Douglas Moad, by His Wife Sharon Moad v. Gary Jensen Trucking, Inc., Employer, and Dakota Truck Underwriters

IN THE COURT OF APPEALS OF IOWA

No. 14-0164
Filed March 11, 2015

DOUGLAS MOAD, By his Wife SHARON MOAD,
Petitioner-Appellant,

v.

GARY JENSEN TRUCKING, INC., Employer, and
DAKOTA TRUCK UNDERWRITERS, et al.,
Respondents-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Donna L Paulsen,

Judge.

A widow appeals the district court’s decision that affirmed the workers’

compensation decision denying death benefits. AFFIRMED.

Martin Diaz and Elizabeth Craig of Martin Diaz Law Firm, Iowa City, for

appellant.

Sasha L. Monthei, Cedar Rapids, for appellee.

Heard by Vogel, P.J., McDonald, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, S.J.

This case concerns the tragic death of Douglas Moad, who died

approximately three months after he was severely injured in a collision while

driving a trailer-truck for his employer, Gary Jensen Trucking, Inc. Douglas’s

widow Sharon sought workers’ compensation benefits on his behalf, which were

denied after the Iowa Workers’ Compensation Commissioner found she had not

met her burden of establishing that Douglas’s death “was the sequel or result of a

work injury” and that she was entitled to benefits following Douglas’s death.

Sharon sought judicial review of the decision by the district court, and the court

affirmed the decision, though it expressed its disagreement with the agency’s

decision.

Sharon now appeals the district court’s ruling affirming the agency’s

decision. Because we conclude substantial evidence supports the agency’s

causation determination, we affirm the district court’s judicial review ruling.

I. Background Facts and Proceedings.

The facts surrounding Douglas’s injury and death are largely undisputed.

Douglas worked as a truck driver for Gary Jensen Trucking, Inc. On December

1, 2008, Douglas was driving his truck within the course of his employment on

Interstate 80 near Iowa City when an SUV driver drove his SUV across the

median and struck Douglas’s truck head-on. The other driver died at the scene.

Douglas died roughly three months later.

At the time of the accident, Douglas was 64. He weighed approximately

171 pounds, and he was a 100-packs-a-year smoker. His health history included

severe chronic obstructive pulmonary disease (COPD); emphysema; shortness
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of breath, which was controlled with use of an inhaler; high cholesterol, reported

to be at an elevated LDL level of 133 in 2007; high blood pressure, which was

controlled by medication; and he was a survivor of prostate cancer. Beyond high

blood pressure, Douglas had no prior history of heart problems, nor had he ever

been told he had heart disease.

At the scene of the accident on December 1, Douglas was pulled from the

wreckage by a passerby as his truck was engulfed in flames. He was taken by

ambulance to the University of Iowa Hospitals and Clinics, and it was determined

he had five broken ribs and a flail chest, collapsed lungs, a grade II splenic

laceration, COPD exacerbation, a left eyebrow laceration, and a small subdural

hematoma. Douglas was intubated and extubated, and his treatment required

the placement of four chest tubes in his chest, two on each side. He spent

eleven days in the hospital and was discharged with continuous oxygen

supplementation and scheduled nebulizer treatments. He was advised he

“should avoid any sort of strenuous activity for six weeks” and follow-up with his

primary care physician.

After discharge, Douglas complained of constant pain, swollen legs, and

poor appetite. Against advice, he continued smoking. He was unable to move

around very much without pain. He saw a physician about a week later, and the

doctor noted Douglas still complained “of a fair amount of pain.” Douglas’s blood

pressure was noted to be “fairly low,” and his “[h]eart was regular without

murmur” and without abnormal heartbeats, and its rate was not faster than

normal. The doctor also reported Douglas had “pain when he trie[d] to take a

deep breath and still move[d] slowly using a walker.”
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On December 30, 2008, Douglas had an appointment with a

pulmonologist, and there he complained of chest pain; swollen, fluid-filled legs

(edema); and poor appetite. He was then admitted to the hospital, and he

complained of “left chest pain” and shortness of breath, and he stated he could

not “walk because of the severity of the pain.” The hospital report noted Douglas

did “not have a history of coronary artery disease. He has had chest pain,

however, but this has been since the area of trauma.” Douglas was discharged

about a week later, after his pain was well controlled, his respiratory function was

significantly improved, and his leg edema was significantly reduced. Scans at

that time showed no pulmonary embolus.

