Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.
The opinion of the court was delivered by: Vogel, J.
An employer appeals the district court's judicial review ruling affirming the award of the workers' compensation commissioner. AFFIRMED IN PART AND REVERSED IN PART.
Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.
Mercy Hospital Iowa City and Cambridge Integrated Services (Mercy Hospital) appeal the district court's ruling that affirmed the workers' compensation commissioner's decision finding Susan Goodner to be permanently and totally disabled as a result of a work injury. Mercy Hospital asserts the district court erred in finding (1) it was judicially estopped from contesting liability for the injury, (2) Goodner's medical evidence was reliable, (3) Goodner is permanently and totally disabled, and (4) it is responsible for the cost of Goodner's bariatric surgery and one-half of the cost of the family therapy sessions. Mercy Hospital also contests the district court's finding that it failed to preserve error on two issues. For the reasons stated herein, we affirm in part and reverse in part.
I. BACKGROUND FACTS AND PROCEEDINGS.
A. Medical Treatment. Goodner, a family practice physician, treated two patients with mononucleosis in January 2000. On January 18, 2000, one of the patients Goodner treated vomited on her hands during the examination. Goodner began experiencing a sore throat, sweats, chills, and enlarged lymph glands on February 4. She initially believed she had contracted strep throat, but when her symptoms did not subside after a course of antibiotics, she performed a mono spot test on herself on February 13, which came back positive. Goodner sought medical treatment on February 18, from Kara Wools-Kaloustian, M.D., an infectious disease specialist, who diagnosed Goodner with mononucleosis. Goodner also saw Cheryl K. Johnson, M.D., on February 24, who was able to palpate the edge of her spleen and liver, both of which were tender. The next day Goodner reported her illness to her employer. Goodner remained off work or worked reduced hours as a result of feeling extreme fatigue and continued to see Dr. Wools-Kaloustian.
Goodner was eventually referred to Dale Minner, M.D., by the workers' compensation carrier in July 2000, to determine if there was a work-related condition and whether a further referral for treatment was necessary. Dr. Minner stated in the appointment record, "Ordinarily I find it difficult to recommend acceptance of infectious disease. However, this individual was directly and extensively exposed and came down with the laboratory confirmed diagnosis of infectious mononucleosis at precisely the right incubation period thereafter." He recommended Goodner continue to receive care for the illness from an internist, who would now be Fred H. Ovrom, M.D.*fn1 Dr. Minner stated Goodner should continue to work at least two hours a day and gradually increase under Dr. Ovrom's guidance. He believed "the long-term prognosis is good for a complete recovery."
In November of 2000, Goodner was seen by Daniel H. Gervich, M.D., for a second opinion at the request of Goodner's private disability company. Dr. Gervich expressed doubt that Goodner ever contracted infectious mononucleosis, though he could not disprove it. He was concerned that the incubation period of the disease is typically four to six weeks, and Goodner's incubation period was much shorter. He also believed she did not meet the criteria for chronic fatigue syndrome, and her symptoms should remit in three to six months.
Dr. Minner referred Goodner to Robert B. Wesner, M.D., a psychiatrist, in December 2001, as Dr. Minner believed the symptoms were consistent with possible depression. Dr. Wesner diagnosed Goodner with depression, which he related to the chronic fatigue syndrome following her viral infection. In addition to providing her medication, Dr. Wesner also referred her to individual and family therapy, both of which he believed were reasonable and necessary treatment for her major depressive disorder and the chronic fatigue syndrome.
Goodner's symptoms of fatigue waxed and waned over the next few years with Goodner continuing to see Drs. Ovrom, Wesner, and Minner. Dr. Ovrom's initial diagnosis was post viral fatigue, but he revised his diagnosis in April of 2002 because he believed Goodner's condition met the criteria for chronic fatigue syndrome, and recommended consideration of permanent partial disability. Shortly before his retirement, Dr. Minner placed Goodner at maximum medical improvement and believed she was "medically stable" as of July 24, 2002. At that time Goodner was able to work twenty hours per week and was "overall at approximately 70% of full-time productivity." When Dr. Minner retired, Charles A. Buck, M.D., began monitoring the treatment for the workers' compensation carrier.
Goodner first saw Dr. Buck in October of 2002. Dr. Buck concurred with Dr. Minner's assessment of maximum medical improvement, stating, "Clearly her condition has and will continue to have mild episodic relapse, but the overall pattern has been quite stable now for some time." He anticipated her needing periodic care with both Dr. Wesner and Dr. Ovrom, and he authorized additional visits with both providers. In his deposition, Dr. Buck stated that while he had no reason to doubt Goodner's self-reported problems of fatigue and memory loss, he now believed there was a "significant possibility" that Goodner had not contracted mononucleosis.
Goodner was referred to Jeffery L. Meier, M.D., an infectious disease specialist, in November 2002 for a second opinion. Dr. Meier diagnosed Goodner with chronic fatigue syndrome triggered by infectious mononucleosis. He did not feel she had reached maximum medical improvement as her condition remained "in a state of flux." He did recommend she continue to limit her work hours to twenty hours per week and refrain from taking night calls or practicing obstetrics. During his deposition as part of the workers' compensation claim, Dr. Meier opined that a "seventeen day period of incubation after exposure to a heavy inoculum of infectious virus is certainly within the realm of possibility." He also asserted that while it is atypical, it is scientifically feasible to contract mononucleosis through the aerosolization of saliva that then contacts the mucous membranes of another. He opined mononucleosis is one of a multitude of triggers for chronic fatigue syndrome.
