IN THE COURT OF APPEALS OF IOWA

No. 17-1374

Filed June 20, 2018

MUNIRA BAHIC,

Plaintiff-Appellant,

vs.

MERCY MEDICAL CENTER d/b/a BISHOP DRUMM and INDEMNITY 

INSURANCE COMPANY OF NORTH AMERICA,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

The claimant appeals from the district court’s judgment affirming the

commissioner’s determination the employee’s stipulated work injury did not cause 

her ongoing disability and symptoms after a specific date. AFFIRMED.

Nicholas W. Platt of Platt Law Firm, P.C., Urbandale, for appellant.

Kent M. Smith of Scheldrup Blades Schrock Smith P.C., West Des Moines, 

for appellees.

Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

Munira Bahic appeals from the district court’s judgment affirming the

commissioner’s determination that Bahic’s stipulated work injury did not cause her 

ongoing disability and symptoms after the date of February 27, 2014. On appeal, 

Bahic claims the district court erred in its determination that substantial evidence 

supports the commissioner’s ruling. Additionally, she claims the court was wrong 

to conclude the commissioner’s reversal of the deputy’s causation ruling was not 

irrational, illogical, or wholly unjustifiable.1

I. Background Facts and Concluions.

Bahic was born in 1959 in Bosnia. There, she completed her education 

through the eighth grade. She later lived in Germany with her family and worked 

outside of the home cleaning offices a few hours each week. After coming to the 

United States, Bahic began working in January 2001 for the employer, Mercy 

Medical Center—which was doing business as a residential care facility under the 

name Bishop Drumm. Through the employer, she took approximately two 

semesters of classes in English as a second language. She testified she was able 

to communicate verbally in English at work but was unable to write well in English. 

Bahic utilized an interpreter for her medical appointments as well as throughout

the legal process.

 

1

In her reply brief, Bahic raises a sixth claim of error, alleging the district court “erred in 

using the incorrect standard for denying the petition for judicial review.” Insofar as this 

sixth claim is a new issue, “[a]n issue cannot be asserted for the first time in a reply brief.” 

Polk Cty v. Davis, 525 N.W.2d 434, 435 (Iowa Ct. App. 1994). Thus, we do not consider 

this issue. Id.
3

In 2013, Bahic was working full-time as a prep cook. As part of her job 

requirements, Bahic would prepare food, load food and drink onto a cart, and then 

deliver those items to people within the facility. When loaded, the cart held the 

supplies for approximately 160 people. According to Mercy’s description of the 

position of prep cook, the work required “constant” standing, lifting, and walking; 

“frequent” crouching, stooping, pulling, and pushing; and “occasional” climbing, 

kneeling, and lifting. Additionally, the “physical demand requirements” state, in 

part, “Heavy work: Exerting up to 65 pounds push/pull force occasionally, lifting up 

to 50 lbs. occasionally, lifting up to 40 lbs. frequently.” 

On February 11, 2013, Bahic suffered an injury at work when pushing a full 

cart to her first stop of the day. Bahic had to lift the back of the cart and twist it in 

order to maneuver around a corner. When she did so, she felt a sharp stabbing 

pain in her lower back. Bahic reported the injury to a coworker on the day it 

occurred and a supervisor the next day. She continued to perform her job until

approximately two months later, when a supervisor noticed Bahic was unable to 

put her weight on one foot and was limping. The employer then arranged for Bahic 

to be seen by a medical professional at Mercy Clinics; Bahic reported experiencing 

ongoing back pain radiating down her right leg. She was given work restrictions 

and began working in a less physically-demanding position in the laundry room. 

In October 2013, Mercy terminated Bahic’s employment. The letter 

informed Bahic her termination did “not change [her] ability to receive Workman’s 

Compensation benefits and treatment, if still under restrictions or treatment”—

which she was. Additionally, she was advised she was eligible for rehire “if you 
4

are released to return to work either without restrictions or to a position that meets 

your current restrictions.”

Bahic continued to treat with a number of medical providers. 

