Presbyterian Homes & Services, Inc., d/b/a Mill Pond and Zurich American Insurance Company v. Mary Buchanan

IN THE COURT OF APPEALS OF IOWA

No. 19-0010
Filed January 9, 2020

PRESBYTERIAN HOMES & SERVICES, INC., d/b/a MILL POND and ZURICH
AMERICAN INSURANCE COMPANY,
Plaintiffs-Appellants,

vs.

MARY BUCHANAN,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.

Presbyterian Homes & Services, Inc., doing business as Mill Pond and its

insurer Zurich American Insurance Company appeal the district court order

affirming in part and reversing in part a final decision of the Iowa Workers’

Compensation Commission. Mary Buchanan cross-appeals. AFFIRMED.

Valerie A. Foote of Smith Mills Schrock Blades Monthei P.C., West Des

Moines, for appellants.

Matthew Milligan of Schott Mauss & Associates, PLLC, Des Moines, for

appellee.

Considered by Vaitheswaran, P.J., Greer, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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POTTERFIELD, Senior Judge.

Presbyterian Homes & Services, Inc., doing business as Mill Pond, and its

insurer Zurich American Insurance Company (Zurich) appeal the district court

order affirming in part and reversing in part a final decision of the Iowa Workers’

Compensation Commission. The claimant, Mary Buchanan, cross-appeals. The

commissioner found (1) appellee/cross-appellant Buchanan’s injury to her left

foot and sequela injury to her back were caused by her work for Mill Pond; (2)

Buchanan sustained sixty-five percent industrial disability as a result of those

injuries; and (3) Buchanan was entitled to penalty benefits because appellants

unreasonably withheld healing period payments from October 30, 2014, until

August 26, 2015. The district court affirmed the commissioner’s findings on

medical causation and industrial disability, but it reversed the commissioner’s

award of penalty payments. Appellants argue the district court erred by finding

(1) the commissioner’s factual findings on medical causation were supported by

substantial evidence; and (2) the commissioner’s determination Buchanan had

sustained sixty-five percent industrial disability as a result applied the correct

legal standard and was supported by substantial evidence. On cross appeal,

Buchanan argues the district court erred by reversing the commissioner’s

decision awarding her penalty benefits.

I. Background

a. Prior Work and Medical History

After graduating from high school in 1990, Buchanan worked as a

waitress, as an office helper for a shared office, and with a road crew for the

Department of Transportation before leaving the workforce in 1993 to become a
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stay-at-home parent. Except for working as a field inspector with an agricultural

business in the summers of 1997 and 1998, she did not enter the workforce

again until 2005. From 2005 to 2012, Buchanan worked in various capacities at

group homes and as a home health aide, as well as in seasonal positions with

3M, Lowe’s Garden Center, and Professional Homes.

Buchanan earned her certified nursing assistant (CNA) certificate in 2010,

and she worked as a CNA at Westhaven Community from 2011 to 2012. She

earned her Associate’s Degree in 2013. She left Westhaven Community to work

at Mill Pond, where she was employed as a full-time CNA until December 2014.

Her position required her to stand or walk for long periods of time up to her entire

shift, lift or move up to fifty pounds for her entire shift, and lift up to 100 pounds

with the use of assistive devices for up to one-third of her shift.

Before the alleged incident, Buchanan had a history of health problems

associated with her left foot. She had plantar fasciitis in her left foot that required

surgery in 2007. She also reported pain in her left foot in 2008. Dr. Charles

Gilarski, with whom she consulted, noted the pain “appears to be something

different” and that “[s]he has no problems from the surgical area.” Dr. Gilarski

directed her to take anti-inflammatory medication and to start a home stretching

program. Buchanan did not report any more issues with her left ankle until the

injury at issue.

Buchanan also has a history of problems with her right ankle and her

back. She sprained her right ankle in 2000 and was treated with a temporary

brace, ice, and anti-inflammatory medication. Buchanan has gone to a

chiropractor since she was twenty-one years old, largely for maintenance of
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intermittent neck and back pain and migraines. She reported to her chiropractor

that lifting, twisting, and standing aggravated pain in her lower back. In

December 2013, Buchanan claimed she suffered a back injury while working for

Mill Pond. She reported having lower back pain while she and a co-worker were

moving a patient. She was treated until January 27, 2014, at which time she

could return to performing full work duties at Mill Pond.

b. Ankle Injury

The alleged work injury occurred on February 2, 2014. Buchanan was

performing duties as a shower aide, which involved transporting patients from

their beds or wheelchairs to the shower using a device called a Hoyer lift.

