BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
JONATHAN CLOUD,
:
:
File No. 5030143
Claimant,
:
:
APPEAL
vs.
:
:
DECISION
BIG TOMATO PIZZA,
:
:
Employer,
:
Head Note Nos.: 1100; 1602; 1603;
Uninsured,
:
1801; 1803; 2401; 2700; 4000
Defendant.
:
_____________________________________________________________________
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
The employer appeals from an arbitration decision filed December 21, 2010 which the
presiding deputy found that claimant had sustained an injury on April 16, 2008 that
arose out of and in the course of his employment, awarded claimant 15 percent
permanent partial disability under Iowa Code section 85.34 (2) (u), found the employer
liable for medical costs claimant had incurred, and ordered alternative medical care.
The employer contends that claimant’s injury resulted from his willful intent to injury
himself or another and occurred after he had abandoned his employment duties.
FINDINGS OF FACT
Jonathan Cloud, claimant, was 40 years old at the time of the hearing. He
received a G.E.D in 1998. Most of his work since high school has been delivering
pizza. He has worked for a temporary agency doing other day work. Claimant testified
he started working as a pizza delivery driver for Big Tomato Pizza, employer, in June
1997. Claimant voluntarily quit his Big Tomato employment in March 2010, as a result
of an altercation he had with a co-employee.
Claimant was assaulted on April 16, 2008. Claimant testified he did not
personally know the individual who assaulted him. Police and court records identify the
assailant as Douglas Evans. (Exhibit B, page; Exhibit J, pages 1 – 4) Claimant testified
that Mr. Evans was a panhandler and that claimant had asked Mr. Evans to leave Big
Tomato at other times before April 16, 2008. The police report of April 16, 2008 states
that Mr. Evans made threats to another employee, which were reported to the police a
week earlier. (Ex. B, p. 1)
CLOUD V. BIG TOMATO PIZZA CO.
Page 2
On April 16, 2008, claimant delivered pizza on the south side of Des Moines
and was returning to his employer to continue his work. Claimant testified that, upon
parking his vehicle in front of Big Tomato on the 2600 block of Ingersoll Avenue, he saw
two co-employees (Seth and Ray) chasing the individual who had been reported to the
police the prior week and who had been causing problems with customers.
In his deposition, Seth Wilson reported that he and another employee (Ray) had
been chasing Mr. Evans down the street as claimant was heading from downtown
(west) towards Big Tomato Pizza. Seth testified that his reason for chasing Mr. Evans
was to get into a fight. (Ex. H, pp. 16 – 17) Seth testified that he saw claimant drive up
Ingersoll Avenue and that claimant make a u-turn to join in chasing Mr. Evans. Seth
further reported that claimant and Mr. Evans scuffled in the 2300 block of Ingersoll
Avenue, near or across the street from the China Buffet. (Ex H, pp. 1 – 8; Ex. I. p. 1)
John Limke, a co-owner of Big Tomato Pizza, testified that, on the night of April
16, 2008, he was picking up pizza at Big Tomato when a third employee advised him
that two other employees had left to chase a man who had banged on the restraurant’s
windows. Mr. Limke testified that Seth and Ray returned to Big Tomato and stated that
Jon (claimant) had gotten into a fight down the street. Mr. Limke also testified that Jon
returned to the restaurant and reported having got in a couple of good shots and having
hit Mr. Evans in the head.
On April 16, 2008, Mr. Limke spoke to Mr. Fenton, co-owner and manager of Big
Tomato Pizza, about the incident. Mr. Fenton advised Mr. Limke that claimant had
been taken to the hospital. Arrangements had to be made for a replacement pizza
delivery driver. The employer later loaned or gave claimant $750.00 as claimant was
unable to work due to his injury.
