Melonie M. Anderson v. Care Initiatives, Inc. D/B/A Westridge Nursing & Rehab Center ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0090
Filed August 13, 2014
MELONIE M. ANDERSON,
Respondent-Appellant,
vs.
CARE INITIATIVES, INC. d/b/a WESTRIDGE
NURSING & REHAB CENTER,
Petitioner-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rebecca Goodgame
Ebinger, Judge.
A worker appeals the district court’s decision that reversed the workers’
compensation decision awarding her benefits. DISTRICT COURT DECISION
REVERSED; AGENCY DECISION AFFIRMED.
Robert E. Tucker of Tucker Law Office, Des Moines, for appellant.
Joseph D. Thornton of Smith Peterson Law Firm, L.L.P., Council Bluffs, for
appellee.
Considered by Danilson, C.J., and Vogel and Bower, JJ.
2
VOGEL, J.
Melonie Anderson appeals the district court’s judicial review decision that
reversed the workers’ compensation award of benefits and remanded the case
back to the agency. She claims on appeal the district court erroneously
concluded there was a lack of evidence to support a determination of medical
causation and the court applied the incorrect standard of review to the agency’s
decision. Because we find substantial evidence under the applicable standard of
review to support the agency’s decision finding medical causation for the injury,
we reverse the decision of the district court and affirm the agency’s award of
benefits.
I. Background Facts and Proceedings.
At the time of the workers’ compensation hearing, Anderson was a forty-
one-year-old, married, mother of three. She is a high school graduate and
stayed at home to care for her children for a short time. Later she worked in the
bakery at a local grocery store, worked at a motel, and worked in the kitchen at
the hospital. She obtained a paid nutritional assistant certificate and completed
training in modified diets and mandatory abuse reporting. While at the hospital,
Anderson sustained an injury to her left shoulder and knee when she tripped on a
phone cord. She was treated with arthroscopic surgery and received permanent
work restrictions in October 2009 for her left shoulder to avoid repetitive lifting,
reaching above her head, or working above her shoulder level.
In July 2010, Anderson was hired by Care Initiatives, d/b/a Westridge
Nursing & Rehab Center, as a dietary manager and underwent a pre-
employment physical. The report to the employer, completed about a month
3
before she began work, noted her work restrictions above but stated she was
“medically qualified to do the essential functions of the job with
limitations/accommodations.” Approximately two days before Anderson started
work with Care Initiatives, she saw a nurse practitioner with complaints of low
back pain radiating into her thighs. Anderson stated she had been experiencing
back pain for nine days after going on a trip for her birthday. She had awakened
one morning in the hotel completely seized in pain and had difficulty getting out
of bed. She treated her pain with rest, ice, and ibuprofen. Anderson informed
the nurse practitioner she was starting a new job and was worried about her
performance due to the back pain. The examination record indicates she had
some pain on palpitation along the sides of the spine in the lower thoracic upper
lumbar areas. She was given home exercises along with medication for the pain.
She was told to follow up if the pain worsened or persisted despite the
interventions. No other medical records concerning back pain prior to her
employment with Care Initiatives are contained in the agency record.
Anderson alleges she sustained an injury to her low back at work on
February 25, 2011. She stated she was lifting a case of juice onto the top shelf
in the refrigerator when she felt pain in her lower back that radiated down her
legs. She stated she occasionally would get back pain at work on Fridays when
she had to put groceries away, but the pain would normally subside by the next
day. When this pain did not go away by Monday, she reported the incident to her
4
supervisor and filled out an incident report.1 She was sent to Timothy Dykstra,
M.D.’s office to be examined.
Anderson was initially seen on February 28, by the physician’s assistant,
who noted tenderness with palpitation along the lower right lumbar area from the
mid-lumbar down to the lower lumbar area. She was assessed as having a
lumbar muscle strain and put on work restrictions of no work from floor to waist;
alternate sitting, standing, and walking; no lifting, pushing, or pulling over ten
pounds; and no climbing stairs or ladders. She was told to use ice and heat for
the area, given an injection for pain, and prescribed oral pain medication.
