Presbyterian Homes & Services, Inc., d/b/a Mill Pond and Zurich American Insurance Company v. Mary Buchanan ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0010
Filed January 9, 2020
PRESBYTERIAN HOMES & SERVICES, INC., d/b/a MILL POND and ZURICH
AMERICAN INSURANCE COMPANY,
Plaintiffs-Appellants,
vs.
MARY BUCHANAN,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.
Presbyterian Homes & Services, Inc., doing business as Mill Pond and its
insurer Zurich American Insurance Company appeal the district court order
affirming in part and reversing in part a final decision of the Iowa Workers’
Compensation Commission. Mary Buchanan cross-appeals. AFFIRMED.
Valerie A. Foote of Smith Mills Schrock Blades Monthei P.C., West Des
Moines, for appellants.
Matthew Milligan of Schott Mauss & Associates, PLLC, Des Moines, for
appellee.
Considered by Vaitheswaran, P.J., Greer, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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POTTERFIELD, Senior Judge.
Presbyterian Homes & Services, Inc., doing business as Mill Pond, and its
insurer Zurich American Insurance Company (Zurich) appeal the district court
order affirming in part and reversing in part a final decision of the Iowa Workers’
Compensation Commission. The claimant, Mary Buchanan, cross-appeals. The
commissioner found (1) appellee/cross-appellant Buchanan’s injury to her left
foot and sequela injury to her back were caused by her work for Mill Pond; (2)
Buchanan sustained sixty-five percent industrial disability as a result of those
injuries; and (3) Buchanan was entitled to penalty benefits because appellants
unreasonably withheld healing period payments from October 30, 2014, until
August 26, 2015. The district court affirmed the commissioner’s findings on
medical causation and industrial disability, but it reversed the commissioner’s
award of penalty payments. Appellants argue the district court erred by finding
(1) the commissioner’s factual findings on medical causation were supported by
substantial evidence; and (2) the commissioner’s determination Buchanan had
sustained sixty-five percent industrial disability as a result applied the correct
legal standard and was supported by substantial evidence. On cross appeal,
Buchanan argues the district court erred by reversing the commissioner’s
decision awarding her penalty benefits.
I. Background
a. Prior Work and Medical History
After graduating from high school in 1990, Buchanan worked as a
waitress, as an office helper for a shared office, and with a road crew for the
Department of Transportation before leaving the workforce in 1993 to become a
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stay-at-home parent. Except for working as a field inspector with an agricultural
business in the summers of 1997 and 1998, she did not enter the workforce
again until 2005. From 2005 to 2012, Buchanan worked in various capacities at
group homes and as a home health aide, as well as in seasonal positions with
3M, Lowe’s Garden Center, and Professional Homes.
Buchanan earned her certified nursing assistant (CNA) certificate in 2010,
and she worked as a CNA at Westhaven Community from 2011 to 2012. She
earned her Associate’s Degree in 2013. She left Westhaven Community to work
at Mill Pond, where she was employed as a full-time CNA until December 2014.
Her position required her to stand or walk for long periods of time up to her entire
shift, lift or move up to fifty pounds for her entire shift, and lift up to 100 pounds
with the use of assistive devices for up to one-third of her shift.
Before the alleged incident, Buchanan had a history of health problems
associated with her left foot. She had plantar fasciitis in her left foot that required
surgery in 2007. She also reported pain in her left foot in 2008. Dr. Charles
Gilarski, with whom she consulted, noted the pain “appears to be something
different” and that “[s]he has no problems from the surgical area.” Dr. Gilarski
directed her to take anti-inflammatory medication and to start a home stretching
program. Buchanan did not report any more issues with her left ankle until the
injury at issue.
Buchanan also has a history of problems with her right ankle and her
back. She sprained her right ankle in 2000 and was treated with a temporary
brace, ice, and anti-inflammatory medication. Buchanan has gone to a
chiropractor since she was twenty-one years old, largely for maintenance of
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intermittent neck and back pain and migraines. She reported to her chiropractor
that lifting, twisting, and standing aggravated pain in her lower back. In
December 2013, Buchanan claimed she suffered a back injury while working for
Mill Pond. She reported having lower back pain while she and a co-worker were
moving a patient. She was treated until January 27, 2014, at which time she
could return to performing full work duties at Mill Pond.
b. Ankle Injury
The alleged work injury occurred on February 2, 2014. Buchanan was
performing duties as a shower aide, which involved transporting patients from
their beds or wheelchairs to the shower using a device called a Hoyer lift.