Claimant experienced breathing difficulties, chest pain, and anxiety after the
incident. An ambulance was called. It picked claimant up at 2613 Ingersoll Avenue,
Des Moines, Iowa, the employer’s address, and transported him to Iowa Methodist
Medical Center (Methodist). (Ex. 1, p. 1)
The police report of the assault stated the location of the assault was in the 2500
block of Ingersoll Avenue. (Ex. B, p. 1) The report states:
Cloud (an employee @ “Big Tomato”) was working when Evans
walked by the business & yelled profanities. Another employee had made
a threats [sic] report earlier in the week against the same subject (0812745). 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 breath [sic] approximately 10 minutes
after the altercation. Rescue responded & transported him to the hospital.
Approximately 15 minutes later, patrol found Evans @ “Quick Trip”
near 14th/High as he requested a ride home. Evans stated he was an
assault victim (Scraped Knees) but declined a report. Witness Wilson was
CLOUD V. BIG TOMATO PIZZA CO.
Page 3
notified & came to scene and identified Evans as the subject in both
cases.
(Ex. B. pp. 1, 3)
The April 16, 2008 medical report from Methodist recorded “pizza delivery
tonight/ walking into building/ assaulted by man running out back door/ altercation/
punched L axilla/…” (Ex. 2, p. 2)
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 than with the contrary
reports of Mr. Lemke and Mr. Wilson.
It is expressly found that Evans struck claimant in the chest on Ingersoll Avenue
on or about where Big Tomato Pizza is located. The assault occurred as two other
employees chased Evans, a panhandler who had previously caused problems at Big
Tomato, from the store. When Evans assaulted claimant, claimant was performing the
work duty of returning to the Big Tomato place of business after a pizza delivery to
undertake or await another delivery.
Nothing in the record evidence suggests that claimant had any relationship with
Evans but for the previous encounters with Evans at Big Tomato or that claimant had
any personal animosity towards Evans. In other words, there is no credible evidence
that claimant was injured while willfully attempting to injure Evans or that claimant was
injured because Evans assaulted claimant for reasons personal to claimant. It is
expressly so found.
Claimant was diagnosed with pneumothorax secondary to blunt trauma with
increased intrathoracic pressure resulting in rupture of a [lung] bleb in an individual with
suspected emphysema and underlying lung disease. (Ex. 2, p. 8) The underlying
disease complicated claimant's healing from his pneumothorax and he was hospitalized
from April 17, 2008 through April 26, 2008. (Ex. 2, p. 20; Ex. F, p. 1 – 3)
Pneumothorax is the presence of air or gas in the pleural cavity. Stedman’s
Medical Dictionary Illustrated, 23rd edition, page 1112. A bleb of is a collection of fluid.
Stedman’s, page 178.
John Kuhnlein, M.D., performed an independent medical exam on February 4,
2010. (Ex. 3, pp. 23 – 34) Dr. Kuhnlein reported the pneumothorax was directly related
to claimant having been punched in the chest on April 16, 2008. The doctor did not
opine that claimant’s emphysema was exacerbated or permanently aggravated by the
injury. (Ex. 3, p. 29)
Dr. Kuhnlein believed some of the symptoms claimant described were suggestive
of posttraumatic stress disorder and recommended that claimant be evaluated by a
mental health professional. (Ex. 3, p. 28) Claimant had been diagnosed with an
CLOUD V. BIG TOMATO PIZZA CO.
Page 4
adjustment disorder and substance dependence with substance induced mood disorder
when hospitalized in August 2000. (Ex. G, p. 5)
Dr. Kuhnlein assigned one percent whole person impairment for the chest wall
trauma and pneumothorax, while noting that the AMA Guides to the Evaluation of
Permanent Impairment, Fifth Edition, does not cover that condition. (Ex. 3, p. 30) Dr.
Kuhnlein did not restrict claimant's lifting but did suggest that he only occasionally lift
pizzas at or above shoulder height, as claimant had reported problems performing
shoulder level and above activities. (Ex. 3, p. 30) Dr. Kuhnlein charged $1,505.00 for
his examination. (Ex. 5, p. 46)
Claimant testified he still experiences pain when some lifting. He reported
dwelling on his assault and having difficulty concentrating as a result. Claimant was not
receiving treatment for any symptoms at the time of the hearing.
