United Heartland, Inc. and Camanche Community School District v. Kathaleen Brown ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1070
Filed April 8, 2015
UNITED HEARTLAND, INC. and
CAMANCHE COMMUNITY SCHOOL DISTRICT,
Respondents-Appellants,
vs.
KATHALEEN BROWN,
Petitioner-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Dennis J. Stovall,
Judge.
An employer school district appeals a judicial review order affirming an
award of benefits by the workers’ compensation commissioner to a claimant
teacher based on her respiratory injury arising from exposure to dust or mold in
her classroom. AFFIRMED.
Thomas D. Wolle of Simmons, Perrine, Moyer, Bergman, P.L.C., Cedar
Rapids, for appellants.
Paul J. McAndrew Jr. of Paul McAndrew Law Firm, P.L.L.C., Coralville, for
appellee.
Considered by Danilson, C.J., and Doyle and Tabor, JJ.
2
TABOR, J.
A school district challenges its obligation to pay workers’ compensation
benefits to a former elementary school teacher who claims she developed
respiratory difficulties from exposure to mold or dust in her classroom. The
commissioner found Kathaleen Brown proved she “sustained a pulmonary
function injury arising out of and in the course of her employment” with the
Camanche Community School District. The school district contends that decision
was not supported by substantial evidence and represents an “irrational, illogical,
or wholly unjustifiable” application of law to fact. Viewing the record as a whole
and affording proper deference to the agency’s findings, we affirm the award of
benefits.
I. Background Facts and Proceedings
Brown taught fourth graders at the Camanche elementary school from
1998 through 2010. The fourth grade classrooms were located in the original
section of the school built in 1961.1
From 1998 through 2000, Brown taught in Room 114, a windowless room
with little ventilation. In the fall of 2000, Brown developed severe bronchitis and
also received treatment for multiple asthma attacks. During 2000, Brown missed
thirteen days of school due to lung ailments. Citing her health problems, she
complained to the administration about the uncleanliness of the school and
asked to be assigned to a different classroom. In 2001, Brown started teaching
1
The principal testified that section of the elementary school has a flat roof and drop
metal pan ceiling tiles that become rusty and stained when water leaks into the building.
3
in Room 110 and stayed in that location until her employment ended nine years
later.
Brown’s testimony before the agency showed the coinciding of her lung
problems and the presence of contaminants in her classroom. Brown testified to
seeing “stained ceiling tiles where there was definitely water intrusion and rusting
in holes through those metal pan ceilings.” She believed the “buildup of dirt and
grunge was an ongoing problem” at the school from 2000 forward. She recalled
the heat registers in the classrooms were “filthy.” Brown also recalled having
problems with bronchial infections and sinus infections during the school years
starting in 2000, and then her health would bounce back over the summers when
she was away from the school building. Between March 2003 and May 2010,
Brown saw her family physician more than two dozen times for respiratory
problems, and the visits were almost exclusively during the school year. In
October 2007 she was hospitalized for six days with pneumonia. Brown testified:
“I didn’t realize there was any correlation with a breathing problem until I was
actually diagnosed in 2010 with occupational environmental lung disease.”
After her hospitalization in 2007, Brown brought a humidifier into her
classroom to help with her chronic cough. When refiling it with water, she
noticed mold on the filter.2 Brown sent a sample of the filter to a California
laboratory for testing; lab technicians confirmed the presence of mold. The
school removed the humidifier from her classroom, informing her she could not
have the appliance there because it was not provided by the district.
2
According to Brown, an identical humidifier unit in her home showed no mold
accumulation during the same time frame.
4
The school also followed up with an environmental inspection in the spring
of 2008. It was the first of four separate indoor air quality investigations between
2008 and 2011.3 The 2008 study revealed ventilators in Brown’s classroom were
“covered by a layer of particulate material.” Carpet dust samples showed fungal
growth. The study recommended the school district use higher quality air filters,
check and change the filters more frequently, and vacuum the floors daily and
clean the carpets annually. An industrial hygienist suggested the school develop
a “remedial cleaning strategy.”
In May 2008, Brown consulted with Dr. Humphrey Wong of Pulmonary
Associates in Davenport. He determined she had asthma based on a positive
methacholine challenge test.4 From an overall review of her records, Dr. Wong
opined that Brown “had a significant amount of exacerbations and instability of
symptoms which seemed to be clustered around the school year despite
maximal medical therapy.” Dr. Wong referred Brown for allergy testing. She
tested negative for five common molds. Dr. Vijay Sabins explained the negative
3
A subsequent inspection in September 2010 found mold growth on surface samples in
Brown’s classrooms, but overall the findings indicated a low risk to human health. The
report recommended cleaning various parts of the ventilator units in those classrooms.