Buchanan later testified using the Hoyer lift required her to plant her feet at
shoulder-width apart or more while using her body to turn patients while they
were in the lift. While moving patients in the lift on February 2, Buchanan later
testified she felt the onset of a constant burning sensation and throbbing pain in
her left ankle. She did not immediately report the injury to Mill Pond. She
testified she did not report the injury right away because she could not identify
what she had done that morning to cause the injury and believed the pain would
go away on its own.
Buchanan first sought treatment for her left ankle on April 28, 2014. She
was first evaluated by Dr. Scott Thiel, her primary care physician. Buchanan
informed Dr. Thiel the pain had been present for about two months and was in a
different location than the pain from her plantar faciitis had been. Nonetheless,
Dr. Thiel concluded Buchanan’s pain was “[c]onsistent with plantar faciitis” and
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directed her to wear more supportive shoes, ice her feet three times a day, do
foot exercises, and take over-the-counter painkillers as needed.
Her pain persisted, and Buchanan was evaluated by Dr. Gilarski on June
4. Dr. Gilarski diagnosed her with plantar faciitis. Dr. Gilarski’s report shows
Buchanan told him the pain began seven to ten days before the June 4 visit. The
report also states Buchanan informed Dr. Gilarski the pain was unrelated to an
injury and was also unrelated to work activities. Buchanan disputed Dr. Gilarski’s
report during her testimony. She testified that while speaking with her, Dr.
Gilarski said her ankle pain was likely from a torn tendon and advised her to
either get a different job, spend less time on her feet, or lose weight. Dr. Gilarski
did not impose any work restriction on Buchanan, and she continued to work her
normal shifts at Mill Pond.
Over the next few months, the pain in Buchanan’s left ankle increased. In
August, she decided to address her pain with the director of nursing and head of
human resources at Mill Pond. Mill Pond agreed to change her shifts from
double to single shifts and reduce her overall weekly hours from forty to thirty-
two. Mill Pond offered to start workers’ compensation, but Buchanan declined
based on Dr. Gilarski’s assessment.
Buchanan’s ankle pain persisted, and she filed an incident report with Mill
Pond on October 28. The next day, Buchanan was examined by Dr. Nicholas
Bingham, Mill Pond’s authorized treating physician. Dr. Bingham’s notes from
his examination show the cause of Buchanan’s ankle pain was “undetermined,”
but also noted Dr. Bingham lacked access to Buchanan’s full medical records.
He also questioned Dr. Gilarski’s earlier diagnosis and advice to Buchanan,
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which he described as coming “after merely one visit and no advanced imaging.”
Dr. Bingham restricted Buchanan from using the Hoyer lift “as it seems to be the
only provocative activity.” He also prescribed her anti-inflammatory medication
and scheduled a two-week follow up appointment to determine whether
Buchanan should be referred to a physical therapist or podiatrist. The follow up
assessment happened on November 12. Dr. Bingham received Buchanan’s
medical records before the November 12 follow up appointment and questioned
the reliability of Dr. Gilarski’s notes:
We left it after the last exam that I was going to obtain medical
records and I was hopefully going to speak with a foot doctor once I
know what [Dr. Gilarski]’s working diagnosis was. . . . In reading
[the records], they seem to be quite at odds with what the patient
was told when she visited there last spring. For example, she
complained of lateral left heel pain but the doctor’s diagnosis per
his notes was listed as medial band plantar fasciitis. The note
stated that they would “follow her closely for the next 3 to 4 weeks;”
the patient was told that she did not need to follow. There was no
mention of her weight or her changing occupations on the doctor’s
notes. . . . Due to the unreliability of [Dr. Gilarski]’s notes, I was
really not able to consult with the foot doctor I had in mind.
Dr. Bingham concluded his assessment by stating that, because he had not yet
received Dr. Thiel’s notes, he could not conclude Buchanan’s ankle pain was
related to her work at Mill Pond. He directed Buchanan to continue the treatment
he recommended and to return for re-evaluation in two weeks.
The second re-evaluation happened on November 26. Buchanan told Dr.
Bingham she felt “quite a bit better” and not having to use the Hoyer lift had
“been quite helpful to her.” She also noted she rarely had a chance to put lateral
stress on her left ankle, which Dr. Bingham noted was the type of stress that
happened while Buchanan used the Hoyer lift. Dr. Bingham determined
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Buchanan’s gait was normal and that she could return to full duty. He directed
Buchanan to avoid lateral stress as much as possible and referred her for an
evaluation with a podiatrist. Dr. Bingham checked a box for “Work Related” on
Buchanan’s November 26 patient status report.