The employer, through its attorney, candidly admitted the employer did not have
workers’ compensation insurance nor was it self-insured. This is a violation of section
87.14A.
CONCLUSIONS OF LAW
The threshold question is whether claimant sustained an injury that arose out of
and in the course of his employment.
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. Lakeside Casino v. Blue, 743
N.W.2d 169 (Iowa 2007) (Holding that the element of “arising out of” requires proof “that
a causal connection exists between the conditions of [the] employment and the injury” –
“In other words, the injury must not have coincidentally occurred while at work, but must
in some way be caused by or related to the working environment or the conditions of
employment.”)
Claimant was assaulted by Evans as claimant returned to the Big Tomato
restaurant as his work duties required and because he was present when an incident
occurred between a panhandler and two coworkers at the employer's place of business,
CLOUD V. BIG TOMATO PIZZA CO.
Page 5
a public facility, at which at times some such incidents are to be anticipated. In other
words, claimant's assault was a rational consequence of a hazard of his employment. It
was not merely incidental to the employment.
The defendant asserts that claimant’s claim is barred by Iowa Code sections
85.16(1) and (3). Iowa Code section 85.16 (1) states that no compensation is allowed
for an injury caused by the employee's willful intent to injure the employee’s self or
willfully injure another. Iowa Code section 85.16 (3) states that no compensation is
allowed for any injury caused by the willful act of a third party directed against the
employee for reasons personal to such employee. Iowa Code section 85.16(3) is an
affirmative defense and the employer has the burden of proving that it is a bar to
compensation under Iowa Code chapter 85.
There is no credible evidence that claimant wanted to willfully injure Mr. Evans
or that Evans assaulted claimant for reasons personal to claimant. The convincing
evidence is that claimant happened upon the confrontation between evidence and the
other workers and Evans assaulted claimant because he was in Evans’ way as Evans
attempted to flee from his actual pursuers.
Wherefore, it is concluded that claimant has established an injury that arose out
of and in the course of his employment, for which compensation is not barred because
the injury occurred as a result of claimant's willful intent to injure another individual or
because another individual injured claimant for reasons personal to claimant.
The notice issue is addressed.
The Iowa Workers’ Compensation Act imposes time limits on injured employees
both as to when they must notify their employers of injuries and as to when injury claims
must be filed.
Iowa Code section 85.23 requires an employee to give notice of the occurrence
of an injury to the employer within 90 days from the date of the occurrence, unless the
employer has actual knowledge of the occurrence of the injury.
The purpose of the 90-day notice or actual knowledge requirement is to give the
employer an opportunity to timely investigate the facts surrounding the injury. The
actual knowledge alternative to notice is met when the employer, as a reasonably
conscientious manager, is alerted to the possibility of a potential compensation claim
through information which makes the employer aware that the injury occurred and that it
may be work related. Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985);
Robinson v. Department of Transp., 296 N.W.2d 809 (Iowa 1980).
Failure to give notice is an affirmative defense, which the employer must prove
by a preponderance of the evidence. DeLong v. Highway Commission, 229 Iowa 700,
295 N.W. 91 (1940).
The time period both for giving notice and filing a claim does not begin to run until
claimant as a reasonable person, should recognize the nature, seriousness, and
CLOUD V. BIG TOMATO PIZZA CO.
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probable compensable character of the injury. The reasonableness of claimant's
conduct is to be judged in light of claimant's education and intelligence. Claimant must
know enough about the condition or incident to realize that it is work connected and
serious. Claimant’s realization that the injurious condition will have a permanent
adverse impact on employability is sufficient to meet the serious requirement. Positive
medical information is unnecessary if information from any source gives notice of the
condition's probable compensability. Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001);
Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256 (Iowa 1980); Robinson v. Department of
Transp., 296 N.W.2d 809 (Iowa 1980).
The employer had actual knowledge of the incident on the evening of April 16,
2008. Its own witnesses so testified. This affirmative defense fails.
The disability entitlement questions are reached. Claimant seeks compensation
for both temporary and permanent disability.
