BROADLAWNS MEDICAL CENTER, Petitioner-Appellant/Cross-Appellee, vs. ROSE MARIE SANDERS, Respondent-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-296 / 08-1643
Filed June 17, 2009
BROADLAWNS MEDICAL CENTER,
Petitioner-Appellant/Cross-Appellee,
vs.
ROSE MARIE SANDERS,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Judge.
An employer appeals from the district court’s ruling on judicial review,
affirming the award of workers’ compensation benefits to its former employee.
REVERSED.
Michael L. Mock and D. Brian Scieszinski, Des Moines, for appellant.
Michael Hoffman of Hoffman Law Firm, P.C., Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel and Miller, JJ.
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VOGEL, J.
Broadlawns Medical Center (BMC) appeals from the district court’s ruling
on judicial review, affirming the award of workers’ compensation benefits to its
former employee, Rose Sanders. BMC argues that the commissioner erred in
(1) finding Sanders was entitled to additional temporary benefits, (2) finding
Sanders sustained a permanent mental injury, and (3) awarding penalty benefits,
and (4) Sanders cross-appeals that the district court erred in reducing her penalty
benefits. We reverse.
I.
Background Facts and Prior Proceedings.
Rose Marie Sanders was hired by BMC to work as a Certified Nurses’
Aide (CNA)/Certified Medication Aide (CMA) to care for mentally challenged
adults. She primarily worked as a CNA/CMA between two psychiatric houses,
the Arlington House (Arlington) and Oakland House (Oakland).
On July 18,
2003, while working at Arlington, she checked on a client and found that the
client had hung herself from a closet door. Sanders had to pull the door off of the
frame in order to get the client down. She then administered CPR, but to no
avail. After the body was removed, Sanders was responsible for cleaning the
client’s room, doing her laundry, and gathering her belongings for the family.
She returned to work the next day.
Sanders then began to experience
psychological problems: olfactory hallucinations and flashbacks caused by what
she described as the “death smell,” sleeplessness, and difficulty performing her
work duties.
Sanders was seen by Martin B. Mortens, D.O., on July 23, 2003, who
prescribed Xanax after diagnosing her with situational anxiety and Post
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Traumatic Stress Disorder (PTSD). Deems Ortega, Ph.D., met with Sanders on
several occasions in October and November 2003, and determined she suffered
from anxiety, nightmares, and hypervigilance. He excused her from work on
October 2 and 7, 2003. On November 7, 2003, Sanders asserted Dr. Ortega did
not understand her distress and discontinued her therapy with him. James L.
Gallagher, M.D., became Sanders’s new physician, and he determined she had
the same problems as diagnosed by Dr. Ortega. Dr. Gallagher excused her from
work on October 23 and 24, 2003.
He felt that with ongoing treatment, the
emotional impact “should lessen with the passage of time.” He continued to see
Sanders as needed, continuing with his prognosis that her condition would
improve. By March 26, 2004, Dr. Gallagher noted that Sanders had “stored up a
number of things” that were still troubling her, and he excused her from work for
that day. By May 7, 2004, Dr. Gallagher felt that Sanders was “on the mend,” but
by July 16, 2004, while she was very close to maximum medical improvement
(MMI), he noted that she still felt anxious about returning to work at Arlington.
On July 21, 2004, Dr. Gallagher restricted Sanders from returning to work
at Arlington, and based on this restriction, on September 13, 2004, Sanders
received a termination notice from BMC. However, to allow Sanders to keep her
job, Dr. Gallagher rescinded the restriction of working at Arlington, as he felt she
had made substantial progress. Sanders continued to work primarily at Oakland,
only working at Arlington on an emergency basis. On March 24, 2005, BMC
informed her that they would continue to primarily staff her at Oakland, but she
was expected to attend all mandatory meetings at Arlington. Dr. Gallagher met
with her again on October 7, 2005, and found that if she remained working at her
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present location, and occasionally went to Arlington on an emergency basis, he
felt she would do well, and no medication was required.