After her visit with Dr. Bingham, Buchanan’s next shift was on November
29. She tried to use the Hoyer lift to move patients, but as she used the machine
her ankle pain increased to the point she started to limp and could not transfer
patients in the Hoyer lift. She contacted Dr. Bingham’s office, and her work
restriction on the use of the Hoyer lift was reinstated. Dr. Bingham filed another
patient status report that same day, which noted Buchanan’s injury was work
related and requested authorization from Mill Pond for a podiatric evaluation.
Buchanan returned to work on December 3. She was informed Mill Pond
would no longer treat Buchanan’s injury as a workers’ compensation matter, Mill
Pond would not be covering her treatment, and she could not return to work until
she was released by her doctor at full functionality. Zurich noted it had tried to
contact Buchanan in a November 3 letter. It followed up with another letter on
November 24 informing her Zurich would not cover her treatment citing Zurich’s
“inability to speak with you.” Buchanan denied receiving either letter, although
she admitted during testimony that both letters listed her address correctly.
Following the denial of her claim, Buchanan was evaluated by Dr. Dana
Plew, a podiatrist, on December 8. Dr. Plew took x-rays of Buchanan’s foot and
diagnosed her with peroneal tendonitis. Dr. Plew concluded further testing was
appropriate and ordered an MRI. The MRI revealed a tear in the peroneus
longus tendon of Buchanan’s left ankle. Dr. Plew provided a CAM boot for
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Buchanan to wear for the next eight weeks and provided her paperwork for
seeking leave under the Family Medical Leave Act (FMLA). The FMLA form,
dated December 23, noted Buchanan “has been misdiagnosed” and had been
dealing with her condition for ten months. Dr. Plew also filed a certificate with
Mill Pond, which informed Mill Pond Buchanan could return to work on February
16, 2015, and forbade Buchanan from lifting more than five pounds, twisting, or
standing longer than two hours at a time.
Buchanan followed up with Dr. Plew on January 26, 2015. Dr. Plew
applied tape and directed Buchanan to keep applying tape and wean off use of
the CAM boot, which she was directed to do in two weeks. Dr. Plew
recommended she do exercises for her foot. Buchanan had another follow-up
appointment with Dr. Plew on February 23. During this appointment, Dr. Plew
instructed Buchanan to keep weaning off use of the CAM boot and ordered
physical therapy.
Buchanan attended eight physical therapy sessions between March 6 and
April 14. During these visits, Buchanan complained of increased ankle pain. Dr.
Plew ordered another MRI, which revealed a stress fracture on the medial
cuneiform bone of Buchanan’s left ankle.
Dr. Plew wrote an opinion statement on July 20. Dr. Plew noted “tears in
the peroneal tendon can happen instantaneously (the result of one wrong step)
or develop gradually” and the tear “likely occurred or began” when Buchanan
started to feel pain while using the Hoyer lift on February 2, 2014. Dr. Plew
concluded it was “more probable than not” that Buchanan’s CNA work duties at
Mill Pond “caused or were a significant factor” in the tear’s development and her
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continued work at Mill Pond after the injury “worsened or aggravated” the tear.
Dr. Plew also addressed Buchanan’s history of plantar faciitis, noting that
condition and the tear “are unrelated conditions.”
Buchanan was referred to Dr. Julie Albrecht for a surgical consultation.
Dr. Albrecht agreed with Dr. Plew’s diagnosis and recommended surgery. Dr.
Albrecht performed surgery on May 28. Buchanan was given a prescription for
pain medication and instructed to begin home exercises and avoid putting weight
on her foot. Buchanan received custom orthotics for her feet on August 14. The
orthotics were not comfortable. On March 15, 2016, Buchanan complained the
orthotics hurt her feet to the point she could not wear them all day as prescribed.
Dr. Albrecht recommended Buchanan change orthotics.
By March 28, 2016, Buchanan’s pain had worsened. She reported to Dr.
Albrecht that her feet felt like they were “broken,” and she could not keep wearing
the orthotic. She reported pain in both feet, with worse pain in her right foot. She
also told Dr. Albrecht she had begun walking on the balls of her feet to help
alleviate the pain. She was prescribed new orthotics.