Buchanan later testified using the Hoyer lift required her to plant her feet at

shoulder-width apart or more while using her body to turn patients while they

were in the lift. While moving patients in the lift on February 2, Buchanan later

testified she felt the onset of a constant burning sensation and throbbing pain in

her left ankle. She did not immediately report the injury to Mill Pond. She

testified she did not report the injury right away because she could not identify

what she had done that morning to cause the injury and believed the pain would

go away on its own.

Buchanan first sought treatment for her left ankle on April 28, 2014. She

was first evaluated by Dr. Scott Thiel, her primary care physician. Buchanan

informed Dr. Thiel the pain had been present for about two months and was in a

different location than the pain from her plantar faciitis had been. Nonetheless,

Dr. Thiel concluded Buchanan’s pain was “[c]onsistent with plantar faciitis” and
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directed her to wear more supportive shoes, ice her feet three times a day, do

foot exercises, and take over-the-counter painkillers as needed.

Her pain persisted, and Buchanan was evaluated by Dr. Gilarski on June

4. Dr. Gilarski diagnosed her with plantar faciitis. Dr. Gilarski’s report shows

Buchanan told him the pain began seven to ten days before the June 4 visit. The

report also states Buchanan informed Dr. Gilarski the pain was unrelated to an

injury and was also unrelated to work activities. Buchanan disputed Dr. Gilarski’s

report during her testimony. She testified that while speaking with her, Dr.

Gilarski said her ankle pain was likely from a torn tendon and advised her to

either get a different job, spend less time on her feet, or lose weight. Dr. Gilarski

did not impose any work restriction on Buchanan, and she continued to work her

normal shifts at Mill Pond.

Over the next few months, the pain in Buchanan’s left ankle increased. In

August, she decided to address her pain with the director of nursing and head of

human resources at Mill Pond. Mill Pond agreed to change her shifts from

double to single shifts and reduce her overall weekly hours from forty to thirty-

two. Mill Pond offered to start workers’ compensation, but Buchanan declined

based on Dr. Gilarski’s assessment.

Buchanan’s ankle pain persisted, and she filed an incident report with Mill

Pond on October 28. The next day, Buchanan was examined by Dr. Nicholas

Bingham, Mill Pond’s authorized treating physician. Dr. Bingham’s notes from

his examination show the cause of Buchanan’s ankle pain was “undetermined,”

but also noted Dr. Bingham lacked access to Buchanan’s full medical records.

He also questioned Dr. Gilarski’s earlier diagnosis and advice to Buchanan,
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which he described as coming “after merely one visit and no advanced imaging.”

Dr. Bingham restricted Buchanan from using the Hoyer lift “as it seems to be the

only provocative activity.” He also prescribed her anti-inflammatory medication

and scheduled a two-week follow up appointment to determine whether

Buchanan should be referred to a physical therapist or podiatrist. The follow up

assessment happened on November 12. Dr. Bingham received Buchanan’s

medical records before the November 12 follow up appointment and questioned

the reliability of Dr. Gilarski’s notes:

We left it after the last exam that I was going to obtain medical
records and I was hopefully going to speak with a foot doctor once I
know what [Dr. Gilarski]’s working diagnosis was. . . . In reading
[the records], they seem to be quite at odds with what the patient
was told when she visited there last spring. For example, she
complained of lateral left heel pain but the doctor’s diagnosis per
his notes was listed as medial band plantar fasciitis. The note
stated that they would “follow her closely for the next 3 to 4 weeks;”
the patient was told that she did not need to follow. There was no
mention of her weight or her changing occupations on the doctor’s
notes. . . . Due to the unreliability of [Dr. Gilarski]’s notes, I was
really not able to consult with the foot doctor I had in mind.

Dr. Bingham concluded his assessment by stating that, because he had not yet

received Dr. Thiel’s notes, he could not conclude Buchanan’s ankle pain was

related to her work at Mill Pond. He directed Buchanan to continue the treatment

he recommended and to return for re-evaluation in two weeks.

The second re-evaluation happened on November 26. Buchanan told Dr.

