BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
LINDA SHARP,
:
:
Claimant,
:
:
vs.
:
:
File No. 5027941
UNIVERSITY OF NOTHERN IOWA,
:
:
APPEAL
Employer,
:
:
DECISION
and
:
:
STATE OF IOWA,
:
:
Insurance Carrier,
:
Head Note No.: 1108.20; 1402.30;
Defendants.
:
2204; 2301
______________________________________________________________________
Upon written delegation of authority by the workers’ compensation commissioner
pursuant to Iowa Code section 86.3, I render this decision as a final agency decision on
behalf of the Iowa workers’ compensation commissioner.
STATEMENT OF THE CASE
Claimant, Linda Sharp, appeals from a proposed arbitration decision filed April
25, 2011 that concluded she had established neither medical nor legal causation as
regards her claim of a mental/mental injury that arose out of and in the course of her
employment. Defendant cross appeals asserting that the workers’ compensation
commissioner lacks subject matter jurisdiction over claimant’s claim; that claimant failed
to provide timely notice of her claimed injury under Iowa Code section 85.23; and, that
the deputy erred in denying defendants’ motion to reopen the record after the hearing to
allow evidence of claimant’s settlement with the employer concerning her employment
and discrimination claims.
The record, including the transcript of the hearing before the deputy and all
exhibits admitted into the record, has been reviewed de novo on appeal.
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FINDINGS OF FACT
Claimant was 55 years old at the time of hearing. Claimant has a B.A. in music
education and keyboard performance. She also has a Master’s in keyboard
performance and a post-doctoral fellowship in music education and organ performance.
Claimant began teaching in 1977. She has taught kindergarten through the 12th
grade level.
Claimant was hired as a vocal music teacher at the Price Lab School (PLS) in
1995. PLS is a public school operated by the University of Northern Iowa (UNI).
Claimant was granted tenure as an assistant professor at UNI in 2001.
Claimant’s prior medical history is relevant. Claimant treated for depression for
15 months in 1993 following the break-up of her marriage. Claimant was treated inpatient for a period of time and was treated with medication. (Exhibit 10)
In 1997 claimant was prescribed antidepressants following a suicide attempt by
her daughter. (Exhibit 11, pages 13-14)
In 2001 claimant underwent psychiatric evaluation. Claimant was assessed as
having a major depressive disorder; a history of post-traumatic stress disorder (PTSD),
and compulsive personality traits. A history of childhood emotional and sexual abuse
was noted. Claimant had anxiety and panic attacks in response to difficulties with her
children, her marital difficulties, and her job. Claimant was treated with medication and
was noted to have had a longstanding history of depression with exacerbations. (Ex.
13, pp. 1-3) Records from 2001 indicate claimant felt her life was out of control due to
problems with her children, past marital problems, and work. (Ex. 11, p. 25; Ex. 12, p.
3, 5, 17, 47)
Claimant relates her asserted injury to conditions at PLS from fall 2002 through
spring 2007. She testified that in 2002 and 2003 school year, PLS announced the
school might be closed or would have significant budget cuts to remain open. As a
result, claimant was required to teach her vocal music classes at PLS, and also teach
two classes at the UNI College of Education. Claimant contested this work load as
excessive and as requiring her to perform work for which she was not paid. (Ex. 17, p.
1) The PLS principal did not believe the work load was unreasonable or outside faculty
expectations. (Ex. 17, p. 2) Claimant ultimately was required to teach the classes while
not sponsoring some high school extracurricular student music events. (Ex. 32, pp. 1113)
It is not unusual for an instructor to disagree with a supervisor’s assessment of
what is an appropriate work load or job assignment. It also is not unusual for a
supervisor to overrule the instructor’s personal view and wishes regarding work load or
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job assignment. Such events occur routinely and to not constitute an unusual stress for
an educator.
William Callahan was the interim dean of the UNI College of Education during the
2002-2003 school year. He testified that PLS was faced with closing due to budget
issues and, therefore, the 2002-2003 school year was very stressful for all staff. . .
Prior to the 2002-2003 school year, Mr. Callahan met with all faculty members
and asked them to consider finding another position at UNI to aid with the PLS budget.