On April 25, 2011, the school district retained Dr. Harry Elston to conduct another air
quality test. Dr. Elston noted it appeared as though the building had been “recently and
thoroughly cleaned before the surveillance.” He nevertheless observed “multiple
instances of historical and current water intrusion throughout the building.” An air
sample from Room 114, where Brown had taught, tested positive for aspergillus, a
fungus strongly associated with respiratory illness and which was not identified in an
outdoor air sample. Brown retained industrial hygienist Daniel Brust to perform yet
another test on April 29, 2011. Brust detected elevated levels of carbon dioxide,
indicating a lack of fresh air circulating in the classrooms. He also noted stained ceiling
tiles indicating water intrusion episodes from a leaky roof.
4
Another expert in the case, Dr. Laurence Fuortes, explained the methacholine
challenge test measures an individual’s degree of airway sensitivity to inhalant exposure
at various doses.
5
results did not rule out environmental molds as the cause of Brown’s reactive
airway reactions. In addition, the testing showed Brown was sensitive to the
inhalant aspergillus.
Also in 2008, Brown surveyed her colleagues at the elementary school
because she believed others were experiencing breathing problems like hers.
Brown provided the results to the school district.
Brown’s last day at work was May 26, 2010. Ten days earlier, she had a
reactive airway breathing attack at school and sought help from the school nurse,
who saw Brown using her emergency inhaler and suggested Brown ask her
physician about using an oxygen tank while she was at school. Brown’s
pulmonologist, Dr. Wong, placed her on a maintenance dose of steroids to help
her get through the school year. But on May 25, Brown fell ill at school and the
following day had a more severe incident in the school building, requiring her to
go home early. She did not return for the final days of the term.5
On June 2, 2010, Brown sought an opinion from Dr. Charles Bruyntjens, a
pulmonary specialist. He diagnosed Brown with occupational environmental lung
disease, hyper-reactive airways, and shortness of breath. He found the school
environment either started her condition or aggravated a preexisting condition. In
the fall of 2010, Brown received treatment from Huxley Family Physicians,
specifically Dr. Allison Testroet and Physician’s Assisstant Hollie Wicker. They
believed “her recurrent sinus and bronchial infections were related to her hyper-
reactive airways caused by exposure while working at the Camanche school.”
5
After Brown exhausted her sick leave, the school board voted on May 11, 2011 to
terminate her employment effective at the end of the academic year.
6
Brown filed a claim for workers’ compensation benefits on October 28,
2010. Brown, who was then fifty-seven years old, alleged she was exposed to
contaminants in her workplace affecting her lungs, bronchial passages, and
whole body. She alleged her injury date as June 2, 2010. The school district
and its insurer United Heartland (collectively the school district) filed an answer
denying her allegations.
In April 2011, while her workers’ compensation claim was pending, Brown
saw Dr. Jason Wittmer, a pulmonologist practicing in Des Moines.6 After
examining Brown, Dr. Wittmer found no abnormal lung function and no airway
obstruction. He opined that her symptoms of difficulty breathing were “discordant
with the available objective measures.”
A few months later, Brown’s attorney arranged for an independent medical
examination with Dr. Joel Kline at the University of Iowa Hospitals Pulmonary
Clinic in August 2011. After clinical testing, Dr. Kline reached an opinion that
Brown suffered from asthma, which had been substantially aggravated by
exposures she received while at the school. He believed the aggravation of her
respiratory condition was more likely than not related to “water damage” in the
workplace.
In September 2011, the school district’s attorney sought an opinion from
Dr. Laurence Fuortes of the University of Iowa College of Public Health
concerning the environmental conditions of the elementary school and Brown’s
6
When Brown moved from Camanche to Huxley later in 2010, it was inconvenient to
continue treatment with Dr. Bruyntjens, who practices in Davenport, and she decided to
locate a pulmonologist in central Iowa. The deputy mistakenly stated in the arbitration
ruling that Dr. Wittmer was retained by the school district to provide an IME.
7
physical symptoms. After reviewing the indoor air quality reports, Dr. Fuortes
opined “the elementary school was not grossly contaminated” at least “in the post
remediation period.” But he also acknowledged the ventilation systems showed
evidence of contamination, including mold. Dr. Fuortes also commented on
Brown’s diagnosis, saying if she had problematic asthma, it was not obvious at
the present time.
A deputy workers’ compensation commissioner heard the matter on
January 19, 2012, and issued an arbitration decision on April 10, 2012. The
deputy decided Brown met her burden of proving an injury arising out of her
employment. The school district appealed and Deputy Commissioner Larry
Walshire, acting by designation of the commissioner, affirmed the arbitration
decision on May 9, 2013.