Bingham she felt “quite a bit better” and not having to use the Hoyer lift had

“been quite helpful to her.” She also noted she rarely had a chance to put lateral

stress on her left ankle, which Dr. Bingham noted was the type of stress that

happened while Buchanan used the Hoyer lift. Dr. Bingham determined
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Buchanan’s gait was normal and that she could return to full duty. He directed

Buchanan to avoid lateral stress as much as possible and referred her for an

evaluation with a podiatrist. Dr. Bingham checked a box for “Work Related” on

Buchanan’s November 26 patient status report.

After her visit with Dr. Bingham, Buchanan’s next shift was on November

29. She tried to use the Hoyer lift to move patients, but as she used the machine

her ankle pain increased to the point she started to limp and could not transfer

patients in the Hoyer lift. She contacted Dr. Bingham’s office, and her work

restriction on the use of the Hoyer lift was reinstated. Dr. Bingham filed another

patient status report that same day, which noted Buchanan’s injury was work

related and requested authorization from Mill Pond for a podiatric evaluation.

Buchanan returned to work on December 3. She was informed Mill Pond

would no longer treat Buchanan’s injury as a workers’ compensation matter, Mill

Pond would not be covering her treatment, and she could not return to work until

she was released by her doctor at full functionality. Zurich noted it had tried to

contact Buchanan in a November 3 letter. It followed up with another letter on

November 24 informing her Zurich would not cover her treatment citing Zurich’s

“inability to speak with you.” Buchanan denied receiving either letter, although

she admitted during testimony that both letters listed her address correctly.

Following the denial of her claim, Buchanan was evaluated by Dr. Dana

Plew, a podiatrist, on December 8. Dr. Plew took x-rays of Buchanan’s foot and

diagnosed her with peroneal tendonitis. Dr. Plew concluded further testing was

appropriate and ordered an MRI. The MRI revealed a tear in the peroneus

longus tendon of Buchanan’s left ankle. Dr. Plew provided a CAM boot for
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Buchanan to wear for the next eight weeks and provided her paperwork for

seeking leave under the Family Medical Leave Act (FMLA). The FMLA form,

dated December 23, noted Buchanan “has been misdiagnosed” and had been

dealing with her condition for ten months. Dr. Plew also filed a certificate with

Mill Pond, which informed Mill Pond Buchanan could return to work on February

16, 2015, and forbade Buchanan from lifting more than five pounds, twisting, or

standing longer than two hours at a time.

Buchanan followed up with Dr. Plew on January 26, 2015. Dr. Plew

applied tape and directed Buchanan to keep applying tape and wean off use of

the CAM boot, which she was directed to do in two weeks. Dr. Plew

recommended she do exercises for her foot. Buchanan had another follow-up

appointment with Dr. Plew on February 23. During this appointment, Dr. Plew

instructed Buchanan to keep weaning off use of the CAM boot and ordered

physical therapy.

Buchanan attended eight physical therapy sessions between March 6 and

April 14. During these visits, Buchanan complained of increased ankle pain. Dr.

Plew ordered another MRI, which revealed a stress fracture on the medial

cuneiform bone of Buchanan’s left ankle.

Dr. Plew wrote an opinion statement on July 20. Dr. Plew noted “tears in

the peroneal tendon can happen instantaneously (the result of one wrong step)

or develop gradually” and the tear “likely occurred or began” when Buchanan

started to feel pain while using the Hoyer lift on February 2, 2014. Dr. Plew

concluded it was “more probable than not” that Buchanan’s CNA work duties at

Mill Pond “caused or were a significant factor” in the tear’s development and her
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continued work at Mill Pond after the injury “worsened or aggravated” the tear.

Dr. Plew also addressed Buchanan’s history of plantar faciitis, noting that

condition and the tear “are unrelated conditions.”

Buchanan was referred to Dr. Julie Albrecht for a surgical consultation.

Dr. Albrecht agreed with Dr. Plew’s diagnosis and recommended surgery. Dr.

Albrecht performed surgery on May 28. Buchanan was given a prescription for

pain medication and instructed to begin home exercises and avoid putting weight

on her foot. Buchanan received custom orthotics for her feet on August 14. The

orthotics were not comfortable. On March 15, 2016, Buchanan complained the

orthotics hurt her feet to the point she could not wear them all day as prescribed.

Dr. Albrecht recommended Buchanan change orthotics.

By March 28, 2016, Buchanan’s pain had worsened. She reported to Dr.

Albrecht that her feet felt like they were “broken,” and she could not keep wearing

the orthotic. She reported pain in both feet, with worse pain in her right foot. She

also told Dr. Albrecht she had begun walking on the balls of her feet to help

alleviate the pain. She was prescribed new orthotics.