PLS teachers were told to present work options at UNI to supervisors. Claimant initially
did not do so. In March 2003, however, claimant met with William Callahan and Frank
Thompson, a professor in finance at UNI who then was the president of United Faculty,
the UNI faculty union, regarding claimant’s continuing job status. Mr. Callahan
suggested claimant consider working as an assistant dean of the college of education.
Mr. Thompson told claimant she should not take the assistant dean position unless she
was assured she [later] would be allowed to return to a teaching at PLS or the UNI
School of Music.
Claimant initially expressed interest in the assistant dean job but then declined it.
By then, the budget for the PLS 2003-2004 school year was established and no position
was available at PLS for a vocal instructor at claimant’s salary level. Claimant was told
she would not be allowed to teach music at PLS. She took a one year non–renewable
leave of absence from UNI and accepted a job as a secondary music instructor at
Hudson Community School District for the 2003-2004 school year. It was unclear
whether claimant intended to return to UNI employment when she took the leave of
absence. She was to inform UNI of her intentions by April 15, 2004. (Ex. 17, p. 39;Ex.
18, p. 39; Ex. 29, p. 7)
Financial concerns related to lack of available operating revenues occur routinely
in public sector education. The possibilities of reductions in force or job reassignment
are inherent to those concerns, as is the need to consider or even seek and obtain other
employment. As such, those possibilities cannot be considered an unusual stressor for
any individual public educator.
In 2003 claimant sought counseling for personal issues including a bankruptcy, a
hysterectomy, and work issues. Claimant indicated co-workers were stealing her mail
and sabotaging her work. Claimant indicated there was a many layered conspiracy to
get rid of her. (Ex. 12, pp. 14-16) Those personal perceptions of claimant are not
supported by the objective evidence in this record. Indeed, the record overall
demonstrates administrators took extensive steps to assist claimant in retaining UNI
employment during a time of serious financial stress at PLS.
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In August 2003 claimant filed a complaint with the Iowa Civil Rights Commissions
(ICRC) alleging discrimination by her supervisor and harassment by her coworkers
based on gender, age, creed, and retaliation. (Ex. 18, pp. 1-5)
Claimant taught vocal music at the Hudson Community School District in the
2003-2004 school year. She also taught a University of Iowa affiliated music theory
course over the Iowa Communications Network that school year. Apparently, for
purposes of that course she was an employee of and received compensation from the
University of Iowa and not UNI.
While teaching at Hudson High School claimant had a field experience student
from UNI College of Music, that is, a student teacher, observing her teaching. He kept a
notebook concerning his field experience in which he recorded negative impressions
concerning claimant’s pedagogic methods. Claimant found the notebook in her
rehearsal area and read it. The student’s comments offended her. This experience did
not occur while claimant was engaging in job duties for UNI or as a rational
consequence of any UNI job duties. (Ex. 18, pp. 18-22)
In February 2004 claimant was assessed as having a major depressive disorder
recurrent. Stresses included family, especially her children with whom there was or had
been Department of Human Services involvement, and working long hours, apparently
at Hudson Schools. Claimant once again was assessed as having compulsive
personality traits and a history of PTSD. She was characterized as enmeshed in [her]
children’s lives” (Ex. 13, pp. 10-11)
Prior to April 15, 2004, claimant informed UNI that she was interested in returning
to employment at PLS. (Ex. 18, pp.27- 29) UNI administration assigned her a job at the
College of Education Advising Center beginning with the Fall Semester 2004. (Ex. 18, p.
37) She grieved this appointment through United Faculty and sought reinstatement as a
PLS vocal music instructor.(Ex. 18. pp. 38-39)
Dave Smith, PLS associate director and grade 9-12 principal, on September 4,
2004, wrote an email to Dr. Callahan, in which Smith expressed his professional opinion
that claimant should not be assigned teaching responsibilities at PLS. Smith referred to
interpersonal difficulties claimant had had with staff and students. He expressed his
non medical opinion that claimant displayed signs of bi-polar disorder, given his
perception that her emotions daily “were either real high and energetic or extremely low
and depressing.” (Ex. 18, p. 26)
The email was a private communication between Smith and Callahan. The
record does not reflect that claimant was aware of it prior to litigation discovery.
Therefore, it cannot be considered a stress to which she was subject in fall 2004. It
does, however, evidence that at least one of claimant’s supervisors at PLS had
concerns about her overall professional competencies as these related to her
interpersonal interactions with colleagues and students. Those perceptions of a
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supervisor, if unfounded, might represent an unusual stressor for an educator,
especially if the supervisor took steps against the educator as a result of those
perceptions.