The school district sought judicial review. The district court affirmed the
agency’s decision that Brown suffered a compensable injury arising out of her
employment with the school district. The school district challenges the judicial
review ruling on appeal.
II. Scope and Standards of Review
Courts review agency action under Iowa Code chapter 17A—the Iowa
Administrative Procedures Act. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 149
(Iowa 1996). Appellate courts and district courts both review for the correction of
legal error. Id. at 149–50. If we reach the same conclusion as the district court
we affirm, if not we reverse. Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d
744, 748 (Iowa 2002).
8
Under section 17A.19(10), we may “reverse, modify, or grant other
appropriate relief” if we decide the commissioner’s award of benefits “is not
supported by substantial evidence” or is “[b]ased upon an irrational, illogical, or
wholly unjustifiable application of law to fact that has clearly been vested by a
provision of law in the discretion of the agency.” See Iowa Code § 17A.19(10)(f),
(m) (2011).
The legislature defined “substantial evidence” as “the quantity and quality
of evidence that would be deemed sufficient by a . . . reasonable person, to
establish the fact at issue.” Id. § 17A.19(10)(f)(1). Evidence is not insubstantial
just because another factfinder may have drawn a different conclusion. Cedar
Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011). The only
question on appeal is whether the conclusion reached by the agency is
supported by sufficient evidence. Id. We view the evidence through the lens of
the record as a whole. Iowa Code § 17A.19(10)(f)(3).
Our review is fact-intensive and thorough; we do not simply “rubber
stamp” the agency’s decision. Pease, 807 N.W.2d at 845. But at the same time,
we read the agency’s findings broadly and liberally with an eye to upholding
rather than defeating its decision because the purpose of the law is to benefit
workers. See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000).
III. Injury “arising out of” employment
The Iowa workers’ compensation provisions cover “all personal injuries
sustained by an employee arising out of and in the course of the employment.”
Iowa Code § 85.3(1); Meyer v. IBP, Inc., 710 N.W.2d 213, 220 (Iowa 2006). Our
9
courts have teased that statutory language into four elements that must be
proven to recover from the employer: “(1) the claimant suffered a ‘personal
injury,’ (2) the claimant and the respondent had an employer-employee
relationship, (3) the injury arose out of the employment, and (4) the injury arose
in the course of the employment.” Meyer, 710 N.W.2d at 220.
In this case, the school district challenges Brown’s proof of the first and
third elements—claiming she did not establish she suffered an injury7 and, even
if she did have an injury, she did not prove her condition “arises out of” her
employment at the Camanche elementary school. We will address both claims in
turn.
A. Proof of Injury
The school district contends substantial evidence does not support the
acting commissioner’s conclusion that Brown suffered from “a pulmonary function
injury” related to her work. The district highlights the opinions of Dr. Wittmer and
Dr. Fuortes. Dr. Wittmer did not believe Brown had asthma and found no
evidence of airflow obstruction or “other pulmonary functional abnormality.”
Likewise, Dr. Fuortes found Brown did not show a “chronic impairment of the
respiratory system.” The school district then dismisses the “contrary opinions of
Drs. Bruyntjens and Kline.” The district contends the agency found Dr.
Bruyntjens “was simply not credible” and asserts Dr. Kline’s opinion was based
on erroneous information supplied by Brown.
7
The school district asserted the deputy failed to analyze Brown’s case under Iowa
Code chapter 85A rather than under chapter 85. But the district notes it is not appealing
the agency’s finding that Brown’s claim is properly analyzed as an injury rather than an
occupational disease.
10
We are not persuaded by the school district’s substantial evidence
argument for two reasons. First, we cannot totally disregard the opinion of Dr.
Bruyntjens. In asking us to do so, the district overstates the agency’s credibility
finding. It is true the acting commissioner’s characterized Dr. Bruyntjens’s
testimony as “confusing and not helpful” and stated that he appeared to
“contradict himself on more than one occasion.” But the agency did not find his
views to be entirely unreliable or unbelievable. An agency may accept or reject
an expert opinion in whole or in part. Sherman v. Pella Corp., 576 N.W.2d 312,
321 (Iowa 1998). The record included evidence that Dr. Bruyntjens was a well-
trained pulmonologist who diagnosed Brown as having an occupational
environmental lung disease, including hyper-reactive airways and shortness of
breath. He based his diagnosis on Brown’s medical history as documented by
Dr. Wong, as well as Brown’s outward symptoms. Like the district court, we
conclude the opinion of Dr. Bruyntjens contributes to the substantial evidence
supporting the agency’s finding of injury.
Second, we do not perceive Dr. Kline’s opinion as being tainted by the
subjective information he received from Brown. Dr. Kline reviewed Brown’s
medical records, including earlier pulmonary function tests, before examining her.
