                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1774
                             Filed September 12, 2018


RONALD WILLIAM BRINCK,
    Plaintiff-Appellant,

vs.

SIOUXLAND MENTAL HEALTH CENTER and THE CINCINNATI INSURANCE
COMPANY,
     Defendants-Appellees.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Rustin T. Davenport,

Judge.




       Ronald Brinck appeals the dismissal of his petition for judicial review

affirming the Workers’ Compensation Commissioner’s denial of his petition to

review-reopen a prior action. AFFIRMED.




       Mark S. Soldat of Soldat & Parrish-Sams, PLC, West Des Moines, for

appellant.

       Kathleen Roe of Rawlings, Ellwanger, Mohrhauser, Nelson & Roe, LLP,

Sioux City, for appellees.



       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                          2


DOYLE, Judge.

       After the Workers’ Compensation Commissioner denied Dr. Ronald

Brinck’s petition to reopen his prior workers’ compensation settlement agreement

with his former employer, Brinck filed a petition for judicial review in district court

challenging the denial.        The district court affirmed the commissioner’s

determination that Brinck failed to establish his mental disorder was caused by his

earlier work injury, finding substantial evidence supported the commissioner’s

decision. The district court also affirmed the commission’s conclusion that, even

if Brinck had demonstrated his psychosis was related to his earlier work injury,

Brinck’s claim was barred by res judicata. Brinck now appeals the district court’s

denial of his petition for judicial review. Upon our review, we affirm.

       I. Applicable Law.

       Generally speaking, after an employee is awarded workers’ compensation

benefits for an injury sustained at work, the case is closed, whether the award

came at the end of exhausting administrative remedies or by way of a settlement

agreement. See generally Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 391-93

(Iowa 2009) (discussing workers’ compensation review-reopening proceedings);

U.S. W. Commc’ns., Inc. v. Overholser, 566 N.W.2d 873, 875 (Iowa 1997) (same).

However, if the employee’s condition changes after the award or settlement related

to the prior injury, such as “the worsening of a physical condition or a reduction in

earning capacity,” the employee may seek additional or increased compensation

from the employer by way of a review-reopening proceeding under Iowa Code

section 86.14(2) (2011).      See Kohlhaas, 777 N.W.2d at 391-93.             At such

proceeding, the employee must prove by a preponderance of the evidence that the
                                          3

employee’s current condition is “proximately caused by the original injury.” Id. at

392.

       One way to satisfy this proximate-cause requirement is for the employee to

demonstrate his or her physical condition has worsened. See id. Nevertheless,

this is not the only way to establish that the employee’s current condition is

“proximately caused by the original injury.” Id. Importantly, the employee “need

not prove, as an element of his claim, that the current extent of disability was not

contemplated by the commissioner (in the arbitration award) or the parties (in their

agreement for settlement).”       Id.   Thus, the employee does not have “to

demonstrate his current condition was not contemplated at the time of the original

settlement.” See id. at 393. However, “section 86.14(2) does not provide an

opportunity to relitigate causation issues that were determined in the initial award

or settlement agreement.” Id. “[T]he principles of res judicata still apply.” Id. Thus,

the commissioner, in a review-reopening proceeding, “should not reevaluate an

employee’s level of physical impairment or earning capacity if all of the facts and

circumstances were known or knowable at the time of the original action.” Id.

(emphasis added).

       II. Background Facts and Proceedings.

       In 2009, Dr. Ronald Brinck “sustained an injury arising out of and in the

course of his employment” with Siouxland Mental Health Center (“the Center”).1

He filed a petition seeking workers’ compensation for the injury, which

stated: “While walking down the [Center’s] hallway, his cane became stuck in the


1
 Siouxland Mental Health Center’s insurance carrier is The Cincinnati Insurance
Company. Hereinafter, we will refer to them collectively as “Siouxland.”
                                             4


carpet and he tripped and fell forward, thereby hitting his head at the right side of

the door.” The petition stated Brinck’s “whole body” was affected or disabled. The

expenses incurred that were listed on the petition included the psychological

services of a hospital. Brinck returned to work full-time in February 2010.