Dr. Albrecht wrote an opinion letter on June 13, 2016. Dr. Albrecht agreed
with Dr. Plew’s statement about Buchanan’s CNA work contributing to
Buchanan’s continued pain, noting “[o]nce the tendon is torn, any activity
aggravates it, thus her work activities as a CNA certainly would have aggravated
it.” Dr. Albrecht also opined the tear caused both her continued ankle pain and
led to the pain in her right foot:
With regard to her recovery, the left peroneal tendon repair
progressed fairly good, but she experienced increase[d] pain in the
ankle joint and those symptoms became chronic. She may have
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been predisposed to arthritic problem[s] in that area but walking
poorly aggravates the lateral joint where the tendon attaches. Her
left ankle pain is causally related to the original left peroneal tendon
tear.
. . . . With regard to her right ankle pain, the pain is in the same
joints as the left foot. This again suggests a predisposition for an
arthritic or mechanical problem. Yet, the left peroneal tendon tear
caused her to walk poorly for an extended period of time. In my
opinion, Ms. Buchanan’s disturbed gait over many months, due to
the left peroneal tear, was a factor in lighting up her right ankle
pain.
Buchanan underwent two independent medical examinations during her
treatment. The first was an examination by Dr. Charles Mooney, which
happened on August 26, 2015, at Mill Pond’s request. Citing Dr. Theil and Dr.
Gilarski’s records, Dr. Mooney concluded
the medical records do not corroborate an incident occurring on
02/02/2014, nor is it my opinion that the general activities of a CNA,
including the use of a Hoyer lift would be a significant intensity to
precipitate a tendon tear. . . . Ms. Buchanan’s presentation is much
more consistent with a chronic condition, such as ankle instability,
resulting in tendon tearing.
Buchanan underwent the second independent medical examination at her
attorney’s request on June 3, 2016. Buchanan was examined by Dr. Sunil
Bansal. Dr. Bansal opined that the act of lifting patients with the Hoyer lift “would
cause stretching and injury to the peroneal tendons from the traction pressure.”
Dr. Bansal recommended Buchanan avoid walking for longer than thirty minutes
at a time and avoid multiple steps, stairs, uneven terrain, and ladders.
Dr. Mooney responded to Dr. Bansal’s evaluation on July 11, 2016. Dr.
Mooney maintained his early assessment, again noting “the medical records do
not corroborate an injury to the left foot and ankle” and Buchanan’s health issues
“are related to a personal medical condition preexisting her employment.”
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c. Sequela Injury
The alleged sequela injury is a permanent injury to Buchanan’s back,
which Buchanan alleges was caused by her ankle injury. On July 7, 2015,
Buchanan sought treatment related to back pain from Patrick Kasper, a physician
assistant. Buchanan told Kasper she had been suffering from back pain for
“about a year.” Kasper prescribed her a muscle relaxer and weight loss
medication. At an August 11 follow up appointment, Buchanan told Kasper her
back pain had not improved. Kasper then sent Buchanan to physical therapy.
Buchanan’s physical therapist noted during an August 18 therapy session that
Buchanan “has malalignments in both her low back and pelvis.” At another
therapy session the week after, the therapist noted Buchanan had an “antalgic
gait” when she arrived.
An x-ray of Buchanan’s back was taken on February 9, 2016. The x-ray
revealed Buchanan had degenerative disc disease, lumbar arthritis, and some
spurring. A subsequent MRI showed Buchanan had moderate bilateral facet joint
osteoarthritic changes at the L4-L5 level. Buchanan was referred to another
doctor for pain management treatment.
Dr. Bansal addressed Buchanan’s back pain in his report. He concluded
Buchanan’s walking on the balls of her feet in response to her foot pain
“disturb[ed] her sacroiliac joint biomechanics,” which led to her developing both
facet anthropathy and sacroiliitis.
[R]isk factors for sacroiliitis included leg length discrepancy or
altered gaits. It is logical that the back pain manifested months
after her left foot injury, as this is a cumulative process. As her left
foot pathology and pain is permanent, it follows that her back
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pathology is permanent as it is being aggravated by her antalgic
gait resulting from her foot condition.
....
Furthermore, in my opinion, Ms. Buchanan has underlying
facet anthropathy. . . .
The inflammation resulting from the altered gait causes the
synovial facet joints to fill with fluid and distend, resulting in pain
from stretching the joint capsule.