In September of 2004 claimant filed a second ICRC complaint alleging retaliation
as well as discrimination, and harassment based on age, marital status, creed, and sex
and mental disability of her children. (Ex. 19, pp. 2-5) During the same period claimant
received counseling for stress related to her ICRC complaint and her children. (Ex. 12,
pp. 18-22)
In October 2004, Jeffrey W. Cornett, Dean of the UNI College of Education,
returned claimant to her PLS vocal music department duties, which included being
department chair. By then, another teacher had been hired and had assumed
claimant’s duties for the 2004-2005 school year. Claimant testified she felt parents,
staff and students would perceive her as kicking that teacher out of her position.
Claimant expressed her belief that PLS administrators did not do enough to diminish
that perception.
Claimant was unhappy with the office and classroom assigned on her return to
PLS. She did not believe that she was given sufficient storage space for costumes,
supplies, and sheet music and believed that janitorial staff improperly handled music
department files. Assignment to less than desirable or limited space is a common
employment problem. Therefore, it cannot fairly be considered an unusual stressor to
which other public educators would not be subject.
Other PLS music department teachers did not have their classes participate in
the 2004-2005 year-end music program, which traditionally had involved all PLS music
students. Claimant believed this reflected poorly on her. It may well have. Department
heads generally are expected to facilitate cooperation among staff within their
departments.
Claimant understood that, as part of the resolution of her 2004 grievance, UNI
had agreed to pay her the monies she would have earned had she again taught at the
University of Iowa ICN course in the 2004-2005 school year. University administrators
disagreed. Written evidence of the formal grievance resolution is not in evidence.
Without such, it can only be said that the parties to the grievance resolution had
differing understandings as to the terms of resolution. Such misunderstandings of
unwritten agreements are not unusual. (Ex. 19. Pp. 28-34)
Claimant testified that in summer 2005 the PLS band and choir were invited to
perform in Washington, D.C. This trip eventually was cancelled, as least in part
because claimant believed final administration approval of the trip came too late for
effective fundraising. Claimant testified she believed the plans for the trip were
undermined by PLS administrators and other members of the music department
because Dave Smith did not allow her to announce the trip or start fundraising until after
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it received administrative approval. Claimant thought the cancellation of the trip
reflected poorly on her. (Ex. 20, pp.2-9)
In 2005 claimant began an inventory of PLS musical property. During the
inventory, claimant believed a cello, a harpsichord, and sound equipment were missing.
Claimant testified Dave Smith told her he would only file a police report regarding the
missing equipment after claimant sent a general e-mail to school staff asking about the
missing items. Apparently Mr. Smith had allowed a former PLS instrumental music
teacher to buy the harpsichord for a minimal fee in 2003. Claimant testified she
believed Smith deliberately did not tell her of this sale. It would appear that recordkeeping regarding the sale was de minimus, but there is no objective evidence that
Smith recollected the sale and deliberately did not tell claimant it had occurred. (Ex. 20,
pp. 12-15d) Sloppy recordkeeping is not an unusual workplace occurrence.
Claimant accused the PLS middle school music teacher of having confiscated
the cello for personal use and broadcast that belief to others in the UNI community.
Objectively, that teacher had purchased the cello from a supplier PLS routinely used but
with personal funds. The supplier had mistakenly delivered the cello to PLS. (Ex. 20,
pp.1a-1b, 9-12, 66-68) Claimant refused to communicate directly with that teacher about
the cello, either by speaking to her or emailing her.
In September 2005 that vocal teacher filed a grievance with the UNI Office of
Compliance and Equity Management (OCEM), which alleged claimant had accused the
teacher of theft and embezzlement regarding missing musical equipment. The
grievance asked for the termination of claimant. (Ex. 20, pp. 16-17)
An independent legal investigator later found that the factual evidence did not
establish that claimant took actions against the other teacher because of that teacher’s
age or in retaliation for the teacher’s filing the complaint. The investigator did conclude
that claimant certainly seemed to have something against the other teacher, however.
(Ex. 20, p. 66, 76)
Claimant also accused another music department member of having given PLS
sound equipment to a personal friend to use in his band. That accusation cannot be
verified on this record.