She was seen a week later, on March 7, with the same pain complaints.
She was given another injection of medication, prescribed pain medication and
muscle relaxers, and assigned to physical therapy. On March 15, Anderson
reported to Dr. Dykstra she saw improvement in her symptoms after the first
physical therapy appointment. But Anderson returned to Dr. Dykstra on March
22, reporting a flare up after performing her physical therapy with a different
provider. She was given another injection of pain medication and referred back
to the original therapist. She returned to Dr. Dykstra’s office the next day due to
the pain she was experiencing. She was again given an injection for the pain,
and the provider noted she requested an MRI be done. She returned to the clinic
on March 28, noting the pain had calmed down some but she was still
experiencing pain radiating down her right leg and her toes would occasionally
go numb. She had done no physical therapy since last being seen. Dr. Dykstra
1
Care Initiatives required all work injuries to be reported before the end of the work shift.
Because Anderson did not report her injury until the next working day, she was
reprimanded with a three-day suspension.
5
ordered an MRI due to the lack of improvement and again gave her an injection
of pain medication.
The MRI was conducted on April 6, 2011, in Des Moines. Anderson
reported her brother-in-law drove her to the appointment, but after the
appointment, she was in pain and decided not to go back to work. Her brother-
in-law wanted to stop at a used clothing store and at Prairie Meadows casino.
Because he was her ride, she went along. Surveillance was conducted of
Anderson following her MRI. Video footage shows her walking normally outside
of the casino, and getting in and out of vehicles with no difficulty. Surveillance
video from inside the casino shows her walking normally, moving from one slot
machine to another, sitting down, and getting up while gambling for about three
hours. On April 5, Anderson filled out her work time card for the following day,
asserting she worked a full day on the 6th. She did not correct her time card
when she returned to work on the 7th. She also did not report to her supervisor
the detours she took on the way home from the appointment.
When she returned to work on April 7, the employer asked her to submit a
statement regarding her activities on April 6th. Her statement read,
I left my house at 7:00 arrived at Iowa ortho at 8:15 was
done with MRI at 9:30. Talked to cook to let know back was hurting
from the ride wouldn’t be in today on 4-6-2011. Went home and
done work from home, article, menus also worked on topics for a
meeting, had to work on my college course. So even though I
wasn’t at work because of my back I got a lot done for work. Also
work on order for next week.
The employer also documented the answers Anderson gave to questions that
were posed to her. She again stated she headed home after the MRI was done
at 9:30 and that her pain was bad when she got out of the car. She reported
6
getting home at 10:30 or 11:00 a.m. and calling the cook at that time to let the
cook know she would not be in. She reported she was done working at home at
3:35. She also described the pain she was experiencing after the drive as, “Very
uncomfortable. Like pressure on my tailbone. Pain went up my back but I had to
lean to one side to sit.”
The workers’ compensation adjuster conducted a recorded interview with
Anderson on April 8 regarding the injury. In that recorded statement, Anderson
again stated she went straight home after the MRI and her back was really sore
due to the car ride. She reported leaving a message for her co-worker about
10:30 or 11:00. She stated she brought work home to do including working on
an article, the menus, and some “schooling stuff.” She also denied any prior
back injury.
On April 11, Anderson was questioned by the employer and told that the
employer knew she had spent three hours at Prairie Meadows after the MRI. For
the first time she reported she went to the casino because her brother-in-law
wanted to stop there. She admitted she had actually texted, not called, a co-
worker to report her absence and that the text message was sent at
approximately 1:30 or 2:00, not between 10:30 and 11:00. Anderson was
terminated as a result of the fabrication and the falsified time sheet.