Dr. Albrecht wrote an opinion letter on June 13, 2016. Dr. Albrecht agreed

with Dr. Plew’s statement about Buchanan’s CNA work contributing to

Buchanan’s continued pain, noting “[o]nce the tendon is torn, any activity

aggravates it, thus her work activities as a CNA certainly would have aggravated

it.” Dr. Albrecht also opined the tear caused both her continued ankle pain and

led to the pain in her right foot:

With regard to her recovery, the left peroneal tendon repair
progressed fairly good, but she experienced increase[d] pain in the
ankle joint and those symptoms became chronic. She may have
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been predisposed to arthritic problem[s] in that area but walking
poorly aggravates the lateral joint where the tendon attaches. Her
left ankle pain is causally related to the original left peroneal tendon
tear.
. . . . With regard to her right ankle pain, the pain is in the same
joints as the left foot. This again suggests a predisposition for an
arthritic or mechanical problem. Yet, the left peroneal tendon tear
caused her to walk poorly for an extended period of time. In my
opinion, Ms. Buchanan’s disturbed gait over many months, due to
the left peroneal tear, was a factor in lighting up her right ankle
pain.

Buchanan underwent two independent medical examinations during her

treatment. The first was an examination by Dr. Charles Mooney, which

happened on August 26, 2015, at Mill Pond’s request. Citing Dr. Theil and Dr.

Gilarski’s records, Dr. Mooney concluded

the medical records do not corroborate an incident occurring on
02/02/2014, nor is it my opinion that the general activities of a CNA,
including the use of a Hoyer lift would be a significant intensity to
precipitate a tendon tear. . . . Ms. Buchanan’s presentation is much
more consistent with a chronic condition, such as ankle instability,
resulting in tendon tearing.

Buchanan underwent the second independent medical examination at her

attorney’s request on June 3, 2016. Buchanan was examined by Dr. Sunil

Bansal. Dr. Bansal opined that the act of lifting patients with the Hoyer lift “would

cause stretching and injury to the peroneal tendons from the traction pressure.”

Dr. Bansal recommended Buchanan avoid walking for longer than thirty minutes

at a time and avoid multiple steps, stairs, uneven terrain, and ladders.

Dr. Mooney responded to Dr. Bansal’s evaluation on July 11, 2016. Dr.

Mooney maintained his early assessment, again noting “the medical records do

not corroborate an injury to the left foot and ankle” and Buchanan’s health issues

“are related to a personal medical condition preexisting her employment.”
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c. Sequela Injury

The alleged sequela injury is a permanent injury to Buchanan’s back,

which Buchanan alleges was caused by her ankle injury. On July 7, 2015,

Buchanan sought treatment related to back pain from Patrick Kasper, a physician

assistant. Buchanan told Kasper she had been suffering from back pain for

“about a year.” Kasper prescribed her a muscle relaxer and weight loss

medication. At an August 11 follow up appointment, Buchanan told Kasper her

back pain had not improved. Kasper then sent Buchanan to physical therapy.

Buchanan’s physical therapist noted during an August 18 therapy session that

Buchanan “has malalignments in both her low back and pelvis.” At another

therapy session the week after, the therapist noted Buchanan had an “antalgic

gait” when she arrived.

An x-ray of Buchanan’s back was taken on February 9, 2016. The x-ray

revealed Buchanan had degenerative disc disease, lumbar arthritis, and some

spurring. A subsequent MRI showed Buchanan had moderate bilateral facet joint

osteoarthritic changes at the L4-L5 level. Buchanan was referred to another

doctor for pain management treatment.

Dr. Bansal addressed Buchanan’s back pain in his report. He concluded

Buchanan’s walking on the balls of her feet in response to her foot pain

“disturb[ed] her sacroiliac joint biomechanics,” which led to her developing both

facet anthropathy and sacroiliitis.

[R]isk factors for sacroiliitis included leg length discrepancy or
altered gaits. It is logical that the back pain manifested months
after her left foot injury, as this is a cumulative process. As her left
foot pathology and pain is permanent, it follows that her back
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pathology is permanent as it is being aggravated by her antalgic
gait resulting from her foot condition.
....
Furthermore, in my opinion, Ms. Buchanan has underlying
facet anthropathy. . . .
The inflammation resulting from the altered gait causes the
synovial facet joints to fill with fluid and distend, resulting in pain
from stretching the joint capsule.