In November 2005 claimant filed a third ICRC complaint alleging discrimination
based on age, marital status, physical disability of her children, and retaliation.
Perpetuators named included the UNI president, the director of OCEM, and the other
PLS vocal teacher. (Ex. 20, pp. 24-38) In January 2006, claimant filed an OCEM
grievance against the other PLS vocal teacher. (Ex. 20, pp. 41-46)
In March 2006 PLS hosted a chorus festival. Scheduling conflicts existed
between the PLS music department calendar at PLS’s overall published calendar. The
concert date had to be changed. Claimant testified that other members of the music
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department were the root of the problems with the choir festival. The objective evidence
shows that claimant fully contributed to the then dismal state of communication and
interpersonal relations in the PLS music department. (Ex. 20, p. 59-59d; Ex. C, pp. 8-9)
On April 3, 2006 Mr. Smith, wrote claimant a letter stating claimant had failed to
properly communicate regarding the March 2006 choral festival, which had resulted in
continued difficulties in music department communication. Smith stated he had
counseled claimant on several occasions regarding communication with less senior
department members that was not appropriate from a department head charged with
helping less experienced faculty learn and grow. Smith relieved claimant of
responsibilities as head of the PLS music department. (Ex. 20, p. 59) Mr. Callahan
testified that he approved of Mr. Smith’s removal of claimant as department chair.
Claimant treated for mental health issues during the 2005-2006 school year.
Claimant reported problems with her children, finances, work, and on-going civil
complaints against UNI. (Ex. 12, pp. 24-29 ;Ex. 13, pp. 20-22)
In April 2006, claimant walked into an instrumental music teacher’s classroom
and told him in a student’s presence that she was disappointed with him professionally.
On May 10, 2006, Dave Smith sent claimant a written warning regarding that
occurrence, which warned that claimant’s unprofessional actions were inappropriate in a
school setting and would not be tolerated. Claimant was advised that should further
incidents occur, disciplinary action, to and including termination would be taken. (Ex.
20, p.62)
As a result of this written reprimand, claimant sought intervention from Jo Riker,
LISW, who then was counseling claimant. (Ex. 12, pp. 27, 29) On May 22, 2006, Ms.
Riker wrote a “to whom it may concern” letter stating:
Linda has seen me on two occasions this year to discuss her high
stress level evidenced by: exhaustion, heart racing, feeling isolated,
difficulty concentrating, and lack of trust. She reported this was due to
lawsuits that were filed by the Civil Rights Commission on her behalf and
feeling micro-managed by the school where she works, at Price
Laboratory School.
(Ex 12, p. 28)
At a July 18, 2006, counseling session with Ms. Riker, claimant described
continuing difficulties with sleep. She expressed fears about returning to PLS for the
2006-2007 school year and stated she felt “everyone is against her because of her
lawsuit.” (Ex. 12, p. 31)
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The locks at PLS were re-keyed in summer 2006 because many master keys
could not be not accounted for. PLS staff members were to go to the physical plant key
shop and sign out new keys to the building. In August 2006, claimant attempted to
enter the building at PLS and could not, as she lacked a new key.
In 2006, PLS administration was slow in paying a music department piano repair
bill. Claimant felt that the delay in payment reflected poorly upon her. (Ex. C, p. 178)
In December 2006, a PLS basketball game was scheduled at a time when claimant had
attempted to schedule a madrigal banquet dress rehearsal, which resulted in the dress
rehearsal being limited to one hour. Claimant testified that both these episodes were
evidence that other faculty were bullying and harassing her. Objectively, scheduling
conflicts and financial delays are not atypical happenings in institutional settings such as
schools.
Claimant testified that by spring 2007, she was afraid of coming to PLS and
seeing people there and not knowing what they thought of her. She felt students were
not being cordial to her and, therefore, she perceived them as against her. Claimant’s
last work day at PLS was April 3, 2007. She apparently initially treated for sinusitis,
headache, and dehydration. (Ex. 11, pp. 47-50) On April 19, 2007, claimant requested
extended medical leave for the balance of that school year and committed to attending
the partial [psychiatric] hospitalization program at Allen Memorial Hospital. (Ex. 23, pp.