Douglas followed-up with his physician on January 12, 2009. At that time,

Douglas reported that his “left [chest] pain [was] now 5/10 and occasionally

[went] as high as 10/10 without pain meds, but the [pain meds were] helping. It

increase[d] when he breathe[d] and decrease[d] when he lay[] still. He rate[d] the

pain as sharp, continuous . . . [and had o]ccasional left arm numbness.”

Douglas saw his doctor again on January 23, 2009. He reported he did

not do too badly while he [was] at rehab, but a little while after
finishing rehab, he [got] severe pain in the left side of his back. He
complain[ed] that he [was] still very tender on that side. He also
[was] finding that he [got] very short of breath. [H]e said he [woke]
in the morning, and sometimes he is so panicky and short of breath
that he even has a difficult time doing his [nebulizer].

He also “complained of severe substernal burning discomfort following

exercising.”

Douglas followed-up with his pulmonologist at the end of January 2009.

He told his doctor that he had been in more pain for the last twenty days. He
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reported he had “difficulty breathing for around an hour or so, after which he

[was] able to take his . . . nebulizer.” The doctor noted in his physical

examination of Douglas that there was “exquisite tenderness over the left-sided

chest wall.” He referred Douglas to a physical medicine and rehabilitation

specialist for his continued pain and recommended Douglas consider localized

therapy.

Douglas saw the rehabilitation specialist February 18, 2009, four days

before his death. Douglas’s chief complaint at that time was “[l]eft-sided chest

pain and left arm numbness.” That doctor noted Douglas continued

to have difficulties with sleep and some weight loss. He continue[d]
to have poor appetite, hypertension, and some leg edema, which
[was] improved. He ha[d] numbness within his left arm, shaking
and occasional tremor, weakness of his left hand, some anxiety
and depression, frequent urination, occasional nausea and some
shortness of breath.

The specialist recommended changing certain medications and following-up in a

few weeks.

On February 21, 2009, Douglas and Sharon went to a friend’s funeral,

requiring Douglas to leave the house, something he only did to go to his doctors’

appointments. Douglas was able to walk, and “he looked the picture of health”

and “ten years younger,” according to Sharon. The next morning, Douglas woke

his wife up around 4:00 a.m. complaining of arm pain. A pain pill and a pain

patch did not alleviate his pain, and Douglas did not think he could walk to have

Sharon take him to the hospital. An ambulance was called, and Douglas was

taken to the emergency room.

The emergency-room report stated:
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[Douglas complained] of upper extremity pain. Upon arrival in the
emergency room, [Douglas] was noted to have [an] irregular heart
rate. . . . [His b]lood pressure also dropped . . . [and he developed]
chest pain. He was given . . . aspirin. Douglas has a significant
history for a motor vehicle crash in December of last year. He had
bilateral [collapsed lungs] as well as rib fractures. Since that time
Douglas states he has had upper extremity pain. The onset of
shortness of breath was sudden this morning.

Thereafter, Douglas’s condition deteriorated; his blood pressure dropped and he

continued to have chest pain “with radiation to his bilateral upper extremities.”

An electrocardiogram showed “atrial fibrillation, possible myocardial infarction but

no obvious ST elevation.” It was recommended Douglas be transported to the

Avera Heart Hospital via helicopter, and he was intubated to facilitate transport.

His blood pressure and rate stabilized then fell several times, but he improved

after he was given epinephrine. The report noted that a chest x-ray showed no

obvious findings as compared to the past, and it was assessed that Douglas had

suffered either a myocardial infarction or pulmonary embolism. The emergency

room physician noted it was her impression that Douglas suffered a “cardiac

event.”

Douglas was airlifted to the hospital, and during the flight, he coded

intermittently, requiring CPR be performed. CPR continued upon arrival at the

hospital, but Douglas was never revived. He was later pronounced dead. The

treating cardiologist, Dr. Watt, diagnosed Douglas at the time of his death with

1. Pulseless electrical activity, quite possibly secondary to
either a massive pulmonary embolus or a massive myocardial
infarction.
2. History of motor vehicle accident and trauma with prior rib
fractures and respiratory insufficiency.
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No autopsy was performed. The death certificate indicated Douglas died of

“ventricular stand still probable massive pulmonary embolus” and stated the

manner of his death was natural causes.

