Brett v. Sullivan v. West Central Cooperative and Farmland Mutual Insurance Company

IN THE COURT OF APPEALS OF IOWA

No. 18-1811
Filed August 21, 2019

BRETT V. SULLIVAN,
Plaintiff-Appellant,

vs.

WEST CENTRAL COOPERATIVE and FARMLAND MUTUAL INSURANCE
COMPANY,
Defendants-Appellees.
________________________________________________________________

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

The claimant appeals the district court’s ruling on judicial review affirming

the award of the Workers’ Compensation Commissioner. AFFIRMED.

Thomas M. Wertz of Wertz & Dake, Cedar Rapids, for appellant.

Jeffrey W. Lanz of Huber, Book, Lanz & McConkey, P.L.L.C., West Des

Moines, for appellees.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2

POTTERFIELD, Presiding Judge.

Brett Sullivan experienced a workplace injury in October 2011 when the

wheel loader Sullivan was driving was struck by a train. Sullivan’s resulting

injuries necessitated a lengthy hospital stay and a number of surgeries. West

Central Cooperative, Sullivan’s former employer, and Farmland Mutual Insurance

Company, the employer’s insurer, admitted the injury. They paid Sullivan lost

time and permanent partial disability benefits and covered all of his medical bills.

Six issues arising from the workplace injury were contested and presented

to a deputy commissioner of the Workers’ Compensation Commission.1 One of

the issues was whether Sullivan had a mental-health condition caused by the

workplace accident. The deputy commissioner found:

There are two experts who favor [Sullivan’s] position that he
has a mental component stemming from his work injury. The
experts are Dr. Mills and Dr. Gallagher. Their opinions were
detailed in preceding paragraphs. There are two experts who
expressly disagree with Dr. Mills and Dr. Gallagher. They are Dr.
Chesen and Dr. Andrikopolous. Their opinions are also detailed in
preceding paragraphs. The two defense experts maintain [Sullivan]
is malingering and he has no psychiatric diagnosis.
In this case, the old adage, “actions speak louder than
words” applies. For more than two years after the work injury,
claimant attended numerous medical appointments. He returned to
work and performed his duties, even though he had faced several
surgeries, physical therapy sessions, and had to use such assistive
devices as wheelchairs and walkers to perform his duties.
Throughout that timeframe, [Sullivan] did not report to any of his
medical providers or to his supervisors he was having depression,
anxiety, or PTSD. [Sullivan] did not request treatment or drug
therapy for any mental health issues. His numerous treating
1
Specifically, the issues for resolution before the deputy commissioner included: (1) the
appropriate weekly rate based on a determination whether Sullivan had a common law
marriage at the time of the injury, (2) the extent of Sullivan’s permanent disability,
(3) whether Sullivan suffered a mental health condition as a result of the work injury, (4)
the credit defendants were allowed to take based on previously paid benefits, (5) the
costs, as related to requests for admissions, and (6) which party would be taxed costs.
Only one of the issues remains in dispute, and we do not discuss the others.
3

physicians did not observe symptoms consistent with any mental
conditions. Moreover, April Sullivan[2] often attended the medical
appointments with [Sullivan]. She never indicated to the medical
providers there was any change in [Sullivan’s] mood or in his
relationship with the family. [Sullivan] is not requesting medical
care for any claimed mental condition.
It is only when [Sullivan] retained the services for his own
experts in the fields of neuropsychology and psychiatry did [his]
mental health become an issue in the case. Even then, [he] did not
seek treatment for any depression, anxiety or PTSD. It is the
determination of the undersigned[:] [Sullivan] does not have a
mental condition that is the result of his work injury on October 2,
2011.

Sullivan challenged the deputy commissioner’s determination and argued the

award of 60% industrial disability must be reconsidered in light of this incorrect

determination.

The deputy’s ruling was adopted by the commissioner3 and affirmed in a

final agency decision.4

Sullivan sought judicial review. He maintained the commissioner ignored

all expert opinions in the record in rendering his causation findings and making

the determination Sullivan’s workplace accident did not cause a mental-health

injury. The district court disagreed with Sullivan’s claim, noting the ruling

adopted by the agency “walked through each of the expert medical opinions in

depth,” with two experts who opined Sullivan had suffered a mental-health injury

2
Sullivan and April formally divorced in April 2011, a few months before the workplace
injury occurred. After Sullivan’s injury, they resumed a relationship. One of the issues
before the deputy commissioner was whether April and Sullivan had a common law
marriage at the time of the incident, and the deputy commissioner determined they did
not. It is unclear what their status is at this time; Sullivan refers to April as his wife
throughout his appellate brief.
3
The commissioner delegated authority to a different deputy commissioner to issue the
final agency decision on appeal. We ascribe all actions taken by the deputy
commissioner acting on behalf of the commissioner to the commissioner.
4
The final agency decision modified in part the deputy’s ruling on the credit the
defendants were entitled to receive due to the previously paid benefits; that
determination is not at issue here.
4

as a result of the workplace injury (Dr. Mills and Dr. Gallagher) and two that

opined he did not (Dr. Chesen and Dr. Andrikopoulous). The commissioner did

not explicitly find doctors Chesen and Andrikopoulous more credible than the

other two experts, but he identified a number a factual findings—stemming from

the reports of Chesen and Andrikopolous—to support the conclusion Sullivan’s

workplace accident did not cause him to suffer from a mental-health condition.