At the employer’s request, Bahic saw Dr. David Boarini in February 2014 

for an independent medical examination. In the resulting letter, sent February 27, 

2014, Dr. Boarini opined:

Upon examination, this is a normally developed woman. The 

examination was essentially impossible because of obvious pain 

exaggeration and symptom magnification. Testing was inconsistent, 

breakaway and clearly non physiologic. Straight leg raising was 

impossible to evaluate, once again because of massive symptom 

exaggeration. The patient complained of numbness in the entire 

right leg which was non physiologic. She split the midline to tuning 

fork testing which is a clear sign of malingering. Reflexes were 

symmetric and physiologic.

I reviewed the patient’s MRI scan and she has some 

degenerative changes mainly at L4-L5 with a small disc bulge and 

mild stenosis. 

In summary, this patient suffered an extremely minimal, if any, 

injury. There is no sign on her scan of a structural lesion related to 

that and in fact, it would be impossible to ascribe anything significant 

structurally in her back to the incident described. The fact that she 

did not seek any medical care at the time would go along with that 

hypothesis.

At both parties’ agreement, Bahic saw Dr. Sergio Mendoza at the University 

of Iowa Hospitals and Clinics. Dr. Mendoza reviewed Bahic’s MRI and opined she 

had suffered from L4-L5 degenerative stenosis with “disc material vs osteophyte 

vs. cyst.” Dr. Mendoza proposed a posterolateral interbody fusion surgery. In 

September 2014, before performing the surgery, Dr. Mendoza opined “to the 

nearest degree of medical certainty, the causation of this injury is not related to 

work.” In October, Dr. Mendoza performed the surgery.
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Mercy paid Bahic workers’ compensation benefits from the date of injury 

until February 19, 2015. At the time of the workers’ compensation hearing in front 

of the deputy commissioner, on April 21, 2015, Bahic had unpaid medical bills from 

the University of Iowa.

Following the hearing, the deputy commissioner issued an arbitration 

decision finding Bahic permanently and totally disabled from her injury on February 

11, 2013, and healing benefits were owed through February 27, 2015, at the rate 

of $387.32 per week. Additionally, the deputy awarded Bahic unpaid medical 

expenses, future medical expenses, and costs. In reaching this decision, the 

deputy gave greater weight to the opinions of Drs. Woolley, Bansal, and Harris and 

discounted the opinions of Drs. Mendoza and Boarini. 

Mercy appealed the decision, and the commissioner reversed the deputy’s 

ruling. The commissioner determined Bahic had reached maximum medical 

improvement (MMI) on February 27, 2014—based on the opinion of Dr. Boarini on 

that date. Additionally, the commissioner found that the “stipulated work injury of 

February 11, 2013” was not the cause of Bahic’s ongoing disability and symptoms 

after the date of MMI. In reaching this conclusion, the commissioner “award[ed] 

greater probative value to the opinions of Dr. Mendoza, as buttressed by the 

opinions of Dr. Boarini.” The commissioner found Dr. Mendoza’s opinions to be 

most credible:

due to his medical expertise, as compared to the remaining opining 

physicians. Additionally, and relatedly, Dr. Mendoza served as 

[Behic’s] treating surgeon. As [Bahic’s] treating surgeon, Dr. 

Mendoza possessed the unique opportunity to examine [Bahic] on 

multiple occasions, including intra-operatively. When this knowledge 

is coupled with Dr. Mendoza’s expertise as an orthopedic surgeon, I 

find his opinion entitled to the greatest weight. The fact that the 
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parties jointly agreed to send [Bahic] to Dr. Mendoza for further 

evaluation and treatment supports a determination that he is a 

qualified surgeon.

The commissioner reversed the award of weekly benefits, future medical 

expenses, and costs.

Bahic filed a petition for judicial review, challenging whether the 

commissioner’s findings of fact were supported by substantial evidence and 

whether the commissioner’s reversal of the causation and permanent disability 

determinations were irrational, illogical, or wholly unjustifiable. The district court 

denied the petition, affirming the commissioner’s ruling.

Bahic appeals.