       In November 2012, Siouxland and Brinck subsequently entered into a

settlement agreement for workers’ compensation benefits that was approved by

the workers’ compensation commissioner. The agreement stated Brinck sustained

a “permanent partial disability for 50% loss of BAW/earning capacity . . . resulting

in 250 weeks of compensation under Iowa Code section 85.34(2)(U) payable

commencing February 15, 2010.” The agreement stated Brinck “is entitled to

medical care for the injury, including care in the future,” citing sections 85.26(2)

and 85.27. The agreement further provided that evidence corroborating “this

settlement is attached.”      Attached thereto were numerous hospital records,

including the November 2010 report of Dr. Douglas Martin. Dr. Martin’s report

included his review of another medical professional’s May 2009 report following

that doctor’s neuropsychological assessment of Brinck. Dr. Martin’s report stated:

               We spent a considerable amount of time . . . reviewing the
       Neurological Assessment of Dr. Meyers, which is a rather interesting
       report, from the standpoint that Dr. Meyers was unable to specifically
       identify a pattern consistent with a closed head injury or
       postconcussion situation. He suggested that sleep apnea, seizures
       and depression may be interference with that; however, upon my
       review, it is also just as likely that seizure disorders and emotional
       and behavioral disturbances can also be created by traumatic brain
       injuries, so it is a bit difficult to interpret. It is certainly a possibility
       that this gentleman had a substantial issue with preexisting
       depression and that may also be clouding the picture here, with
       respect to the situation. However, I cannot dismiss Dr. Meyers’
       conclusions that, based upon his Neurological testing and data, the
       pattern and score was, indeed, unusual. There seemed to be some
       inconsistency in performance as to what would be expected.
                                           5


       However, I would also state that it might be true here that, with
       respect to a significantly high level I.Q. functioning individual prior to
       the incident, often times professional show sometimes bizarre
       findings on Neuropsychological profiles that are performed after
       incidents such as this.
              After a review of the clinical data and my interview with
       Dr. Brinck, I felt that his situation was consistent with mild cognitive
       residuals from a closed head injury/traumatic brain incident.

       ASSESSMENT:
       (1) History of closed head injury/traumatic brain incident from May 6,
       2009.
       (2) Presumptive diagnosis of posttraumatic seizure disorder
       (3) Depressive disorder
       (4) Sleep apnea . . . .
              ....
       CAUSATION:
              ....
              There appears to have been some depressive issues prior to
       this incident, and it is somewhat difficult to characterize whether
       these depressive symptoms have been worsened by this episode.
       Perhaps they were, from a short-term standpoint, but is probably
       unlikely that they would be permanently, from a long term standpoint.

Another report from Dr. John Kuhnlein dated October 8, 2012 was attached,

wherein Dr. Kuhnlein opined:

       [I]t is more likely than not that the seizure disorder is permanent.
       [Brinck] still has ongoing issues with posttraumatic headaches, and
       has significant issues with the cognitive deficits. In all likelihood, he
       would appear to be normal on formal testing, but that may be
       misleading as Dr. Brinck was so high functioning before, and so a
       deficit for him would still appear to be normal on formal testing.

       Brinck continued working for the Center until November 4, 2013. On that

date, Brinck voluntarily admitted himself to a hospital “for protection from harm to

himself and others.” On November 5, 2013, the attending physician stated in the

“Admit Notes”:

