Opinion
No. 3-018 / 02-0331
Filed March 26, 2003
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
Employee appeals from denial of workers' compensation benefits. AFFIRMED.
Joseph Walsh, Des Moines, for appellant.
Aaron Oliver of Hansen, McClintock Riley, Des Moines, for appellees.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
James Martzahl appeals from the denial of his claim for workers' compensation benefits. We affirm.
Background Facts and Proceedings . On March 5, 1998, James Martzahl suffered a back injury that arose out of and in the course of his employment with Gagnon, Inc. (Gagnon). At the time of his injury Martzahl had a history of back problems, including a herniated disc and resulting surgery, but was under no permanent restrictions. Following the injury Martzahl was diagnosed by an emergency room physician, Dr. Endress, with "mild lumbar strain with some mild sciatica." Chart notes indicate Martzahl was experiencing low back pain, but no leg pain. Martzahl underwent a course of physical therapy.
For all but the last few months of his therapy, Martzahl was seen by Dr. Michael Toth. Dr. Toth also diagnosed a lumbar strain. Although Martzahl's symptoms included numbness and burning in his thigh area, by the summer of 1998 these were described as "minimal" or occurring "occasionally." After Martzahl's last visit to Dr. Toth, in August 1998, Dr. Toth noted Martzahl's condition had improved significantly, and his "lack of total resolution" was explained by wear and tear on his lumbar spine. Dr. Toth determined an MRI was not indicated, as Martzahl had no "distal circulatory or neurological dysfunction suggestive of any central neurological involvement." Dr. Toth did not make a permanent impairment diagnosis.
While it appears Dr. Toth opined maximum medical benefits had been achieved, it is impossible to make this statement with certainty, as his final patient narrative is partially obscured by "sticky notes" that were not removed prior to photocopying.
In August and September 1998 Martzahl was seen by Dr. Mark Palit. Dr. Palit noted that while Martzahl complained of occasional numbness in his right thigh and buttock, he denied any "frank pain radiation to the lower extremities." None of the testing done by Dr. Palit indicated the presence of a herniated disc. He diagnosed Martzahl with degenerative disc disease, and released him without restrictions. As with Dr. Toth, there was no finding of a permanent impairment.
Martzahl then sought an independent evaluation, in December 1998, from Dr. Michael Beck. Dr. Beck diagnosed Martzahl with low back strain with muscle spasm. Dr. Beck did not believe permanent restrictions were necessary, and he also made no permanent impairment diagnosis. By the time of Dr. Beck's evaluation, Martzahl no longer worked for Gagnon.
In March 1999, Martzahl sought treatment at a local hospital, reporting "low back pain, increasing over the last two weeks with severe right lower extremity pain with paresthesias." After an MRI was performed, Martzahl was diagnosed with a herniated disc. The condition was surgically resolved by Dr. Jason Heth and Dr. Patrick Hitchon in June 1999. Martzahl reached maximum medical improvement for this event in December 1999.
"Abnormal sensations," such as numbness or tingling along extremities. Medical Reference Encyclopedia, Maryland General Hospital, available at http://www.Maryland generalhospital.com/ency/article/003206.htm.
Within two weeks of his March 1999 diagnosis, Martzahl filed a workers' compensation petition. In January 2000 the commissioner entered a hearing assignment order, setting a backup hearing date of March 22, 2000, with a primary hearing date of May 18, 2000. The order further provided, in pertinent part:
Claimant shall complete case preparation, including discovery and responses, 60 days prior to the backup hearing date, or the primary hearing date if the case is not at the backup time. Defendant(s) shall complete case preparation, including discovery and responses, 30 days thereafter. . . . When admissibility of evidence is disputed, the completion date for case preparation will be enforced under a prejudice standard. Any party, with timely notice to the other, may depose to the date of hearing any practitioner whose records or reports were timely served.
The matter was set to go to hearing on March 22, 2000, but on March 20, based on a family medical emergency, Martzahl sought a continuance to the primary date of May 18. The next day he deposed Dr. Heth, who opined the work injury provided "a very reasonable" or "the most plausible" explanation for the herniated disc, assuming Martzahl had continued to experience pain and numbness in his leg despite treatment, and assuming no new injury or event occurred. However, Dr. Heth refused to opine as to permanent impairment or provide any kind of rating. That same day, March 21, Martzahl's continuance request was granted. Martzahl then sought a new report from Dr. Beck, which was issued April 17, 2000. In that report Dr. Beck opined the herniation was related to the work injury, and that Martzahl had suffered a ten percent total body impairment.
Although Gagnon attended Dr. Beck's May 10, 2000 deposition, and engaged in cross examination, it stated its objection to the new report and testimony. At the May 18 hearing, Gagnon successfully moved to have the testimony and report excluded. The deputy then ruled Martzahl had failed to establish his claims of temporary and permanent disability. Both the evidentiary ruling and ultimate legal conclusion were upheld by the agency, and by the district court upon judicial review.
Scope of Review . Review of agency actions is limited to correcting errors of law. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). Because exclusion of evidence as a discovery sanction is a discretionary function of the agency, such actions are reviewed for an abuse of discretion. Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997). We will uphold the agency's conclusion that Martzahl failed to meet his burden of proof, if that conclusion is supported by substantial evidence in the agency record, when that record is viewed as a whole. Iowa Code § 17A.19(8)(f) (1999). Evidence is considered substantial if it allows a reasonable person to reach the same conclusion as the agency. Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002).
