Menard, Inc., and Zurich American Insurance v. Deloris Schneberger ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0682
Filed February 11, 2015
MENARD, INC., and ZURICH
AMERICAN INSURANCE,
Petitioners-Appellants,
vs.
DELORIS SCHNEBERGER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lawrence McLellan,
Judge.
An employer and its insurance carrier appeal the award of workers’
compensation benefits for a worker’s mental health conditions, claiming the
conditions were not causally related to the physical injury she sustained on the
job. DISTRICT COURT JUDGMENT AFFIRMED; CASE REMANDED.
Sasha L. Monthei of Scheldrup Blades, Cedar Rapids, for appellants.
Jacob J. Peters of Peters Law Firm, P.C., Council Bluffs, for appellee.
Considered by Danilson, C.J., and Doyle and Tabor, JJ.
2
TABOR, J.
Employer Menards challenges a finding by the Iowa Workers’
Compensation Commissioner that a workplace injury to Deloris Schneberger’s
shoulder in July 2008 caused her ongoing mental health difficulties. The
employer criticizes the agency’s reliance on one psychiatrist’s view that the
worker’s depression and anxiety arose from her physical injury. The employer
touts contrary expert opinions offered into the agency record. Because
determining whether to accept or reject an expert’s opinion on medical causation
is within the “peculiar province” of the commissioner as fact finder, we affirm the
agency’s decision.
I. Background for Medical Causation Issue
As both parties indicate in their briefs, the issue on appeal is whether
Schneberger suffered a compensable “physical-mental” injury. Our supreme
court has consistently held workers exhibiting psychological conditions resulting
from work-related physical trauma are entitled to workers’ compensation. See
Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 16 (Iowa 1993), citing Coghlan v.
Quinn Wire & Iron Works, 164 N.W.2d 848, 853 (Iowa 1969) (recognizing back
injury aggravated, accelerated, or precipitated a manic depressive psychotic
condition) and Gosek v. Garmer & Stiles Co., 158 N.W.2d 731, 737 (Iowa 1968)
(recognizing back injury triggered neurosis); see also 4 Lex K. Larson, Larson’s
Worker’s Compensation Law, § 56:03 Physical Trauma Causing Nervous Injury
(2014) (explaining “when there has been a physical accident or trauma, and
claimant’s disability is increased or prolonged by traumatic neurosis, conversion
3
hysteria, or hysterical paralysis, it is now uniformly held that the full disability
including the effects of the neurosis is compensable”).
An employee has the burden to prove by a preponderance of the evidence
that her injuries arose out of and in the course of employment. See Quaker Oats
Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996). An injury is considered to arise
out of employment “if there is a causal connection between the employment and
the injury.” St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000). In this
case, the employer questions whether Schneberger’s mental health problems are
causally related to the physical trauma she sustained on the job. To address the
employer’s claim, we first set out the history of the worker’s injuries.
A. Physical Trauma
In Schneberger’s case, the employer stipulated to the physical trauma,
which occurred on July 23, 2008.1 That day Schneberger was unloading pallets
at Menards’s distribution center in Shelby, Iowa, when she “went to throw a box”
and suddenly realized it was much heavier than she expected. She had an
immediate onset of pain in her right shoulder: “[I]t felt like somebody had set it on
fire.” She sought treatment for her shoulder injury from Dr. Daniel Larose, an
orthopedic surgeon. Through an MRI, Dr. Larose found Schneberger had a
small inferior labral tear, a suspected superior labral tear, and an inferior tear of
the supraspinatus. He recommended an injection and physical therapy. In
February 2009, Schneberger had shoulder surgery to repair the labrum and
1
Schneberger was forty-six years old at the time of the injury. She had been working at
Menards since March 2008. She had a two-year college degree in business and fashion
merchandising, but most of her employment through the years had involved physically
demanding work.
4
rotator cuff. She continued to have pain in her shoulder after the surgery. On
March 31, 2009, Dr. Larose suspected she was developing a reflex dystrophy
and prescribed Neurontin (otherwise known as gabapentin) for her nerve pain.2
Schneberger remained on the Neurontin for the next few months. During
that period, she recalls having panic attacks while performing light duties at
Menards; she would start sweating and then go into “kind of a daze.” When she
called to see Dr. Larose on July 9, 2009, she reported feeling “very depressed”
and “over-whelmed.” Dr. Larose believed she needed to see a psychiatrist that
same day and referred her to Dr. Craig Seamands. Dr. Larose also asked
Schneberger to stop taking the Neurontin. A nurse practitioner at the emergency
room prescribed Schneberger an anti-depressant and scheduled an appointment
with Dr. Seamands.