On October 24, 2005, on the recommendation of her attorney, Sanders
met with Kenneth R. Mills, Ph.D., who confirmed the diagnosis of PTSD, but
agreed that she would continue to improve. While he believed that she had not
reached MMI, he could not assign any level of permanent impairment, and
limited the amount of work she could perform at Arlington.
Dr. Gallagher
primarily agreed with Dr. Mills’s assessment that Sanders would probably
continue to improve, but found problematic that Sanders “had not been
particularly motivated for appropriate treatment,” so was likely at or close to MMI.
He stated that her impairment was mild, “as outside of Arlington House, she
seems to conduct herself quite well,” and if she were motivated to seek
appropriate treatment, she would have the possibility of other employment. Dr.
Gallagher was unable to state that Sanders’s condition was permanent in nature
but maintained she would likely continue to improve.
When Sanders began working primarily at Oakland, her overtime hours
dropped from an average of 17.17 to 4.68 hours per week, as Oakland did not
offer as many overtime opportunities. Sanders claimed that her inability to work
at Arlington reduced her earning capacity.
She filed a petition in arbitration
alleging she sustained a mental injury. BMC stipulated Sanders sustained an
injury arising out of and in the course of her employment, and also to being off
work for four days, with one day compensable as a temporary total disability. On
November 27, 2006, the deputy in his decision determined Sanders was entitled
to temporary total disability benefits (TTD) for all four days; temporary partial
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disability benefits (TPD) in the amount of $2983.91; permanent partial disability
benefits (PPD) for 150 weeks, beginning July 16, 2004; medical expenses; and
$5000 in penalty benefits. On February 19, 2008, the commissioner affirmed the
decision. On judicial review, the district court affirmed but reduced the penalty
benefits. BMC appeals asserting (1) the award of additional temporary benefits
was in error, (2) the finding of a permanent mental injury absent any supporting
medical opinion was in error, and (3) the award of any penalty benefits was in
error as the extent of her disability was “fairly debatable.” Sanders cross-appeals
the reduction of the penalty benefits.
II.
Scope and Standard of Review.
A district court reviews agency action pursuant to the Iowa Administrative
Procedure Act. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). When
we review a district court decision reviewing agency action, our task is to
determine if we would reach the same result as the district court in our
application of the Act.
City of Des Moines v. Employment Appeal Bd., 722
N.W.2d 183, 189-90 (Iowa 2006). Our review of the commissioner’s decision is
for errors at law, not de novo. Finch v. Schneider Specialized Carriers, Inc., 700
N.W.2d 328, 330 (Iowa 2005). The district court or an appellate court can only
grant relief from the commissioner’s decision based upon a determination of fact
by the commissioner that “is not supported by substantial evidence in the record
before the court when that record is viewed as a whole.” Id. However, our
review of the agency’s interpretation of statutory language depends on whether
such interpretation has “clearly been vested by a provision of law in the discretion
of the agency.” Iowa Code § 17A.19(10)(c) (2003). If such discretion has not
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been clearly vested in the agency, we must reverse the agency’s decision if it is
based on “an erroneous interpretation” of the law.
Id.
The burden of
demonstrating the required prejudice and the invalidity of agency action is on the
party asserting invalidity. Id. § 17A.19(8)(a).
III.
Temporary Benefits.
BMC claims the commissioner erred in finding that Sanders was entitled to
additional TPD benefits as she almost immediately returned to “substantially
similar” employment. Iowa Code section 85.33(2) defines TPD as:
[t]he condition of an employee for whom it is medically indicated
that the employee is not capable of returning to employment
substantially similar to the employment in which the employee was
engaged at the time of injury, but is able to perform other work
consistent with the employee’s disability.