              I have seen and examined [Brinck] on the unit on Tuesday,
       11/5/13. Medical records and documentation reviewed. I reviewed
       his presentation with the treatment extensively that [morning] . . . . I
       had met with [Brinck] several [years] ago and recall him as a sharp,
                                        6


      witty, low-key fellow who was an effective communicator. He is
      different now. He suffered a CHI [in] April, 2009, that unfortunately
      changed his life. He developed a seizure disorder as a consequence
      of his head injury . . . . He has reportedly had at least 2 separate
      neuropsych [evaluations], and he wondered if he had at least 3 of
      them. He is not certain. He admitted that his ability to learn new info
      is a problem. [He] has been attempting to compensate for it by
      leaving the session to quickly read about a new med or to review
      other information so that he can return to the session with that
      Information for his client. He has had neuroimaging studies, EEG,
      and is presently seeing Dr. Sanjay Singh in Omaha at Alegent-
      Creighton for the Sz Disorder. He cannot tell me if Temporal Lobe
      Epilepsy has been ruled out. He could not tell me the name of the
      clinic where he sees Dr. Singh. Delusions of reference and
      persecution, and thought insertion have reportedly been present for
      almost 2 yrs. he has hidden them from others to spare them (family/
      friends) from being under suspicion simply by being associated with
      him. The government and certain agencies are behind this, In his
      report. He stated to me “I have to protect them.” That is why he has
      become more isolated. [Brinck] has experienced a bout of
      “depression” prior to the CHI but his mood has become worse since
      the injury. He remains on [medication]. He is now admitted d/t
      increasing intensity of intrusive, Irrational and occasionally
      uncharacteristic violent thoughts which force him to volley between
      confronting the unreality with reality. It . . . has been exhausting to
      do and it also has made him feel more sad, hopeless, and this has
      led to uncharacteristic suicidal thoughts. He is a man of strong moral
      character so these thoughts are quite disturbing to him. . . . Working
      to reduce the paranoia seems to be the way to go. . . . We will work
      to acquire additional medical/ neuro information.

The resident physician that examined Brinck at intake stated in the Progress Note:

             Dr. Brinck notes that after the [2009] accident severe
      depression set in. There was a time that he was very isolative and
      extremely down. He feels that mood did increase for some time after
      seizures were controlled . . . . He has history of mild depressive
      symptoms in college as well. He has been feeling more down and
      depressed lately. He has constant thoughts of suicide that are daily.
      He attempted suicide shortly after accident by overdosing on
      unknown medication . . . . Last year he attempted to overdose on
      his daughter’s [medication] and did not tell anyone about this
      including his wife. He has had times he has sat in his garage and
      looked around to ascertain what he could use to harm himself. He
      notes he has many detailed plans in his head. He has also had
      thoughts of hurting others. He does not elaborate who he has
      thoughts of hurting and states he does not wish to discuss this
                                        7


      currently. He does not think he would actually ever hurt anyone. He
      denies weapons in his home. He has had struggles controlling anger
      symptoms which is unlike him and cursed at his son prior to
      admission.
              For the past two or more years the patient has been struggling
      with extreme paranoia. He tells the writer he believes that a chip has
      been implanted in his head. He is worried that he is constantly being
      watched and monitored. He does not use home computer for fear
      that others will be able to monitor him. He uses work computer
      strictly for patient work. He worries that beeping lights in his
      house·are spying on him. He feels that the TV talks to him in the
      middle of the night and confirms that he is being watched. He
      believes that his cell phone has been bugged and is being monitored.
      He feels that others think he is a terrorist. He has been isolating and
      staying in his room. He fears that if he comes out of his room that
      his children and wife will be monitored as well. He feels that others
      are putting thoughts into his head and at times wants to tell suicidal
      patients to hurt themselves or psychotic patients to believe the
      psychosis symptoms. He does not think he has done this and notes
      patients tend to get along well with him. . . . He has struggled with
      these symptoms in silent for quite some time because he worries
      constantly about losing his license, not being able to practice, and
      financial consequences to his family.             He denies auditory
      hallucinations. He notes there was a time a year ago he experienced
      bizarre visual hallucinations and now occasionally sees spider webs
      and shadows out of the comer of his eye. He struggles with anxiety
      due to the symptoms but denies panic symptoms. . . .

At that time, Brinck reported a significant family history of psychological issues,

including depression and schizophrenia.