Dr. Bansal concluded the result of Buchanan’s ankle and back conditions was a

seven percent whole person impairment based on American Medical Association

guidelines. He recommended a work restriction of no lifting over twenty pounds

occasionally, and no lifting over ten pounds frequently.

d. Procedural History

Buchanan filed her arbitration petition in May 2015. A hearing took place

before a deputy workers’ compensation commissioner on July 13, 2016, and the

matter was deemed submitted following submission of briefs on July 27.

Buchanan was forty-four years old at the time of the hearing. The issues

submitted were

I. Whether claimant received an injury arising out of and in the
course of employment;
II. The extent of claimant’s entitlement to weekly temporary
total or healing period benefits, temporary partial disability
benefits and permanent disability benefits;
III. The extent of claimant’s entitlement to medical benefits; and
IV. The extent of claimant’s entitlement to penalty benefits for an
unreasonable delay or denial of weekly benefits pursuant to
Iowa Code section 86.13.

The deputy commissioner concluded Buchanan sustained an injury to her left

foot and ankle during the course of her employment on February 2, 2014, and

the injury to her back was a sequela injury caused by her foot injury.
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The deputy commissioner also concluded Buchanan sustained sixty-five

percent industrial disability as a result of her ankle and back problems, based in

part on a vocational evaluation Buchanan underwent on May 19, 2016. After

reviewing Buchanan’s medical and employment history the evaluator concluded

Buchanan’s lifting and prolonged walking limitations “result[] in a total 64.2% loss

of access to the labor market due to her work related injuries.”

The deputy commissioner also found Mill Pond and Zurich unreasonably

denied workers’ compensation benefits in violation of Iowa Code section 86.13

(2016).

In this case, the claim was denied benefits in a letter to claimant
dated November 24, 2014 on the basis of defendants’ investigation
and claimant’s failure to respond to Inquiries. The results of the
investigation were not disclosed. Presumably, this was based on
the views of the two initial physicians, Drs., Thiel and Gilarski.
However, their own authorized physician, Dr. Bingham at that time
clearly indicated he felt her problems were work related and
defendant did not explain to claimant why they rejected his
views. . . . Defendants assert a lack of causation issue, but there is
no evidence of any further investigation until they requested an
evaluation by Dr. Mooney December 2013.
I hold that the initial denial was unreasonable because it
failed to comply with Iowa Code section 85.13 which requires that
claimant be notified of the results of a supposed investigation. . . .
However, the causation issue became fairly debatable after Dr.
Mooney issued his views on August 26, 2015. Consequently,
defendants unreasonably withheld benefits between the date of
injury and August 26, 2015. . . . At any rate, continued reliance on
the views of Drs. Thiel and Gilarski to deny the claim on causation
was unreasonable after the MRI revealed a torn tendon and Dr.
Plew provided a diagnosis of a torn tendon on December 15, 2014.

The deputy commissioner concluded Mill Pond and Zurich unreasonably withheld

healing period benefits from October 30, 2014, until August 26, 2015, and

assessed a penalty of $5428.97, half the maximum penalty for such violations.
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Appellants appealed to the commissioner of workers’ compensation, who

affirmed the deputy commissioner’s decision in its entirety. Appellants next

sought judicial review. In a December 2018 ruling, the district court affirmed the

commissioner’s decision on medical causation and industrial disability, but it

reversed the commissioner’s decision to award penalty benefits.

Although there was substantial evidence to support the
Commission decision that the injury was work-related and
specifically related to operation of the Hoyer lift, it was not
unreasonable for Mill Pond to rely on Buchanan’s own failure to
identify or describe a work-related injury and Dr. Gilarski’s medical
records indicating that Buchanan stated the pain was not related to
an injury or work activity. The fact that later medical providers
relied on Buchanan’s more recent descriptions does not mean the
issue was not fairly debatable or that Mill Pond’s position was
unreasonable.

Both parties appeal the district court’s ruling.

II. Standard of Review

“Judicial review of workers’ compensation cases is governed by Iowa

Code chapter 17A. On our review, we determine whether we arrive at the same

conclusion as the district court.” Warren Props. v. Stewart, 864 N.W.2d 307, 311

(Iowa 2015). “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 (Iowa 2011). “We will therefore only disturb

the commissioner’s finding of medical causation if it is not supported by

substantial evidence.” Id. (citing Iowa Code § 17A.19(10)(f)). As used in chapter

17A,

“Substantial evidence” means 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
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consequences resulting from the establishment of that fact are
understood to be serious and of great importance.