On April 12, Anderson saw Dr. Dykstra. He read the MRI as normal
except for “a small, shallow degenerative disk protrusion at L5-S1 associated
with mild facet osteoarthritic changes.” Anderson reported to Dr. Dykstra she
was having a significant amount of back pain on the date of the MRI, she had a
hard time being able to lay in the MRI, and she had a hard time being able to
7
walk that day. She reported the pain she experienced that day was similar to the
pain she experiences every day. Dr. Dykstra viewed the surveillance videos of
Anderson2 and noted Anderson did not walk in the same manner in his clinic as
she did in the videos. Dykstra concluded,
In regards to her normal MRI and the videotape of her being able to
walk and move very normally, especially on a day where she
reported that she was having a great deal of back difficulty and, in
fact, called in to work that day because she was having so much
back pain and yet on videotape was able to walk and get into the
vehicle [without] any difficulty whatsoever. Because of this and the
inconsistencies that are going on with her reported back symptoms
compared to how she can actually move outside the clinic, will go
ahead and discharge her at this point. She is at MMI.[3] She has
no restrictions.
Following her discharge from employment and release from treatment,
Anderson followed up with her primary care provider regarding her low back pain
on April 21. She was given medication, but she declined a physical therapy
referral due to cost. She again sought treatment on August 31, 2011,
complaining of continued back pain. Because she now had insurance coverage,
she sought a referral to a specialist. She was referred to Thomas Klein, D.O., for
an epidural injection for pain management. That injection was provided by Dr.
Klein along with prescribing a different oral pain medication. Anderson also
sought out chiropractic treatment in December 2011 for her pain.
Meanwhile, Anderson had an independent medical examination
conducted in August 2011 by Sunil Bansal, M.D. Dr. Bansal reviewed the
2
Surveillance was also conducted of Anderson on March 25, 2011, showing her leaving
a restaurant and getting into her vehicle without any difficulty. The video showed she
was able to twist and lean backwards easily, and she did not appear to be in any
discomfort.
3
MMI stands for maximum medical improvement.
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medical records from Dr. Dykstra’s office, the physical therapy records, and the
MRI report. He had Anderson fill out a patient questionnaire, describe how the
injury occurred, detail the treatment provided, outline her current condition, and
list the impact the injury had on her activities of daily living. He conducted a
physical examination and responded to a list of questions posed by Anderson’s
attorney.
He agreed with Dr. Dykstra that Anderson was at MMI on April 12, 2011.
He did give her an impairment rating of six percent. He opined:
In my medical opinion, it is within a degree of medical
certainty that Ms. Anderson’s back pain was caused by her lifting
injury on 02/25/2011. Ms. Anderson described a specific traumatic
incident on 02/25/2011. In my medical opinion, within a degree of
medical certainty Ms. Anderson’s back symptoms are related to a
progression of her injury she suffered 02/25/2011. She was not
complaining of back pain in the days, weeks, months prior to the
injury. Moreover, the mechanism of injury (she was lifting some
boxes over her head that weighed approximately 30 to 40 pounds
and she reports that she has had pain in her back since then) is
consistent with the development of her back pathology. Thus from
both a chronological and mechanistic standpoint it is clear that her
current back pathology is causally related to her injury on
02/25/2011.
Bansal noted Anderson may benefit from a six-week course of physical therapy,
anti-inflammatory and pain medication, and/or steroid/epidural injections. He
also stated Anderson would need a home exercise program for the rest of her life
to help maintain her range of motion. He placed restrictions on her of no lifting
greater than thirty pounds and no frequent bending, twisting, squatting, or
kneeling.
Bansal also stated he had watched the video surveillance. He stated she
did not participate in any rigorous activities on the video but walked around,
9
sitting a majority of the time, alternating with standing. She did not do any lifting
or repetitive bending or stooping. According to him, she did have a slightly
antalgic gait early in the video. He also stated she did not do any repetitive
lifting, bending, or twisting in the video of her leaving the restaurant, though she
did twist one time to grab her seat belt. The videos did not change his opinion
regarding her impairment.
