola’s notes, Pease advised in April
that she experienced some improvement with her left ankle once she was
able to bear weight on the right. Throughout the five months, however,
Pease reported that she continued to experience pain in her left ankle.
In December 2005, Dr. Amendola wrote a letter to the District’s
counsel. In the letter, Dr. Amendola advised he had been involved in the
care of Pease from March through August of that year “for, what appears
to be, an exacerbation of a pre-existing condition.” Dr. Amendola
continued, explaining, “I do agree that this patient had ongoing pre-
existing problems in her ankle. Therefore, this note is to clarify, in
writing, that in fact this was an aggravation of a pre-existing condition.”
From this review of the record, it is apparent that substantial
evidence supports the commissioner’s finding of medical causation with
respect to the left ankle. Dr. Miller opined to a reasonable degree of
medical certainty that the symptoms Pease experienced in her left ankle
were aggravated by the increased weight-bearing requirements stemming
from the January 26, 2005 accident. Dr. Miller’s opinion is supported by
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the reports of Dr. Saltzman and Dr. Amendola, which Dr. Miller reviewed
in formulating his opinion. Also, Dr. Amendola expressed the view that
the left ankle problems suffered by Pease following the accident were an
aggravation of a preexisting condition.
Substantial evidence also supports the commissioner’s finding of
medical causation between the work-related accident and the
aggravation of Pease’s lower back symptoms. As with the left ankle, the
commissioner relied on Dr. Miller’s opinion concluding within a
reasonable degree of medical certainty that the January 26, 2005
accident aggravated Pease’s preexisting back condition. Dr. Miller
explained:
Regarding Ms. Pease’s low back, for which she had a
preexisting facet arthropathy in the lower lumbar levels,
following her fall of 01/26/2005 she developed an increase
in her low back symptoms that have persisted and have
required further treatment that did not substantially
alleviate her symptoms. I would agree with Dr. Kline’s
assessment that Ms. Pease has had an increase in her low
back symptoms following the work related injury of
01/26/2005 regarding her low back, and these are related to
the required use of crutches following surgery on her right
ankle and alterations in her gait pattern because of the
symptoms related to both ankles.
Dr. Miller thus attributed the aggravation of Pease’s lower back
symptoms to her altered gait and use of crutches following the injury to
her right ankle.
The District, however, argues Dr. Miller’s opinion is suspect in part
because he relied on Dr. Kline’s assessment which, according to the
District, “was directly to the contrary” of Dr. Miller’s conclusions. The
District relies on a letter written by Dr. Kline, who began treating Pease
before her accident, in which Dr. Kline stated he “would not attribute
[Pease’s] ongoing need for treatment of her back to her ankle injury of
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01/26/2005.” Yet Dr. Kline specifically stated that he could not
determine within a reasonable medical certainty that a causal
relationship existed between Pease’s postaccident back pain and her
right ankle injury. Dr. Kline’s letter, therefore, does not wholly
undermine Dr. Miller’s conclusions.
In fact, Dr. Kline’s medical records generally support Dr. Miller’s
conclusions. In an operative report dated May 2, 2005, Dr. Kline
observed that Pease “did well after her initial epidural steroid injection in
January. However, she subsequently experienced a fall and injured her
right ankle. This reinjured her back. Her back pain has been more
difficult to control since that time.” (Emphasis added.) In another report
dated July 26, 2005, Dr. Kline stated:
The patient was initially seen in the clinic in January
2005. She underwent an epidural steroid injection. This
resulted in marked improvement in her ankle, as well as her
pain. However, she subsequently experienced a fall and
reinjured her right ankle, as well as her back.
(Emphasis added.) Thus, although Dr. Kline could not opine within a
reasonable degree of medical certainty whether Pease’s postaccident
lower back symptoms were caused by the injury to her right ankle, his
medical notes are consistent with Dr. Miller’s opinion in this regard.
The court of appeals regarded Dr. Miller’s expert opinions
unreliable because Dr. Miller relied upon a “questionable” history
provided by Pease. The court noted that the evidence, including video
surveillance footage, directly contradicted Pease’s testimony and
undermined her credibility. As we have stated before, however,
credibility determinations in workers’ compensation claims are within the
domain of the commissioner as trier of fact. Certainly, there are cases in
which witness testimony may be “so impossible or absurd and self-
13
contradictory that it should be deemed a nullity by the court,” Graham v.
Chi. & N.W. Ry., 143 Iowa 604, 615, 119 N.W. 708, 711 (1909), but this
is no such case.
