                       IN THE COURT OF APPEALS OF IOWA

                                      No. 14-0202
                               Filed November 26, 2014


CATHOLIC HEALTH INITIATIVES
d/b/a MERCY MEDICAL CENTER,
      Petitioner-Appellant,

vs.

WENDY HUNTER,
     Respondent-Appellee.
________________________________________________________________


          Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



          An employer appeals from the judicial review ruling affirming the workers’

compensation commissioner’s award of benefits to an employee. AFFIRMED.




          David Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des

Moines, for appellant.

          Jason W. Miller and Michael J. Miller of Patterson Law Firm, L.L.P., Des

Moines, for appellee.



          Heard by Potterfield, P.J., Sackett, S.J.,* and Eisenhauer, S.J.*

          *Senior judges assigned by order pursuant to Iowa Code section 602.9206
(2013).
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EISENHAUER, S.J.

       An employer appeals from the district court’s ruling on judicial review,

which affirmed the workers’ compensation commissioner’s award of temporary

disability benefits and medical care to its employee. The employer challenges

the benefits award in four respects. First, it claims the employee is not entitled to

temporary disability benefits or healing period benefits because she is capable of

performing substantially similar employment. Second, it contends the employee

failed to prove a causal connection between her work injury and disability. Third,

it contends the employee did not sustain a work-related neck injury. Finally, the

employer contends the employee is not entitled to payment of medical expenses

for her unauthorized medical care. We affirm in all respects.

       I. Background Facts and Proceedings. Wendy Hunter has systemic

lupus erythematosus, a condition she controls with prescription medication. Her

symptoms are joint pain, aches and pains throughout her body, stiffness, diffuse

discomfort, fatigue, and difficulty sleeping. She began receiving Social Security

disability benefits in 2001.

       When Hunter’s Social Security benefits were terminated in 2003 or 2004,

she returned to school to become certified as a pharmacy technician.            She

completed the pharmacy technician program at Mercy College and became

certified in May 2006. After graduating, she was hired as a Pharmacy Technician

II at Mercy Medical Center (Mercy).          The job description for a Pharmacy

Technician II lists the following physical requirements: “Exerting up to 50 pounds

of force occasionally and/or up to 20 pounds of force frequently, and/or up to 10

pounds of force constantly to move objects.”
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          On May 25, 2009, Hunter slipped and fell while exiting the back door of

the pharmacy, landing on her left side. She reported the incident to Mercy the

following day, stating she landed on her “left wrist, hip, and knee.” She also

listed “constant headaches” and “wrist, hip + joint pain” as the nature of her

injury.

          On May 27, 2009, Hunter was treated for her injuries by Dr. Vandivier,

whose notes of the visit state Hunter “[s]ays that today the hip is greatly improved

but she still has quite a bit of tenderness within her elbow and her upper arm.”

Dr. Vandivier returned Hunter to work without restrictions.              In a follow-up

appointment on June 17, 2009, Hunter reported that she felt good in the morning,

but that her pain would progressively worsen throughout the day. By the end of

the shift, Hunter stated she was “quite sore” and required pain medication to

sleep or she would awaken when she rolled onto her left hip. Dr. Vandivier

referred her for physical therapy.

          Sometime after her slip and fall at work, Hunter fell while vacuuming the

stairs in her home.1 She “landed on [her] bottom,” but claims she had no pain or


1
  There is a discrepancy as to when the fall took place. On August 14, 2009, Hunter was
seen at Highland Park Family Physicians. The reason for her visit is listed in the medical
notes as follows: “Wendy is here due to falling down stairs with a vacuum cleaner
approx. 2 months ago. She continues to have joint pain and back pain since that time.”
Hunter’s arbitration hearing testimony on the matter does not clarify the matter. She
testified as follows:
                 Q. Your fall on the stairs with the vacuum, that was in August of
         2009? A. I’m not sure.
                 Q. Assuming that was in August of 2009, would you have seen Dr.
         Mahoney before you fell on these stairs? A. After my fall I would have
         seen Dr. Mahoney, yes.
                 Q. How about after your fall on the stairs? A. No.
                 Q. You would’ve seen your—Dr. Mahoney before your fall on the
         stairs—well before you fell down the steps at home with the vacuum? A.
         Yes.
                                        4


other symptoms following, though she reported the fall to healthcare providers as

a possible cause for her lower back pain.      At her deposition, Hunter initially

denied her fall on the stairs, but later admitted she had fallen when her hip gave

out. She claims her hip began giving out after her May 25, 2009 fall at work.