“Temporary partial
benefits” means benefits payable, in lieu of temporary total
disability and healing period benefits, to an employee because of
the employee’s temporary partial reduction in earning ability as a
result of the employee’s temporary partial disability. Temporary
partial benefits shall not be considered benefits payable to an
employee, upon termination of temporary partial or temporary total
disability, the healing period, or permanent partial disability,
because the employee is not able to secure work paying weekly
earnings equal to the employee’s weekly earnings at the time of
injury.
BMC resists the award of additional TPD benefits, contending that
because Sanders’s work at Oakland was “substantially similar” to her work at
Arlington, she is not entitled to the benefits. It contends the commissioner’s
statutory interpretation of “substantially similar” employment is not correct.
The commissioner found that Iowa Code section 85.33(2) refers to a
change in employment, not just a change in duties. It found that the decrease in
overtime caused a change in Sanders’s employment, and awarded her TPD. At
the time of the injury, Sanders was working as a CNA/CMA on a full time basis at
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Arlington with overtime hours. Following the injury, Sanders was able to perform
her regular job duties as a CNA/CMA, just at a different location, Oakland. She
returned to work without any medical restrictions, with the exception of avoiding
the Arlington site. She testified that her work at Oakland was substantially similar
to her work at Arlington, that she was able to do all that the work entails, and that
she “loved” her work at Oakland. Her singular argument supporting the deputy’s
finding that she experienced “a change in her employment” was the reduction of
her income due to the lack of overtime opportunities available at Oakland. We
disagree that this reduction in overtime alone constituted a change in
employment under the statute.
Further, the final sentence in Iowa Code section 85.33(2) states that
“temporary partial benefits shall not be considered benefits payable to an
employee . . . because the employee is not able to secure work paying weekly
earnings equal to the employee’s weekly earnings at the time of injury.” There is
no evidence that Sanders was unable to secure equivalent work to what she was
doing prior to the injury. Sanders testified that she was capable of performing all
the duties of a CNA/CMA.
As discussed above, there is no evidence that
Sanders did not return to employment “substantially similar,” as the work she
performed immediately after the injury was identical to the work she performed
prior to the injury. Sanders’s only medically advised restriction was to not work at
Arlington. She still had the skills, ability, and capability of performing all of her
duties as a CNA/CMA at Oakland. There is also evidence in the record she had
the ability to attain a similar job with a different employer in which she could have
received overtime. In reviewing the agency’s decision, it appears the agency
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based its decision on “an erroneous interpretation” of the law; that is expanding
the interpretation of what is “substantially similar” employment.
Iowa Code
§ 17A.19(10)(c).
IV.
Permanent Injury.
BMC next claims the commissioner erred in finding Sanders sustained a
“permanent” mental injury as there was no medical opinion to support that
finding.
In the case of unscheduled injuries, permanent partial disability is
determined by the employee’s industrial disability. Hill v. Fleetguard, Inc., 705
N.W.2d 665, 673 (Iowa 2005).
Industrial disability is based upon a loss in
earning capacity, which rests on a comparison of what the injured worker could
earn before the injury as compared to what the same person could earn after the
injury.
Id.
Expert medical evidence is generally necessary to establish the
permanency of an injury. Haynes v. Second Injury Fund, 547 N.W.2d 11, 13-14
(Iowa Ct. App. 1996). It is, however, not always essential. In some cases,
permanency may be inferred from the nature of the injury. Id.
Sanders was awarded PPD benefits, to commence from the agency’s
determination she reached MMI on July 16, 2004. Sanders argues that she
suffered a permanent disability, and the permanent restriction from working at
Arlington limited her earning capacity. BMC, on the other hand, argues that all of
the medical evidence supports the fact that Sanders’s condition has and will
continue to improve, and there is nothing in the record to suggest and thereby
support her claim that her condition is permanent.
The word “permanent” can have different interpretations based on the
context of the injury.