First, Dr. Miller did not rely solely upon the history provided by
Pease in his evaluation. Dr. Miller also performed a physical
examination of Pease and reviewed medical records detailing Pease’s
medical history. After performing the physical and reviewing the medical
records, Dr. Miller—who is a board certified orthopedic surgeon, board
certified in occupational medicine, and board certified in performing
independent medical evaluations—concluded within a reasonable degree
of medical certainty that the injury to Pease’s right ankle aggravated her
symptoms of pain in her left ankle and lower back. The District
presented no expert opinion calling Dr. Miller’s opinions into question
within a reasonable degree of medical certainty. Thus, even if the video
surveillance raised doubts about Pease’s credibility, the commissioner
could nevertheless reasonably rely upon the opinion of Dr. Miller.
Second, Dr. Miller’s conclusions did not change after he viewed the
video surveillance footage. Dr. Miller wrote a letter to Pease’s attorney
following a review of the surveillance videos. In the letter, Dr. Miller
stated, “[I]t is my opinion within a reasonable degree of medical certainty,
that my report with its conclusions and impairment recommendations,
remains accurate and appropriate.” Dr. Miller explained Pease will
experience “good days and bad days regarding her symptoms and activity
level that can affect her gait pattern and her use of ankle supports and
braces.” Thus, Dr. Miller’s opinion, which the commissioner called “in-
depth and substantiated,” was unaffected by the video surveillance
footage.
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Third, video surveillance footage depicting a claimant performing
tasks inconsistent with the claimed disability is hardly a smoking gun.
“Although on the surface it might appear that nothing could be more
cogent and a more dramatic refutation of a disability claim than motion
pictures of a claimant jacking up a car or playing tennis,” Professor
Larson explains, “the courts have rightly observed that such evidence
must be used with great caution.” 7 Arthur Larson & Lex K. Larson,
Larson’s Workers’ Compensation Law § 127.10, at 127-46 (2010). In
Gagliano v. Boh Brothers Construction Co., 44 So. 2d 732, 735 (La. Ct.
App. 1950), the Court of Appeal of Louisiana cautioned the use of motion
pictures and noted that a “spirit of fair play” requires motion pictures to
“reflect all activities of the subject of the pictures, and not merely
snatches or fragments.” Also, in Ferraro v. Zurcher, 79 A.2d 473 (N.J.
Super. Ct. App. Div. 1951), the Superior Court of New Jersey cautioned
against the use of heavily edited motion pictures that consolidate isolated
incidents taken over a span of three years into a fifteen minute film.
“This presentation of isolated incidents occurring at widely separated
times,” the Ferraro court explained, “gives the deceptive impression of a
continuing performance and tends to cause the viewer to infer that
petitioner has a capacity for sustained effort, which clearly is not the
fact.” Ferraro, 79 A.2d at 478; see also Lambert v. Wolf’s, Inc., 132 So. 2d
522, 527 (La. Ct. App. 1961) (admitting motion picture evidence with
caution because it failed to show rest periods, did not reflect pain, and
did not show the after effects of the subject’s activities); DeChandt v. N.D.
Workers Comp. Bureau, 452 N.W.2d 82, 85 (N.D. 1990) (holding workers’
compensation bureau’s reliance on audio and videotapes failed to
adequately explain reasons for disregarding medical evidence).
15
In this case, the video surveillance footage is not of such a
character as to completely undermine Pease’s credibility. All told, the
video contains less than forty minutes of Pease walking and shopping
during the two-year period between her work injury and the hearing.
The surveillance footage is fragmented, depicting Pease for brief intervals
of time. Even the longest segment, which lasted less than a half hour, is
not continuous and is missing nearly five minutes. We acknowledge the
video does tend to impeach the credibility of Pease as it shows she did
not always wear her brace and, on at least one occasion, wore sandals.
It was the duty of the commissioner, however, to weigh the evidence as a
whole, taking into consideration the credibility of the witnesses, and
determine whether Pease’s right ankle injury aggravated the symptoms of
Pease’s left ankle and lower back. See Burns v. Bd. of Nursing, 495
N.W.2d 698, 699 (Iowa 1993) (“Because review is not de novo, the court
must not reassess the weight to be accorded various items of evidence.”).
Viewing the record as a whole, the commissioner may have reasonably
concluded the fragmented video surveillance footage did not entirely
undercut Pease’s credibility or the opinions of Dr. Miller.