B. Mental Injury
In his first evaluation of Schneberger on September 4, 2009, Dr.
Seamands described her as having a “history of chronic pain difficulties and
secondary psychological disturbance.” He noted she was having “panic
symptoms” while on a therapeutic trial of Neurontin. He also noted she had “not
really had any pre-existing history of depressive disorder except for situational
depression under acute stressors.”3 Dr. Seamands diagnosed Schneberger with
“dysthymic disorder” and prescribed Ambien for her chronic insomnia. The
psychiatrist noted Schneberger was not motivated to engage in individual
2
Dr. Larose also referred Schneberger to a pain specialist, Dr. Peter Piperis, whom she
saw thirteen times in 2009.
3
Schneberger took antidepressants for a short time in 2004 and 2005, after the deaths
of her husband and several other people close to her.
5
psychotherapy at that time, but would consider that idea and return for
counseling if needed.
Dr. Seamands conveyed his impressions of the September 4, 2009
evaluation of Schneberger in a letter to Dr. Larose: “She reports that essentially
she is feeling normal mood and no problems since discontinuing the gabapentin.
It does appear she does not have any underlying psychiatric problem or disorder
until she suffered an adverse reaction to the gabapentin which has passed.”
Schneberger agreed in her testimony that after she stopped taking the Neurontin
her mental state improved: “I was more capable—I was depressed and I was
panicky, but I could handle it.”
But Schneberger’s condition took a downward turn in the spring of 2010.
Because of the injury to her right shoulder it was painful to use her right hand, so
she had been compensating by using her left hand “a lot” to grab things and to
steer the car. She started having numbness in her left hand. Dr. Larose
diagnosed her with left carpal tunnel syndrome in May 2010 and performed
carpal tunnel release surgery in July 2010. Three weeks after the surgery,
Schneberger was driving to Menards to deliver some paperwork when she
“started sweating and shaking and just felt like screaming.” She called Dr.
Seamands’s office from the interstate, telling the nurse she was having “a full-
blown panic attack.”
On August 19, 2010, Schneberger started seeing therapist Erin Austin, an
associate of Dr. Seamands. In progress notes, Austin characterized the goal of
the sessions as resolving the “core source of anxiety.” The notes also indicated
6
Schneberger commonly felt anxiety and panic, was angry with her employer, and
“wonders if she will be able to go back to work.” Schneberger was still
undergoing therapy with Dr. Seamands’s office twice a month at the time of the
compensation hearing.
Meanwhile, Schneberger met with Dr. Donald Gammel for an independent
medical examination (IME) on October 26, 2010. Dr. Gammel is the medical
director of “Work Fit” which specializes in occupational health services. Dr.
Gammel observed during the examination Schneberger “appeared shaky,
nervous, and is tearful.” In his opinion, Schneberger’s diagnoses of depression
and anxiety were “unrelated to the work injury of 23 July 2008.” Dr. Gammel
reported:
Ms. Schneberger identified to Dr. Seamands that she had a history
of situational depressions under acute stressors. In most cases a
depression disorder is going to be a chronic, recurring illness rather
than a focused response to some specific experience.
Subsequently, it becomes extremely difficult to justify a claim of
recent causation for a major depressive episode, if a history of a
previous episode is acknowledged, as in this case, any new
episode would be normal and expected manifestation of the
preexisting disorder rather than an unexpected event that might
require an explanation such as occupational or tort relevant
causation. Scientific findings more easily support a conclusion that
mood disorders are a cause of complaints of chronic pain rather
than an argument that the complaints of chronic pain caused the
mood disorder.
In a letter to Schneberger’s attorney in January 2011, Dr. Seamands
offered the following opinion:
Deloris has suffered major depression substantially related
to her work-related injury in July of 2008. She did not have a
preexisting condition of either panic or depression of similar
severity prior to the work injury. Further her difficulties with the
injury and her inability to work have been a substantial
7
psychological distress that has contributed to ongoing problems
with both depression and anxiety.
In my opinion her work related Injury was a substantial factor
in causation of her current depression and anxiety to a reasonable
degree of medical certainty.
Dr. Seamands reiterated his opinion in an August 22, 2011 letter to
Schneberger’s counsel:
[T]here is a reasonable degree of medical certainty that her work
related injury in July 2008 at her employment substantially
aggravated and led to her symptoms of both major depressive
disorder and panic disorder with agoraphobia. It does appear that
this aggravation has caused a permanent state of affairs which has
led to these two severe psychological conditions. I foresee in the
future that she will require ongoing treatment both with medication
management and individual therapy to attempt to manage the
severity of her symptoms.
