Broadlawns Medical Center Vs. Rose Marie Sanders

IN THE SUPREME COURT OF IOWA
No. 08–1643
Filed December 23, 2010
BROADLAWNS MEDICAL CENTER,
Appellant,
vs.
ROSE MARIE SANDERS,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
Employee seeks further review of court of appeals’ decision in
appeal of workers’ compensation judicial review decision. DECISION OF
COURT OF APPEALS AFFIRMED IN PART AND REVERSED IN PART;
DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED
IN PART.
Michael L. Mock and D. Brian Scieszinski of Bradshaw, Fowler,
Proctor & Fairgrave, P.C., Des Moines, for appellant.
Michael R. Hoffmann of Hoffmann Law Firm, P.C., Des Moines, for
appellee.
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TERNUS, Chief Justice.
This workers’ compensation case comes to us on further review
from the court of appeals. The appellee, Rose Marie Sanders, asks us to
reinstate an award of permanent partial disability (PPD) benefits made by
the workers’ compensation commissioner and affirmed by the district
court, but reversed by the court of appeals for lack of substantial
evidence. We agree with the district court that substantial evidence
supports the commissioner’s award of PPD benefits. Therefore, we
reverse that part of the court of appeals’ decision reversing the award of
PPD benefits and affirm the district court’s judicial review decision
affirming the commissioner’s award of these benefits.
We choose not to review the other issues raised by the parties in
this appeal. See Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005)
(“On further review, we can review any or all of the issues raised on
appeal or limit our review to just those issues brought to our attention by
the application for further review.”). The court of appeals’ decision
stands as the final ruling on all other issues raised on appeal. See Everly
v. Knoxville Cmty. Sch. Dist., 774 N.W.2d 488, 492 (Iowa 2009).
I. Background Facts and Proceedings.
We limit our recitation of the evidence and history of this case to
those facts and rulings that are pertinent to the issue we address on
further review.
Starting in 1999, Sanders was a certified nursing assistant for
appellant, Broadlawns Medical Center. On July 18, 2003, while working
at Arlington House, a group home for the mentally ill operated by
Broadlawns, Sanders discovered a client who had hung herself. Later,
Sanders was required to clean the room in which the client had
committed suicide. As a result of this experience, she began having
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flashbacks, nightmares, and olfactory hallucinations. Three doctors
diagnosed Sanders with posttraumatic stress disorder (PTSD) caused by
her involvement with the suicide at Arlington House.
In February 2004, one of these physicians, Dr. Gallagher,
permanently restricted Sanders from working at Arlington House.
Broadlawns then assigned her to another group home, Oakland House.
Sanders was able to work at Oakland House without the same reactions
arising from work at Arlington House because she knew the clientele at
Oakland House and felt comfortable that no client there would commit
suicide. When Sanders had been assigned to Arlington House, she had
worked about seventeen hours of overtime during each pay period. She
earned only about five hours of overtime per pay period when assigned to
Oakland House.
Nearly a year after the incident, on July 16, 2004, Dr. Gallagher
reported that Sanders was at maximum medical improvement and
reaffirmed her restriction from working at Arlington House. In a
subsequent report dated July 21, 2004, Dr. Gallagher reiterated these
opinions:
I believe she is executing her current job well except when
challenged to return to her former place of employment
where the individual under her charge, Nicky, took her own
life. She remains very sensitive to anything resembling
criticism around this issue and reacts exceptionally strongly
if there is a request for her to return to that facility. For all
intents and purposes, I have restricted her from returning to
work at Arlington and indicated she should stay where she
is. If this request is honored, I think she will do acceptably
well. She will quickly regress and become symptomatic if
this request is ignored. Given her still present fragility, it
does not help if it is suggested to her that in some way she is
not “doing her job” by not returning to Arlington.
I think that Ms. Sanders is at Maximum Medical
Improvement. The rest will require tincture of time. She is
free to return to see me on an as needed basis, which was
reassuring to her. I don’t see any reason to schedule regular
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visits, though. She seems to conduct the rest of her life
reasonably well. At best, I would say that she has a residual
mild impairment. This impairment will become moderate to
severe should she be forced to return to her original
assignment.
On September 20, 2004, Broadlawns notified Sanders that it
intended to terminate her employment due to her permanent work
restrictions. Sanders then asked Dr. Gallagher to lift the restrictions.
Based on her request, Dr. Gallagher recommended “that she be allowed
to try and return to Arlington,” but he “would not go so far to say the
restrictions are eliminated entirely but rather that this be tried on a
temporary basis to see how things go.” Thereafter, Sanders continued to
work at Oakland House and from time to time at Arlington House when
an emergency necessitated her assistance. Sanders tried to work at a
group home outside the Broadlawns system, but she experienced the
same reactions to this home as she did with regard to Arlington House
“due to her anxiety about the unpredictable behavior of certain clients.”