Substantial evidence therefore supports the commissioner’s finding
of medical causation with respect to Pease’s left ankle and lower back.
The court of appeals erred in holding otherwise.
B. Medical Causation of Pease’s Postaccident Level of
Depression. We also conclude substantial evidence supports the
commissioner’s finding that Pease’s work injury aggravated her
depression. The commissioner and deputy commissioner principally
relied on the medical opinions of Dr. Stutts. Dr. Stutts concluded Pease
suffered from Major Depressive Disorder, Recurrent following her work
accident. He opined to a reasonable degree of medical certainty that
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Pease’s work injury was “a substantial factor in bringing about her
current level of depression” and her “chronic pain was more likely than
not permanent and would continue to contribute to [Pease’s] level of
depression.” “Situational stress and chronic pain as well as limitations
from injuries and ongoing litigation,” Dr. Stutts explained, “have
exacerbated anxiety and worsened mood substantially.” Further, he
noted that “[c]hronic pain and depression are intimately linked and serve
to exacerbate one another” and “the chronic pain in Ms. Pease’s ankles is
a substantial contributing factor in her depression.”
Dr. Stutts’ conclusions were consistent with those of Jennifer
Bradley, an advanced nurse practitioner under the supervision of
Dr. Stutts. Following the accident, Pease met with Bradley eight
separate times between June 13, 2005, and August 30, 2006. Bradley’s
notes of the initial diagnostic evaluation state, “Since [Pease] had ankle
surgery, her depression worsened dramatically.” Based on her
evaluation of Pease, Bradley’s impression was that Pease suffered Major
Depressive Disorder, Recurrent and Severe.
Moreover, Dr. Brownell, Pease’s family doctor, met with Pease on
May 26, 2005, and his medical notes from the visit state that Pease was
“[v]ery tearful” and that she felt “down, depressed and sad.” The notes
also state that Pease’s symptoms of depression “all started after the
problems with her right ankle.” Dr. Brownell stated that this was a
“[p]retty clear case of post-surgical depression.” Explaining further,
Dr. Brownell noted,
I certainly think this is a Workman’s Compensation issue
and is caused by the surgery of her ankle, and the injury
itself. I think it’s a combination of both the stress of the
surgery and also her decreased mobility etc, as a result of
the actual injury itself.
17
Based on his observations and conclusions, Dr. Brownell prescribed
Pease antidepressant medication and referred her to Dr. Stutts.
Not all medical professionals agreed with the conclusions of
Dr. Stutts, Bradley, and Dr. Brownell, however. Dr. Crowe, a
psychiatrist with the University of Iowa, evaluated Pease once in
November 2005. Dr. Crowe summarized his conclusions in a letter to
EMC Insurance Companies dated December 19, 2005. In the letter,
Dr. Crowe stated that he diagnosed Pease with Major Depressive
Disorder, but concluded that the accident did not aggravate her
depression because her major depressive disorder began a year before
the injury (April 2004) and that the current episode did not occur until
three months after the injury. Dr. Crowe subsequently changed his
diagnosis to malingering after viewing the video surveillance footage
discussed above. In light of his finding of malingering, Dr. Crowe no
longer had confidence in his previous diagnosis given what he perceived
to be the questionable history provided by Pease. Dr. Crowe also stated,
however, that he could not exclude a diagnosis of depression.
Dr. Stutts and Bradley rejected Dr. Crowe’s conclusions. “We are
without a doubt,” they explained in a letter to Pease’s attorney, “in
agreement that Ms. Pease is not malingering as Dr. Crowe charges.”
Dr. Stutts and Bradley also noted that malingering occurs in the absence
of pathology, and because Pease had been diagnosed with Major
Depressive Disorder, she was not malingering. Accordingly, despite Dr.
Crowe’s observations, they did not change their diagnosis of Major
Depressive Disorder, Recurrent, and Dr. Stutts did not alter his
conclusion that Pease’s work injury aggravated her depression.
The commissioner was thus confronted with a classic “battle of the
experts.” On the one hand, an independent psychiatric evaluation found
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Pease to be malingering. On the other hand, Dr. Stutts diagnosed Pease
with Major Depressive Disorder, Recurrent, and he concluded that the
work injury aggravated Pease’s depression. The deputy commissioner
ultimately found Dr. Stutts’ opinion more credible and explained that
Dr. Crowe’s revised diagnosis of malingering “was not based on any
additional treatment of the claimant” and “ignore[d] that the claimant
ha[d] actual underlying physical pathology and diagnosed recurrent
major depressive disorder.” He also rejected Dr. Crowe’s diagnosis of
malingering because Dr. Crowe’s opinion “demonstrate[d] that [Pease]
was reasonably stable at the time of injury and worsened following.” The
commissioner adopted these findings.