Anderson filed her arbitration petition with the workers’ compensation
commissioner, and her case went to hearing on April 4, 2012. In addition to
taking the testimony of Anderson, the deputy commissioner also heard testimony
from the business officer manager and the nursing home administrator at Care
Initiatives.
The deputy commissioner issued his decision on June 5, 2012, finding the
injury arose out of and in the course of her employment and caused an
aggravation of Anderson’s “pre-existing low back condition.” The deputy found
Anderson “clearly had a pre-existing back condition” and had sought medical
attention for the pain shortly before beginning work for Care Initiatives. However,
the deputy credited her testimony that her back condition was under control and
did not interfere with her ability to do her job until the date of the injury. 4 He
stated Anderson testified the pain was greater than she had experienced before,
she was seen by several doctors, a surgical procedure was recommended, and
4
The deputy also noted Anderson had “misled some of her doctors, telling them she had
no prior back pain when the record shows she had a history of back complaints not only
before this injury, but before working for this employer.” The deputy found Anderson’s
statements about the injury and the pain she experienced following the injury were
credible and accepted as truthful. The deputy made this credibility finding “with full
awareness of claimant’s acknowledgement she was not truthful in reporting the time she
returned from her MRI appointment.”
10
Dr. Bansal clearly felt her current back pain was caused by her work injury. The
deputy noted there was a discrepancy between Anderson’s description of her
back pain to her doctors and at the hearing versus her appearance on the
videos. While the deputy found her credible that she has back pain from the
injury and that pain is worse than she experienced prior to the injury, he also
found that Anderson exaggerated her symptoms. “She has back pain, but it is
not as severe or disabling as she has described.”
The deputy assigned a twenty-five percent industrial disability rating,
ordered Care Initiatives to pay the past medical bills submitted by Anderson, and
awarded Anderson the cost of her independent medical exam. Care Initiatives
appealed the decision to the commissioner, who delegated his authority to render
the final agency decision to another deputy commissioner. This appeal decision
was issued May 7, 2013, and it affirmed and adopted the arbitration decision as
the final agency decision with some additional analysis. The appeal decision
acknowledged Anderson “has difficulties with honesty and truthfulness.”
However, it stated the evidence of a pre-existing back condition was slight
consisting of only one treatment note immediately before Anderson began
working for Care Initiatives. It was assumed those symptoms abated because
Care Initiatives produced no other evidence of spinal complaints or treatment
more contemporaneously with the date of the injury. The appeal decision noted
the objective findings of pain following the injury were in “a different location than
the tenderness found in July 2010” and the findings of all the providers after the
injury are remarkably consistent and strongly suggest a persistent change in
Anderson’s back condition.
11
Care Initiatives filed a petition in district court for judicial review under Iowa
Code chapter 17A (2013). After hearing oral argument on the issues, the district
court issued its decision on December 31, 2013. The court deferred to the
agency’s credibility determinations but found the agency’s conclusion that
Anderson’s current condition was the result of a work injury that aggravated a
pre-existing low back condition was not supported by any expert testimony in the
record. The court noted Dr. Bansal never stated the current condition was the
result of an aggravation of an existing low back condition and in fact Dr. Bansal
stated Anderson was not complaining of back pain in the days, weeks, and
months prior to the injury. The court stated the aggravation opinion was not
found in any other medical records and the deputy likely came to this conclusion
in order to reconcile Anderson’s prior back treatment and her admission to
experiencing back pain routinely on Fridays after leaving work, with the finding of
a permanent work-related injury.