In a report to Sanders’ attorney dated March 3, 2005,
Dr. Gallagher noted that Sanders’ symptoms of PTSD “have diminished
with the passage of time, as one would expect” and that “she was able to
engage in her limited responsibilities at Arlington House and perform her
duties without undue distress.” Although Dr. Gallagher did not think
Sanders had any impairment that would prevent her from performing the
duties of her job, he did not recommend “that she ever be reassigned to
Arlington House on a fulltime basis.”
In an October 17, 2005 letter to Broadlawns’ attorney,
Dr. Gallagher stated that he did not know of any treatment that would
take Sanders “any further in terms of returning to work at Arlington
House on a fulltime basis.” He concluded that, “if she remains working
at her present location with occasional emergency duties at Arlington
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House, she will do well as she has been doing.” Dr. Gallagher saw “no
point in scheduling any further appointments” for Sanders.
On October 24, 2005, Sanders was seen by Kenneth Mills, Ph.D.,
who administered various tests and concluded that Sanders suffered
from anxiety, depression, and PTSD. He concluded Sanders had “the
potential for further improvement” and “the application of appropriate
psychological therapy techniques may serve to hasten her recovery.”
Because he thought it likely that Sanders “may experience continued
improvement,” Dr. Mills did not believe she had reached maximum
medical improvement. Nonetheless, he stated that the “emotional and
psychological sequelae” of the traumatic work event Sanders experienced
were “likely to continue to affect [her] for the indefinite future.” Dr. Mills
agreed with Dr. Gallagher that Sanders should not work at Arlington
House and opined that she “is likely to experience difficulty working in
situations that remind her of Arlington House.”
On January 6, 2006, Dr. Gallagher again stated that Sanders was
at or near maximum medical improvement. He reaffirmed the restriction
against work at Arlington House and again described Sanders’
impairment as mild. Despite this report and his July 16, 2004
assessment, Dr. Gallagher signed an April 3, 2006 letter written by
counsel for Broadlawns, indicating his agreement with the following
opinions:
1. Rose Sanders currently has no restrictions or
limitations other than avoiding the Arlington House.
2. Ms. Sanders is capable of performing substantially
similar employment at locations other than the
Arlington House.
3. Ms. Sanders’ condition is expected to improve and
should resolve over time.
4. You are unable to state that Ms. Sanders’ condition is
permanent in nature.
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Sanders filed this action for workers’ compensation benefits. She
sought PPD benefts based on Dr. Gallagher’s assessment that she was at
maximum medical improvement on July 16, 2004, and had a mild
impairment. Although Broadlawns stipulated that Sanders had suffered
a psychological injury, it contested that her injury was permanent. The
deputy commissioner who heard the case found that Sanders presently
suffered from a psychological impairment and that she had a thirty
percent industrial disability. The decision of the deputy commissioner
who heard the evidence was adopted as the final agency decision by the
commissioner.
On judicial review, Broadlawns argued the commissioner’s
conclusion that Sanders suffered a permanent disability was not
supported by substantial evidence in the record. The district court
affirmed the award of PPD benefits, concluding “[i]t was the agency’s
right and responsibility to resolve the apparent inconsistencies in the
medical evidence regarding the permanency of Sanders’ condition.”
Broadlawns appealed, and its appeal was transferred to the court
of appeals. That court held the record lacked the necessary expert
testimony “that Sanders’s injury was permanent,” and so it reversed the
award of PPD benefits. We granted Sanders’ application for further
review.
II. Scope of Review.
Our review in a workers’ compensation action is governed by Iowa
Code chapter 17A. See Iowa Code § 86.26 (2009). Under that chapter,
we may reverse an agency decision when
a determination of fact clearly vested by a provision of law in
the discretion of the agency . . . is not supported by
substantial evidence in the record before the court when that
record is viewed as a whole.
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Id. § 17A.19(10)(f); accord Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387,
391 (Iowa 2009). Because “ ‘factual findings regarding [an] award of
benefits are within the agency’s discretion, . . . we are bound by the
agency’s findings of fact if supported by substantial evidence.’ ”
Keystone Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 304 (Iowa
2005) (alteration in original) (quoting Clark v. Vicorp Rests., Inc., 696
N.W.2d 596, 604 (Iowa 2005)).
“In assessing evidentiary support for the agency’s factual
determinations, we consider evidence that detracts from the agency’s
findings, as well as evidence that supports them, giving deference to the
credibility determinations of the presiding officer.” Lange v. Iowa Dep’t of
Revenue, 710 N.W.2d 242, 247 (Iowa 2006) (citing Iowa Code
§ 17A.19(10)(f)(3)). We also consider “the agency’s explanation of why the
relevant evidence in the record supports its material findings of fact.”
Iowa Code § 17A.19(10)(f)(3). In our evaluation of the evidence, we focus
not on whether the evidence would support 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 2006).