Exclusion of Dr. Beck's Report and Testimony . Even measuring the sixty-day case completion deadline from the May 18, 2000 primary hearing date, Dr. Beck's April 2000 report was untimely. As noted by the district court, Dr. Beck's April 2000 opinion was prompted by a new or changed diagnosis. That diagnosis occurred in March 1999, Martzahl only sought healing period benefits for his surgery through July 1999, and maximum medical improvement was reached in December 1999. Thus, Martzahl arguably had a year within which to timely obtain Dr. Beck's changed opinion. Even under the most generous reading of the facts, Martzahl had three months to seek a new or updated evaluation from Dr. Beck, or to obtain an impairment evaluation from a treating or other expert physician, in compliance with his discovery deadline.
Contrary to Martzahl's contention, the ability to depose Dr. Beck up to the hearing date does not translate to an automatic right to have his deposition testimony admitted at hearing. Under the hearing assignment order, in cases of contested admissibility, the agency applies a prejudice standard. This is consistent with case law. See Schoenfeld, 560 N.W.2d at 598 ("Exclusion of evidence is the most severe sanction available under Iowa Rule of Civil Procedure [1.508(3)], the rule concerning discovery of experts, and is justified only when prejudice would result."). Here, the agency found sufficient prejudice to justify exclusion of evidence as a discovery sanction. We are typically reluctant to reverse such decisions, see Dunlavey v. Economy Fire Casualty Co., 526 N.W.2d 845, 859 (Iowa 1995), and decline to do so in this case.
Until Dr. Beck issued his April 2000 report, Gagnon had no reason to know Martzahl could present evidence of a permanent disability. Dr. Beck's impairment rating was not only a change from his own prior expert opinion, but also the other medical evidence in the case, including that provided by treating physicians. Gagnon was not able to explore this new opinion until eight days before trial. Under such circumstances it was neither unreasonable or untenable to exclude the report and related deposition testimony. Cf. Schoenfeld, 560 N.W.2d at 598 (finding an abuse of discretion in excluding report made six days before hearing, where an update by a treating physician was limited to area of treatment, and employer had already received detailed medical records).
Substantial Evidence . There are two causal issues in this case. The first is whether the March 1998 work injury was a proximate cause of the herniated disc and surgery. The second is whether Martzahl suffered a permanent disability. Both turn on expert opinion, which is conflicting. See Dunlavey, 526 N.W.2d at 853 (noting medical causation is essentially within the domain of expert testimony). As the deputy noted, there was evidence to support Martzahl's claims, and evidence to refute them.
According to the reports of Drs. Palit, Toth, and Beck, Martzahl was not demonstrating the expected signs and symptoms of a herniated disc, such as radiating leg pain, in 1998. All three indicated any leg pain was minimal, substantially reduced or insignificant, and none found any indication of permanent impairment. Dr. Palit opined that, because no typical signs or symptoms of a herniated disc were present in 1998, but were significantly present at the time of the March 1999 diagnosis, the herniated disc was a new injury. He believed the March 1998 work injury resulted in only a temporary aggravation of a preexisting degenerative condition. This evidence is juxtaposed against Martzahl's testimony that he did in fact experience leg pain between his work injury and 1999 diagnosis, his claim that no new injury occurred during this time, and Dr. Heth's reliance on these facts to opine the work injury was "the most plausible explanation" for the herniated disc.
The agency found the evidence refuting a causal link between the herniated disc and the work injury to be more credible and entitled to greater weight. This is the agency's role as fact finder, Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998), and courts are not allowed to reassess the weight of the evidence upon judicial review. Christensen v. Snap-On Tools Corp., 602 N.W.2d 199, 201 (Iowa Ct.App. 1999). Having appraised an expert opinion, the agency may accept or reject it, in whole or in part. Sherman, 576 N.W.2d at 321. Given the conflicting nature of the medical and lay testimony and medical reports, we conclude there was substantial evidence from which the agency could determine Martzahl had failed to meet his burden of proof.
Contrary to Martzahl's claim, the agency did not reject Dr. Heth's testimony without explanation. The deputy stated Dr. Palit's opinion was more persuasive, because it was more consistent with the medical evidence. This statement allows us to determine, with reasonable certainty, the basis for the agency's decision. Myers v. F.C.A. Services, Inc., 592 N.W.2d 354, 356 (Iowa 1999). We further note the burden of explanation seems to fall more heavily on fact finders who reject uncontroverted expert medical testimony. See Sondag v. Ferris Hardware, 220 N.W.2d 903, 907-08 (Iowa 1974).
Martzahl's failure to establish a causal link between his work injury and subsequent diagnosis and surgery, and the lack of a permanent impairment diagnosis, would seem to resolve the secondary issue of permanent disability. Martzahl nevertheless argues the record contained substantial evidence of a permanent impairment prior to March 1999. He points to both the imposition of restrictions, and evidence he had not completely healed by the end of 1998. It is possible to infer permanency from the nature of an injury, and an impairment rating by a physician is not always necessary to establish a permanent disability. Haynes v. Second Injury Fund, 547 N.W.2d 11, 13-14 (Iowa Ct.App. 1996). However, the limited facts relied on by Martzahl pale in comparison to the remainder of the record, which contained substantial evidence from which the agency could have concluded no permanent impairment was shown.
The agency decision must be affirmed.