      On August 14, 2009, Hunter sought medical treatment for joint and back

pain and was referred to Dr. Mahoney, who she saw on August 28, 2009.

Dr. Mahoney’s notes list Hunter’s symptoms as bilateral hip pain that was greater

on the left side and lower back pain. She reported that standing for long period

of times increased her pain. Dr. Mahoney’s notes from that visit state Hunter

“has a history of some pain in the hips and also Lupus,” but do not cite a more

specific history or any traumatic events. He assessed Hunter as having greater

trochanteric bursitis and recommended physical therapy and Celebrex.

      Hunter received therapy through Accelerated Rehabilitation Centers with

Dr. Mahoney’s referral. The records from her October 6, 2009 visit list both her

May 25, 2009 work injury and the fall while vacuuming the stairs. The onset of

low-back pain was reported as occurring in May of 2009. Hunter was initially

inconsistent in attending her physical therapy sessions, claiming the exercises

increased her pain. She reported this complaint to Dr. Mahoney on January 7,

2010, and he recommended she undergo phonophoresis, manual massage, and

strengthening exercises during physical therapy.        After doing so for the

remainder of the month, Hunter experienced dramatic improvement.




Because Hunter was not referred to Dr. Mahoney until her August 14, 2009 visit to
Highland Park Family Physicians, where she reported the fall on her stairs, her
testimony at the hearing was incorrect.
                                        5


        The symptoms caused by Hunter’s May 25, 2009 work injury had largely

resolved when on March 3, 2010, Hunter again slipped and fell at work. She

slipped on ice and fell on a sidewalk outside the building, again landing on her

left side. Hunter reported the incident to her employer and filled out an employee

incident report the same day, which states she experienced “hip, left elbow +

middle back pain.” On the figure provided on the form, she marked the site of

her injury as her left elbow, left hip, and from the side of her neck down to her

mid back.

        As a result of her fall, Hunter sought treatment at Mercy’s emergency

department, describing pain in her left arm, left hip, and the middle of her back.

Upon arrival, Hunter’s fingers were purple and the pinky fingers of each hand

were blanched white. She was prescribed Vicodin for pain.

        Hunter did not work on March 4, 2010. She returned to work on March 8,

2010.    A return-to-work-activity status report states that until March 9, 2010,

Hunter was restricted from lifting, pushing, and pulling more than ten pounds,

and was to sit half an hour after standing two hours. Hunter reported her job

duties that night caused her pain, she needed to sit more frequently, and her hip

gave out when lifting thirty-five or more pounds. Her restrictions were altered on

March 10, 2010, to allow her to sit for fifteen minutes every two hours. On

March 22, 2010, Hunter’s restrictions were again altered to add a restriction on

repetitive pushing, pulling, twisting, stooping, bending, climbing, kneeling,

squatting, or lifting. She was also restricted from working more than eight hours

per day.
                                          6


       On March 23, 2010, Hunter met with her employer and was informed that

while a full-time, light-duty work schedule (five shifts of eight hours in length) was

available, it was only available during the day.        Hunter’s family obligations

required her to work the night shift—ten-hour shifts, four nights per week.

Because Hunter’s work restrictions prevented her from working the night shift

and she refused the offer of a light-duty shift during the day, her employer placed

her on Family Medical Leave Act leave.

       Unsatisfied with the care provided by her employee-referred doctor and

the restrictions placed upon her, Hunter saw Dr. Mahoney on March 25, 2010.

He assessed she was having a “[l]likely flare of greater trochanteric bursitis with

a slip at work,” prescribed three physical therapy sessions per week, and

released her to full-duty work without restrictions on March 29, 2010.

       Hunter returned to work full-time, although her physical condition made it

difficult to perform some of her job duties, such as standing or lifting heavy

boxes. She received a cortisone injection in her left hip from Dr. Mahoney on

August 19, 2010, which provided her with approximately eight months of relief

from her symptoms. However, her symptoms gradually returned in the same

pattern as before.

       Hunter took FMLA leave in September and October due to her father’s

cataract surgery. She returned to work on October 18, 2010. On December 3,

2010, Hunter was terminated for exceeding the amount of annual FMLA leave.

