WADE GREEN, Petitioner-Appellant, vs. WEITZ CONSTRUCTION, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-906 / 05-1889
Filed December 13, 2006
WADE GREEN,
Petitioner-Appellant,
vs.
WEITZ CONSTRUCTION,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
Wade Green appeals the decision of the district court affirming the
agency’s final decision finding Green failed to prove causation. AFFIRMED.
Nathaniel R. Boulton and Joseph L. Walsh, Des Moines, for appellant.
Joseph Barron and Timothy Wegman of Peddicord, Wharton, Spencer &
Hook, LLP, Des Moines, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
EISENHAUER, J.
Wade Green appeals the decision of the district court affirming the
workers’ compensation commissioner’s final decision finding Green failed to
prove causation.
On August 23, 2000, Green, a union carpenter, was working for Weitz
Construction Co. when he fell and sustained an injury arising out of and in the
course of his employment. Green contends he injured his neck in the fall and as
a result is entitled to workers’ compensation benefits.
The deputy workers’
compensation commissioner denied Green benefits, concluding he failed to
establish a causal nexus by a preponderance of the evidence.
commissioner affirmed the deputy’s decision denying the claim.
The
On judicial
review, the district court agreed with the deputy and reached the same
conclusion. Green seeks further judicial review.
Our review in workers’ compensation cases is governed by the Iowa
Administrative Procedure Act, Iowa Code chapter 17A.
Myers v. F.C.A.
Services, Inc., 592 N.W.2d 354, 356 (Iowa 1999). Under the Act, we may only
interfere with the commissioner’s decision if it is erroneous under one of the
grounds enumerated in the statute, and a party’s substantial rights have been
prejudiced.
Iowa Code section 17A.19(10) (2005).
If there is substantial
evidence in the record to support the agency’s determinations of fact, then we
are bound by such determinations. Meyer v. IBP, Inc., 710 N.W.2d 213, 218
(Iowa 2006). We give some discretion to the agency’s application of law to fact,
but these decisions may be affected by erroneous interpretation of law, irrational
reasoning, failure to consider relevant facts, or irrational, illogical, or wholly
3
unjustifiable application of law to the facts. Id. We afford no discretion when the
agency exercises its decision based on an erroneous interpretation of law. Id.
Green was seen by and obtained evaluations from several physicians
following the accident.
N. John Prevo, D.O. evaluated and treated Green
between September 7 and November 7, 2000. Prevo diagnosed Green with
“carpal ulnar tunnel.” In a letter to Weitz’s counsel, Prevo agreed there was no
causal connection between Green’s alleged injury of August 23, 2000, and his
carpal tunnel and ulnar tunnel syndrome. But, Prevo noted that it was possible
the fall and contusion could have aggravated Green’s cervical spine disease.
Nonetheless, Prevo agreed Green’s July 2002 surgery 1 was “related to [Green’s]
longstanding central stenosis and spondylosis as opposed to the alleged work
injury of August 23, 2000.”
Prevo referred Green to Dr. Lynn M. Nelson.
Nelson’s “impressions” were “right cubital tunnel and carpal tunnel syndrome,”
“status post C4-5, C5-6 anterior cervical diskectomy and fusion,” and “C6-7
spondylosis.” Nelson opined, “I, like Dr. Prevo, cannot well relate cubital and/or
carpal tunnel syndrome to the reported fall. . . .” Nelson further opined that
Green’s July 2002 surgery was not causally connected with the August 23 injury,
nor did the alleged injury cause the need for the surgery.
Jerome G. Bashara, M.D. performed an independent medical evaluation
of Green’s cervical spine. Bashara opined, “This [severe spinal stenosis C3-4
and C6-7, postoperative fusion at both levels] is a substantial aggravation of a
preexisting condition, which was caused by an injury on 8/23/00.” Bashara gave
Green an 18 percent partial physical impairment of his body as a whole.
1
On July 9, 2002, Dr. Patrick W. Hitchon performed C3-4 and C6-7 anterior cervical
diskectomy infusion with plating on Green.
4
Dr. Hitchon, who performed the July 2002 surgery, diagnosed Green with
“degenerative disease of the cervical spine with cervical stenosis.” He opined,
“Based on the history and the statements by Mr. Green it appears that the injury
did contribute to aggravation of underlying pre-existing pathology in the cervical
spine.”
However, approximately two months later when asked to confirm
whether the degenerative disease and cervical stenosis was not the result of any
work injury, Hitchon stated:
Degenerative disease can occur due to a multitude of factors
including participation in contact sports, multiple trauma and
repetitive injury. These changes may or may not be related to ones
work. . . . I believe that the period of time from injury to physician
consultation is important in establishing a relationship. Mr. Green
was first seen by me in January of 2002, nearly 1-1/2 years
following the injury of August 2000.