Dr. Bansal concluded the result of Buchanan’s ankle and back conditions was a
seven percent whole person impairment based on American Medical Association
guidelines. He recommended a work restriction of no lifting over twenty pounds
occasionally, and no lifting over ten pounds frequently.
d. Procedural History
Buchanan filed her arbitration petition in May 2015. A hearing took place
before a deputy workers’ compensation commissioner on July 13, 2016, and the
matter was deemed submitted following submission of briefs on July 27.
Buchanan was forty-four years old at the time of the hearing. The issues
submitted were
I. Whether claimant received an injury arising out of and in the
course of employment;
II. The extent of claimant’s entitlement to weekly temporary
total or healing period benefits, temporary partial disability
benefits and permanent disability benefits;
III. The extent of claimant’s entitlement to medical benefits; and
IV. The extent of claimant’s entitlement to penalty benefits for an
unreasonable delay or denial of weekly benefits pursuant to
Iowa Code section 86.13.
The deputy commissioner concluded Buchanan sustained an injury to her left
foot and ankle during the course of her employment on February 2, 2014, and
the injury to her back was a sequela injury caused by her foot injury.
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The deputy commissioner also concluded Buchanan sustained sixty-five
percent industrial disability as a result of her ankle and back problems, based in
part on a vocational evaluation Buchanan underwent on May 19, 2016. After
reviewing Buchanan’s medical and employment history the evaluator concluded
Buchanan’s lifting and prolonged walking limitations “result[] in a total 64.2% loss
of access to the labor market due to her work related injuries.”
The deputy commissioner also found Mill Pond and Zurich unreasonably
denied workers’ compensation benefits in violation of Iowa Code section 86.13
(2016).
In this case, the claim was denied benefits in a letter to claimant
dated November 24, 2014 on the basis of defendants’ investigation
and claimant’s failure to respond to Inquiries. The results of the
investigation were not disclosed. Presumably, this was based on
the views of the two initial physicians, Drs., Thiel and Gilarski.
However, their own authorized physician, Dr. Bingham at that time
clearly indicated he felt her problems were work related and
defendant did not explain to claimant why they rejected his
views. . . . Defendants assert a lack of causation issue, but there is
no evidence of any further investigation until they requested an
evaluation by Dr. Mooney December 2013.
I hold that the initial denial was unreasonable because it
failed to comply with Iowa Code section 85.13 which requires that
claimant be notified of the results of a supposed investigation. . . .
However, the causation issue became fairly debatable after Dr.
Mooney issued his views on August 26, 2015. Consequently,
defendants unreasonably withheld benefits between the date of
injury and August 26, 2015. . . . At any rate, continued reliance on
the views of Drs. Thiel and Gilarski to deny the claim on causation
was unreasonable after the MRI revealed a torn tendon and Dr.
Plew provided a diagnosis of a torn tendon on December 15, 2014.
The deputy commissioner concluded Mill Pond and Zurich unreasonably withheld
healing period benefits from October 30, 2014, until August 26, 2015, and
assessed a penalty of $5428.97, half the maximum penalty for such violations.
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Appellants appealed to the commissioner of workers’ compensation, who
affirmed the deputy commissioner’s decision in its entirety. Appellants next
sought judicial review. In a December 2018 ruling, the district court affirmed the
commissioner’s decision on medical causation and industrial disability, but it
reversed the commissioner’s decision to award penalty benefits.
Although there was substantial evidence to support the
Commission decision that the injury was work-related and
specifically related to operation of the Hoyer lift, it was not
unreasonable for Mill Pond to rely on Buchanan’s own failure to
identify or describe a work-related injury and Dr. Gilarski’s medical
records indicating that Buchanan stated the pain was not related to
an injury or work activity. The fact that later medical providers
relied on Buchanan’s more recent descriptions does not mean the
issue was not fairly debatable or that Mill Pond’s position was
unreasonable.
Both parties appeal the district court’s ruling.
II. Standard of Review
“Judicial review of workers’ compensation cases is governed by Iowa
Code chapter 17A. On our review, we determine whether we arrive at the same
conclusion as the district court.” Warren Props. v. Stewart, 864 N.W.2d 307, 311
(Iowa 2015). “Medical causation presents a question of fact that is vested in the
discretion of the workers’ compensation commission.” Cedar Rapids Cmty. Sch.
Dist. v. Pease, 807 N.W.2d 839, 844 (Iowa 2011). “We will therefore only disturb
the commissioner’s finding of medical causation if it is not supported by
substantial evidence.” Id. (citing Iowa Code § 17A.19(10)(f)). As used in chapter
17A,
“Substantial evidence” means 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
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consequences resulting from the establishment of that fact are
understood to be serious and of great importance.