Compare Wallace v. Bhd. of Locomotive Firemen &
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Enginemen, 230 Iowa 1127, 1130, 300 N.W. 322, 324 (1941) (interpreting
permanent to mean “for an indefinite and undeterminable period”), with Larson’s
Workers’ Compensation Law Kinds and Elements of Disability § 80.04, at 80-14
(2007) (“permanent means lasting the rest of claimant’s life. A condition that,
according to available medical opinion, will not improve during the claimant’s
lifetime is deemed a permanent one. If its duration is merely uncertain, it cannot
be found to be permanent.”) In some situations, permanency may be inferred
from the obvious physical nature of the injury, requiring no expert testimony for
proof. Roling v. Daily, 596 N.W.2d 72, 74-75 (Iowa 1999) (requiring no expert
testimony to establish physical injuries such as bruises on head and neck,
fractured ribs, a fractured thumb, and bruised legs from the knees to the ankles).
Other situations involve injuries, such as mental or emotional, where the
diagnosis is discernible only by a trained expert in that field. Id.
While there is no medical support in the record that Sanders’s injury was
permanent, in making a finding on Sanders’s condition, the deputy concluded:
The fact that Dr. Gallagher is reluctant to call her condition
permanent in 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.
(Emphasis added.)
This opinion was not based on expert testimony, or the
prognosis of any of Sanders’s doctors. It was solely the opinion of the deputy, as
adopted by the commissioner, and as BMC argues, indicates the deputy
substituted his own opinion for that of any expert of record. While Dr. Gallagher
and Dr. Mills found that Sanders did suffer from PTSD, none of their reports ever
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reached the conclusion that her condition was permanent. When specifically
asked, Dr. Gallagher, who had been Sanders’s primary treating physician since
shortly after the injury, stated that he could not find that Sanders’s condition was
permanent. Quite the contrary, as he consistently noted that she continued to
improve and her condition would resolve in time. Further, he did not require that
she permanently refrain from working at Arlington. He recommended that her
time there be limited, but she could return upon improvement. Dr. Mills’s report
also indicated that Sanders’s condition would further improve. While Dr. Mills did
opine that other similar work facilities could cause anxiety, he still did not go so
far as to state that Sanders had suffered a permanent injury; he only affirmed
that her work at Arlington should be limited.
In Haynes, expert testimony was required to establish a permanent
impairment rating.
Haynes, 547 N.W.2d at 14.
Haynes sought permanent
industrial disability based on two successive injuries; the second injury for which
compensation was sought was carpal tunnel. In order to receive compensation
from the Second Injury Fund, three elements were required to be met, one of
which was a showing of a permanent disability. Iowa Code § 85.64. Upon an
employee meeting the requirements, liability was then apportioned between the
employer and the Second Injury Fund for the difference between the
compensation for which the current employer was liable and the total amount of
industrial disability suffered by the employee, reduced by the compensable value
of the first injury.
Haynes, 547 N.W.2d at 13.
The court found that in the
absence of medical evidence, it was reluctant to embellish the medical evidence
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and designate a permanent impairment rating or find restrictions where none
were articulated by any physician. Id. at 14.
While expert testimony was required to find a permanent impairment for a
physical injury in Haynes, likewise we conclude that expert testimony is
necessary to prove the permanency of a mental injury as in this case. While in
some instances, permanency may be inferred from the nature of the injury, in the
case of mental injuries, that inference can only be made by an expert. Roling,
596 N.W.2d at 75. In this situation, we have no expert testimony stating that
Sanders’s injury was permanent, and without that, it was error for the agency to
substitute its judgment, making its own determination that Sanders suffered a
permanent injury. In order to authorize a permanent impairment rating for a
mental injury, expert testimony is required. Finding no such evidence in the
record to support the agency’s conclusion that Sander’s injury was permanent,
we reverse the award of permanent disability benefits.