As we have explained, the commissioner, as fact finder, is
responsible for determining the weight to be given expert testimony.
Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). The
commissioner is free to accept or reject an expert’s opinion in whole or in
part, particularly when relying on a conflicting expert opinion. Id.; see
Huwe v. Workforce Safety & Ins., 746 N.W.2d 158, 161–62 (N.D. 2008)
(“When confronted with a classic ‘battle of the experts,’ a fact-finder may
rely upon either party’s expert witness.”). The courts, in their appellate
capacity, “are not at liberty to accept contradictory opinions of other
experts in order to reject the finding of the commissioner.” Dille v.
Plainview Coal Co., 217 Iowa 827, 846, 250 N.W. 607, 615 (1933); see
Hinrichs v. Davenport Locomotive Works, 203 Iowa 1395, 1397, 214 N.W.
585, 586 (1927). In this case, the commissioner relied on the opinion of
Dr. Stutts who concluded Pease’s work injury aggravated her depression.
Dr. Stutts’ conclusions were supported by the opinions of two other
medical professionals who met with Pease several times following her
19
accident. Based on the record before us, we are satisfied that the
commissioner’s findings are supported by substantial evidence.
The court of appeals, however, concluded that Dr. Stutts’ opinion
did not amount to substantial evidence because it was based in part on
the inaccurate and incomplete history of Pease’s depression. Specifically,
the court of appeals noted that Pease “downplayed the depression she
experienced prior to her right ankle injury” when providing her history to
Dr. Stutts. Also, the court stated that Dr. Stutts was “not told of the
depression and medications taken before the January fall, nor was he
aware of her reports to Dr. Eyanson on the day before the injury.”
Before Dr. Stutts rendered his opinion, Pease met with Bradley for
an initial diagnostic evaluation. Bradley’s impression was that Pease
suffered from Major Depressive Disorder, Recurrent. The diagnostic
criteria for Major Depressive Disorder, Recurrent includes the presence
of two or more Major Depressive Episodes. American Psychiatric
Association, DSM-IV-TR Mental Disorders: Diagnosis, Etiology, and
Treatment 738 (Michael B. First & Allan Tasman eds. 2004). According
to the Diagnostic and Statistical Manual of Mental Disorders-IV, “To be
considered separate episodes, there must be an interval of at least 2
consecutive months in which criteria are not met for a Major Depressive
Episode.” Id. Thus, although Bradley noted Pease’s past psychiatric
history was Pease “took Lexapro for a short time because she felt as
though she was having some hormonal imbalance,” Bradley’s initial
impression that Pease had Major Depressive Disorder, Recurrent,
suggests Bradley was aware that Pease suffered at least one previous
Major Depressive Episode.
Even assuming Pease provided inaccurate and incomplete history
of her depression, Dr. Stutts was provided materials detailing Pease’s
20
prior history with depression. Not insignificantly, Dr. Stutts received the
December 19, 2005 letter in which Dr. Crowe explained Pease had been
diagnosed with Major Depressive Disorder as early as April 12, 2004.
Dr. Stutts also received the records of Dr. Fortson from 2004, which
stated that Pease’s past medical history was “remarkable for anxiety with
depression.” Dr. Fortson’s notes also show that Pease was diagnosed
with anxiety disorder with depression in 2004. Additionally, Dr. Stutts
was given the records of Dr. Brownell, stating that in April 2004 Pease
had “[s]ituational depression associated with anxiety.” Dr. Brownell’s
notes also list medications prescribed by him that included
antidepressants. While Dr. Stutts may not have been apprised of the
reports made by Dr. Eyanson the day before the injury stating that Pease
experienced symptoms of depression, Dr. Stutts received materials to
apprise him of Pease’s preexisting level of depression and the
medications Pease took before the January fall. Therefore, the
commissioner may have reasonably relied on the conclusions of
Dr. Stutts in finding Pease’s work injury aggravated her depression.