In the August 22 letter, the psychiatrist recalled he initially assessed Schneberger
in October 2009 with major depression, single episode, severe. He further wrote
she had “the complication of worsening panic disorder with agoraphobia” since
July 2010.
Finally, on December 16, 2011, in anticipation of the upcoming workers’
compensation hearing, Dr. Seamands provided an updated assessment of
Schneberger’s condition: “She continues to have difficulty with generalized
anxiety disorder and major depressive disorder.” He opined her symptoms had
not improved and she remained unable to work.
II. Agency Action and Judicial Review
Schneberger filed her claim for worker’s compensation benefits in January
2011. Menards answered, admitting the work injury, but disputing the nature and
extent of Schneberger’s entitlement to benefits.
8
Schneberger saw John Brooke, PhD, for an independent psychological
evaluation on April 13, 2011. Dr. Brooke concluded her “only consistent
emotional issue is fear of pain, and specifically that she did not want to return to
work after her carpal tunnel surgery healed in the summer of 2010 because she
was afraid of possible physical discomfort.” He opined: “The support for a
diagnoses of depression (Dysthymia or Major Depression) is inconsistent and
scant at best.” He further wrote: “The support for an anxiety disorder is also
sparse and unconvincing.” He questioned the connection between her shoulder
injury and a generalized anxiety disorder or panic attacks. He asserted “there
was nothing traumatic about her circumstances of the injury” and, in his
estimation, the “timing makes no sense.” He concluded her complaints “had a
strong flavor of anger and resentment, not anxiety.”
A deputy commissioner held an evidentiary hearing on April 12, 2012, at
the Pottawattamie County Courthouse. Schneberger testified in favor of her
claim. The employer offered the live testimony of Dr. Terry Davis, a psychiatrist
in private practice in Omaha.
Menards retained Dr. Davis to evaluate Schneberger on January 9, 2012,
as part of another IME.4 Dr. Davis offered his opinion to a reasonable degree of
medical and psychiatric certainty that Schneberger had a pain disorder with both
psychological factors and a general medical condition, chronic. Dr. Davis’s
report explained that a pain disorder diagnosis falls under the category of
4
Clinical licensed psychologist Rosanna Jones-Thurman did a psychological evaluation
as part of the same IME. The psychologist found Schneberger to be “exhibiting
symptoms of anxiety, depression, and somatoform issues,” but also noted Schneberger
appeared to be exaggerating her “symptom picture.”
9
somatoform disorders, “which includes conditions where there are physical
symptoms suggesting a physical disorder, but which cannot be fully explained by
a general medical condition and which appears to be linked to psychological
factors or conflicts.” He did not know the exact cause of the pain disorder, but
opined it was “not caused or aggravated by a work accident or injury.”5
Dr. Davis testified:
I’m not saying this lady’s malingering. I’m not saying she’s faking
this. But she has a psychological need to deal with the stress in
her life and the anger she’s got at her employer, and she does that
through having this chronic pain, saying, this is what Menards did to
me. I can’t work anymore, I’m depressed, I’m anxious because of
that.
Dr. Davis also was critical of the views expressed by Dr. Seamands.
Specifically, Dr. Davis challenged the diagnosis of a dysthymic disorder without
the patient showing at least two years of a chronic depressive state. Dr. Davis
also said Dr. Seamands “contradicts himself” when he diagnosed Schneberger
with a dysthymic disorder and then later identifies her condition as a major
depressive disorder. Dr. Davis also disagreed with Dr. Seamands’s diagnoses of
general anxiety and panic disorder with agoraphobia, contending Schneberger
did not satisfy the criteria for those conditions.
After considering the live evidence and the exhibits presented by the
parties, the deputy issued his arbitration decision on June 22, 2012. The deputy
was more persuaded by the opinions offered by Dr. Seamands than by those
offered by Dr. Davis, stating:
5
Dr. Davis testified he also was an attorney but no longer practiced law. He testified he
could only speak to causation from a medical standpoint.
10
It was apparent from [his] testimony that Dr. Davis had no idea (or
pretended to not know of) the legal standard of causation. Dr.
Davis also admitted that the claimant had a very real and very
disabling pain disorder after the shoulder injury, but that it was not
casually connected to the work injury because it was not the direct
medical cause. Dr. Davis also opined that the claimant’s short term
use of antidepressant medications in 2005 after the death of a
close friend which followed deaths in the claimant’s family,
including her husband, established a pre-existing mental illness so
that nothing could be attributed to the work injury in 2008. Dr.
Davis’ opinions which were, and are based on the wrong standard,
are entitled to little or no weight.