Thereafter, Douglas’s wife Sharon filed a claim for workers’ compensation

death benefits on Douglas’s behalf, asserting the injuries from his December

accident was the cause of his eventual death. Douglas’s employer admitted

Douglas suffered injuries in his accident, but it denied that those injuries caused

or contributed to Douglas’s death. A hearing was held before a deputy workers’

compensation commissioner in September 2012. Both Sharon and the employer

offered expert opinions on the cause of Douglas’s death.

Bruce, the cardiologist who treated Douglas the day of his demise, was

deposed and testified it was his opinion that Douglas’s probable cause of death

was a massive pulmonary embolus, though it was also possible he died from a

massive myocardial infarction. Dr. Watt explained that pulmonary emboli were

one of the major complications for persons who were at bed rest for a few

months who suddenly became active, and he testified that the consequences

from Douglas’s accident, being “sick for so long and debilitated and immobile to

some extent, . . . directly relate[d] to the type of setting that could lead one

to . . . the tendency to have a pulmonary embolus or that type of diagnosis,

prolonged debility.” Dr. Watt also opined that if Douglas died from a heart attack,

it was possible it was stress-induced from his accident, but he testified that was

generally more evident right at the time of the accident. Similarly, Dr. Watt

believed it was possible that if Douglas died from a heart attack it could have

been caused just by the stress of the physical ailment and debility from the
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accident but testified it was “also possible he could have had pre-existing

coronary artery disease and spontaneously had a plaque rupture and had a

massive heart attack.”

The employer’s expert, Dr. Ronald Vessey, an internist, opined it was

“most probable” that Douglas “died of the sudden death syndrome secondary to

having developed an acute event.” Dr. Vessey did not believe there was

evidence that Douglas had suffered any pulmonary emboli. Dr. Vessey noted

Douglas had complained “of retrosternal chest pain exacerbated by exercise, a

classic history for a patient with unstable angina,” and he concluded “[t]his man

probably had [coronary heart disease], an ordinary disease of life, multifactorial in

origin, and responsible for his demise. . . . It is my contention that it is most

probable that this man died from having suffered a massive myocardial

infarction.” The expert further opined:

. . . [Douglas] died secondary to progression of his non-work-
related [coronary heart disease]. This man’s [coronary heart
disease] was not caused by his work as a truck driver. His
[coronary heart disease] reflected his maleness, his advancing age,
his 100-pack/year history of smoking, his hypertension and his
hyperlipidemia, with an elevated LDL cholesterol. There is no
evidence in this record that, in the 50-plus days from [the date of
the accident] on through [January 22, 2009], reflecting the passage
of seven-plus weeks, this patient had any significant cardiac-related
pain process. Then, on [January 23, 2009,] and, again, on
[January 26, 2009,] and, again, on [February 18, 2009], tumbled to
the fact that this patient was developing angina pectoris[, i.e.
exercise-related cardiac pain].

Dr. Vessey concluded it was his “impression, based upon a reasonable degree of

medical certainty, that [Douglas’s] sudden death syndrome reflected the fact that

this patient had developed an acute coronary syndrome secondary to [Douglas’s]

obvious multifactorial, underlying [coronary heart disease].”
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Sharon’s expert, Dr. Dan Fintel, a cardiologist, essentially disagreed with

Drs Watt and Vessey. Dr. Fintel agreed with Dr. Vessey that it was unlikely

Douglas’s death was caused by blood clots and that Douglas possessed “several

cardiac risk factors which likely resulted in a component of underlying coronary

artery disease (which would have existed both before and after the collision).”

However, Dr. Fintel opined that it was

likely, to a reasonable degree of medical certainty, that the
emotional and physical stress related to the incident, including his
painful convalescence, contributed to acceleration of his
arteriosclerosis and caused the rupture of an unstable coronary
plaque on or before [his death]. In addition, it is well known that
blunt chest trauma associated with the sudden
deceleration/acceleration of his head-on motor vehicle accident can
cause traumatic injury to coronary arteries, resulting in more rapid
progression of atherosclerosis, coronary arterial injury, and the
development of a subsequent plaque rupture. Such a plaque
rupture was the most likely cause of the fatal arrhythmia, cardiac
arrest, and respiratory failure [Douglas] experienced on [the day of
his death].

Dr. Fintel concluded that “a cardiac etiology was the most likely cause of

[Douglas’s] persistent chest discomfort, and was a direct consequence of the

motor vehicle accident [in December 2008].”