The deputy commissioner found the opinions of Dr. Prevo and Dr.
Nelson—that there was no causal nexus between the July 2002 surgery and the
August 23 injury–did not support Green’s claim. The deputy found Dr. Hitchon
“retreated” from his opinion that the injury contributed to the aggravation of
Green’s underlying pre-existing pathology in the cervical spine, and his opinion
was “clearly not supportive” of Green’s claim either. The deputy acknowledged
that Bashara opined the injury was the cause of the substantial aggravation of a
preexisting condition. But, the deputy discounted Bashara’s opinion because it
failed to address two significant facts: “Green denied neck pain when he first
sought medical treatment three days after the original injury, and did not begin to
develop numbness in the right extremity until a few days before visiting Dr. Prevo
on September 7, 2000, two weeks later.” The deputy accepted the opinions of
Prevo, Nelson and Hitchon as “more persuasive.” Thus, based on their opinions,
5
the deputy found Green failed to establish the necessary causation and denied
Green benefits.
The commissioner “affirm[ed] and adopt[ed] as final agency actions those
portions of the proposed decision in this matter that relate to issues properly
raised on intra-agency appeal,” with a short additional analysis clarifying that
Hitchon was aware of Green’s pre-2000 cervical problems. 2 Nonetheless, the
commissioner agreed with the deputy that Hitchon’s views are not particularly
supportive of Green’s claim and the claim was properly denied.
On judicial review, the district court agreed that Dr. Nelson and Dr. Prevo
did not find a causal connection between the August injury and the need for
surgery in July 2002.
The court found substantial evidence supported the
conclusion of the agency.
The district court also found the commissioner’s
decision comported with the requirements of Iowa Code section 17A.16. The
court affirmed the agency decision.
Green contends the deputy’s decision with respect to the medical
causation is “wholly illogical as to render it irrational, or a wholly unjustifiable
application of law to fact.”
See Iowa Code § 17A.19(10)(i), (m).
The
commissioner may accept or reject opinion testimony on causation in whole or in
part because the commissioner, as the fact finder, determines the weight to be
2
Green obtained a spinal fusion in 1990 following a work-related injury. Hitchon’s
second opinion, which the deputy interpreted as “retreating” from his first opinion,
actually stated:
Mr. Green was seen on June 17, 2002 after review the above diagnostic
studies surgery was recommended for the treatment of his narrowing and
his symptoms. These recommendations were made without knowledge
of a pre-existing injury in August of 2000.
The deputy restated Hitchon’s opinion as saying that Hitchon “had previously been
unaware of an injury preceding August 2000.” (Emphasis added).
6
given to any expert testimony. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 631 (Iowa
2000); Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). The deputy
adopted the opinions of Drs. Nelson, Prevo and Hitchon, and rejected the opinion
of Dr. Bashara. Dr. Nelson opined that the “alleged injury of August 23, 2000 did
not cause the need for the surgery of July 2002 and is further supported by the
surgery being necessary at two levels.” Dr. Prevo agreed with Dr. Nelson “that
the subsequent surgery performed by Dr. Hitchon would be related to the
claimant’s long standing central stenosis and spondylosis as opposed to the
alleged work injury of August 23, 2000.” Whether an injury has a direct causal
connection with the employment or arose independently thereof is essentially
within the domain of expert testimony. Dunlavey v. Economy Fire and Cas. Co.,
526 N.W.2d 845, 853 (Iowa 1995); Blanchard v. Belle Plaine/Vinton Motor Supply
Co., 596 N.W.2d 904, 909 (Iowa Ct. App. 1999). Remembering the agency was
free to accept or reject the experts’ opinions, even if the deputy misinterpreted
the statement of Dr. Hitchon as Green argues, the opinions of Dr. Prevo and Dr.
Nelson provided substantial evidence to support the findings of the agency. And,
the deputy explained why he discounted Dr. Bashara’s opinion.
We cannot
conclude the deputy’s decision is illogical as to render it wholly irrational, or is a
wholly unjustifiable application of law to fact.
Green also asserts the agency decision did not contain separate findings
of fact and conclusions of law as required by Iowa Code section 17A.16. We
disagree and find the decision comports with the statute. Additionally, Green
contends the agency applied an incorrect test regarding medical causation. The
deputy stated the law on causation as:
7
Green has the burden of proving by a preponderance of the
evidence the injury is a proximate cause of the disability on which
the claim is based. A cause is proximate if it is a substantial factor
in bringing about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal connection
is probable rather than merely possible.
Blacksmith v. AllAmerican, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
This is a correct statement of the law. See Miller v. Lauridsen Foods, Inc., 525
N.W.2d 417, 420 (Iowa 1994). Green’s contention is without merit.
The agency decision is supported by substantial evidence and based
upon a correct application of law. We affirm the decision of the district court,
affirming the agency decision.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