      Brinck subsequently sought to have his workers’ compensation case

reopened, asserting his 2009 head injury had caused him further temporary

disability and additional permanent disability after November 2012. Siouxland

affirmatively defended that Brinck’s claim was barred by res judicata and that

Brinck “knew of his conditions of which he now complains at the time of entering

into the agreement for settlement.” The matter was heard by a deputy workers’

compensation commissioner in 2016, and thereafter, the deputy filed his “Review-

Reopening Decision” finding Brinck failed to prove that “his psychosis was
                                         8


connected to his work injury. [Brinck’s] psychosis condition has not been proven

to be related to his work injury, predated the settlement in this case, and is res

judicata.”   The deputy found Brinck was not entitled to additional permanent

disability benefits.

       Brinck appealed the deputy’s decision, and the workers’ compensation

commissioner affirmed and adopted the deputy’s decision in its entirety. Brinck

requested a rehearing, which the commissioner subsequently denied in a more

detailed decision. Brinck then filed a petition for judicial review in district court

challenging the agency’s decision, which the district court denied.

       III. Standard of Review.

       Brinck now appeals the district court’s ruling.     He raises issues of res

judicata and causal connection, contending the district court erred in two

respects: (1) “by affirming the commissioner’s creation and application of a res

judicata rule which never had been recognized by the supreme court,” and (2) “by

affirming the commissioner’s creation and application of a review-reopening

statutory construction never recognized by the supreme court.”

       On a petition for judicial review of a commissioner’s decision, the district

court acts in an appellate capacity to correct errors of law. See Mike Brooks, Inc.

v. House, 843 N.W.2d 885, 888-89 (Iowa 2014). When the judicial-review ruling

is appealed, the appellate court applies “the standards of chapter 17A to determine

whether we reach the same conclusions as the district court. If we reach the same

conclusions, we affirm; otherwise we may reverse.” Id. at 889.

       Factual determinations, including determinations of medical causation or

whether to accept or reject an expert opinion, are vested in the discretion of the
                                            9


commissioner, and we are bound by those fact-findings “if they are supported by

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

a whole.’” Id. (quoting Iowa Code § 17A.19 (10)(f)). “Evidence is substantial if a

reasonable mind would find it adequate to reach the same conclusion.                An

agency’s decision does not lack substantial evidence because inconsistent

conclusions may be drawn from the same evidence.” Evenson v. Winnebago

Indus., Inc., 881 N.W.2d 360, 366 (Iowa 2016).

       Conversely, “we are not bound by the agency’s interpretation of the law and

‘may substitute our interpretation for the agency.’” Grant v. Iowa Dep’t of Human

Servs., 722 N.W.2d 169, 173 (Iowa 2006) (citation omitted). Whether res judicata

is applicable is question of law. See id.

       IV. Discussion.

       A. Causal Connection.

       Section 86.14(2) directs the commissioner to inquire “into whether or not

the condition of the employee warrants an . . . increase of compensation so

awarded or agreed upon.” To warrant an increase of compensation, Brinck had to

establish “by a preponderance of the evidence that, subsequent to the date of the

award under review, he or she has suffered an impairment or lessening of earning

capacity proximately caused by the original injury.” Simonson v. Snap-On Tools

Corp., 588 N.W.2d 430, 434 (Iowa 1999) (emphasis omitted).              “For workers’

compensation purposes a cause is proximate if it is a cause; it need not be the

only cause.” Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994).

Stated another way, “[t]he incident or activity need not be the sole proximate

cause, if the injury is directly traceable to it.” Holmes v. Bruce Motor Freight, Inc.,
                                        10


215 N.W.2d 296, 297 (Iowa 1974). “The necessary showing . . . may be made

without proof of change in physical condition.” E.N.T. Assocs. v. Collentine, 525

N.W.2d 827, 829 (Iowa 1994). But “a possibility is insufficient; a probability is

necessary; and the commissioner’s findings have the force of a jury verdict.”

Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 1974).