In November 2012, the deputy commissioner entered his decision denying

Sharon’s claim. The deputy noted the opinions of Drs. Vessey and Fintel and

stated that the “opinions of both doctors are possible scenarios, and perhaps

equally persuasive (reading Dr. Fintel’s opinions in the best light). However, the

claimant has the burden of proving causation by a preponderance of the

evidence.” After setting forth the boilerplate legal standards for workers’-

compensation-case claims, the deputy simply stated: “Based on the finding that

the claimant did not meet his burden of establishing that the death . . . was the
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sequel or result of a work injury, the claimant (widow) has not established

entitlement to benefits following claimant’s death. As such all other issues are

moot.” The deputy did not discuss Dr. Watt’s opinion at all.

Sharon appealed the deputy’s decision, and the Iowa Workers’

Compensation Commissioner affirmed the decision as the final agency decision

but added additional analysis. The commissioner agreed the deputy’s failure to

discuss critical evidence within his decision was “troubling,” but it ultimately

agreed with the result. The commissioner found Dr. Watt’s assessment that

Douglas’s death was likely the result of pulmonary emboli was of minimal support

because Dr. Watt had not treated Douglas prior to him being airlifted to the

hospital and both Drs. Vessey and Fintel disagreed with his opinion. The

commissioner concluded Sharon failed to establish Douglas died of a pulmonary

embolism. Additionally, the commissioner concluded that if Douglas died from a

heart attack, Sharon failed to establish the attack was due to Douglas’s work

accident. Although Sharon pointed out that Dr. Vessey had not expressly

considered the stress issue in his causation determination, the commissioner

found “Dr. Vessey clearly was aware of the nature of the accident and decedent’s

course of recovery and still found that the heart attack was not due to the work

accident.” The commissioner also pointed out that Dr. Watt had stated at his

deposition that the stress was a possible cause of the attack but conceded it

could have been spontaneous given Douglas’s prior artery disease.

Sharon then filed a petition for judicial review of the commissioner’s

decision pursuant to Iowa Code sections 17A.19(10)(c), (f), and (i)-(n) (2009),

challenging the agency’s factual findings, its legal conclusions, and its application
11

of facts to the law. Following a contested hearing, the district court entered its

judicial-review ruling reluctantly affirming the agency decision. The district court

explained:

Given this court’s limited standard of review, that is
substantial evidence, this court has little leeway given this record.
Dr. Vessey, although an internist and not a cardiologist, was a
credible expert. He clearly concluded in his rational report that
[Douglas’s] death was not the result or sequel of the work injury.
Common sense, however, would suggest the contrary.
[Douglas] never fully recovered from the severe blunt chest trauma
he sustained in the work accident. He continued to have pain and
serious symptoms. He died [eighty-three] days after the initial
collision. Dr. Fintel’s opinion as a cardiologist that [Douglas’s]
death was the result or sequel of the work injury is persuasive to
this court. [Douglas’s] prolonged inactivity and debilitation
contributed to his death whether or not the ultimate event was a
heart attack or blood clot. Dr. Fintel’s opinion that the stress of the
severe physical ailments contributed to his death, is a logical and
rational conclusion.
In addition, this court would have given weight to the
opinions of Dr. Watt. Dr. Watt is a cardiologist. He was the only
medical expert who had personal contact with [Douglas]. He had
the responsibility to make a determination on the cause of death
when he signed the death certificate. At his deposition, he was
given [Douglas’s] medical history. Even with the knowledge of that
history, he did not change his opinion. If this court were hearing
this case at the agency level, this court would have agreed with Dr.
Fintel, [Douglas’s] expert, and Dr. Watt and found a causal
connection between the work injury and the cause of death and
granted benefits.
This court, however, is not at liberty to substitute its own
opinion for that of the Agency on a factual finding so long as there
is substantial evidence to support the finding. In this case there is
no incorrect application of the proper legal standard or incorrect
interpretation of the law. The commissioner’s application of the law
to the facts was not illogical, irrational or wholly unjustifiable. The
decision was supported by substantial evidence. This court is thus
bound to affirm the commissioner’s decision.

Sharon now appeals.
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II. Scope and Standards of Review.