Goodner underwent a series of studies including a sleep study, hormonal study, and immune disorder study at the prompting of the board of medical examiners. These studies came back normal, ruling out other conditions causing the fatigue. Goodner, who was five foot, five inches, and weighed 199 pounds at the time of the injury, gained approximately thirty-three pounds during the course of her illness. Goodner attributed this weight gain to her fatigue as she was unable to exercise regularly or plan healthy meals. She also developed type 2 diabetes, high cholesterol, and hypertension. She sought assistance from a weight loss clinic. When Goodner's attempts to lose weight were unsuccessful, she underwent bariatric surgery in May of 2007. At the time of the workers' compensation hearing, Goodner stated she had lost 70 pounds.
Goodner was referred to Alan G. Pocinki, M.D., an expert on chronic fatigue syndrome in October 2008. It was Dr. Pocinki's opinion that Goodner met all the criteria for chronic fatigue syndrome, and he believed the condition was triggered by the mononucleosis infection. He determined she was not yet at maximum medical improvement and anticipated it would be another two to three years before she would achieve this state.
Goodner was seen by Winthrop S. Risk, M.D., for an independent medical exam at the request of her attorney in February 2009. Dr. Risk opined Goodner developed post viral fatigue syndrome as a result of her exposure to mononucleosis. Although her obesity predated her symptoms, her subsequent fatigue lead to inactivity and poor diet. This condition resulted in her gaining the additional weight and developing diabetes, hypertension, and high cholesterol. He also believed the fatigue led to depression. He did not believe she was at maximum medical improvement at that time.
Mercy Hospital sought an opinion from an infectious disease specialist, David Katz, M.D., as part of the workers' compensation claim. Dr. Katz did a records review only and did not examine Goodner. He opined that while Goodner may have a fatigue syndrome, the fatigue did not develop from mononucleosis, and he did not believe Goodner contracted mononucleosis at all.
He stated the likelihood of contracting mononucleosis in the way Goodner described was essentially zero. He also asserted the incubation period reported in Goodner's case, seventeen days, was out of the question for this virus, which has a typical incubation period of forty to sixty days. He also stated Goodner's clinical symptoms did not fit with infectious mononucleosis, which in older patients is typically characterized by a prolonged fever and liver involvement. Finally, it was Dr. Katz's opinion that there was no specific concrete connection as to the cause of chronic fatigue syndrome; therefore, he doubted the causal link between mononucleosis and chronic fatigue syndrome.
Mercy Hospital also had F. Brobson Lutz, M.D., an infectious disease specialist, conduct a records review in this case. Like Dr. Katz, Dr. Lutz opined, in his March 2, 2009 report, there is no medical literature support for the way Goodner claims the mononucleosis virus was transmitted to her. He also found the incubation period in this case was too short for mononucleosis, which typically has an incubation period of one to three months. He found no peer-reviewed articles to support either a seventeen-day incubation period or to support the transmission of mononucleosis from a patient to a healthcare provider in a clinical setting as Goodner had described.
He asserted Goodner's case likely was the result of "VIP syndrome" where a physician treats a patient differently when the patient is an important person such as a doctor. Dr. Lutz believed this was why no initial treating doctor tested for mononucleosis, but just accepted Goodner's description and self-diagnosis. He states that her treating providers assumed causation in this case rather than establishing it based on her history. He also opined that there was no data to support a viral cause of chronic fatigue syndrome as the cause of chronic fatigue is unknown. Finally, he was concerned with the level of medications Goodner was taking, because many of the medications could be the cause of her fatigue and have a sedating effect.
Finally, Mercy Hospital had William Stutts, D.O., conduct a psychiatric evaluation of Goodner in January 2009. After conducting a review of the medical records and a patient examination, Dr. Stutts recommended that Goodner discontinue many of the medications she was on because he believed the medications were contributing to her chronic fatigue syndrome in a significant fashion and likely perpetuating her problems. Dr. Stutts was particularly concerned with the high dosage of the medications Goodner was taking and considered the dosage to be excessive. Consistent with Dr. Lutz's observations, he concluded many of the symptoms Goodner complained of could be explained by the drugs she was taking, which could delay REM sleep, cause memory impairment, have a sedating effect, and result in slow cognition. Dr. Stutts believed the psychotropic medication had so muddied the water that he could not tell if Goodner had chronic fatigue or if the symptoms were caused by the medication.
Goodner described her current symptoms during her deposition to include: profound fatigue, frequent migraines, muscle and joint pain, post-exertional malaise, reduced concentration and cognitive functioning, trouble analyzing and processing information, trouble finding words, and autonomic dysfunction leading to episodes of fainting.