II. Discussion.

A. Substantial Evidence.

Bahic challenges the district court’s determination that the commissioner’s 

findings of fact were supported by substantial evidence in the record. Specifically, 

Bahic challenges the commissioner’s finding that Bahic’s stipulated work injury of 

February 11, 2013 was not the cause of Bahic’s ongoing disability and symptoms, 

that Bahic reached MMI on February 27, 2014, and that Bahic did not suffer a 

permanent disability as a result of her work injury. 

“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, 845 (Iowa 2011). Thus, we only disturb the 

commissioner’s finding if it is not supported by substantial evidence. Id. (citing 

Iowa Code § 17A.19(10)(f) (2017)). Substantial evidence is “the quantity and 

quality of evidence that would be deemed sufficient by a neutral, detached, and 
7

reasonable person to establish the fact at issue when the consequences resulting 

from the establishment of that fact are understood to be serious and of great 

importance.” Iowa Code § 17A.19(10)(f)(1). “When reviewing a finding of fact for 

substantial evidence, we judge the finding ‘in light of all the relevant evidence in 

the record cited by any party that detracts from that finding as well as all of the 

relevant evidence in the record cited by any party that supports it.’” Pease, 807 

N.W.2d at 845 (quoting Iowa Code § 17A.19(10)(f)(3)). 

That being said, “[e]vidence may be substantial even though we may have 

drawn a different conclusion as fact finder.” Id. “Our task, therefore, is not to 

determine whether the evidence supports a different finding; rather, our task is to 

determine whether substantial evidence, viewing the record as a whole, supports 

the findings actually made.” Id. We do not reassess the evidence or make or our 

own determination of the weight it is to be given. See Burns v. Bd. of Nursing, 495 

N.W.2d 698, 699 (Iowa 1993). “Because the commissioner is charged with 

weighing the evidence, we liberally and broadly construe the findings to uphold 

[the commissioner’s] decision.” Schutjer v. Algona Manor Care Ctr., 780 N.W.2d 

549, 558 (Iowa 2010). “In addition, we give due regard to the commissioner’s 

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

credibility.” Id. 

The present case is similar to Pease, where our supreme court was asked 

to determine “the issue of the extent to which expert testimony constitutes 

substantial evidence in a workers’ compensation claim.” 807 N.W.2d at 845. In 

Pease, experts for the parties provided conflicting opinions and the commissioner 

was ultimately forced to determine which expert opinions were more credible and 
8

what weight to give each. Id. The employer asked our supreme court “to hold that 

the opinions relied upon by the commissioner were so flawed that they failed to 

constitute substantial evidence supporting the commissioner’s findings.” Id. at 

845. Our supreme court declined to do so. Id. 

Likewise, we decline to find that the experts relied upon by the 

commissioner were so flawed as to not constitute substantial evidence. While 

Bahic makes a number of specific arguments why the experts who opined her 

ongoing symptoms and disability was a result of a the February 2013 work injury 

are the better informed, more credible sources, “the determination of whether to 

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

commissioner.” Id. “The courts, in their appellate capacity, ‘are not at liberty to 

accept contradictory opinions of other experts in order to reject the finding of the 

commissioner.’” Id. at 850 (citation omitted). 

Here, the commissioner determined the opinion of Dr. Mendoza had the 

“greater probative value . . . as buttressed by the opinions of Dr. Boarini.”2 The 

 

2 Additionally, the commissioner explained why the other the opinion of other doctors Bahic 

saw were given less weight:

I find the opinions of Drs. Woolley, Harris, and Bansal entitled to 

lesser weight. Dr. Woolley is a physician practicing osteopathic manual 

manipulation. Dr. Woolley is not a qualified surgeon such as Drs. Mendoza 

and Boarini. She also, admittedly, noted examination findings 

“diametrically opposed” of prior treating physicians. This fact is particularly 

relevant given Dr. Woolley did not examine [Bahic] until over one year 

following the stipulated work injury, at a point in time after which Dr. Boarini 

opined [Bahic’s] temporary injury had resolved. Dr. Mendoza also opined 

[Bahic’s] work-related condition was, at best, a temporary exacerbation of 

an underlying degenerative condition. I find Dr. Harris’ opinion entitled to 

little probative weight, given it was cursory in nature and he, too, is not a 

qualified surgeon. I find Dr. Bansal’s opinion, while thorough and logical, 

is simply not entitled to as much deference as the opinions offered by the 

opinion surgeons.
9

commissioner reached this conclusion due to Dr. Mendoza’s medical expertise as 

an orthopedic surgeon, his status as Bahic’s treating surgeon, and the fact that he 

examined Bahic a number of times—“including intra-operatively.” Additionally, the 

commissioner noted that the parties had jointly agreed to send Bahic to Dr. 

