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Presbyterian Homes & Services, Inc. v. Buchanan

Court of Appeals of Iowa

January 9, 2020

PRESBYTERIAN HOMES & SERVICES, INC., d/b/a MILL POND and ZURICH AMERICAN INSURANCE COMPANY, Plaintiffs-Appellants,
v.
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.

          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. [*]

          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 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 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 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, 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 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 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 ...


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