He found a positive methacholine challenge test to support his diagnosis of
asthma. He also reviewed several air quality reports, which discussed examples
of water damage to the school he reasonably considered in reaching his opinion
that the school environment caused or exacerbated her condition.
11
The agency was entitled to rely on Dr. Kline’s assessment of Brown’s lung
injury and its nexus to the school environment, as well as accepting at least
some of the opinions from Dr. Bruyntjens. We are not allowed to reweigh the
evidence considered by the acting commissioner. See Westling v. Hormel Foods
Corp., 810 N.W.2d 247, 254 (Iowa 2012). Accordingly, we find substantial
evidence to back the agency’s conclusion that Brown suffered a pulmonary
function injury.
B. Causal connection to employment
Having determined Brown suffered an injury at the time of the employment
relationship, we turn to the third requirement—whether the injury “arose out of”
her work for the school district. See Meyer, 710 N.W.2d at 222. An injury “arises
out of” the employment if a causal connection exists between the employment
and the injury. Id. In the context of workers’ compensation law, this causation
element means the injury must be a “natural incident” of the work or, in other
words, “a rational consequence of the hazard connected with the employment.”
Id. (explaining concept of proximate or legal cause from tort law is misplaced in
deciding “work-connectedness” for compensation law).
The school district argues Brown cannot show her injury was caused by
harmful conditions in the elementary building. The district contends “at least
some dust, some moisture, and some mold” is incidental to “every workplace,
everywhere.” The district argues, without citation to any authority, that because
there was no evidence the dust, mold, and moisture in the elementary school
12
was greater than anywhere else, Brown’s injury cannot be said to have arisen out
of her employment.8
In response, Brown emphasizes that “employers take employees as they
find them at the time of employment,” citing Bearce v. FMC Corp., 465 N.W.2d
531, 536 (Iowa 1991). The district court seized on that argument, stating: “the
fact that air quality tests found conditions at the school that would not be
hazardous for most humans is irrelevant.” The court believed the air quality tests
provided “numerous examples of conditions, elements or substances in the
school that may afflict a susceptible individual.” In the court’s estimation: “There
is ample evidence in the record to support a finding that [Brown’s] pulmonary
problems were caused by a condition, element, or substance in the workplace.”
We agree with the district court. The agency record contains expert
evidence establishing a causal connection between her injury and conditions in
the elementary school. On the question of conditions or working environment,
the record is replete with proof that water had infiltrated the roof and ceiling tiles
in the fifty-year-old wing of the school building that housed the fourth grade
classrooms where Brown taught. A history of water intrusion was documented
by Dr. Elston, the industrial hygienist retained by the school district in 2011. That
water damage, in the opinion of Dr. Kline, more likely than not was the culprit
behind Brown’s lung injury. As Dr. Bruyntjens asserted: “where there is water
8
Iowa courts have abandoned any requirement that the employer subject the employee
to a risk or hazard greater than that faced by the general public. Lakeside Casino v.
Blue, 743 N.W.2d 169, 174–75 (Iowa 2007) (employing actual-risk rule rather than
increased-risk rule).
13
there is mold.” Brown herself documented mold on the filter of her humidifier. In
addition, indoor air testing pointed to heavy dust accumulation and elevated
levels of carbon dioxide from low ventilation in the building. Even Dr. Fuortes
acknowledged Brown complained of respiratory symptoms consistent with a
poorly maintained ventilation system.
The expert testimony establishing causation is corroborated by Brown’s
evidence from lay persons who experienced sinus and respiratory problems
when they were in the elementary building during the school year, which
dissipated when they were away from the building.9 For instance, fellow teacher
Lisa Clarke recalled suffering sinus headaches, drainage, and sore throats while
teaching in a classroom that harbored a “musty, moldy type of smell.” Another
teacher, Susan Reckman, testified she incurred regular sinus infections during
her years of teaching in the elementary school that went away when she was
gone from the building; she also recalled water-stained ceiling tiles and other
“wet places” around the school. Lori Lyons, a mother of two students, testified
they were repeatedly diagnosed with respiratory infections and asthma while
attending Camanche elementary from 2002 through 2009, but have had far less
health problems since leaving the school.
In summary, the agency’s findings of fact were supported by substantial
evidence and its application of law to the facts was not irrational, illogical or
9
We acknowledge the agency found the probative value of the depositions and
testimony from the lay witnesses to be “quite low.” But the agency decided the
nonprofessional evidence could be used to bolster the expert testimony.
14
wholly unjustifiable. See Iowa Code § 17A.19(10); Lakeside Casino, 743 N.W.2d
at 173.
AFFIRMED.