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Big Tomato Pizza v. Jonathan Cloud

February 27, 2013


Appeal from the Iowa District Court for Polk County, Brad McCall, Judge.

The opinion of the court was delivered by: Danilson, J.

An employer appeals the district court's decision affirming the award of workers' compensation benefits to petitioner by the workers' compensation commissioner. AFFIRMED.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

An employer, Big Tomato Pizza, appeals the ruling of the district court that affirmed the decision of the workers' compensation commissioner that claimant Jonathan Cloud was entitled to workers' compensation benefits. The employer claims: (1) Cloud's injury did not arise out of his employment; (2) compensation should be barred by Iowa Code section 85.16 (2009); (3) Cloud was not entitled to medical expenses or workers' compensation benefits; and (4) the employer should not be responsible for pay for a mental health evaluation or treatment. We affirm the decisions of the district court and the workers' compensation commissioner.

I. Background Facts & Proceedings

Cloud was employed as a pizza delivery driver by Big Tomato Pizza, which is at 2613 Ingersoll Avenue in Des Moines.*fn1 In the evening on April 16, 2008, Cloud was returning from delivering a pizza when he heard a commotion coming from the front of Big Tomato Pizza. He got out of his car, and saw someone (later identified as Douglas Evans) being chased out of the door. Cloud stated he happened to step in Evans's way, and Evans struck him. Cloud reacted by defending himself and the two had a brief scuffle. Cloud testified that one night previously Evans had been panhandling in front of Big Tomato Pizza and Cloud asked him to leave, and this was his only prior interaction with Evans.

Cloud was injured as a result of the incident. He had difficulty breathing and asked a co-employee, Seth Wilson, to call 911. An ambulance picked Cloud up at 2613 Ingersoll Avenue, the address of Big Tomato Pizza, and took him to Iowa Methodist Medical Center. Cloud was diagnosed with a small puncture wound to the left side of his chest and a collapsed lung.*fn2 The emergency room medical report states, "pizza delivery tonight / walking into building / assaulted by man running out back door / altercation / punched at axilla." Cloud remained in the hospital until April 26, 2008.

The Des Moines Police Department investigated the assault on Cloud.*fn3

The police report generated on April 16, 2008 states:

Cloud (an employee at "Big Tomato") was working when Evans walked by the business & yelled profanities. Another employee had made a threats report earlier in the week against same subject [ ]. Cloud went to confront Evans when a scuffle broke out & Cloud was punched in the left side, rib cage. Evans ran away & Cloud flagged me down because he was unable to breathe approximately 10 min. after the altercation. Rescue responded & transported him to the hospital.

The police report gives the address of the offense as the 2500 block of Ingersoll Avenue.

Cloud did not receive any subsequent medical treatment, stating he could not afford it because he did not have medical insurance. He returned to his employment as a pizza delivery driver for Big Tomato Pizza. He stated he continued to have pain in the left chest region, particularly if he lifted his left arm above chest level. He also sometimes experienced shortness of breath, which was exacerbated by cold, misty, or dusty conditions. Additionally, Cloud had problems with nightmares about the incident.

On May 30, 2009, Cloud filed a claim seeking workers' compensation benefits. He had an independent medical examination on February 4, 2010, with Dr. John Kuhnlein. Dr. Kuhnlein found Cloud's pain was caused by the April 16, 2008 injury, and assigned a one percent whole person impairment. Dr. Kuhnlein recommended that Cloud only lift pizzas above shoulder height on an occasional basis. He also recommended that Cloud be examined by a mental health professional for possible post-traumatic stress disorder.

The case proceeded to a hearing before a deputy worker's compensation commissioner on May 13, 2010. Cloud testified as outlined above. The police report and Cloud's medical records were submitted into evidence.

The deposition of Wilson, Cloud's co-employee, was presented. Wilson stated Cloud was returning from delivering a pizza when he saw Wilson and another employee chasing Evans down the street. Wilson stated he was chasing Evans because he wanted to get into a fight. Wilson stated Cloud made a U-turn to follow Evans, got out of his car, and engaged in a fight with Evans in front of the China Buffet, which was in about the 2300 block of Ingersoll Avenue. Wilson stated that after the fight Cloud had a puncture wound in the chest and he could not breathe, so Wilson called 911.

John Limke, a co-owner of Big Tomato Pizza, testified that on April 16, 2008, he came into the business to get a pizza and was told that some of the employees were chasing a person. He stated Cloud came into the business while he was there and Cloud told him he had hit a guy in the head. Limke stated Cloud seemed kind of excited. He testified that he heard later that night that Cloud had been taken to the hospital.

The deputy determined the testimony of Limke and Wilson was not as convincing as that of Cloud. The deputy concluded, "He was a victim of an assault that occurred because he was an employee. The injury arose out of and in the course of his employment." The deputy determined Cloud was not precluded from compensation under section 85.16. The deputy found Cloud had a fifteen percent industrial disability. The deputy also determined Cloud should be evaluated for a mental health injury as a result of the assault.

The employer appealed the deputy's decision. The workers' compensation commissioner found:

The ambulance record, the police report and the Methodist medical report are objective, contemporaneous evidence of what occurred on the night of April 16, 2008. All three reports are more consistent with claimant's testimony ...

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