Iowa Code § 17A.19(10)(f)(1). But “the question on appeal is not whether the
evidence supports a different finding than the finding made by the commissioner,
but whether the evidence ‘supports the findings actually made.’” Meyer v. IBP,
Inc., 710 N.W.2d 213, 218 (Iowa 2007) (quoting St. Luke’s Hosp. v. Gray, 604
N.W.2d 646, 649 (Iowa 2000)).
Whether Buchanan suffered a sixty-five percent industrial disability is a
mixed question of law and fact. Neal v. Annett Holdings, Inc., 814 N.W.2d 512,
525 (Iowa 2012). We review the commissioner’s findings of fact for substantial
evidence and we “must engage in a ‘fairly intensive review of the record to
ensure that the fact finding is itself reasonable.’” Id. (quoting Wal-Mart Stores,
Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003)). But “in considering
findings of industrial disability, we recognize that the commissioner is routinely
called upon to make such assessments and has a special expertise in the area
that is entitled to respect by a reviewing court.” Id. at 527. And insofar as the
parties challenge the commissioner’s application of law to facts, we will not
reverse the commissioner unless his decision is “irrational, illogical, or wholly
unjustifiable.” Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 857 (Iowa 2009).
We review the commissioner’s interpretation of Iowa Code section 86.13
for errors at law. Pettengill v. Am. Blue Ribbon Holdings, LLC, 875 N.W.2d 740,
745 (Iowa Ct. App. 2015); see Iowa Code § 17A.19(10)(c) (“The court shall
reverse, modify, or grant other appropriate relief from agency action . . . if it
determines that substantial rights of the person seeking judicial relief have been
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prejudiced because the agency action is . . . [b]ased upon an erroneous
interpretation of a provision of law whose interpretation has not clearly been
vested by a provision of law in the discretion of the agency.”).
III. Discussion
a. Medical Causation
Mill Pond and Zurich first argue the determination that Buchanan’s ankle
and sequela back injury were caused by and arose out of Buchanan’s
employment at Mill Pond was not supported by substantial evidence. For the
reasons below, we disagree.
In regard to the ankle injury, Mill Pond and Zurich base their argument
mainly on inconsistencies in the medical records and Buchanan’s recollection of
the injury to suggest the injury did not occur on February 2, 2014, while
Buchanan was working for Mill Pond. These inconsistencies, appellants argue,
undercut the commissioner’s reliance on the medical opinions and diagnoses of
Drs. Bingham and Albrecht rather than the opinions of Drs. Thiel, Gilarski, and
Mooney. See Pease, 807 N.W.2d at 845 (“The weight given to expert testimony
depends on the ‘accuracy of the facts relied upon by the expert and other
surrounding circumstances.’” (quoting Schutjer v. Algona Manor Care Ctr., 780
N.W.2d 549, 560 (Iowa 2010))). “Ultimately, however, the determination of
whether to accept or reject an expert opinion is within the ‘peculiar province’ of
the commissioner.” Id. (quoting Deaver v. Armstrong Rubber Co., 170 N.W.2d
455, 464 (Iowa 1969)). “In addition, we give due regard to the commissioner’s
discretion to accept or reject testimony based on his assessment of witness
credibility.” Schutjer, 780 N.W.2d at 858.
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Essentially, appellants ask us to find Buchanan’s inconsistent statements
to medical professionals “so impossible or absurd and self-contradictory that
[they] should be deemed a nullity by the court.” Graham v. Chi. & Nw. Ry., 119
N.W. 708, 744 (Iowa 1909). This we cannot do. The deputy commissioner noted
Buchanan’s inconsistent statements to medical professionals and concluded
Buchanan’s initial uncertainty was explained by her reliance on Dr. Thiel’s
assessment that she had plantar faciitis. Dr. Thiel’s notes, however, state
Buchanan informed him the pain started about two months before her meeting
with him in late March 2014, which places the initial injury sometime in February
2014. The deputy commissioner further concluded Buchanan credibly testified
that Dr. Gilarski’s notes—including his assessment that her pain had only started
in or around the last week as of their June 4 appointment—did not accurately
reflect the substance of his conversation with her. As the district court noted in
its order on judicial review, “This is not a situation where the Commission failed
to consider important facts, instead those facts were weighed and interpreted
differently than Mill Pond argues they should be.” The deputy commissioner
evaluated the conflicting medical evaluations and concluded the opinions of Drs.