In sum, the commissioner’s finding that Pease’s preexisting
depression was aggravated by her accident on January 26, 2005, is
supported by substantial evidence. The commissioner relied on an
opinion of a psychiatrist who concluded that Pease’s work injury
aggravated her depression. In addition to the medical history provided
by Pease, the psychiatrist’s conclusions were made after receiving several
medical records showing Pease’s history with depression. The
conclusions were consistent with the opinions of two medical
professionals who personally evaluated Pease several times following the
accident. Although another expert offered a contrary opinion, the weight
to be given conflicting expert opinions is within the province of the
21
commissioner. The commissioner’s decision explained why he rejected
the conflicting opinion and was otherwise sufficiently detailed to show
the path the agency took through the conflicting evidence. See
Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 274 (Iowa 1995);
Catalfo v. Firestone Tire & Rubber Co., 213 N.W.2d 506, 510 (Iowa 1973).
IV. Remaining Issues.
On direct appeal, the District raised three additional issues. First,
the District argued the commissioner failed to perform a de novo review
of the deputy commissioner’s proposed decision. Second, the District
asserted that the commissioner’s decision regarding disability was not
supported by substantial evidence. Third, the District argued that the
district court erred in awarding certain medical benefits following Pease’s
injury. The court of appeals held the commissioner performed a de novo
review as required. Also, in light of its conclusion that substantial
evidence did not support the commissioner’s findings of medical
causation, the court of appeals did not address the disability argument
and reversed the award of medical expenses. We discuss each issue in
turn.
A. De Novo Review. We agree with the court of appeals that the
commissioner performed a de novo review of the deputy commissioner’s
findings. The appeal decision states:
Upon de novo review, it is apparent that the presiding deputy
relied most heavily on the opinions of Ray Miller, M.D., and
Raymond Stutts, D.O., Ph.D., to find that claimants pre-
existing conditions were substantially and permanently
aggravated as a result of her injury of January 26, 2005.
Both Dr. Miller and Dr. Stutts provide in-depth and
substantiated medical opinions that are consistent with
claimant’s ability to maintain her employment position prior
to her fall, but no longer able to maintain her employment
position following her fall.
22
The District argues this passage “reads like substantial evidence review.”
We disagree. The commissioner expressly stated that he was performing
a de novo review. Also, the commissioner adopted in large part the
deputy commissioner’s proposed decision. Consequently, his discussion
focused on the reasons he adopted the deputy’s findings and offered
“additional analysis” explaining why he found the opinions of Dr. Miller
and Dr. Stutts credible. We therefore conclude the commissioner applied
the appropriate standard of review in its appeal decision.
B. Extent of Disability. The commissioner, adopting the deputy
commissioner’s findings, concluded Pease suffered a permanent and total
industrial disability. Industrial disability is determined by an evaluation
of the employee’s earning capacity. IBP, Inc. v. Al-Gharib, 604 N.W.2d
621, 632 (Iowa 2000). The commissioner may consider a number of
factors in determining industrial disability, including functional
disability, “age, education, qualifications, experience, and [the claimant’s]
inability, because of the injury, to engage in employment for which [s]he
is fitted.” McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa
1980) (internal quotation marks omitted).
In finding permanent and total disability, the deputy commissioner
stated:
On January 6, 2006 the claimant was discharged by
the employer because the claimant’s permanent restrictions,
from her work injury of January 26, 2005, were such that
the school district determined that “these permanent
restrictions make you unable to perform the essential
functions of the position of ‘job coach,’ and unable to
perform essential functions of any other job in the District in
your pay range. . . .”
Due to her physical restrictions, depression and pain
the claimant is unable to return to any job she has
previously held. The Cedar Rapids Community School
District is a large employer and as such its inability to return
23
the claimant to work in any position is highly significant and
indicative of the claimant’s loss of ability to work in the
competitive labor market. See Bacon v. Ft. Dodge Animal
Health, File No. 5001168, (App. February 23, 2007)[.]
Considering the claimant’s medical impairments, daily pain,
current training, permanent restrictions, inability of the
employer to find a[n] alternative position for the claimant, as
well as all other factors of industrial disability, the claimant
has suffered a 100 percent loss of earnings capacity.
After a careful review of the evidence, we conclude substantial
evidence supports these findings. Pease offered direct testimony and
several expert opinions supporting a finding of permanent total disability.
Although, as the District observes, some evidence in the record suggests
Pease is capable of performing minimal physical activity, the
commissioner gave more weight to the evidence in support of permanent
total disability and found Pease’s experts more credible. We, therefore,
will not disturb the commissioner’s finding that Pease suffers a
permanent total industrial disability. See Robbennolt v. Snap-On Tools
Corp., 555 N.W.2d 229, 234 (Iowa 1996) (“The court must not reassess
the weight of the evidence because the weight of the evidence remains
within the agency’s exclusive domain.”).