       Our analysis is shaped largely by the deference we are statutorily obligated

to afford the agency. See Mike Brooks, Inc., 843 N.W.2d at 889. Because

“[m]edical causation is a question of fact vested in the commissioner’s discretion,”

we are bound to uphold the commissioner’s factual finding on appeal if the finding

“is supported by substantial evidence when the record is viewed as a whole.” Id.

       “Generally, expert testimony is essential to establish causal connection,”

and, as the fact-finder, “[t]he commissioner must consider the expert testimony

together with all other evidence introduced bearing on the causal connection

between the injury and the disability.” Sherman v. Pella Corp., 576 N.W.2d 312,

321 (Iowa 1998). The commissioner “determines the weight to be given to any

expert testimony,” id., and that “testimony, even if uncontroverted, may be

accepted or rejected in whole or in part by the commissioner, as a finder of fact.”

Weishaar v. Snap-On Tools Corp., 506 N.W.2d 786, 790 (Iowa Ct. App. 1993).

Ultimately, in determining causation, the “commissioner is free to reject expert

testimony so long as valid reasons are specified as to why this is done.” Leffler v.

Wilson & Co., 320 N.W.2d 634, 637 (Iowa Ct. App. 1982).

       Here, Brinck complains of the commissioner’s reliance upon the opinion of

Siouxland’s expert, Dr. Bruce Gutnik, because “Dr. Gutnik did not opine that the

[2009] work injury was not a substantial factor in bringing about Brinck’s
                                         11


psychosis.” (Internal quotation marks and brackets omitted.) But that is not the

standard we are faced with.        Rather, Dr. Gutnik opined he could “not relate

Dr. Brinck’s psychosis to his work injury” with a reasonable degree of medical

certainty. Dr. Gutnik explained:

       There are at least three other prior concussions, sleep apnea, and
       hypothyroidism, which all could cause his current symptoms.
       Further, although rare, it is possible that he has developed mild
       Paranoid Schizophrenia based on family genetics. Finally, people
       can develop psychotic symptoms with no known pre-existing cause.
             With all of these potential causes for psychotic symptoms, I
       cannot relate Dr. Brinck’s current symptomatology to his April 14,
       2009 injury.

Although there are contrary opinions, for the reasons stated by Dr. Gutnik, it is

reasonable to reach the conclusion Brinck’s psychosis was not related to his work

injury. As the district court points out, the deputy commissioner, in his adopted

decision, “did not blindly reject the views of the other medical providers” in relying

upon Dr. Gutnik’s opinion. Rather:

       The deputy’s decision critiqued each medical opinion and pointed to
       the limitations and concerns that accompanied the opinion. Even if,
       as petitioner now argues, [Brinck’s expert] Dr. Gallagher had as
       complete information as Dr. Gutnik, the deputy commissioner clearly
       demonstrated Dr. Gallagher’s report was deficient in some aspects
       when compared to Dr. Gutnik (such as failure to consider a family
       history of schizophrenia). [The opinions of Brinck’s other experts,
       Drs. Sharma and Vaca,] were discounted because they were not
       provided all of petitioner’s records. [Brinck’s last expert, Dr. Roge,]
       was close personal friends with petitioner, was not aware petitioner
       had suffered previous head trauma, and had no experience in
       psychiatry. The deputy commissioner clearly outlined the reasoning
       for the finding that Dr. Gutnik’s opinion was more persuasive than
       the other medical providers.

There is no question a conclusion inconsistent with this opinion could be drawn

from the same evidence, but that does not mean there was insubstantial evidence

to support the agency’s fact-finding. See Evenson, 881 N.W.2d at 366. Viewing
                                          12


the record as a whole, Dr. Gutnik’s reasonable opinion supports the agency’s

determination that Brinck failed to establish his psychosis was proximately caused

by his 2009 injury. We are therefore bound by the finding and affirm the issue.