Iowa Code § 17A.19(10)(f)(1). But “the question on appeal is not whether the

evidence supports a different finding than the finding made by the commissioner,

but whether the evidence ‘supports the findings actually made.’” Meyer v. IBP,

Inc., 710 N.W.2d 213, 218 (Iowa 2007) (quoting St. Luke’s Hosp. v. Gray, 604

N.W.2d 646, 649 (Iowa 2000)).

Whether Buchanan suffered a sixty-five percent industrial disability is a

mixed question of law and fact. Neal v. Annett Holdings, Inc., 814 N.W.2d 512,

525 (Iowa 2012). We review the commissioner’s findings of fact for substantial

evidence and we “must engage in a ‘fairly intensive review of the record to

ensure that the fact finding is itself reasonable.’” Id. (quoting Wal-Mart Stores,

Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003)). But “in considering

findings of industrial disability, we recognize that the commissioner is routinely

called upon to make such assessments and has a special expertise in the area

that is entitled to respect by a reviewing court.” Id. at 527. And insofar as the

parties challenge the commissioner’s application of law to facts, we will not

reverse the commissioner unless his decision is “irrational, illogical, or wholly

unjustifiable.” Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 857 (Iowa 2009).

We review the commissioner’s interpretation of Iowa Code section 86.13

for errors at law. Pettengill v. Am. Blue Ribbon Holdings, LLC, 875 N.W.2d 740,

745 (Iowa Ct. App. 2015); see Iowa Code § 17A.19(10)(c) (“The court shall

reverse, modify, or grant other appropriate relief from agency action . . . if it

determines that substantial rights of the person seeking judicial relief have been
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prejudiced because the agency action is . . . [b]ased upon an erroneous

interpretation of a provision of law whose interpretation has not clearly been

vested by a provision of law in the discretion of the agency.”).

III. Discussion

a. Medical Causation

Mill Pond and Zurich first argue the determination that Buchanan’s ankle

and sequela back injury were caused by and arose out of Buchanan’s

employment at Mill Pond was not supported by substantial evidence. For the

reasons below, we disagree.

In regard to the ankle injury, Mill Pond and Zurich base their argument

mainly on inconsistencies in the medical records and Buchanan’s recollection of

the injury to suggest the injury did not occur on February 2, 2014, while

Buchanan was working for Mill Pond. These inconsistencies, appellants argue,

undercut the commissioner’s reliance on the medical opinions and diagnoses of

Drs. Bingham and Albrecht rather than the opinions of Drs. Thiel, Gilarski, and

Mooney. See Pease, 807 N.W.2d at 845 (“The weight given to expert testimony

depends on the ‘accuracy of the facts relied upon by the expert and other

surrounding circumstances.’” (quoting Schutjer v. Algona Manor Care Ctr., 780

N.W.2d 549, 560 (Iowa 2010))). “Ultimately, however, the determination of

whether to accept or reject an expert opinion is within the ‘peculiar province’ of

the commissioner.” Id. (quoting Deaver v. Armstrong Rubber Co., 170 N.W.2d

455, 464 (Iowa 1969)). “In addition, we give due regard to the commissioner’s

discretion to accept or reject testimony based on his assessment of witness

credibility.” Schutjer, 780 N.W.2d at 858.
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Essentially, appellants ask us to find Buchanan’s inconsistent statements

to medical professionals “so impossible or absurd and self-contradictory that

[they] should be deemed a nullity by the court.” Graham v. Chi. & Nw. Ry., 119

N.W. 708, 744 (Iowa 1909). This we cannot do. The deputy commissioner noted

Buchanan’s inconsistent statements to medical professionals and concluded

Buchanan’s initial uncertainty was explained by her reliance on Dr. Thiel’s

assessment that she had plantar faciitis. Dr. Thiel’s notes, however, state

Buchanan informed him the pain started about two months before her meeting

with him in late March 2014, which places the initial injury sometime in February

2014. The deputy commissioner further concluded Buchanan credibly testified

that Dr. Gilarski’s notes—including his assessment that her pain had only started

in or around the last week as of their June 4 appointment—did not accurately

reflect the substance of his conversation with her. As the district court noted in

its order on judicial review, “This is not a situation where the Commission failed

to consider important facts, instead those facts were weighed and interpreted

differently than Mill Pond argues they should be.” The deputy commissioner

evaluated the conflicting medical evaluations and concluded the opinions of Drs.