8-11)
In April 2007 claimant received mental health counseling for stress related to her
litigation. Claimant described herself as paranoid and afraid that people were “out there
that could hurt her.” Claimant told her counselor that Dave Smith had a brother who
worked for the CIA. She suggested Smith’s brother might harm her. (Ex. 12, p. 38) The
record, overall, does not demonstrate that these perceptions of claimant had an
objective basis.
Karen Bender, Evelyn Ledtje, and Dorothy Burt were clerical support staff at PLS
while claimant taught there. Each testified that the relationship between claimant and
Mr. Smith was poor and expressed the belief the Mr. Smith’s overall interpersonal skills
were lacking.
Lee Weber testified she was a teacher at PLS during the time claimant taught.
She said she was not aware of Dave Smith or any other faculty making disparaging
remarks about claimant. She acknowledged that Mr. Smith dealt with staff in an
authoritarian style and did not listen well to PLS staff and faculty.
In summer 2007 claimant’s mental health counseling focused on then continuing
difficulties with her own children and her continuing difficulties resulting from childhood
emotional abuse by her mother and sexual abuse by her brother. Claimant was
assessed as having PTSD as a result of her childhood abuse. (Ex. 12, pp. 44--53)
SHARP V. UNIVERSITY OF NOTHERN IOWA
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In November 2006, psychiatrist M. Asad Suri, M.D., had assessed claimant as
having recurrent major depression, a history of PTSD, and compulsive personality traits.
(Ex. 12,p. 33) In August 2007, Dr. Suri confirmed those diagnoses and stated claimant
was unable to work. (Ex. 23, p. 17)
In August 2007, psychologist, Patrick O’Conner, Ph.D., administered claimant the
Minnesota Multiphasic Personality Inventory (MMPI). Assessment results were that
claimant was suspicious of others’ actions and saw herself as unjustly blamed for
others’ problems. Individuals with claimant’s MMPI profile tend to lack insight into their
own behavior. (Ex. 13, pp. 30-31)
Claimant was hospitalized with suicidal ideation in February 2008. Muhammad
A.K. Suri, M.D., claimant’s long time treating psychiatrist, identified legal and financial
problems as significant stressors for claimant, while noting that she was involved in a
lawsuit with her employer. (Ex. 13, pp, 36-37)
Psychiatrist, Loren Olson, M.D., performed an independent medical evaluation of
claimant and issued his report on April 9, 2008. Claimant complained of depression,
sadness, panic attacks, and PTSD symptoms, all of which she attributed to her job and
described as having worsened with reviewing her litigation. Dr. Olson assessed
depression, anxiety, and paranoid personality traits, the symptoms of which were
worsened with the on-going litigation. (Ex. 15, pp. 7-14)
Claimant apparently was again hospitalized in January 2009. (Ex. 35, p. 2)
Office notes of Dr. Suri from December 2008 and January 2009, state that claimant’s
then attorney had left his job to move to California and she felt upset and betrayed
stating that her legal team had sold her out. (Ex. 13, 75-76)
Dr. Olson re-evaluated claimant in July, 2010. Dr. Olson identified claimant’s
litigation with UNI as a significant on-going stress for her. He opined she would not
likely have a significant remission of her symptoms until the litigation was resolved. (Ex.
15, pp. 1-5)
Claimant has filed three actions in the Iowa District Court in Black Hawk County
against UNI, the Board of Regents, Mr. Callahan, Mr. Smith, and a number of other
defendants. Her suits alleged disability and education discrimination, employment
discrimination, harassment, hostile work environment, retaliation, breach of contract,
fraud, libel and slander, and co-employee gross negligence. (Ex. 21, p. 28; Ex. G; Ex.
H).
Margaret Zander, LMHC, apparently initially provided claimant with mental health
counseling on March 12, 2008. Ms. Zander then recorded that claimant perceived
intolerable treatment by and felt personally and professionally ruined following a long
history of incidents at PLS and UNI. (Ex. 13, pp. 41-42) Claimant counseled with Ms.
SHARP V. UNIVERSITY OF NOTHERN IOWA
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Zander through August 17, 2010. (Ex. 13, p. 136) Counseling notes of Ms. Zander,
included in Exhibit 13 and otherwise contain only infrequent references to claimant’s
PLS experience and its impact upon her. Ongoing litigation concerns are frequently
recorded.