The claimant has the burden of proving by a preponderance of the evidence that
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. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa
1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v.
Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).
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).
Section 85.34(1) provides that healing period benefits are payable to an injured
worker who has suffered permanent partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to substantially similar
employment; or (3) the worker has achieved maximum medical recovery. The healing
period can be considered the period during which there is a reasonable expectation of
improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli,
Iowa App., 312 N.W.2d 60 (1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
CLOUD V. BIG TOMATO PIZZA CO.
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Claimant clearly was unable to work while hospitalized for treatment after his
assault. That treatment clearly related to the April 16, 2008 work injury.
Dr. Kuhnlein has opined that claimant has a 1 percent whole person permanent
impairment related to his chest trauma. That medical opinion is uncontroverted.
Additionally, claimant credibly described having functional problems after the injury that
he had not had before. Dr. Kuhnlein appears to attribute these problems to the injury,
as he has restricted claimant to only occasional lifting at or above shoulder.
Wherefore, it is concluded that claimant has established a causal relationship
between his claimed temporary and permanent disability and his work injury.
Claimant has requested a “running period” of temporary benefits because
claimant may have a mental health condition related to his injury. After his
hospitalization, claimant returned to work for the employer and later quit due to working
conditions unrelated to his injury. Nothing suggests that claimant has ever been
disabled from performing his customary job duties from his hospital release onward.
Claimant was unable to work from April 16, 2008 until his discharge from the
hospital on April 26, 2008. He is entitled to healing period benefits at the applicable rate
of $174.50 per week throughout that time.
The extent of claimant's permanent partial disability entitlement is addressed.
Since claimant has impairment to the body as a whole, an industrial disability has
been sustained. Industrial disability was defined in Diederich v. Tri-City R. Co., 219
Iowa 587, 258 N.W. 899 (1935) as follows: "It is therefore plain that the legislature
intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and
not a mere 'functional disability' to be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in determining industrial
disability which is the reduction of earning capacity, but consideration must also be
given to the injured employee's age, education, qualifications, experience, motivation,
loss of earnings, severity and situs of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the employer's offer of work or failure
to so offer. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada
Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
Compensation for permanent partial disability shall begin at the termination of the
healing period. Compensation shall be paid in relation to 500 weeks as the disability
bears to the body as a whole. Section 85.34.
Claimant has a very modest permanent impairment and his only medical
restriction is to lift at or above shoulder level only on an occasional basis. He has
limited education and does not appear to be a good candidate for retraining. He has
worked most of his adult life as a pizza delivery driver who receives wages only a few
CLOUD V. BIG TOMATO PIZZA CO.
Page 8
dollars an hour above minimum wage. Fortunately, he can continue that work.
Nevertheless, he must make some modifications in how he carries pizzas and other
items because of his injury and its sequela. Claimant does have some mild loss of
earnings capacity related to his injury and has sustained 10 percent permanent partial
disability as a result of the injury. He is entitled to 50 weeks of benefits payable at the
rate of one hundred seventy four 50/100 dollars ($174.50) per week and commencing
on April 27, 2008.
Claimant seeks payment of costs incurred for medical treatment obtained while
hospitalized at Iowa Methodist.
The employer shall furnish reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital services
and supplies for all conditions compensable under the workers' compensation law. The
employer shall also allow reasonable and necessary transportation expenses incurred
for those services. The employer has the right to choose the provider of care, except
where the employer has denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of the Industrial
Commissioner 78 (Review-Reopening October 1975).
Evidence in administrative proceedings is governed by section 17A.14. The
agency’s experience, technical competence, and specialized knowledge may be utilized
in the evaluation of evidence. The rules of evidence followed in the courts are not
controlling. Findings are to be based upon the kind of evidence on which reasonably
prudent persons customarily rely in the conduct of serious affairs. Health care is a
serious affair.
