Mercy Hosp. Iowa City v. Goodner

• Decision Date: 09 January 2013
• Docket Number: No. 12–0186.,12–0186.
• Citation: 828 N.W.2d 325
• Parties: MERCY HOSPITAL IOWA CITY, and Cambridge Integrated Services, Appellants, v. Susan GOODNER, Appellee.
• Court: Iowa Court of Appeals

828 N.W.2d 325

MERCY HOSPITAL IOWA CITY, and Cambridge Integrated Services, Appellants,

v.Susan GOODNER, Appellee.

No. 12–0186.

Court of Appeals of Iowa.

Jan. 9, 2013.

Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.

An employer appeals the district court's judicial review ruling affirming the award of the workers' compensation commissioner.AFFIRMED IN PART AND REVERSED IN PART.

Peter M. Sand, Des Moines, for appellants.

Paul J. McAndrew Jr. of Paul McAndrew Law Firm, Coralville, for appellee.

Heard by EISENHAUER, C.J., and VOGEL and VAITHESWARAN, JJ.

VOGEL, J.

Mercy Hospital Iowa City and Cambridge Integrated Services (Mercy Hospital) appeal the district court's ruling that affirmed the workers' compensation commissioner's decision finding Susan Goodner to be permanently and totally disabled as a result of a work injury.Mercy Hospital asserts the district court erred in finding (1) it was judicially estopped from contesting liability for the injury, (2) Goodner's medical evidence was reliable, (3) Goodner is permanently and totally disabled, and (4) it is responsible for the cost of Goodner's bariatric surgery and one-half of the cost of the family therapy sessions.Mercy Hospital also contests the district court's finding that it failed to preserve error on two issues.For the reasons stated herein, we affirm in part and reverse in part.

I.BACKGROUND FACTS AND PROCEEDINGS.

A.Medical Treatment.Goodner, a family practice physician, treated two patients with mononucleosis in January 2000.On January 18, 2000, one of the patients Goodner treated vomited on her hands during the examination.Goodner began experiencing a sore throat, sweats, chills, and enlarged lymph glands on February 4.She initially believed she had contracted strep throat, but when her symptoms did not subside after a course of antibiotics, she performed a mono spot test on herself on February 13, which came back positive.Goodner sought medical treatment on February 18, from Kara Wools–Kaloustian, M.D., an infectious disease specialist, who diagnosed Goodner with mononucleosis.Goodner also saw Cheryl K. Johnson, M.D., on February 24, who was able to palpate the edge of her spleen and liver, both of which were tender.The next day Goodner reported her illness to her employer.Goodner remained off work or worked reduced hours as a result of feeling extreme fatigue and continued to see Dr. Wools–Kaloustian.

Goodner was eventually referred to Dale Minner, M.D., by the workers' compensation carrier in July 2000, to determine if there was a work-related condition and whether a further referral for treatment was necessary.Dr. Minner stated in the appointment record, “Ordinarily I find it difficult to recommend acceptance of infectious disease.However, this individual was directly and extensively exposed and came down with the laboratory confirmed diagnosis of infectious mononucleosis at precisely the right incubation period thereafter.”He recommended Goodner continue to receive care for the illness from an internist, who would now be Fred H. Ovrom, M.D.¹Dr. Minner stated Goodner should continue to work at least two hours a day and gradually increase under Dr. Ovrom's guidance.He believed “the long-term prognosis is good for a complete recovery.”

In November of 2000, Goodner was seen by Daniel H. Gervich, M.D., for a second opinion at the request of Goodner's private disability company.Dr. Gervich expressed doubt that Goodner ever contracted infectious mononucleosis, though he could not disprove it.He was concerned that the incubation period of the disease is typically four to six weeks, and Goodner's incubation period was much shorter.He also believed she did not meet the criteria for chronic fatigue syndrome, and her symptoms should remit in three to six months.

Dr. Minner referred Goodner to Robert B. Wesner, M.D., a psychiatrist, in December 2001, as Dr. Minner believed the symptoms were consistent with possible depression.Dr. Wesner diagnosed Goodner with depression, which he related to the chronic fatigue syndrome following her viral infection.In addition to providing her medication, Dr. Wesner also referred her to individual and family therapy, both of which he believed were reasonable and necessary treatment for her major depressive disorder and the chronic fatigue syndrome.