On August 25, 2010, Ms. Zander opined claimant’s major diagnosis was PTSD,
which was rooted in childhood trauma but was again triggered by her job situation at
PLS. Ms. Zander did not believe claimant’s PTSD would get better and did not believe
claimant could return to teaching in a classroom. (Ex. 35,p 2)
At hearing, Ms. Zander acknowledged she had no interaction with claimant while
claimant worked at PLS. Ms. Zander agreed her opinions were based on the subjective
information claimant gave her. As such the opinions are based neither on an objective
understanding of the overall environment at PLS nor on any insight into the role
claimant’s preexisting emotional state may have played in the development of the
school’s milieu. Therefore, the history on which Ms. Zander based her opinions was not
objectively accurate.
Claimant earned $63,000.00 a year when she left PLS. At time of hearing, she
was working as a church organist and earning $800.00 a month. Claimant does not
believe she could again teach in a high school or university setting. She believes she
voluntarily resigned from her position at UNI for settlement of her civil litigation against
UNI.
Cindy Webb is the benefits administrator at UNI. In that capacity she is familiar
with claimant’s claim for long-term disability benefits. Ms. Webb testified that in October
of 2007, claimant was informed of the opportunity to file for long-term disability benefits.
(Ex. 23, p. 21) In response to the October of 2007 letter, claimant responded, in an email, she did not think her disability could be considered a workers’ compensation claim
because she had filed other litigation regarding her mental health issues against UNI
and other defendants. (Ex. F, p. 3) Ms. Webb testified this was the first time UNI had
any notice of a potential workers’ compensation claim from claimant.
CONCLUSIONS OF LAW
Defendant argues that this agency lacks subject jurisdiction to hear this case.
The party who would suffer loss if an issue were not established has the burden
of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).
Subject matter jurisdiction is the power to hear and determine cases of the
general class to which proceedings belong. Shirley v. Pothast, 508 N.W.2d 712 (Iowa
1993) Every court has inherent power to determine whether it has jurisdiction over the
subject matter in the proceedings before it. The issue of whether the court or tribunal
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has subject matter jurisdiction may be raised at any time. Once raised, the question
must be disposed of, no matter in what manner or form or stage presented. Likewise,
the court on its own motion may examine grounds of its jurisdiction before proceeding
further. Tigges v. City of Ames, 356 N.W.2d 503, 510 (Iowa 1984).
In Ottumwa Housing Authority v. State Farm Fire & Casualty Company, 495
N.W.2d 723 (Iowa 1993), the Supreme Court stated that under the Iowa Workers
Compensation Act, an employer’s immunity [from other civil litigation] is the quid pro
quo by which the employer gives up normal defenses and assumes automatic liability
for a work related injury while the employee gives up the right to pursue a law verdict.
That court concluded that this quid pro quo is gone when a sexual discrimination claim
is filed under state or federal statutes and the same sexual discrimination is alleged as
the basis for a workers’ compensation claim. Ottumwa Housing Authority v. State Farm
Fire & Casualty Company at 729.
In Baird v. Ottumwa Community Sch. Dist., 551 N.W.2d 874 (Iowa 1996),
however, the court gave further guidance regarding this issue. The court held that a
question of fact existed as to whether simultaneously filed sexual discrimination and
workers’ compensation emotional stress claims were based on the same acts or
circumstances, such that granting the employer’s motion for summary judgment and
dismissing of the workers’ compensation claim was in err. Baird at 876.
The Baird court noted that claimant’s pleading in her civil discrimination case
differed from her pleadings in her workers’ compensation claim. It also reasoned that
since the employer had settled the civil claim factual and legal issues regarding the
discrimination claim had not been adjudicated and therefore the record presented was
insufficient to allow a determination of whether the same acts or circumstances that
formed the basis of the discrimination claim also formed the basis for the workers’
compensation claim. The Baird holding suggests that when a civil rights claim had been
filed but later dismissed or settled without formal adjudication of the issues presented,
filing of a workers’ compensation claim might remain appropriate. Baird at 876.
In Cargill, Inc. v. Conley, 620 N.W.2d 496 (Iowa 2000), the court distinguished
Ottumwa Housing, noting that in that case, the injury and its cause were the same in
both the workers’ compensation proceeding and the discrimination suits such that the
harassment claims were not cognizable under the Workers’ Compensation Act. The
Cargill court noted that overlapping claims both of which are actionable may exist such
that “’a claimant may have a workers’ compensation remedy for so much of his injury as
the compensation act was designed to cover, and still have his typical civil rights injuries
for any other injuries or losses stemming from the employment discrimination’” Cargill at
501-502 (citations omitted). The Cargill court expressly noted that the problem
presented by the overlapping claims was not one of subject matter jurisdiction. Cargill at
502.