Bingham, Plew, Albrecht, and Bansal correctly identified Buchanan’s injury as
work-related. The deputy commissioner determined Dr. Gilarski’s opinion was
unpersuasive because it “was inconsistent with the notes of Dr. Thiel and
claimant’s credible testimony.” The deputy commissioner similarly discounted
Dr. Mooney’s independent medical examination because Dr. Mooney relied
mainly on the medical records from Dr. Thiel and Dr. Gilarski, who both
incorrectly diagnosed Buchanan’s injury. The commissioner affirmed the deputy
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commissioner’s decision in its entirety. We cannot say the deputy
commissioner’s finding of medical causation as related to Buchanan’s ankle
injury was unsupported by substantial evidence.
We reach the same conclusion for Mill Pond and Zurich’s challenge to the
commissioner’s causation determination related to the alleged sequela injury to
Buchanan’s back. Mill Pond and Zurich do not dispute that the only two
physicians who address Buchanan’s back injury, Dr. Mooney and Dr. Bansal,
agreed an ankle injury could lead to her lower back injury. The commissioner
noted this agreement. Dr. Bansal further opined Buchanan’s back injury was
permanent because “the reason for her back pain is her altered gait, and the
altered gait is the result of a permanent ankle condition, it stands to reason that
the back pain would be permanent.” We similarly cannot conclude the
commissioner’s medical causation determination in regard to Buchanan’s back
injury was not supported by substantial evidence.
b. Industrial Disability
Mill Pond and Zurich next argue the commissioner’s determination that
Buchanan had an industrial disability rating of sixty-five percent is not supported
by substantial evidence. In particular, appellants argue Buchanan has failed to
establish that her injuries were permanent and the sixty-five percent industrial
disability rating is “grossly inflated and not reflective of agency precedent.”
An employee who experiences a permanent disability is entitled to
compensation. Iowa Code § 85.34. The amount of compensation “is based on
the employee’s earning capacity.” Neal, 814 N.W.2d at 526. Earning capacity is
in turn determined “by an evaluation of several factors, including ‘functional
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disability . . . age, education, qualifications, experience, and inability to engage in
similar employment.’” Id. (quoting Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d
129, 137–38 (Iowa 2010) (citation and internal quotation marks omitted)). The
commissioner addressed all of these factors. Based on Dr. Albrecht and Dr.
Bansal’s evaluations, the commissioner found Buchanan had a seven percent
whole body impairment from her ankle and sequela back injury. The
commissioner further noted Buchanan was forty-four years old at the time of the
hearing, had earned her associate’s degree, and had obtained a CNA certificate.
The deputy commissioner found, and the commissioner affirmed, the work
restrictions imposed on Buchanan by Dr. Albrecht and Dr. Bansal limited her to
sedentary work, which “prohibit[s her] from nursing assistant jobs, the occupation
for which she is best suited.” The commissioner’s assessment of sixty-five
percent disability is also supported by the undisputed findings of the vocational
evaluation, which found Buchanan’s injuries led to a “64.2% loss of access to the
labor market.” Given this evidence, we conclude substantial evidence supports
the commissioner’s determination and that determination is not irrational,
illogical, or wholly unjustifiable.
c. Penalty Benefits
Finally, Buchanan argues the district court erred by reversing the
commissioner’s award of penalty damages. The commissioner determined Mill
Pond and Zurich unreasonably withheld healing period benefits from October 30,
2014 through August 26, 2015, when Dr. Mooney issued his independent
medical evaluation disputing Buchanan’s claims her ankle and back injuries were
caused by her work for Mill Pond. On our review, we conclude the
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commissioner’s determination was not supported by substantial evidence and
affirm the district court.
The district court found the commissioner’s decision to award penalty
benefits was not supported by substantial evidence in part because the
commissioner incorrectly applied Iowa Code section 86.13. Iowa Code section
86.13 directs the commissioner to award penalty benefits if “(1) The employee
has demonstrated a denial, delay in payment, or termination of benefits. (2) The
employer has failed to prove a reasonable or probable cause or excuse for the
denial, delay in payment, or termination of benefits.” Iowa Code § 86.13(4)(b)
(2016). Section 86.13 further requires a reasonable or probable cause or excuse
for denial to meet all of the following requirements:
(1) The excuse was preceded by a reasonable investigation and
evaluation by the employer or insurance carrier into whether
benefits were owed to the employee.