Prudent persons customarily rely upon their physician’s recommendation for
medical care without expressly asking the physician if that care is reasonable. Proof of
reasonableness and necessity of the treatment can be based on the injured person’s
testimony. Sister M. Benedict v. St. Mary’s Corp., 255 Iowa 847, 124 N.W.2d 548
(1963).
It is said that “actions speak louder than words.” When a licensed physician
prescribes and actually provides a course of treatment, doing so manifests the
physician’s opinion that the treatment being provided is reasonable. A physician
practices medicine under standards of professional competence and ethics. Knowingly
providing unreasonable care would likely violate those standards. Actually providing
care is a nonverbal manifestation that the physician considers the care actually provided
to be reasonable. A verbal expression of that professional opinion is not legally
mandated in a workers' compensation proceeding to support a finding that the care
provided was reasonable. The success, or lack thereof, of the care provided is
evidence that can be considered when deciding the issue of reasonableness of the
care. A treating physician’s conduct in actually providing care is a manifestation of the
physician’s opinion that the care provided is reasonable and creates an inference that
can support a finding of reasonableness. Jones v. United Gypsum, File 1254118 (App.
May 2002); Kleinman v. BMS Contract Services, Ltd., File No. 1019099 (App.
CLOUD V. BIG TOMATO PIZZA CO.
Page 9
September 1995); McClellon v. Iowa Southern Utilities, File No. 894090 (App. January
1992). This inference also applies to the reasonableness of the fees actually charged
for that treatment.
The employer has not paid any medical bills in the case. The employer is liable
for all medical bills listed in Exhibit 5, under Iowa Code section 85.27 but for Dr.
Kuhnlein’s IME bill. The employer shall reimburse claimant directly any medical costs
he has paid and shall pay the medical providers directly the outstanding medical
charges.
Iowa Code section 85.39 governs the question of whether the costs of the
independent evaluation with Dr. Kuhnlein are reimbursable. That section permits an
employee to be reimbursed for subsequent examination of the employee's choice where
an employee or retained physician has previously evaluated "permanent disability" and
the employee believes that the initial evaluation is too low.
In this case, the employer from the on onset has denied that claimant sustained
a work injury and has never obtained a medical evaluation. Consequently, claimant is
not entitled to reimbursement of costs of Dr. Kuhnlein’s evaluation under Iowa Code
section 85.39. Nevertheless, obtaining medical evidence as it regards the issues of
causation and extent of any permanent impairment was necessary for claimant to
adequately prepare his case. Claimant has prevailed on those issues. He is entitled to
reimbursement of the costs incurred to obtain Dr. Kuhnlein’s report it related to those
matters under rule 876 IAC 4.33.
Claimant has requested that alternate medical care be ordered by way of
evaluation and possible treatment of the mental health symptoms, which he alleges
result from his injury. The record evidence when considered in its entirety and when
taking into account claimant's overall functioning prior to the April 16, 2008 assault is
sufficient for a finding that claimant has mental and emotional residuals that are direct
consequence of his physical assault. Claimant is entitled to have these residuals
evaluated by a mental health professional for the purpose of determining whether
treatment is appropriate. The employer is liable under Iowa Code section 85.27 for the
costs of both the evaluation and any recommended course of treatment. As the
employer has denied liability for claimant's injury, it has no right to direct his related
medical care. Claimant may select a licensed mental health care provider to provide
the evaluation and provider of direct any recommended treatment.
Claimant has requested penalty benefits. If weekly compensation benefits are
not fully paid when due, section 86.13 requires that additional benefits be awarded
unless the employer shows reasonable cause or excuse for the delay or denial.
Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996).
Delay attributable to the time required to perform a reasonable investigation is
not unreasonable. Kiesecker v. Webster City Meats, Inc., 528 N.W.2d 109 (Iowa 1995).
CLOUD V. BIG TOMATO PIZZA CO.
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It also is not unreasonable to deny a claim when a good faith issue of law or fact
makes the employer’s liability fairly debatable. An issue of law is fairly debatable if
viable arguments exist in favor of each party. Covia v. Robinson, 507 N.W.2d 411
(Iowa 1993). An issue of fact is fairly debatable if substantial evidence exists which
would support a finding favorable to the employer. Gilbert v. USF Holland, Inc., 637
N.W.2d 194 (Iowa 2001).