The deputy accepted the opinions of Dr. Seamands because they were “well-
reasoned” and “based on actual treatment over a period of time” and the deputy
found Dr. Seamands to have “greater credentials and experience.” The deputy
ultimately determined Schneberger had a one-hundred percent industrial
disability.
On appeal to the commissioner, Menards argued the deputy failed “to
acknowledge that Dr. Davis’s opinions regarding claimant’s mental health
conditions are essentially the same as those of Dr. Brooke and Dr. Jones-
Thurman, as well as Dr. Gammel’s.” In his appeal decision filed September 12,
2013, the commissioner admitted the arbitration decision failed “to account for
the opinions of Dr. Gammel, Dr. Brooke, and Dr. Thurman-Jones as to the issue
of causation of claimant’s mental condition.” The commissioner went on to agree
with the deputy “inasmuch as the opinions of Dr. Seamands are most supported
and persuasive.” The commissioner believed applying the correct legal
causation standard, “Dr. Davis’s testimony at the hearing tends to border on
acknowledgment of a work connection between the work injury and the
diagnosed conditions.”
11
As for the other experts, the commissioner found their opinions flawed and
unpersuasive for a variety of reasons. The commissioner noted Dr. Gammel
specializes in occupational medicine rather than mental health conditions.
According to the commissioner, Dr. Gammel’s suggestion Schneberger’s
depression ended when she was taken off the Neurontin “does not comport with
the treatment records from Dr. Seamands.” The commissioner rejected Dr.
Brooke’s findings because “they fail to account for claimant’s ability to perform
full-duty work prior to the injury.” The commissioner believed “at most, Dr.
Brooke’s opinion suggests that a preexisting condition was substantially lighted-
up or aggravated.” Finally, the commissioner pointed out Dr. Thurman-Jones did
not make any independent causation findings. The commissioner affirmed the
arbitration decision.
Menards filed a petition for judicial review in Polk County district court,
alleging “the commissioner erroneously concluded Claimant sustained an injury
to her mental health as a result of her July 28, 2008 work injury, and that said
injury caused permanent total disability.” The district court found substantial
evidence in the agency record to support the commissioner’s decision that
Schneberger’s mental health problems were caused by the right shoulder injury
in July 2008. But the district court also decided the commissioner and deputy
commissioner did not set forth the facts they relied upon to conclude
“Schneberger suffered a 100 percent loss of earning capacity and thus sustained
a 100 percent total industrial disability.” The court remanded the case to the
agency for further proceedings consistent with its decision.
12
Menards filed a notice of appeal, challenging only the district court’s
finding regarding Schneberger’s mental health problems.6
III. Scope and Standards of Review
In judicial review proceedings, the district court acts in an appellate
capacity, reviewing the commissioner’s decision for the correction of legal error.
Mike Brooks, Inc. v. House, 843 N.W.2d 885, 888 (Iowa 2014). On appeal, we
apply the standards of Iowa Code chapter 17A (2013) to decide if we reach the
same conclusion as the district court did. Id. at 889. When analyzing workers’
compensation appeals, we recognize the law “should be, within reason, liberally
construed” to benefit working men and women. See Univ. of Iowa Hosps. &
Clinics v. Waters, 674 N.W.2d 92, 96 (Iowa 2004).
The deference we afford to decisions of administrative agencies largely
controls our result today. See Cedar Rapids Cmty. Sch. Dist. v. Pease, 807
N.W.2d 839, 844 (Iowa 2011). Menards’s challenge to medical causation (also
called causation in fact) is a question vested in the expertise of the workers’
compensation commission. See Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d
845, 853 (Iowa 1995). Medical causation is generally proven with expert
testimony. See Pease, 807 N.W.2d at 845. It is the commissioner, as the trier of
fact, who weighs the evidence and measures witness credibility. Id. The
determination whether to accept or reject an expert opinion is within the “peculiar
province” of the commissioner. Id.
6
A final appealable judgment may provide for a remand to the agency for further
proceedings. See Iowa Code §§ 17A.19(10), 17A.20; Continental Telephone Co. v.
Colton, 348 N.W.2d 623, 625 (Iowa 1984).
13
We will upend the commissioner’s finding of medical causation only if it is
not supported by substantial evidence. See Iowa Code § 17A.19(10)(f).
“Substantial evidence” is defined as “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.”
Id.
IV. Substantial Evidence Analysis
The commissioner encountered a classic “battle of the experts” regarding
Schneberger’s mental health claim. On the one hand was her treating
psychiatrist, Dr. Seamands, who found her work-related shoulder injury was a
substantial factor in causing her depression and anxiety. On the other hand were
the experts conducting independent evaluations for Menards, including Dr. Davis,
Dr. Jones-Thurman, Dr. Gammel, and Dr. Brooke. Their diagnoses varied, but
none found Schneberger’s mental health issues were related to her work injury.