The court acknowledged that lay testimony may be used to buttress expert
testimony but concluded opinions on medical causation are still within the
providence of expert testimony. The court found Dr. Bansal was not fully
informed of Anderson’s prior complaints of back pain. It also concluded it was
not appropriate for the deputy commissioner to come to his own conclusion that
Anderson had aggravated a pre-existing condition when there was no expert
testimony to support the conclusion. The court also took issue with the appeal
decision’s statement that the prior back symptoms had abated or were in a
different location than the symptoms following the work injury. Because it
concluded substantial evidence did not support a finding of medical causation,
12
the court reversed the agency’s decision and remanded the case back to the
agency for further proceedings.
Anderson now appeals the district court’s decision on judicial review
contending the district court erred in finding no substantial evidence to support
medical causation due to a lack of expert testimony and due to Anderson giving
an incomplete medical history to the doctors.
II. Scope and Standard of Review.
Our review of a district court’s judicial review decision is governed by Iowa
Code chapter 17A. P.D.S.I. v. Peterson, 685 N.W.2d 627, 632 (Iowa 2004). In
rendering its decision on judicial review, the district court acts in an appellate
capacity, and on appeal from the district court’s decision, we apply the same
standards in Iowa Code section 17A.19(10) to determine if we reach the same
conclusions as the district court. Id. If we do, we affirm the district court’s
decision; otherwise, we reverse. Id.
“Because of the widely varying standards of review, it is ‘essential for
counsel to search for and pinpoint the precise claim of error on appeal.’”
Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa 2010). The issue
presented to us on appeal, and the dispositive issue for the district court, was
whether medical causation was established in this case. “Medical causation
presents a question of fact that is vested in the discretion of the workers’
compensation commission.” Cedar Rapids Comm. Sch. Dist. v. Pease, 807
N.W.2d 839, 844 (Iowa 2011). Thus, under Iowa Code section 17A.19(10)(f) we
will only disturb the commissioner’s findings of medical causation if the finding is
not supported by substantial evidence. Id. at 845. Substantial evidence is
13
defined in section 17A.19(10)(f)(1) as “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.”
We are to judge the factual findings in light of all the relevant evidence in
the record, both the evidence that detracts and supports the finding. Pease, 807
N.W.2d at 845. Our review is fairly intensive, and we do not rubber stamp the
agency’s findings. Id. However, “evidence is not insubstantial merely because
different conclusions may be drawn from the evidence.” Id. Our task is not to
determine whether the evidence supports a different finding but to determine
whether substantial evidence supports the finding the agency made. Id.
III. Medical Causation.
“Medical causation ‘is essentially within the domain of expert testimony.’”
Id. (quoting Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa
1995)). It is the commissioner who must weigh the evidence and measure the
credibility of witnesses. Id. The weight a commissioner gives to an expert
opinion can depend on the “‘accuracy of the facts relied upon by the expert and
other surrounding circumstances.’” Id. (quoting Schutjer v. Algona Manor Care
Ctr., 780 N.W.2d 549, 557–58 (Iowa 2010)). But the decision of whether to
accept or reject an expert’s opinion is for the commissioner, not this court. Id.
The commissioner considers the expert opinion “together with all other evidence
introduced bearing on the causal connection between the injury and the
disability.” Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998) (emphasis
added). If an expert opinion alone is not sufficient to support a finding of
14
causation, the opinion can be coupled with other testimony, nonexpert in nature,
to support a factual finding of causation. Nicks v. Davenport Produce Co., 115
N.W.2d 812, 815 (Iowa 1962). “If the evidence offered is such that reasonable
minds may conclude that aggravation of the injury resulted, the commissioner’s
decision must be upheld.” Id.