Our review is governed by Iowa Code chapter 17A. See Mike Brooks, Inc.

v. House, 843 N.W.2d 885, 888 (Iowa 2014). Under chapter 17A, the district

court acts in an appellate capacity to correct errors of law. Id. In reviewing the

district court’s decision, we apply the standards of chapter 17A to determine

whether we reach the same conclusions as the district court. Id. at 889. If we

do, we affirm; if not, we reverse. Id. In reviewing agency action, the district court

may only reverse or modify if the agency’s decision is erroneous under one of the

provisions set forth in Iowa Code section 17A.19(10) and a party’s substantial

rights have been prejudiced. Gits Mfg. v. Frank, 855 N.W.2d 195, 197 (Iowa

2014).

“Medical causation presents a question of fact that is vested in the

discretion of the workers’ compensation commission.” Cedar Rapids Cmty. Sch.

Dist. v. Pease, 807 N.W.2d 839, 844-45 (Iowa 2011). Consequently, we will

“only disturb the commissioner’s finding of medical causation if it is not supported

by substantial evidence.” Id. at 845 (citing Iowa Code § 17A.19(10)(f)). Iowa

Code section 17A.19(10)(f)(1) defines “substantial evidence” 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.” It is not enough that different conclusions may be drawn from

the evidence. Mike Brooks, 843 N.W.2d at 889. Our job is to determine whether

substantial evidence supports the findings actually made. Id. “Legal error is

present under the substantial evidence analysis when an agency reaches a
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conclusion based on uncontroverted evidence which is contrary to the conclusion

reasonable minds would reach.” Riley v. Oscar Mayer Foods Corp., 532 N.W.2d

489, 491 (Iowa Ct. App. 1995). Thus, we review Sharon’s allegations of error to

determine if the factual findings of the workers’ compensation commissioner

regarding causation are supported by substantial evidence. See id.

III. Discussion.

A heart attack may be a compensable ‘injury,’ even if the claimant already

had latent heart disease, if claimant establishes, by a preponderance of the

evidence, that some employment incident or activity was a proximate cause

health impairment on which he bases his claim. See Sondag v. Ferris Hardware,

220 N.W.2d 903, 905 (Iowa 1974); Holmes v. Bruce Motor Freight, Inc., 215

N.W.2d 296, 297 (Iowa 1974). While a mere possibility of causation is not

sufficient, absolute certainty is not required to be shown. See Sondag, 220

N.W.2d at 905, 907. Rather, “probability is necessary,” though the “incident or

activity need not be the sole proximate cause, if the injury is directly traceable to

it.” Holmes, 215 N.W.2d at 297. However, “[w]hether an injury has a connection

to the employment is essentially within the domain of expert testimony.”

Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995); Merch. v.

SMB Stage Lines, 172 N.W.2d 804, 807 (Iowa 1969). Though we note that a few

states have held that “a claimant may be aided in the task by a presumption that,

when death follows soon after an injury, the death was caused by the injury,” see

1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law

§ 7.04[2][a], at 7-36 (2013) (and cases cited therein), such a presumption does

not exist in Iowa.
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Though we do not rubber stamp the agency’s decision, see Pease, 807

N.W.2d at 845, our review is nevertheless extremely limited. “[W]hen we review

factual questions delegated by the legislature to the commissioner, the question

before us is not whether the evidence supports different findings than those

made by the commissioner, but whether the evidence ‘supports the findings

actually made.’” Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 850 (Iowa 2009);

see also Mike Brooks, 843 N.W.2d at 889. While we might not have found the

way the commissioner found, Dr. Vessey’s opinion, even as an internist and not

a cardiologist like the other experts, was that Douglas’s death was not caused by

the accident. The commissioner relied upon Dr. Vessey’s opinion that Douglas

was simply “one of the 250,000-300,000 Americans who die every year of

cardiovascular collapse.” Consequently, the agency’s decision was supported by

substantial evidence, and we cannot conclude its decision to accept Dr. Vessey’s

opinion over the other experts was irrational, in light of our legislative directive.

IV. Conclusion.

This is a tough case all around, given that the accident was neither

Douglas’s nor his employer’s fault. However, we recognize the oft-repeated

principle that the “appellate court should not consider evidence insubstantial

merely because the court may draw different conclusions from the record.” Arndt

v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa 2007). Here, we find substantial

evidence supports the agency’s finding that Sharon did not prove by a

preponderance of the evidence that Douglas’s accident was a cause of his tragic

death. Consequently, we affirm the district court’s judicial review ruling.

AFFIRMED.