PRESBYTERIAN HOMES & SERVICES, INC., d/b/a MILL POND and ZURICH AMERICAN INSURANCE COMPANY, Plaintiffs-Appellants,
MARY BUCHANAN, Defendant-Appellee.
from the Iowa District Court for Polk County, Sarah Crane,
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.
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,
POTTERFIELD, SENIOR JUDGE.
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.
Prior Work and Medical History
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 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.
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.
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
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 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.
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.
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 directed
her to wear more supportive shoes, ice her feet three times a
day, do foot exercises, and take over-the-counter painkillers
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.
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.
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, 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.
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.
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.
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 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.
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.
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.
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 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.
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.
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 ...