Mendoza. 

Neither Dr. Boarini nor Dr. Mendoza found Bahic to have an ongoing 

condition after February 27, 2014, that was causally related to the stipulated work 

injury. Dr. Mendoza opined, “[T]o the nearest degree of medical certainty the 

causation of this injury is not related to work.” Rather, he opined that Bahic’s 

medical condition was related to chronic stenosis and underlying degenerative 

conditions. Similarly, Dr. Boarini opined that the Bahic had sustained only a 

minimal work injury and was otherwise suffering from a degenerative disease in 

her back. Bahic attacks Dr. Boarini’s opinion as being reached without a complete 

evaluation; she maintains—and her interpreter and husband corroborated—that in 

spite of his claim to the contrary, he never used a tuning fork to complete a test. 

The commissioner explicitly found no credible basis to support the conclusion Dr. 

Boarini fabricated certain examinations. Thus, whether questioning Bahic’s 

memory or her truthfulness, the commissioner implicitly casts doubt on Bahic’s 

testimony. See Broadlawns Med. Cent. v. Sanders, 792 N.W.2d 302, 306 (Iowa 

2010) (noting we give deference to the credibility determinations of the presiding 

officer). 

Bahic asks us to find the testimony of the experts relied upon by the 

commissioner so flawed as not to constitute substantial evidence, but this is not 

the case where witness testimony was “so impossible or absurd and self-
10

contradictory that it should be deemed a nullity by the court.” Graham v. Chi. & 

Nw. Ry., 119 N.W. 708, 744 (Iowa 1909). While we may have drawn a different 

conclusion as fact finder, we conclude substantial evidence supports the 

commissioner’s finding that Bahic’s ongoing symptoms were not the result of the 

work injury. 

Similarly, the determination of when a claimant has reached MMI is also 

within the discretion of the workers’ compensation commissioner. See, e.g., 

Sanders, 792 N.W.2d at 306–08 (reviewing the commissioner’s MMI determination 

for substantial evidence to support the finding). The commissioner relied on the 

date of Dr. Boarini’s letter indicating that Bahic had suffered only a minimal work 

injury, which was no longer the cause of the symptoms she claimed to be suffering, 

to determine MMI. The commissioner concluded Bahic had reached MMI on 

February 27, 2014. Dr. Sunil Bansal, who conducted an independent medical 

exam of Bahic in February 2015, opined that Bahic had not reached MMI until the 

date of her examination on February 27, 2015, but the commissioner determined 

Dr. Sansal’s opinion was entitled to less deference than that of Dr. Boarini. Based 

on Dr. Boarini’s opinion, there is substantial evidence to support the 

commissioner’s determination that Bahic reached MMI on February 27, 2014.

Additionally, we consider whether there is substantial evidence in the record 

to support the commissioner’s finding that Bahic did not suffer a permanent 

disability from the injury. See, e.g., Second Injury Fund v. Shank, 516 N.W.2d 808, 

814 (Iowa 1994) (concluding substantial evidence supporting the finding the 

claimant was permanently and totally disabled). Bahic claims the commissioner 

should have remanded to determine if she suffered a permanent disability with her 
11

February 2013 injury, basing her argument on the commissioner’s statement: 

“While it is possible claimant could prove the limited injury of February 11, 2013, 

was a cause for permanent disability, the evidentiary record contains insufficient 

support for this proposition.” But Bahic had the burden to prove she had suffered 

a permanent disability. See Iowa R. App. P. 6.904(3)(e) (“Ordinarily, the burden 

of proof on an issue is upon the party who would suffer loss if the issue were not 

established.”); see also Michael Eberhart Const. v. Curtin, 674 N.W.2d 123, 126 

(Iowa 2004) (providing the two methods a claimant may utilize to meet their burden 

of establishing a permanent disability). Failing to meet her burden is not a reason 

for the case to be remanded.