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Here, claimant’s civil discrimination claims were mediated to settlement prior to
the hearing on her workers’ compensation claim. The settlement agreement was not
formalized until after the hearing, however. The presiding deputy properly refused to
include evidence of the formal settlement agreement in the record after the close of the
hearing. 876 IAC 4.31 There was no adjudication of claimant’s civil rights claims and
their basis or viability was never determined. A number of claimant’s alleged
occurrences of discrimination likely relate to alleged incidents also underlying her
claimed mental injury. The problem appears to be one of overlapping claims and not of
subject matter jurisdiction. Therefore, this agency properly may hear and decided
claimant’s workers’ compensation claim.
The issue of whether claimant has sustained a mental injury that arose out of and
in the course of the stresses of her employment is addressed.
The claimant has the burden of proving by a preponderance of the evidence that
the alleged injury actually occurred and that it both arose out of and in the course of the
employment. Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial
Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or
source of the injury. The words “in the course of” refer to the time, place, and
circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995).
An injury arises out of the employment when a causal relationship exists between the
injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational
consequence of a hazard connected with the employment and not merely incidental to
the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551
N.W.2d 309. An injury occurs “in the course of” employment when it happens within a
period of employment at a place where the employee reasonably may be when
performing employment duties and while the employee is fulfilling those duties or doing
an activity incidental to them. Ciha, 552 N.W.2d 143.
The question of causal connection is essentially within the domain of expert
testimony. The expert medical evidence must be considered with all other evidence
introduced bearing on the causal connection between the injury and the disability.
Supportive lay testimony may be used to buttress the expert testimony and, therefore, is
also relevant and material to the causation question. The weight to be given to an
expert opinion is determined by the finder of fact and may be affected by the accuracy
of the facts the expert relied upon as well as other surrounding circumstances. The
expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v.
Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001);
Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v.
Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical
testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516
N.W.2d 910 (Iowa App. 1994).
A treating physician’s testimony is not entitled to greater weight as a matter of
law than that of a physician who later examines claimant in anticipation of litigation.
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Weight to be given testimony of physician is a fact issue the workers’ compensation
commissioner decides in light of the record of the parties develop. In this regard, both
parties may develop facts as to the physician’s employment in connection with litigation,
if so; the physician’s examination at a later date and not when the injuries were fresh;
his arrangement as to compensation, the extent and nature of the physician’s
examination; the physician’s education, experience, training, and practice; and all other
factors which bear upon the weight and value of the physician’s testimony. Both parties
may bring all this information to the attention of the fact finder as either supporting or
weakening the physician’s testimony and opinion. All factors go to the value of the
physician’s testimony as a matter of fact not as a matter of law. Rockwell Graphic
Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Phillips v. Covenant
Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001)
While a claimant is not entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a subsequent injury is not a defense.
Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).
Nontraumatically caused mental injuries are compensable under Iowa Code
section 85.3(1). Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995).
Under Dunlavey, mental injuries caused by work-related stress are compensable
if, after demonstrating medical causation, the employee shows that the mental injury
was caused by work place stress of greater magnitude than the day to day mental
stresses experienced by other workers employed in the same or similar jobs, regardless
of their employer. Dunlavey at 857.
Both medical and legal causation must be resolved in claimant’s favor before an
injury arising out of and in the course of the employment can be established. To
establish medical causation, the employee must show that the stresses and tensions
arising from the work environment were in fact a cause of the employee’s mental
difficulties. If the medical causation issue is resolved in favor of the employee, legal
causation is examined. Legal causation involves a determination of whether the work
stresses and tensions the employee experienced, when viewed objectively and not as
the employee perceived them, were of greater magnitude than the day to day mental
stresses workers employed in the same or similar jobs experience routinely regardless
of their employer. Asmus v. Waterloo Community School Dist. , 722 N.W. 2d 653,657
(Iowa 2006)
The employee has the burden to establish the requisite legal causation.