(2) The results of the reasonable investigation and evaluation
were the actual basis upon which the employer or insurance carrier
contemporaneously relied to deny, delay payment of, or terminate
benefits.
(3) The employer or insurance carrier contemporaneously
conveyed the basis for the denial, delay in payment, or termination
of benefits to the employee at the time of the denial, delay, or
termination of benefits.
Id. § 86.13(4)(c). The deputy commissioner concluded, and the commissioner
affirmed, section 86.13 “requires that claimant be notified of the results of a
supposed investigation.” The district court disagreed, stating “[t]he ‘basis’ for the
denial must be conveyed and the basis must stem from an investigation, but the
language of the statute does not require that the ‘results of the investigation’ be
conveyed.”
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“When interpreting a statute, we look first to the statute’s plain meaning.”
Cox v. Iowa Dep’t of Human Servs., 920 N.W.2d 545, 553 (Iowa 2018). If the
meaning of a statute is unambiguous, “we will apply the statute as written.” Id.
We conclude section 86.13(4)(c)(3) is unambiguous. The term “basis” is
generally defined as “[a] fundamental principle; an underlying fact or condition; a
foundation or starting point.” Basis, Black’s Law Dictionary (11th ed. 2019).
Thus, Mill Pond and Zurich did not have to provide the results of their
investigation to Buchanan—just the reason for their denial of payments, which
Zurich’s November 24 letter does by informing Buchanan Zurich believed “the
problem with your left heel/foot is not related to an incident at work.” Thus, the
commissioner’s conclusion that Mill Pond and Zurich’s initial denial of
Buchanan’s claim was unreasonable was not supported by substantial evidence.
The question then becomes whether the denial of Buchanan’s claim was
unreasonable between December 15, 2014, and August 26, 2015, after
Buchanan’s MRI showed Dr. Thiel and Dr. Gilarski’s diagnoses were incorrect
but before Dr. Mooney disputed Dr. Albrecht and Dr. Bansal’s medical causation
determinations. “A reasonable basis for denying insurance benefits exists if the
claim is ‘fairly debatable’ as to either a matter of fact or law.” Thornton v. Am.
Interstate Ins. Co., 897 N.W.2d 445, 465 (Iowa 2017) (quoting Rodda v. Vermeer
Mfg., 734 N.W.2d 480, 483 (Iowa 2007)). “A claim is ‘fairly debatable’ when it is
open to dispute on any logical basis.” Bellville v. Farm Bureau Mut. Ins. Co., 702
N.W.2d 468, 472 (Iowa 2005). “Stated another way, if reasonable minds can
differ on the coverage-determining facts or law, then the claim is fairly
debatable.” Id.
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The deputy commissioner concluded, and the commissioner affirmed,
“any reliance on the views of Drs. Thiel and Gilarski to deny the claim on
causation was unreasonable after the MRI revealed a torn tendon and Dr. Plew
provided a diagnosis of a torn tendon on December 15, 2014, rendering any prior
diagnosis invalid.” But as the district court noted the commissioner’s “decision
conflates two concepts: what physical problem was causing pain with whether
the underlying physical problem was work related.” The MRI established
Buchanan had a tear in the peroneus longus tendon of her left ankle—it does not
establish when or how Buchanan was injured. While the commissioner
concluded Dr. Thiel and Dr. Gilarski’s assessments were not correct, that
conclusion “does not negate the existence of a genuine dispute with respect to
whether” Buchanan’s use of the Hoyer lift at work on February 2, 2014, was the
cause of her ankle injury. City of Madrid v. Blasnitz, 742 N.W.2d 77, 83 (Iowa
2007); see also Bellville, 702 N.W.2d at 473 (“As one court has explained,
‘[c]ourts and juries do not weigh the conflicting evidence that was before the
insurer; they decide whether evidence existed to justify denial of the claim.’”
(quoting State Farm Lloyds, Inc. v. Polasek, 847 S.W.2d 279, 285 (Tex. Ct. App.
1992)). We conclude the commissioner’s finding that Mill Pond and Zurich
unreasonably withheld payments from December 15, 2014, through August 26,
2015, is not supported by substantial evidence.
IV. Conclusion
In regard to Mill Pond and Zurich’s medical causation and industrial
disability arguments, we conclude the commissioner’s findings are supported by
substantial evidence and its application of the law to facts was not irrational,
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illogical, or wholly unjustifiable. The district court correctly reversed the
commissioner’s determination that appellants unreasonably withheld healing
period payments.
AFFIRMED.