The commissioner gravitated to the opinion of Dr. Seamands, while discussing in
detail why he distrusted the conclusions of the other experts. See IBP, Inc. v. Al-
Gharib, 604 N.W.2d 621, 631 (Iowa 2000) (holding commissioner may accept or
reject expert testimony, in whole or in part, and determines the weight to give to
expert testimony).
Menards tries to frame the question as error on the part of the
commissioner: “The explanation offered by the commissioner in rejecting the
Defendant-offered expert opinions concluding Claimant did not suffer a
14
compensable physical/mental injury is contrary to the evidence in the record and
therefore not supported by substantial evidence.” The employer also faults the
commissioner for not addressing inaccuracies in Dr. Seamands’s report.
To grant the relief requested by Menards, we would have to step into the
shoes of the commissioner, which we cannot do. “The courts, in their appellate
capacity, ‘are not at liberty to accept contradictory opinions of other experts in
order to reject the finding of the commissioner.’” Pease, 807 N.W.2d at 850
(citation omitted). The commissioner did not blithely reject the views of the
employer’s experts nor did he blindly embrace Dr. Seamands’s opinion. The
commissioner critiqued each independent examination and pointed to the
limitations and discrepancies. In addition, the agency’s appeal decision outlined
the consistency in Dr. Seamands’s evaluation of Schneberger’s psychological
disturbances. The commissioner found it significant that Dr. Seamands has had
a treating relationship with the claimant since September 2009 and “has seen the
progression of her mental difficulties.” In the commissioner’s estimation: “Dr.
Seamands provided a detailed opinion that claimant’s mental health conditions
are substantially related to the work injury and that her inability to work and her
chronic pain has been a substantial psychological distress that has contributed to
ongoing problems with both depression and anxiety.”
We recognize small inconsistencies may be found in Dr. Seamands’s
reports. For example, he initially diagnosed Schneberger with “dysthymic
disorder” in September 2009, but his August 22, 2011 letter to counsel recalled
the initial diagnosis as major depression. While such an oversight or shift in
15
impressions may be considered by the commissioner in making a credibility
determination, it is not the kind of self-contradiction or absurdity that would
prompt the trier of fact to deem the opinion to be a nullity. See Pease, 807
N.W.2d at 848. We reject Menards’s argument Dr. Seamands’s opinions were
so flawed they do not constitute substantial evidence to support the
commissioner’s ruling.
We also address the employer’s claim Schneberger did not prove
causation because there was a “huge gap in time” when she had “absolutely no
mental health complaints.” In September 2009, Dr. Seamands evaluated
Schneberger and believed taking her off Neurontin addressed her symptoms of
depression. Schneberger acknowledged the medication change improved her
mental outlook. But eleven months later, in August 2010, Schneberger called Dr.
Seamands’s office in the throes of a panic attack while on her way to Menards.
Both Schneberger and Dr. Seamands attributed her anxiety to her work accident
and associated physical limitations and chronic pain stemming from her shoulder
injury. The commissioner was entitled to accept that causation determination.
The record shows Schneberger had been receiving treatment throughout
late 2009 and early 2010 for chronic pain. Dr. Piperis continued to administer
injections for her right shoulder pain. Dr. Larose suggested the possibility of
additional shoulder surgery during visits in early 2010. In July 2010, Dr. Larose
performed carpel tunnel surgery on Schneberger’s left wrist, which she had been
overusing due to her right shoulder pain. About one month later, Schneberger
reinitiated treatment with Dr. Seamands’s office and described to the therapist
16
the panic attacks she had been experiencing when driving to work or thinking
about going to work. On this record, we find substantial evidence to support the
commissioner’s determination Schneberger met her burden to show her mental
health problems were causally related to the physical trauma she sustained on
the job.
While Menards’s experts drew different conclusions from their evaluations
of Schneberger, those conclusions do not mean the evidence was insubstantial.
See John Deere Dubuque Works of Deere & Co. v. Weyant, 442 N.W.2d 101,
105 (Iowa 1989). Our job on appeal is not to ask if the evidence supports a
different finding; rather, we are limited to deciding if, viewing the record as a
whole, substantial evidence supports the findings actually made by the
commissioner. See Pease, 807 N.W.2d at 845. Because the record here
supports the commissioner’s causation finding, we affirm. We remand to the
district court for remand to the agency to conduct further proceedings consistent
with the district court’s judicial review order.
DISTRICT COURT JUDGMENT AFFIRMED; CASE REMANDED.