Evidence of stresses experienced by workers with similar jobs employed by a different
employer is relevant; evidence of the stresses of other workers employed by the same
SHARP V. UNIVERSITY OF NOTHERN IOWA
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employer in the same or similar jobs will usually be most persuasive and determinative
on the issue. Dunlavey at 858.
To establish medical causation, claimant must show that the stresses of her work
environment were in fact a cause of her mental health condition.
A number of psychiatrists and doctoral psychologists have either evaluated or
treated claimant. None of these well qualified experts has opined that claimant’s
experiences at PLS were a cause of her recurrent depression and PTSD.
Only licensed mental health counselor Zander causally links the diagnosed mental
health conditions to stressors in the work environment. Ms. Zander only began to
provide claimant with supportive counseling in March 2008, almost a year after claimant
actually worked at PLS. Zander’s causation opinion is based on claimant’s subjective
perceptions as reported to Zander long after the events at PLS had occurred. In other
words, the history on which Zander based her opinions was not objectively accurate.
Furthermore, Zander’s treatment notes for the years she actually counseled claimant
contain limited references to the influence of the PLS environment on claimant’s mental
state. One would expect the school related stressors to be a substantial treatment
focus if those stressors were a substantial cause of claimant’s continuing emotional
disturbance. That they were not further lessens the weight to which Zander’s causation
opinion is entitled.
Additionally, claimant had mental health hospitalizations in both 2008 and 2009,
that is, substantially after she stopped working at PLS. Ms. Zander offered no
explanation why claimant’s mental health problems worsened long after claimant left the
PLS work environment. While Ms. Zander opines claimant continues to have PTSD,
Ms. Zander does not explain why the continuing mental health condition relates to
claimant’s PLS work experience and not to her on-going post PLS difficulties, or to her
childhood abuse. Some explanation is necessary given that the psychological testing
claimant underwent in 2008 found that claimant is prone to be suspicious of others and
easily hurt by others. Ms. Zander gave no testimony that she was aware of the
characterological issues this testing revealed, or whether so knowing would have
impacted her opinions regarding the causal connection between claimant’s mental
condition and her work.
Claimant has not established that her work environment was in fact a cause of
the mental injury she claims.
Although claimant has failed to establish medical causation, legal causation will
be addressed in the interests of thoroughness.
Claimant has the burden of proof to show that her workplace stress was more
than that commonly experienced in similar jobs and occupations. Dunlavey at 858.
SHARP V. UNIVERSITY OF NOTHERN IOWA
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Certainly, stresses and difficulties existed at PLS. The school had budget
problems and came close to closing. All faculty were required to reassess their career
choices or face lay–off. These are common difficulties in public employment and their
presence in any particular public work place cannot be considered unusual.
Also at PLS in 2004 through 2007, interpersonal conflict existed among the
administration, faculty and staff. Miscommunication and no communication were
frequent. Scheduling conflicts existed. Conflicts as to allocation of work space
occurred. Workloads differed. Claimant perceived hers as unbalanced and unfair. She
also perceived sports and language programming as having priority over music
programming. These were stressors. They were not unusual stressors for any
educator, however. Such conflicts exist and must be addressed in any school
environment.
Claimant has not established that her work stress exceeded the daily work
stressors to which other public educators are subject.
Wherefore, it is concluded that claimant has not established that she sustained
an injury that arose out and in the course of employment as a result of workplace stress.
Because claimant has failed to prove she sustained an injury that arose out of
and in the course of employment, all other issues are moot, and the affirmative defense
of lack of notice need not be fully addressed. It is fair to say, however, that the
employer did not have notice of the claimed work injury until claimant filed her original
notice and petition. Furthermore, on this record, earlier actual knowledge of the
potential for a claim of a stress-related work injury cannot be impugned to the employer.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, IT IS ORDERED:
That claimant shall take nothing from these proceedings.
That claimant shall pay the costs of this matter including the transcription of the
hearing.
Signed and filed this 14th day of May, 2012.
HELENJEAN M. WALLESER
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
SHARP V. UNIVERSITY OF NOTHERN IOWA
Page 16
Copies To:
Judith O’Donohoe
Attorney at Law
PO Box 307
Charles City, IA 50616
elwood@myclearwave.net
Deborah M. Stein
Assistant Attorney General
Special Litigation
Hoover State Office Bldg.
Des Moines, IA 50319-0106
dstein@ag.state.ia.us
HJW/blr