Bingham, Plew, Albrecht, and Bansal correctly identified Buchanan’s injury as

work-related. The deputy commissioner determined Dr. Gilarski’s opinion was

unpersuasive because it “was inconsistent with the notes of Dr. Thiel and

claimant’s credible testimony.” The deputy commissioner similarly discounted

Dr. Mooney’s independent medical examination because Dr. Mooney relied

mainly on the medical records from Dr. Thiel and Dr. Gilarski, who both

incorrectly diagnosed Buchanan’s injury. The commissioner affirmed the deputy
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commissioner’s decision in its entirety. We cannot say the deputy

commissioner’s finding of medical causation as related to Buchanan’s ankle

injury was unsupported by substantial evidence.

We reach the same conclusion for Mill Pond and Zurich’s challenge to the

commissioner’s causation determination related to the alleged sequela injury to

Buchanan’s back. Mill Pond and Zurich do not dispute that the only two

physicians who address Buchanan’s back injury, Dr. Mooney and Dr. Bansal,

agreed an ankle injury could lead to her lower back injury. The commissioner

noted this agreement. Dr. Bansal further opined Buchanan’s back injury was

permanent because “the reason for her back pain is her altered gait, and the

altered gait is the result of a permanent ankle condition, it stands to reason that

the back pain would be permanent.” We similarly cannot conclude the

commissioner’s medical causation determination in regard to Buchanan’s back

injury was not supported by substantial evidence.

b. Industrial Disability

Mill Pond and Zurich next argue the commissioner’s determination that

Buchanan had an industrial disability rating of sixty-five percent is not supported

by substantial evidence. In particular, appellants argue Buchanan has failed to

establish that her injuries were permanent and the sixty-five percent industrial

disability rating is “grossly inflated and not reflective of agency precedent.”

An employee who experiences a permanent disability is entitled to

compensation. Iowa Code § 85.34. The amount of compensation “is based on

the employee’s earning capacity.” Neal, 814 N.W.2d at 526. Earning capacity is

in turn determined “by an evaluation of several factors, including ‘functional
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disability . . . age, education, qualifications, experience, and inability to engage in

similar employment.’” Id. (quoting Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d

129, 137–38 (Iowa 2010) (citation and internal quotation marks omitted)). The

commissioner addressed all of these factors. Based on Dr. Albrecht and Dr.

Bansal’s evaluations, the commissioner found Buchanan had a seven percent

whole body impairment from her ankle and sequela back injury. The

commissioner further noted Buchanan was forty-four years old at the time of the

hearing, had earned her associate’s degree, and had obtained a CNA certificate.

The deputy commissioner found, and the commissioner affirmed, the work

restrictions imposed on Buchanan by Dr. Albrecht and Dr. Bansal limited her to

sedentary work, which “prohibit[s her] from nursing assistant jobs, the occupation

for which she is best suited.” The commissioner’s assessment of sixty-five

percent disability is also supported by the undisputed findings of the vocational

evaluation, which found Buchanan’s injuries led to a “64.2% loss of access to the

labor market.” Given this evidence, we conclude substantial evidence supports

the commissioner’s determination and that determination is not irrational,

illogical, or wholly unjustifiable.

c. Penalty Benefits

Finally, Buchanan argues the district court erred by reversing the

commissioner’s award of penalty damages. The commissioner determined Mill

Pond and Zurich unreasonably withheld healing period benefits from October 30,

2014 through August 26, 2015, when Dr. Mooney issued his independent

medical evaluation disputing Buchanan’s claims her ankle and back injuries were

caused by her work for Mill Pond. On our review, we conclude the
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commissioner’s determination was not supported by substantial evidence and

affirm the district court.

The district court found the commissioner’s decision to award penalty

benefits was not supported by substantial evidence in part because the

commissioner incorrectly applied Iowa Code section 86.13. Iowa Code section

86.13 directs the commissioner to award penalty benefits if “(1) The employee

has demonstrated a denial, delay in payment, or termination of benefits. (2) The

employer has failed to prove a reasonable or probable cause or excuse for the

denial, delay in payment, or termination of benefits.” Iowa Code § 86.13(4)(b)

(2016). Section 86.13 further requires a reasonable or probable cause or excuse

for denial to meet all of the following requirements:

(1) The excuse was preceded by a reasonable investigation and
evaluation by the employer or insurance carrier into whether
benefits were owed to the employee.
(2) The results of the reasonable investigation and evaluation
were the actual basis upon which the employer or insurance carrier
contemporaneously relied to deny, delay payment of, or terminate
benefits.
(3) The employer or insurance carrier contemporaneously
conveyed the basis for the denial, delay in payment, or termination
of benefits to the employee at the time of the denial, delay, or
termination of benefits.