       B. Res Judicata.

       Turning to the other claim, the district court also found the agency did not

err in determining that had Brinck established proximate cause, his claim was

barred from relitigation by res judicata. The doctrine of res judicata prevents a

party from relitigating a claim or issue that has already been determined by a final

judgment. See George v. D.W. Zinser Co., 762 N.W.2d 865, 868 (Iowa 2009).

Though agency determinations are entitled to some preclusive effect in a judicial

proceeding, see id., “[t]he question of the degree to which the actions of

administrative agencies should be entitled to preclusive effect has been a subject

of some difficulty.” Ghost Player, LLC v. Iowa Dep’t of Econ. Dev., 906 N.W.2d

454, 462 (Iowa 2018). Generally, “[a]n agency determination will be entitled to

preclusive effect in a judicial proceeding ‘when an administrative agency is acting

in a judicial capacity and resolved disputed issues of fact properly before it which

the parties have had an adequate opportunity to litigate.’” George, 762 N.W.2d at

868 (cleaned up);2 see also Pinkerton v. Jeld-Wen, Inc., 588 N.W.2d 679, 680

(Iowa 1998).

       Brinck asserts, in arguendo, that Brinck’s statements in November 2013

upon his self-admission to the hospital about knowing he had a deeper,



“Cleaned up” is a relatively new parenthetical used to indicate that internal quotation
marks, alterations, and citations have been omitted from quotations for readability
purposes. See United States v. Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); Jack
Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143 (Fall 2017).
                                            13


psychological issue he hid from others would not establish Brinck had suffered a

permanent disability when the earlier matter was settled. We disagree. As the

district court reasoned:

                 [T]he finding that [Brinck] knew he was suffering from
          psychosis prior to entry of the settlement agreement is supported by
          substantial evidence. The settlement agreement was approved on
          November 27, 2012. [Brinck] was admitted to [the hospital] on
          November 4, 2013. . . . Hospital records state [Brinck] reported he
          had been experiencing delusions of reference and persecution and
          thought insertion for two years. [Brinck] indicated he had hidden the
          symptoms from others. After his release from the hospital, [Brinck]
          informed the nurse case manager . . . he had recent psychiatric
          issues but did not think his issues were related to his work injury.
          [Brinck] also testified that he told the truth to his medical providers,
          and he could not recall when his psychosis symptoms started.

          At the reopening proceeding, Brinck testified that although he did not recall

the incident, his wife told him he attempted suicide shortly after the 2009 injury.

There is no indication that we can find in the record that Brinck or his wife told

medical professionals about the suicide attempt.              In fact, Brinck told his

neuropsychologist he had no symptoms of suicide ideation in July 2012, and there

is no indication Brinck told him of the earlier suicide attempt. That the suicide

attempt shortly followed his accident certainly evidences, had the mental condition

been related to his injury, Brinck could have litigated it as part of the settlement

agreement. Brinck may have been admitted to the hospital in November 2013, but

it was not the first indication there were more psychological issues to be

uncovered, regardless of whether those issues were caused by his unfortunate

injury.

          Brinck is in the unique position of both having a severe psychological

disorder and being a bright psychological-medical professional.             We are not
                                          14


unsympathetic to his issues, particularly when his failure to disclose his symptoms

may be caused by his disorder. But by Brinck’s own testimony, his wife knew he

had attempted suicide shortly after his injury without, as far as we can tell from the

record, bringing it to his doctors’ attention. Brinck returned to work in 2010 and

settled his workers’ compensation claim in 2012; clearly he had the opportunity to

litigate his psychosis as part of the settlement agreement. He did not. His claim

is barred by res judicata.

       V. Conclusion.

       Substantial evidence by way of an expert’s reasonable opinion supports the

agency’s determination that Brinck failed to establish his psychosis was

proximately caused by his 2009 injury. Moreover, the district court did not err in

affirming the agency’s conclusion that, even if Brinck could establish causation, his

claim is barred by res judicata because he could have litigated the issue at the time

of his settlement but did not. Accordingly, we affirm the district court’s ruling

denying Brinck’s petition for judicial review.

       AFFIRMED.