The district court affirmed the agency’s ruling, stating:

Many of the factual findings . . . cited to as a reason for the
determination that Sullivan did not suffer a mental condition are
reflected in the medical expert reports that align with [the
commissioner’s] determination. Just as in [Schutjer v. Algona
Manor Care Center, 780 N.W.2d 549, 562 (Iowa 2010)] it is evident
the commissioner chose to rely on certain experts “because those
opinions were more consistent with the factual findings made by the
commissioner.” Based on the factual circumstances of this case,
the commissioner was required to evaluate the timing of Sullivan’s
complaints of a mental condition and determine whether he agreed
with Dr. Mills and Dr. Gallagher that Sullivan had experienced a late
onset of a mental health condition nearly two years after the work
injury or whether he agreed with Dr. Chesen and Dr. Andrikopoulos
that the timing was “peculiar” and Sullivan did not have a mental
condition. The court finds that, read in context, the court is able to
identify the evidentiary basis of the commissioner’s determination.
Therefore, the court finds the commissioner did not err as a matter
of law or act in violation of a provision of law.
The court also finds the decision is supported by substantial
evidence, did not fail to consider important evidence, and is not
irrational, illogical, or wholly unjustifiable. The commissioner
walked through the medical reports of Dr. Chesen, Dr. Mills, Dr.
Gallagher, and Dr. Andrikopoulos. As the commissioner explained,
two experts supported Sullivan’s claim of a mental condition and
two experts disputed it. Notably, Dr. Andrikopoulos determined that
Sullivan is malingering, a determination uniquely tied to Sullivan’s
credibility. After having the opportunity to hear testimony and view
the credibility of Sullivan, in addition to all other evidence, the
commissioner’s decision aligned with Dr. Chesen and Dr.
Andrikopoulos and listed factual findings those doctors had relied
upon. In addition, the commissioner noted that Sullivan had treated
with a “myriad of physicians for numerous problems related to his
work injury” and that “Not one of the treating physicians observed
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symptoms of depression, anxiety, or aspects of posttraumatic
stress disorder.” The commissioner is allowed to weigh all of the
evidence in determining whether to accept or reject expert opinions.

(Citations omitted.)

Sullivan appeals the district court’s ruling on judicial review affirming the

award of the commissioner. He maintains, “This is not a substantial evidence

appeal where the commissioner chose the opinions of one expert over the

competing opinions of another expert.” We disagree.

As in Shutjer, it is apparent from the commissioner’s decision that he

questioned the sincerity of Sullivan’s mental-health complaint because none of

the many treating doctors noticed and Sullivan did not report any symptoms for

more than two years after the accident—not until February 2014 when Sullivan

requested authorization for treatment with a pain psychologist to address

symptoms of depression. 780 N.W.2d at 562 (noting the commissioner

concluded the claimant lacked credibility because the commissioner believed the

claimant would have reported symptoms to a treating physician if they existed as

later described). In a similar vein, Dr. Andrikopolous’s report stated, “[T]he

interview suggests PTSD and mild head injury are not present” and offered the

explanation of “malingering.” In support of his opinions, Dr. Andrikopolous

offered the following: “It seems if we accepted at face value the severity of [this]

patient’s cognitive difficulties, to report these symptoms after such a long period

of time is a little peculiar”; “[T]he patient was assessed for cognitive difficulties for

the first time over three years after a mild head injury, long after the symptoms

should have resolved rather than just begin to be the focus of assessment”; and,

“If we assume this level of psychological distress, then not seeking psychiatric
6

treatment when it was covered by workers’ compensation requires an

explanation.” Similarly, Dr. Chesen opined that Sullivan did not have a

psychiatric diagnosis and indicated it was “difficult to reconcile” the delay in

Sullivan’s reported symptoms. Additionally, the commissioner noted that at least

one of the medical reports seemed to directly contradict Sullivan’s claims; Dr.

Peters—Sullivan’s personal physician—noted in November 2012, “Brett Sullivan

was in today [and] is generally feeling well. This is the best I have seen Brett

doing since his accident in a year or so. He is smiling, generally doing well.”

Here, the lack of causation, as determined by the commissioner, is

supported by the opinions of Dr. Chesen and Dr. Andrikopolous. See Cedar

Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011) (“Medical

causation presents a question of fact that is vested in the discretion of the

workers’ compensation commission. . . . Medical causation ‘is essentially within

the domain of expert testimony.’” (citation omitted)). The commissioner

questioned Sullivan’s credibility as it related to reporting a mental-health

condition and those doubts were mirrored in the reports from Dr. Chesen and Dr.

Andrikopolous. While the commissioner did not explicitly state he was relying

upon those doctors’ analysis, we are able to see “the path he has taken through

conflicting evidence.” Schutjer, 780 N.W.2d at 560 (citation omitted). This is

enough for us to agree with the district court’s conclusion that substantial

evidence support the commissioner’s determination. See Shutjer, 780 N.W.2d at

558 (“Because the commissioner is charged with weighing the evidence, we

liberally and broadly construe the findings to uphold his decision.” (citation

omitted)); see also Sellers v. Emp’t Appeal Bd., 531 N,W,2d 645, 646 (Iowa
7

1995) (“The administrative process presupposes judgment calls are to be left to

the agency. Nearly all disputes are won or lost there.” (citation omitted)).

We affirm the district court’s ruling on judicial review affirming the decision

of the Workers’ Compensation Commissioner.

AFFIRMED.