An employer’s bare assertion that a claim is fairly debatable is insufficient to
avoid imposition of a penalty. The employer must assert facts upon which the
commissioner could reasonably find that the claim was “fairly debatable.” Meyers v.
Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).
The employer’s failure to communicate the reason for the delay or denial to the
employee contemporaneously with the delay or denial is not an independent ground for
imposition of a penalty, however. Keystone Nursing Care Center v. Craddock,
705 N.W.2d 299 (Iowa 2005).If the employer fails to show reasonable cause or excuse
for the delay or denial, the commissioner shall impose a penalty in an amount up to 50
percent of the amount unreasonably delayed or denied. Christensen v. Snap-on Tools
Corp., 554 N.W.2d 254 (Iowa 1996). The factors to be considered in determining the
amount of the penalty include the length of the delay, the number of delays, the
information available to the employer and the employer’s past record of penalties.
Robbennolt, 555 N.W.2d at 238.
The employer has maintained the injury did not arise out of or in the course of
employment and factual issues were in dispute. The defendant had reasonable cause
to contest payment and no penalty is awarded.
Claimant has also asserted that penalty should be awarded for failure to provide
written notification to claimant after July 1, 2009. Claimant had written notification as to
why the employer was not paying benefits by way of the answer it filed on May 26,
2009.
The employer has requested a credit of $750.00 for three $250.00 payments it
made to claimant. The employer is not entitled to any credit, as the evidence does not
show that the employer has made any payments that reasonably could be deemed as
workers’ compensation payments.
The employer in this case admits that it had carried no insurance at the time of
claimant’s injury and is not an employer that was relieved from responsibility for
providing insurance. Iowa Code section 87.1 requires that an employer insure their
liability under the Iowa Workers’ Compensation statute. Iowa Code section 87.14(a)
provides that an employer shall not engage in business without first obtaining insurance
covering workers’ compensation benefits or obtaining relief from insurance and failure to
do so willfully and knowingly is a Class D felony. Consequently, the employer shall be
referred for prosecution for failure to have workers’ compensation insurance in violation
of this Iowa Code section.
CLOUD V. BIG TOMATO PIZZA CO.
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Wherefore, the decision of the deputy is affirmed and modified.
ORDER
THEREFORE IT IS ORDERED:
The defendant shall pay claimant fifty (50) weeks of benefits at the rate of one
hundred seventy four 50/100 dollars ($174.50) per week and commencing on April 27,
2008.
The defendant shall pay temporary benefits for the period of April 17, 2008
through April 26, 2008 at the rate of one hundred seventy four 50/100 dollars ($174.50)
per week.
The defendant shall pay all accrued amounts in a lump sum and pay interest as
Iowa Code section 85.30 provides.
The defendant shall pay the provider or reimburse claimant all medical bills in
Exhibit 5, except for Dr. Kuhnlein’s bill, as medical costs that are defendant’s liability
under Iowa Code section 85.27.
Claimant may seek evaluation by a licensed mental healthcare provider and
treatment as that provider recommend for any residual mental condition caused or
materially aggravated by the work injury. The defendant shall file subsequent reports as
required by this Agency.
The defendant shall pay costs, including the transcription of hearing and the
costs of obtaining the medical report of John Kuhnlein, D.O.
Signed and filed this 21st day of December, 2011.
HELENJEAN M. WALLESER
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies To:
Nathaniel R. Boulton
Attorney at Law
100 Court Avenue, Suite 425
Des Moines, IA 50309-1307
nboulton@hedberglaw.com
CLOUD V. BIG TOMATO PIZZA CO.
Page 12
Allison M. Steuterman
Billy J. Mallory
Attorneys at Law
6701 Westown PKWY., Suite 100
West Des Moines, IA 50266-7703
Allison.steuterman@brickgentrylaw.com
Bill.mallory@brickgentrylaw.com
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