V. Penalty Benefits.
BMC claims the commissioner erred in awarding penalty benefits to
Sanders. Sanders cross-appeals that the district court erred in twice reducing
the agency’s award of penalty benefits.
If a delay in commencement or
termination of benefits occurs without reasonable or probable cause or excuse,
the workers’ compensation commissioner shall award benefits in addition to
those benefits payable under chapter 86, or chapter 85, 85A, or 85B, up to fifty
percent of the amount of benefits that were unreasonably delayed or denied.
Iowa Code § 86.13. A reasonable cause or excuse exists if either (1) the delay
was necessary for the insurer to investigate the claim, or (2) the employer had a
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reasonable basis to contest the employee’s entitlement to benefits. Christensen
v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996).
A “reasonable
basis” for denial of the claim exists if the claim is “fairly debatable.” Id. Except as
to injuries resulting in permanent partial disability, compensation shall begin on
the fourth day of disability after the injury. Iowa Code § 85.32.
The agency found that Sanders had missed four days of work as a
consequence of her mental injury (October 2, 2003; October 7, 2003; October
24, 2003; and March 26, 2004). The district court found that BMC had only paid
Sanders for one of those missed days of work, so ordered BMC to pay Sanders
$1063.00 for the remaining three unpaid days, as well as a $500 penalty
pursuant to Iowa Code section 86.13. On a motion to reconsider, the district
court found its calculation was incorrect, and Sanders was only entitled to
$152.01, making the maximum penalty therefore only $76.00.
Sanders contends that she missed five days of work: October 2, 7, 23, 24,
2003; and March 26, 2004, for which she was entitled to benefits. Even if BMC
does not owe for the three-day waiting period under Iowa Code section 85.32,
she argues she is entitled to payment of the fourth day, which BMC had
stipulated to and paid as a TTD, as well as the fifth day of disability benefits.
Sanders asserts that the penalty benefits should not have been reduced by the
district court. BMC argues that the district court was correct in reducing the
penalty benefits, and argues that there is a “fairly debatable” issue whether any
penalty benefits were owed for the days off work.
The question we must examine is whether BMC had a reasonable basis to
find Sanders’s claim of temporary or permanent disability benefits “fairly
13
debatable.” Following the July 18, 2003 injury, Sanders was able to immediately
return to her work and perform her regular job duties as a CNA/CMA, without
medical restrictions, other than to avoid returning to the location of the suicide.
As discussed above, we found that she was able to return to “substantially
similar” employment. Because of her ability to resume her same duties and
perform her work as ably as prior to the injury, BMC appropriately questioned
Sanders’s entitlement to receive TPD benefits. We agree with BMC; the issue
was “fairly debatable.” Likewise, although the agency awarded a penalty for
BMC’s failure to pay any PPD benefits, we found the agency in error. Nothing in
the record supported her claim that her condition was permanent, and no doctor
was able to opine that Sanders had suffered a permanent injury.
BMC’s
obligation to pay PPD benefits was “fairly debatable” and no penalty should have
been assessed.
Finally, BMC asserts no penalty benefits should have been awarded for
additional days Sanders missed work.
Iowa Code section 85.32 provides
“[E]xcept as to injuries resulting in permanent partial disability, compensation
shall begin on the fourth day of disability after the injury.”
In reversing the
agency’s decision to award temporary or partial disability, the district court found
that as Sanders had missed four days of work and BMC had only paid for one
day, a penalty should be assessed for the remaining three days. However, this is
contrary to the plain statutory language. Id. We therefore reverse the award of
penalty benefits.
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VI. Conclusion.
We reverse the award of TPD benefits as that was based on the agency’s
erroneous interpretation of the law. Further, finding no evidence in the record to
support the agency’s conclusion that Sanders’s injury was permanent, we
reverse the award of PPD.
Therefore, in reversing the agency’s decision to
award temporary partial and partial permanent disability benefits, we reverse the
award of penalty benefits.
REVERSED.
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