B. Employment. When she became ill, Goodner was working full time as a family practitioner in a clinic that had been acquired by Mercy Hospital. After being off work for approximately six weeks from the illness in 2000, Goodner returned to work on a modified schedule working initially two to three hours per day and worked her way up to six hours per day, four days per week. The clinic was notified in 2003 by Mercy Hospital that it would be closing. From the fall of 2003 until February 2005, Goodner worked for the University of Iowa Student Health Services; however, she testified she was unable to continue in the job because she became too fatigued. She was then recruited to start a women's clinic for the Veterans Administration. She was advised the job would be strictly limited to four hours per day, but the hours turned out to be much more. She testified she decided to leave the Veterans Administration in September 2005 to start a house-call business to serve the Amish community because she was having difficulty gathering and processing information from patients. She believed the new arrangement would allow her to more easily regulate the number of hours she worked. However, that winter there was a large whooping cough outbreak in the Amish community, which again resulted in Goodner becoming overly fatigued. She notified her patients in September of 2006 that she would no longer be practicing.
She took a full year off of work from the fall of 2006 until the fall of 2007 on the advice of her treating physicians who wanted her to focus on physical exercise, cognitive therapy, and psychological counseling for herself and her family. Dr. Buck, Mercy Hospital's authorized physician, disagreed with this treatment plan as he believed a full year off work was counterproductive to a full recovery. Goodner reported that the year off work helped her improve more than she had over the previous seven years. She increased her aerobic tolerance, was lifting weights, and underwent bariatric surgery.
In 2007, Goodner began planning to revive her house-call business for the Amish community when she was offered a position in a clinic in Kalona, Iowa, where she could keep the house-call business and be employed by the clinic. She saw her first patient through this clinic arrangement in December of 2007 but resigned her position in January of 2008 due to fatigue. She was advised by the medical board to stop seeing patients, and her medical license was placed on inactive status by mutual agreement in January of 2008. For Goodner to once again practice medicine, her treating physicians would need to recommend to the board of medicine that her license be reactivated, she would need to present a plan for how she would see patients without becoming fatigued, and the board would need to approve her plan.
C. Workers' Compensation Claim. Goodner first notified her employer of her mononucleosis and the alleged mechanism of contracting the illness on February 25, 2000, approximately three weeks after she became ill. She explained that she was not aware until then that contracting an illness in the course of her employment qualified for workers' compensation benefits. At that time, she had been off work since February 7.
It appears from our record on appeal that the workers' compensation claim was accepted, and treatment and benefits were provided with no agency intervention until September of 2006. At that time Goodner filed a petition for alternate medical care asking the workers' compensation commissioner to order Mercy Hospital to pay for physical therapy for strengthening and conditioning, and massage therapy for muscle aches. During the telephone hearing with the deputy commissioner, counsel for Mercy Hospital admitted liability for Goodner's February 2000 injury. Counsel also admitted that Goodner had a case of chronic fatigue syndrome "that has been accepted as a work injury." During the hearing, Mercy Hospital agreed to provide the physical therapy requested, but asserted the massage therapy prescribed by Dr. Ovrom was "not causally related to the work injury." The deputy commissioner authorized the care requested.
Goodner filed an arbitration petition with the agency on May 18, 2007, alleging she was permanently and totally disabled as a result of her work injury, which developed on February 4, 2000. In Mercy Hospital's answer to the petition, it admitted that it had accepted liability for a work-related infection with an injury date of February 7, 2000. Mercy Hospital denied any other date of injury and stated the extent of the injury from the infection was in dispute. On February 18, 2009, after consulting with Drs. Katz and Lutz, Mercy Hospital amended its answer to generally deny the injury.
The case proceeded to a full hearing on April 30, 2009. The deputy commissioner issued his decision on December 30, 2009, finding Mercy Hospital judicially estopped from contesting liability for the injury due to the position Mercy Hospital took at the alternate care proceeding. Despite this initial finding, the deputy went on to conclude Goodner sustained an injury in the course and scope of her employment and that the chronic fatigue syndrome was causally related to that injury. The deputy commissioner found Mercy Hospital responsible for one-half of the cost of the family counseling ordered by her treating physicians. He also ordered Mercy Hospital pay the full cost of the bariatric surgery after concluding, "there is no evidence in the record that claimant ever had any weight problem before her exposure to [the virus]." The deputy finally concluded that the injury caused Goodner to be permanently and totally disabled as an odd-lot employee because her injury made her unable to perform work "that her experience, training, education, intelligence, and physical capabilities would otherwise permit her [to] perform."
On January 14, 2010, Mercy Hospital appealed the decision to the commissioner who, on March 21, 2011, summarily affirmed the decision except for correcting the weekly compensation rate to the maximum rate per Iowa Code section 85.37 (2007). Mercy then sought judicial review on April 7. After a hearing, the district court affirmed the agency's decision on December 22, 2011, finding Mercy Hospital did not preserve error on its claim nor did it prove the agency acted irrationally, illogically, or without justification in finding Mercy Hospital should be judicially estopped from contesting liability for the injury after having admitted liability in the alternate care petition. The district court also found substantial evidence supported the agency's decision that: (1) Goodner's mononucleosis arose out of and in the course of her work, (2) ...