Id. § 86.13(4)(c). The deputy commissioner concluded, and the commissioner

affirmed, section 86.13 “requires that claimant be notified of the results of a

supposed investigation.” The district court disagreed, stating “[t]he ‘basis’ for the

denial must be conveyed and the basis must stem from an investigation, but the

language of the statute does not require that the ‘results of the investigation’ be

conveyed.”
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“When interpreting a statute, we look first to the statute’s plain meaning.”

Cox v. Iowa Dep’t of Human Servs., 920 N.W.2d 545, 553 (Iowa 2018). If the

meaning of a statute is unambiguous, “we will apply the statute as written.” Id.

We conclude section 86.13(4)(c)(3) is unambiguous. The term “basis” is

generally defined as “[a] fundamental principle; an underlying fact or condition; a

foundation or starting point.” Basis, Black’s Law Dictionary (11th ed. 2019).

Thus, Mill Pond and Zurich did not have to provide the results of their

investigation to Buchanan—just the reason for their denial of payments, which

Zurich’s November 24 letter does by informing Buchanan Zurich believed “the

problem with your left heel/foot is not related to an incident at work.” Thus, the

commissioner’s conclusion that Mill Pond and Zurich’s initial denial of

Buchanan’s claim was unreasonable was not supported by substantial evidence.

The question then becomes whether the denial of Buchanan’s claim was

unreasonable between December 15, 2014, and August 26, 2015, after

Buchanan’s MRI showed Dr. Thiel and Dr. Gilarski’s diagnoses were incorrect

but before Dr. Mooney disputed Dr. Albrecht and Dr. Bansal’s medical causation

determinations. “A reasonable basis for denying insurance benefits exists if the

claim is ‘fairly debatable’ as to either a matter of fact or law.” Thornton v. Am.

Interstate Ins. Co., 897 N.W.2d 445, 465 (Iowa 2017) (quoting Rodda v. Vermeer

Mfg., 734 N.W.2d 480, 483 (Iowa 2007)). “A claim is ‘fairly debatable’ when it is

open to dispute on any logical basis.” Bellville v. Farm Bureau Mut. Ins. Co., 702

N.W.2d 468, 472 (Iowa 2005). “Stated another way, if reasonable minds can

differ on the coverage-determining facts or law, then the claim is fairly

debatable.” Id.
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The deputy commissioner concluded, and the commissioner affirmed,

“any reliance on the views of Drs. Thiel and Gilarski to deny the claim on

causation was unreasonable after the MRI revealed a torn tendon and Dr. Plew

provided a diagnosis of a torn tendon on December 15, 2014, rendering any prior

diagnosis invalid.” But as the district court noted the commissioner’s “decision

conflates two concepts: what physical problem was causing pain with whether

the underlying physical problem was work related.” The MRI established

Buchanan had a tear in the peroneus longus tendon of her left ankle—it does not

establish when or how Buchanan was injured. While the commissioner

concluded Dr. Thiel and Dr. Gilarski’s assessments were not correct, that

conclusion “does not negate the existence of a genuine dispute with respect to

whether” Buchanan’s use of the Hoyer lift at work on February 2, 2014, was the

cause of her ankle injury. City of Madrid v. Blasnitz, 742 N.W.2d 77, 83 (Iowa

2007); see also Bellville, 702 N.W.2d at 473 (“As one court has explained,

‘[c]ourts and juries do not weigh the conflicting evidence that was before the

insurer; they decide whether evidence existed to justify denial of the claim.’”

(quoting State Farm Lloyds, Inc. v. Polasek, 847 S.W.2d 279, 285 (Tex. Ct. App.

1992)). We conclude the commissioner’s finding that Mill Pond and Zurich

unreasonably withheld payments from December 15, 2014, through August 26,

2015, is not supported by substantial evidence.

IV. Conclusion

In regard to Mill Pond and Zurich’s medical causation and industrial

disability arguments, we conclude the commissioner’s findings are supported by

substantial evidence and its application of the law to facts was not irrational,
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illogical, or wholly unjustifiable. The district court correctly reversed the

commissioner’s determination that appellants unreasonably withheld healing

period payments.

AFFIRMED.