The commissioner’s determinations that Bahic’s stipulated work injury was 

not the cause of a permanent disability and that any symptoms after the date of 

MMI—February 27, 2014—were not causally related to the stipulated work injury 

are supported by substantial evidence in the record.3

B. Irrational, Illogical, and Wholly Unjustifiable.

Next, Bahic maintains the commissioner’s application of law to fact was 

irrational, illogical, or wholly unjustifiable. See Iowa Code § 17A.19(10)(m). 

Reviewing under this standard “requires us to allocate some deference to the 

 

3 Bahic claims certain medical expenses should be reimbursed because they were 

causally related to her injury and were authorized by Mercy. It is unclear what error Bahic 

is alleging with this claim; the commissioner ruled, “Defendants remain responsible for any 

claimed medical treatment which was authorized by defendants, as well as related medical 

mileage.” As the commissioner recognized, Mercy is responsible for any expenses Bahic 

incurred receiving authorized medical care even after the date of MMI, as “section 85.27(4) 

does not require employees to prove medical causation in order to establish liability for 

authorized medical expenses.” Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759, 

773 (Iowa 2016). To do otherwise “would undermine the concept of authorized care and 

subject employees to retroactive liability for care they did not choose.” Id. at 774. 
12

commissioner’s determinations, but less than we give to the agency’s findings of 

fact.” Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 850 (Iowa 2009). 

But here, Bahic uses the “illogical, irrational, and wholly unjustifiable” 

standard to again attack the commissioner’s credibility findings regarding which

expert opinions to afford the most weight. Such an attack is without merit, as 

determining credibility is not an application of law to fact. 

Bahic argues the present facts are similar to those in JBS Swift & Co. v. 

Hedberg, 873 N.W.2d 276, at 280–81 (Iowa Ct. App. 2015), where a panel of our 

court determined the agency’s finding of facts were not to be afforded the usual 

deference afforded the agency because “the record affirmatively disclose[d] the 

agency did not review and consider the evidence.” In such a case, we concluded 

“the commissioner’s designee’s action [wa]s unreasonable, arbitrary, capricious, 

an abuse of discretion, and the product of illogical reasoning.” Swift, 873 N.W.2d 

at 281 (citing Iowa Code § 17A.19(10)(i), (j), (m), & (n)). 

But here, the commissioner’s ruling establishes that the commissioner did 

review the evidence in the record before ultimately reaching conclusions at odds 

with those of the deputy commissioner. While the commissioner did not view the 

opinions of Drs. Boarini and Mendoza with the same misgivings as the deputy had 

expressed, it is the commissioner who is entitled to determine the credibility of the 

various witnesses. See, e.g., Schutjer, 780 N.W.2d at 558 (“[W]e give due regard 

to the commissioner’s discretion to accept or reject testimony based on his 

assessment of witness credibility.”). Dr. Boarini opined—based on the tuning fork 

test—that Bahic was malingering, and Bahic claimed Dr. Boarini had never 

performed that evaluation. Unlike the deputy commissioner, the commissioner 
13

found Dr. Boarini to be the more credible of two witnesses in that situation. 

Additionally, while Dr. Mendoza’s testimony appeared to minimize the action Bahic 

was performing when she sustained the stipulated work injury, it was also true that 

no one witnessed Bahic sustain the injury. Moreover, her own description of the 

action—as found in the various medical records—is less than consistent. Some 

of the records describe the injury as Bahic testified, with lifting a loaded cart and 

twisting, while others simply state she was pushing a cart at the time of the injury. 

Because this is not a case where the ruling establishes the commissioner 

failed to review and evaluate the evidence in the record, and because the 

commissioner’s determination of credibility among experts is not an application of 

law to fact, we do not consider this claim further.

Based on the record before us, we cannot say the district court erred in 

affirming the ruling of the commissioner. We affirm.

AFFIRMED.