At the time, she was earning $18.05 per hour. She received unemployment

benefits following her termination and has been unable to find employment.
                                          7


       In May of 2011, Dr. Mahoney expressed his opinion that Hunter suffered

from bursitis, which was traceable to her falls at work on May 25, 2009, and

March 3, 2010. He also opined these work-related injuries materially aggravated

her pre-existing condition of lupus. Dr. Mahoney was of the opinion Hunter had

not yet reached maximum medical improvement. As a result, he was not in a

position to place any permanent restrictions on her activity at that time.

       Dr. Epp performed an independent medical examination of Hunter. In her

October 18, 2011 report, Dr. Epp diagnosed Hunter with left hip trochanteric

bursitis and cervical pain with radicular symptoms as a result of her May 25,

2009 and March 3, 2010 falls. With regard to her left hip, Dr. Epp opined Hunter

achieved maximum medical improvement on August 18, 2011. She believed

Hunter had not yet reached maximum medical improvement for her neck injury

and recommended a course of treatment be followed to achieve maximum

medical improvement; however, if those recommendations were not followed,

Dr. Epp opined Hunter could be found to have reached maximum medical

improvement on March 3, 2011, one year after the date of injury.             Dr. Epp

assessed Hunter with a fifteen-percent impairment to the whole person as a

result of her neck injury and a three-percent impairment to the whole person as a

result of the left hip injury for a total impairment rating of eighteen-percent to the

whole person. Dr. Epp recommended restrictions on lifting, pushing, pulling, and

carrying ten pounds on a rare basis from floor to waist, twenty pounds on an

occasional basis from waist to shoulder, and ten pounds on a rare basis over the

shoulder. She recommended Hunter sit “occasionally,” and rarely stand, walk,

stoop, or bend.     Dr. Epp further recommended against crawling, kneeling,
                                              8


walking on uneven surfaces, or using ladders, and recommended Hunter rarely

use stairs.

       Dr. Mahoney treated Hunter again on February 23, 2012, for increased

pain in her left hip. Dr. Mahoney opined Hunter had still not reached maximum

medical improvement for her left hip, which he opined was causally related to her

March 3, 2010 fall. He was again unable to determine if Hunter required any

physical restrictions as a result of her left hip bursitis.

       Hunter    filed   contested     case       petitions   with   the   Iowa   Workers’

Compensation Commissioner for her May 25, 2009 and March 3, 2010 injuries.

Following a hearing, an arbitration decision was entered on October 24, 2012,

concluding Mercy owed medical expenses and costs incurred for both injuries.

The decision awarded Hunter temporary disability benefits on March 4, 2010,

and from March 11 through March 28, 2010. It further awarded Hunter healing

period benefits from December 3, 2010, continuing as long as Hunter remains

temporarily disabled.

       Mercy’s application for rehearing was denied. On August 13, 2013, the

workers’ compensation commissioner affirmed the arbitration decision and

adopted it as the final agency decision. Mercy then filed a petition for judicial

review, and the district court affirmed the agency decision on January 14, 2014.

Mercy appeals.

       II. Scope of Review. Iowa Code chapter 17A (2013) governs our review

of the agency’s action. See Mike Brooks, Inc. v. House, 843 N.W.2d 885, 888

(Iowa 2014). The district court acts in an appellate capacity to correct errors of

law in the commissioner’s decision. Id. We then apply the standards of chapter
                                           9


17A to determine if our conclusions are the same as those reached by the district

court. Id. at 889. If they are, we affirm; if not, we reverse. Id.

       The legislature vests the commissioner with the discretion in making

factual determinations. Id. We are bound by those determinations if there is

“substantial evidence in the record before the court when that record is viewed as

a whole.” Substantial evidence is “the quantity and quality of evidence that would

be deemed sufficient by a neutral, detached, and reasonable person, to establish

the fact at issue when the consequences resulting from the establishment of that

fact are understood to be serious and of great importance.”           Iowa Code

§ 17A.19(10)(f)(1).    Evidence is not insubstantial merely because different

conclusions may be drawn from it. Mike Brooks, 843 N.W.2d at 889. We do not

determine whether the evidence supports different findings, but rather whether it

supports the findings actually made. Id.

       III. Temporary Disability and Healing Period Benefits.         Mercy first

contends the workers’ compensation commissioner erred in awarding Hunter

temporary disability benefits or healing period benefits because it claims she is

capable of performing substantially similar employment.

       An employer is required to pay an employee temporary disability benefits

“until the employee has returned to work or is medically capable of returning to

employment substantially similar to the employment in which the employee was

engaged at the time of the injury, whichever occurs first.” Iowa Code § 85.33(1).