The District also argues substantial evidence is lacking in the
commissioner’s industrial disability determination because Pease’s work
injury did not prevent her from returning to full-time employment;
rather, Pease’s preexisting, nonwork related disabilities prevented her
from doing so. This argument, however, is an attempt to resurrect the
District’s apportionment claim. In Second Injury Fund of Iowa v. Nelson,
544 N.W.2d 258, 264 (Iowa 1995), we summarized our approach to
apportionment, stating:
When a prior injury, condition or illness, unrelated to
employment, independently produces an ascertainable
portion of an injured employee’s cumulative industrial
24
disability, the employer is liable only for that portion of the
industrial disability attributable to the current injury. In
other words, the industrial disability is apportioned between
that caused by the work-related injury and that caused by
the nonwork-related condition or injury. Varied Enterprises,
Inc. v. Sumner, 353 N.W.2d 407, 411 (Iowa 1984). The
employer is liable only for the work-related portion.
The commissioner and the district court both concluded that the
District failed to preserve its apportionment claim. During the hearing
before the deputy commissioner, the deputy discussed with the parties
the issues in dispute. The deputy made no mention of apportionment.
Before proceeding, the deputy asked the District’s attorney whether there
were any issues in dispute that he did not discuss. The District’s
attorney stated, “I do not believe so. I do not believe that there are
additional issues that you have not covered.” Further, in his proposed
decision, the deputy did not address the apportionment claim. The
District failed to file a motion for rehearing or a motion to enlarge the
deputy’s findings. Under these circumstances, the District failed to
preserve err on its apportionment claim. See Iowa Admin. Code r. 876—
4.28(7) (“An issue will not be considered on appeal if the issue could have
been, but was not, presented to the deputy.”); cf. Freedom Fin. Bank v.
Estate of Boesen, 805 N.W.2d 802, 809 (Iowa 2011) (holding err is not
preserved when the district court does not address an issue and a party
fails to file a motion to enlarge findings).
C. Medical Expenses. Finally, the District argues Pease failed to
show certain medical bills from Cardiologists PC, East Central Iowa
Acute Care, Famous Footwear, and Dr. Brownell were related to her work
injury. Specifically, the District asserts Pease failed to establish a causal
connection between her work injury and medical expenses she incurred
in July 2006 to address her heart complaints.
25
We agree with the district court that the commissioner’s
determination on the issue is supported by substantial evidence. Pease
testified that she went to the emergency room in 2006 because her “heart
was beating real fast.” She explained that she met with Dr. Brownell and
Dr. Brownell advised her to go to the emergency room. Pease testified
that her heart symptoms were associated with her work injury because
they related to the anxiety she experienced following the accident.
Pease’s testimony is supported by medical records submitted at the
hearing. Medical records from July 2006 establish that Pease’s
physicians believed her heart-related symptoms were associated with
Dr. Stutts’ treatment of her depression. A physician who met with Pease
on July 12, 2006, “strongly” recommended she follow up with Dr. Stutts
because he “felt that some of [Pease’s] orthostatic changes may [have
been] due to her multiple medications.” Similarly, on July 16, 2006,
Pease was evaluated for difficulty breathing and chest discomfort. The
physician’s assessment of Pease stated that Pease suffered “[p]ersistent
waking tachycardia, likely anxiety reaction.” Pease was again advised to
make an appointment with Dr. Stutts, who was treating Pease for what
the commissioner determined were work-related problems. On these
facts, we decline to disturb the commissioner’s findings.
The district court did not address the commissioner’s award of
medical bills unrelated to Pease’s heart symptoms. The District did not
file a motion to enlarge or otherwise request the court to address the
issue. Thus, the District did not preserve err on its argument related to
the remaining medical bills. See Stammeyer v. Div. of Narcotics
Enforcement, 721 N.W.2d 541, 548 (Iowa 2006).
26
V. Conclusion.
For the reasons discussed above, we conclude the commissioner’s
findings of fact are supported by substantial evidence. We also conclude
the commissioner performed the appropriate standard of review of the
deputy commissioner’s proposed decision and did not err in assessing
Pease’s heart-related medical bills against the District. We, therefore,
vacate the decision of the court of appeals and affirm the judgment of the
district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
All justices concur except Mansfield, J., who takes no part.