The district court aptly noted the role of the agency was not to supply its
own medical causation conclusion in order to reconcile the evidence. See
Dunlavey, 526 N.W.2d at 853 (“Whether an injury has a direct causal connection
with the employment or arose independently thereof is essentially within the
domain of expert testimony.”). However, the commissioner clearly accepted the
opinion of Dr. Bansal on causation in this case. This opinion was based on his
clinical evaluation of Anderson and his review of the medical records following
the injury. Missing from Dr. Bansal’s report is any indication he reviewed the
medical record showing Anderson’s nine-day, low back pain just two days before
Anderson started her employment with Care Initiatives. But Dr. Bansal’s report
does note Anderson reported to him “her back was often tender after putting the
groceries away. On the date of her injury, the order was particularly large for the
week. After that day, her pain never went away.” This shows he was aware she
had back complaints before the discrete injury on February 25, 2011. While it is
true he later states that Anderson had not complained of back pain “in the days,
weeks, [and] months prior to the injury” and he does not specifically state the
February 25, 2011 injury aggravated a pre-existing condition, he was aware of
her prior back tenderness.
15
Anderson admitted at the hearing she did have back pain before the
February 25, 2011 injury, but she maintained the problems were not as severe as
she was currently experiencing. She explained that while her back would get
tender, the pain she now has “is different than normal” because it had “never
[gone] down into [her] legs” and “numb[ed] [her] toes.” She compared the pain
she experienced before she went to work for Care Initiative and the pain she was
experiencing after the February 25, 2011 injury. She said the pain she is
experiencing now is “way worse” and “it doesn’t go away.” She stated her prior
back pain, after being treated with muscle relaxers, would get better, “[b]ut this
hasn’t gone away.”5
The deputy commissioner determined Anderson’s testimony at the hearing
about how the injury happened and the pain she experienced following the injury
was credible and accepted it as truthful. This determination was made despite
the obvious and troubling credibility problems with Anderson,6 and the credibility
determination was affirmed on intra-agency appeal.7 The deputy found based on
5
We agree with the district court that substantial evidence does not support the appeal
decision’s statement that the pain Anderson experienced prior to employment was in “a
different location” than the pain Anderson experienced after the February 25, 2011 work
injury. No medical expert makes this comparison in the records, nor does Anderson
testify that the pain was in a different location. However, this issue alone does not
invalidate the substantial evidence to support the medical causation finding.
6
The deputy noted the credibility concerns of Care Initiatives stating,
There is a discrepancy between claimant’s description of her back pain to
her doctors, and to the undersigned at hearing, and her appearance on
the videos. Claimant is found to be credible when she states she has
back pain from her work injury, and that the pain is worse than that she
experienced prior to the injury. But it also appears to be true she has
exaggerated her symptoms. She has back pain, but it is not as severe or
disabling as she has described.
7
The appeal decision noted, “That claimant has difficulties with honesty and truthfulness
is not disputed. Acknowledgment of that fact does not end the fact finder’s task,
however. The duty to examine the overall record evidence remains.”
16
evidence outside of Dr. Bansal’s report that Anderson did have a pre-existing
back condition, for which she sought medical attention prior to employment. It
then accepted Anderson’s testimony that despite this pre-existing condition, her
pain was under control and did not interfere with her ability to do her job for Care
Initiatives until after the date of the injury.
When this nonexpert testimony is combined with the expert testimony from
Dr. Bansal connecting the symptoms Anderson was experiencing to the February
25, 2011 injury, we conclude substantial evidence supports the agency’s factual
finding that the injury aggravated a pre-existing condition. See Anderson v.
Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974) (“[E]xpert testimony that a
condition could be causally related to a claimant’s employment, although not
sufficient alone to support a finding of causal connection, may be coupled with
nonexpert testimony tending to show causation and thus be sufficient to sustain
an award.”). Because the evidence offered, both expert opinions and nonexpert
testimony, “is such that reasonable minds may conclude that aggravation of the
injury resulted, the commissioner’s decision must be upheld.” Nicks, 115 N.W.2d
at 815.
We conclude substantial evidence supports agency’s decision finding
medical causation, and we reverse the decision of the district court and affirm the
decision of the agency.
DISTRICT COURT DECISION REVERSED; AGENCY DECISION
AFFIRMED.