Similarly, healing period benefits are to be paid for any injury causing permanent

partial disability
                                        10


       until the employee has returned to work or it is medically indicated
       that significant improvement from the injury is not anticipated or
       until 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, whichever occurs first.

Id. § 85.34(1).

       Because Hunter had not returned to work or reached maximum medical

improvement at the time of the hearing, the question is whether she is medically

capable of returning to substantially-similar employment. Mercy argues Hunter is

capable of returning to substantially similar employment because she had

returned to her job as a pharmacist technician and was performing her regular

job duties up until the time she was terminated for excessive absenteeism. It

also notes Dr. Mahoney released Hunter to return to work without restrictions.

       Although there were no formal restrictions on Hunter’s work from

March 29, 2010, to her termination in December 2010, the agency found

modifications were made to allow Hunter to complete her work.

              At the time of her termination, claimant remained under
       active medical care. She credibly testified that although she was
       completing her full duty work without formal restrictions, she did so
       with modifications. Modifications included intermittent sitting and
       assistance from co-workers with heavy lifting. Such modifications
       are consistent with the work restrictions previously imposed by
       multiple providers. The restrictions were not accommodated by
       defendant-employer, leaving claimant with the option of remaining
       off work without compensation or procuring a full duty work release.
       These limitations are also consistent with claimant’s post-
       termination job search and subsequent imposition of restrictions by
       Drs. Mahoney and Epp.

The district court concluded this finding amounted to informal restrictions on

Hunter’s work after March 29, 2010, and therefore, “Hunter was not able to return

to work or perform substantially similar employment.”
                                        11


      We reach the same conclusion as the district court. Hunter’s symptoms

worsened after she performed her job duties, specifically standing and lifting,

without the informal accommodations.      Those accommodations are similar in

nature to the work restrictions in place before March 29, 2010, and those

imposed by Dr. Epp in 2011. Because the agency’s finding is supported by

substantial evidence, we affirm on this issue.

      IV. Hip Condition.      Mercy next contends the commissioner erred in

finding Hunter’s hip condition is causally connected to her work injuries.     It

argues Hunter’s testimony was not credible, pointing to discrepancies between

her deposition testimony and medical records. It argues the evidence supports a

finding Hunter’s condition was caused by the fall at home, rather than by either

workplace injury.

      As the trier of fact, the commissioner has a duty to determine witness

credibility. Arndt v. City of Le Claire, 728 N.W.2d 389, 395 (Iowa 2007). “[W]e

give due regard to the commissioner’s discretion to accept or reject testimony

based on his assessment of witness credibility.” Schutjer v. Algona Manor Care

Ctr., 780 N.W.2d 549, 558 (Iowa 2010). It is not for this court to determine the

relative strength of the evidence before it; rather, it is our job to determine

“whether substantial evidence supports a finding ‘according to those witnesses

whom the [commissioner] believed.’” Arndt, 728 N.W.2d at 394.

      Although the agency recognized there was “some variation” between

Hunter’s testimony and medical records, it determined it was “not outside the

range of what is to be expected for a claim involving two stipulated work-related

falls for which claimant received care with the same physicians and the existence
                                        12


of a preexisting lupus condition which admittedly caused symptoms prior to the

work-related injuries.”   We agree.     Hunter’s deposition testimony is more

indicative of someone confusing a timeline of events or forgetting specific details

in a lengthy medical history rather than a purposeful attempt to mislead or

conceal.

       Most important are the agency’s findings relating to personal observations

at the arbitration hearing, wherein the deputy commissioner noted: “Claimant’s

demeanor, body position, and posture were good, with excellent eye contact.

The undersigned observed the claimant display pain behaviors. Near the end of

cross-examination, claimant sat with her right hand placed upon the right side of

her neck. Claimant’s presentation was indicative of a truthful witness.” We defer

to these findings for good reason, as Justice Harris noted:

       These determinations are more apt to be just when the objective
       facts are squared with the judge’s subjective impressions, gained
       from close personal observations. One who personally observes
       holds a clear advantage over us who learn the case from a cold
       record. The first-hand observer can translate that advantage into a
       more just disposition. It is not in the public interest for appellate
       courts to strain to seek out fine-tune adjustments in these matters.

See In re Marriage of Wegner, 434 N.W.2d 397, 400 (Iowa 1988) (Harris, J.,

dissenting).