Goodner's symptoms of fatigue waxed and waned over the next few years with Goodner continuing to see Drs. Ovrom, Wesner, and Minner.Dr. Ovrom's initial diagnosis was post viral fatigue, but he revised his diagnosis in April of 2002 because he believed Goodner's condition met the criteria for chronic fatigue syndrome, and recommended consideration of permanent partial disability.Shortly before his retirement, Dr. Minner placed Goodner at maximum medical improvement and believed she was “medically stable” as of July 24, 2002.At that time Goodner was able to work twenty hours per week and was “overall at approximately 70% of full-time productivity.”When Dr. Minner retired, Charles A. Buck, M.D., began monitoring the treatment for the workers' compensation carrier.

Goodner first saw Dr. Buck in October of 2002.Dr. Buck concurred with Dr. Minner's assessment of maximum medical improvement, stating, “Clearly her condition has and will continue to have mild episodic relapse, but the overall pattern has been quite stable now for some time.”He anticipated her needing periodic care with both Dr. Wesner and Dr. Ovrom, and he authorized additional visits with both providers.In his deposition, Dr. Buck stated that while he had no reason to doubt Goodner's self-reported problems of fatigue and memory loss, he now believed there was a “significant possibility” that Goodner had not contracted mononucleosis.

Goodner was referred to Jeffery L. Meier, M.D., an infectious disease specialist, in November 2002 for a second opinion.Dr. Meier diagnosed Goodner with chronic fatigue syndrome triggered by infectious mononucleosis.He did not feel she had reached maximum medical improvement as her condition remained “in a state of flux.”He did recommend she continue to limit her work hours to twenty hours per week and refrain from taking night calls or practicing obstetrics.During his deposition as part of the workers' compensation claim, Dr. Meier opined that a “seventeen day period of incubation after exposure to a heavy inoculum of infectious virus is certainly within the realm of possibility.”He also asserted that while it is atypical, it is scientifically feasible to contract mononucleosis through the aerosolization of saliva that then contacts the mucous membranes of another.He opined mononucleosis is one of a multitude of triggers for chronic fatigue syndrome.

Goodner underwent a series of studies including a sleep study, hormonal study, and immune disorder study at the prompting of the board of medical examiners.These studies came back normal, ruling out other conditions causing the fatigue.Goodner, who was five foot, five inches, and weighed 199 pounds at the time of the injury, gained approximately thirty-three pounds during the course of her illness.Goodner attributed this weight gain to her fatigue as she was unable to exercise regularly or plan healthy meals.She also developed type 2 diabetes, high cholesterol, and hypertension.She sought assistance from a weight loss clinic.When Goodner's attempts to lose weight were unsuccessful, she underwent bariatric surgery in May of 2007.At the time of the workers' compensation hearing, Goodner stated she had lost 70 pounds.

Goodner was referred to Alan G. Pocinki, M.D., an expert on chronic fatigue syndrome in October 2008.It was Dr. Pocinki's opinion that Goodner met all the criteria for chronic fatigue syndrome, and he believed the condition was triggered by the mononucleosis infection.He determined she was not yet at maximum medical improvement and anticipated it would be another two to three years before she would achieve this state.

Goodner was seen by Winthrop S. Risk, M.D., for an independent medical exam at the request of her attorney in February 2009.Dr. Risk opined Goodner developed post viral fatigue syndrome as a result of her exposure to mononucleosis.Although her obesity predated her symptoms, her subsequent fatigue lead to inactivity and poor diet.This condition resulted in her gaining the additional weight and developing diabetes, hypertension, and high cholesterol.He also believed the fatigue led to depression.He did not believe she was at maximum medical improvement at that time.

Mercy Hospital sought an opinion from an infectious disease specialist, David Katz, M.D., as part of the workers' compensation claim.Dr. Katz did a records review only and did not examine Goodner.He opined that while Goodner may have a fatigue syndrome, the fatigue did not develop from mononucleosis, and he did not believe Goodner contracted mononucleosis at all.He stated the likelihood of contracting mononucleosis in the way Goodner described was essentially zero.He also asserted the incubation period reported in Goodner's case, seventeen days, was out of the question for this virus, which has a typical incubation period of forty to sixty days.He also stated Goodner's clinical symptoms did not fit with infectious mononucleosis, which in older patients is typically characterized by a prolonged fever and liver involvement.Finally, it was Dr. Katz's opinion that there was no specific concrete connection as to the cause of chronic fatigue syndrome; therefore, he doubted the causal link between mononucleosis and chronic fatigue syndrome.

Mercy Hospital also had F. Brobson Lutz, M.D., an infectious disease specialist, conduct a records review in this case.Like Dr. Katz, Dr. Lutz opined, in his March 2, 2009 report, there is no medical literature support for the way Goodner claims the mononucleosis virus was transmitted to her.He also found the incubation period in ...