III. Permanent Partial Disability Benefits.
Broadlawns contends the commissioner erred in finding that
Sanders sustained a permanent injury because no expert testified that
her injury was permanent and two experts testified that her condition
“should continue to improve.” Before we examine the evidence, it is
helpful to review the controlling legal principles.
Injured employees are entitled to compensation “for permanent
disabilities.” Iowa Code § 85.34. For unscheduled injuries resulting in a
permanent partial disability, such as the mental injury sustained by
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Sanders, compensation for the disability is based on the employee’s
reduction in earning capacity. Id. § 85.34(2)(u). Compensation for
permanent partial disability begins “at the termination of the healing
period.” Id. § 85.34(2). The healing period ends when (1) “the employee
has returned to work,” (2) “it is medically indicated that significant
improvement from the injury is not anticipated,” or (3) “the employee is
medically capable of returning to employment substantially similar to the
employment in which the employee was engaged at the time of injury.”
Id. § 85.34(1).
Even when healing period benefits have ceased, an assessment of
the permanency of the claimant’s disability cannot be made until the
claimant’s disability has stabilized, i.e., when “it is medically indicated
that significant improvement from the injury is not anticipated.” Id.; see
Bell Bros. Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193, 199–
200, 202 (Iowa 2010) (holding award of PPD benefits was premature
when claimant’s condition had not reached maximum medical
improvement). “[S]tabilization is the event that allows a physician to
make the determination that a particular medical condition [and hence,
the resulting functional impairment] is permanent.” Bell Bros. Heating &
Air Conditioning, 779 N.W.2d at 200; see also Pitzer v. Rowley Interstate,
507 N.W.2d 389, 391–92 (Iowa 1993) (interpreting section 85.34(1)
language, “significant improvement from the injury is not anticipated,” as
referring to stability of those aspects of the injury impacting the
claimant’s industrial disability). Any disability that remains after
stabilization of the condition will support an award of permanent partial
disability benefits to the extent the residual impairment decreases the
claimant’s earning capacity.
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As this review of the statutory scheme for PPD benefits and the
specific statutory language reveals, a claimant is entitled to PPD benefits
upon proof that “it is medically indicated that significant improvement
from the injury is not anticipated.” Iowa Code § 85.34(1) (emphasis
added). The commissioner relied on Dr. Gallagher’s multiple
assessments that Sanders had reached maximum medical improvement
to find that Sanders had suffered a permanent injury entitling her to PPD
benefits. The commissioner considered Dr. Gallagher’s April 2006
statement that he could not say Sanders’ condition was permanent,
explaining why he rejected this statement in determining whether
Sanders had sustained a permanent disability:
The fact Dr. Gallagher is reluctant to call her condition
permanent in his response to a letter from defendant’s
counsel reflects more his hope the condition will improve
than it does an opinion it is temporary only. It is clearly a
permanent condition in that it has not resolved over three
years later. She clearly has a mild psychological condition
that would limit her ability to compete with other workers for
similar jobs with other employers.
This interpretation of Dr. Gallagher’s statement regarding permanency––
as his hope for Sanders––is consistent with Dr. Gallagher’s conclusion
that there was nothing further he could offer Sanders in terms of
treatment.
It is the commissioner’s responsibility to weigh conflicting evidence
and accept that which he finds most credible. Dr. Gallagher stated on
multiple occasions that Sanders had reached maximum medical
improvement. In the April 2006 letter upon which Broadlawns places
great reliance, Dr. Gallagher stated that Sanders’ condition “should
resolve over time” and that he could not say her condition was
permanent. (Emphasis added.) Notably, he did not give a medical
opinion that her condition would improve or that her condition was not
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permanent. Moreover, the April 2006 letter did not necessarily
contradict Dr. Gallagher’s earlier opinions that Sanders had reached
maximum medical improvement, i.e., that he did not anticipate
“significant improvement from the injury.” Iowa Code § 85.34(1).
Given the nature of Dr. Gallagher’s April 2006 opinions, we cannot
say the commissioner was required to accept them as a credible basis
upon which to find Sanders’ condition was not permanent. See
Kohlhaas, 777 N.W.2d at 392 (holding “the commissioner finds the facts
as they stand at the time of the hearing and should not speculate about
the future course of the claimant’s condition”). Dr. Gallagher’s opinions
that Sanders had reached maximum medical improvement and had “at
best . . . a mild residual impairment” provide substantial evidence in
support of the commissioner’s finding of permanency. (Emphasis added.)
IV. Summary and Disposition.
We conclude the commissioner relied upon substantial evidence in
the record to find that Sanders had reached maximum medical
improvement resulting in a permanent disability entitling her to
permanent partial disability benefits under section 85.34. On this point,
therefore, we reverse the court of appeals and affirm the district court
and commissioner. The court of appeals’ disposition of the other issues
raised on appeal stand as the final decision on those matters.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
REVERSED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN
PART AND REVERSED IN PART.
All justices concur except Wiggins, J., who takes no part.