       Accepting the finding regarding Hunter’s credibility, we are then left to

determine whether substantial evidence supports the agency’s finding on

causation. “Medical causation is a question of fact vested in the commissioner’s

discretion.” Mike Brooks, 843 N.W.2d at 889. It is “within the domain of expert

testimony.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa

2011). The weight given to an expert’s testimony depends on the accuracy of
                                         13


the facts the expert relied upon and other surrounding circumstances; if it is

based on an incomplete history, the opinion is not binding upon the

commissioner. Id. Ultimately, the decision to accept or reject an expert’s opinion

is within the “peculiar province” of the commissioner. Id.

        We conclude substantial evidence supports the agency’s finding Hunter’s

hip condition was caused by her 2009 and 2010 workplace injuries.               Both

Drs. Mahoney and Epp gave opinions within a reasonable degree of medical

certainty to support this finding. No expert witness evidence was offered to rebut

their opinions. Hunter disclosed the fall in her home to her medical providers as

a possible cause of her condition, but maintains she never had any pain as a

result of that fall. She testified the fall occurred when her “hip gave out” while

carrying her vacuum downstairs.      She further testified at the hearing her hip

started giving out only after her fall on May 25, 2009.

        Because we agree with the district court’s determination substantial

evidence supports the agency’s finding on causation, we affirm on this issue.

        V. Neck Injury.   Mercy also contends there is insufficient evidence to

support the conclusion she sustained a work-related injury to her neck on

March 3, 2010. It argues Hunter never indicated she had neck pain following her

fall.

        Substantial evidence supports the finding Hunter suffered a work-related

injury to her neck on March 3, 2010. On that day, Hunter filled out an employee

incident form in which she indicated an injury from the right side of her neck

radiating downward into the middle of her back. Dr. Epp determined the fall

caused an injury to Hunter’s neck and assessed her with a fifteen-percent
                                       14


impairment to the whole body as a result. While Dr. Epp is the only expert to

attribute a neck injury to Hunter’s fall at work, the opinion is unrebutted in the

record. Having reached the same conclusion as the district court, we affirm on

this issue.

       VI. Unauthorized Medical Care.             Finally, Mercy contends the

commissioner erred in awarding medical expenses Hunter incurred in seeking

treatment from Dr. Mahoney. It argues the commissioner erred in determining

Hunter was entitled to such an award “solely because the care improved Hunter’s

condition.”

       When an employer acknowledges an employee sustained an injury

compensable under the workers’ compensation statute, the employer is to furnish

reasonable medical care and supplies. Bell Bros. Heating & Air Conditioning v.

Gwinn, 779 N.W.2d 193, 202 (Iowa 2010).            However, the legislature has

bestowed the right to choose medical care to the employer, subject to certain

employee protections. Id. at 203. If an employee obtains unauthorized medical

care, an employer may be required to reimburse the cost of that care if the

employee proves “the unauthorized care was reasonable and beneficial under all

the surrounding circumstances, including the reasonableness of the employer-

provided care, and the reasonableness of the decision to abandon the care

furnished by the employer in the absence of an order from the commissioner

authorizing alternative care.” Id. at 208. When considering what is reasonable

under this analysis, we must consider the quality of the alternative care and the

quality of the employer-provided care.      Id.   “[T]he question of whether the

unauthorized care was beneficial focuses on whether the care provided a more
                                         15


favorable medical outcome than would likely have been achieved by the care

authorized by the employer.” Id.

       In determining Hunter was entitled to compensation for unauthorized

medical care, the agency notes the parties stipulated Hunter sustained a work-

related injury. It goes on to find the unauthorized care “was entirely reasonable”

given Dr. Mahoney’s familiarity with Hunter’s prior left hip injury, his familiarity

with the treatment of that injury, and the “beneficial physician-patient relationship”

he had established with Hunter. It found Mercy’s choice to retain Dr. Mahoney’s

opinion regarding Hunter’s disability further buttressed the determination the care

he provided was reasonable, and noted Dr. Mahoney’s care proved beneficial “as

claimant was able to return to work, whereas under defendant-authorized care,

claimant’s restrictions prevented claimant from engaging in her pharmacy

technician duties.”

       The district court questioned the agency’s determination Dr. Mahoney’s

care was beneficial because it allowed Hunter return to work without restrictions,

noting “beneficial refers to medically beneficial.”     However, the district court

agreed Dr. Mahoney’s treatment was more medically beneficial than the

treatment provided by the authorized provider. We reach the same conclusion

as the district court, and accordingly, we affirm.

       AFFIRMED.
