BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
SHAWN DURKOP,
:
:
Claimant,
:
File No. 5009097
:
vs.
:
AR B ITRATI O N
:
TYSON FRESH MEATS, INC.,
:
DECISION
:
Employer,
:
Self-Insured,
:
Head Note Nos.: 1100; 1802;
Defendant.
:
1803; 1803.1; 2500; 4000
______________________________________________________________________
STATEMENT OF THE CASE
Claimant, Shawn Durkop, has filed a petition in arbitration and seeks workers’
compensation benefits from Tyson Fresh Meats, Inc., self-insured employer, defendant.
Deputy workers’ compensation commissioner, Stan McElderry, in Waterloo, Iowa,
heard this matter on August 18, 2005. The record in the case consists of defendant’s
exhibits A-B, claimant’s exhibits 1-12, as well as the testimony of Pat Griswold and the
claimant.
ISSUES
The parties have submitted the following issues for determination:
1. Whether the claimant sustained an injury arising out of and in the course of
employment on January 29, 2003;
2. Whether the alleged injury of January 29, 2003, is the cause of any temporary
and/or permanent disability;
3. Entitlement to temporary total disability and/or healing period benefits
resulting from the alleged injury of January 29, 2003;
4. Whether the alleged injury of January 29, 2003 is to a scheduled member or
the body as a whole;
5. Whether the alleged injury of January 29, 2003 is the cause of any permanent
disability and, if so, the extent;
6. Medical expenses; and

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Page 2
7. Penalty.
FINDINGS OF FACT
The undersigned having considered all of the evidence and testimony in the
record finds:
The claimant was 36 years of age at the time of hearing. She is not a high
school graduate, but earned a GED in 1986. The claimant is a certified nurse’s aide
(CNA) and has worked in meatpacking and fast food as well.
The claimant began her second period of employment with Tyson (hereinafter
known as IBP) on January 28, 2003. IBP requires its production employees to
purchase white clothes for work. If employees at the Waterloo location of the employer
desire to have the clothes purchased through payroll deduction, the employee must go
to Aladdin’s.
On January 29, 2003, the claimant was still in orientation status with IBP. After
finishing her orientation class for the day, the claimant went to Aladdin’s to purchase her
clothes for production work at IBP. While there the claimant slipped on some ice and
slipped off a step. She received medical treatment for what initially was believed to be a
strained/sprained ankle. The claimant also reported back pain. At the time of the
accident at Aladdin’s the claimant was on a “special errand.” The injury arose out of and
in the course of employment.
On February 17, 2003, IBP denied the claimant’s claim as not arising out of and
in the course of employment. All treatment the claimant received thereafter was not
paid for by IBP.
An MRI of the claimant’s back on July 26, 2004 revealed mild disk bulging at
L4-L5. (Exhibit 6, page 1) On January 19, 2005, Chad D. Abernathy, M.D., and
Loren J. Mouw, M.D., performed bilateral L4-L5 laminectomies, facetectomies, and
foraminotomies. (Ex. 5, pp. 5-7)
On May 16, 2005, the claimant underwent an independent medical examination
by Richard F. Neiman, M.D., at the request of her counsel. (Ex. 8) Dr. Neiman opined
that the claimant had suffered a 23 percent impairment of the whole person due to her
injuries of January 29, 2003 which had resulted in the surgery of January 19, 2005.
(Ex. 8, p. 4) Dr. Neiman also opined that the claimant had permanent restrictions
including lifting no more than 35-40 pounds and no more than 20 pounds repetitively.
(Ex. 8, pp. 3-4) Dr. Mouw has also opined that the work injury necessitated the surgery.
(Ex. 9) The injury was to the body as a whole.
The claimant has returned to work following her injury of January 29, 2003. She
currently earns about five percent less per hour than she did at IBP. Based on her
permanent physical restrictions this loss of earnings does not fully and accurately reflect
her loss of earnings capacity.

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Considering the claimant’s medical impairments, training and permanent
restrictions, as well as all other factors of industrial disability, the claimant has suffered a
30 percent loss of earnings capacity.
The claimant missed work on January 30 through May 30, 2003 due to the injury
of January 29, 2003. She also was unable to work from January 19, 2005 through
March 7, 2005 due to surgery which was necessary due to the January 29, 2003 injury.
She was expected to reach no further recovery as of May 16, 2005.
The parties stipulated that the claimant’s gross weekly earnings at the time of the
January 29, 2003 injury were $360.00 per week and that she was married and entitled
to five exemptions. As such, her weekly benefit rate is $258.60.
The claimant seeks payment of $81,652.86 in medical expenses resulting from
her injury of January 29, 2003. It is found that those expenses are causally connected
to the work injury, were fair and reasonable, and necessary for the treatment of the
injury.
REASONING AND CONCLUSIONS OF LAW
The first issue is whether the claimant suffered an injury arising out of and in the
course of employment on January 29, 2003.
The claimant has the burden of proving by of 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 Elec. 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.
A personal injury contemplated by the workers’ compensation law means an
injury, the impairment of health or a disease resulting from an injury which comes about,
not through the natural building up and tearing down of the human body, but because of
trauma. The injury must be something that acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or otherwise destroys or damages a
part or all of the body. Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence. Injuries which result from
cumulative trauma are compensable. Increased disability from a prior injury, even if

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brought about by further work, does not constitute a new injury, however. St. Luke’s
Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); Ellingson v. Fleetguard, Inc., 599 N.W.2d
440 (Iowa 1999); Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845 (Iowa 1995);
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). An occupational
disease covered by chapter 85A is specifically excluded from the definition of personal
injury. Iowa Code section 85.61(4) (b); Iowa Code section 85A.8; Iowa Code
section 85A.14.
The general rule is that an injury sustained while going to or coming from the
employer’s premises does not arise out of employment so as to entitle an injured worker
to compensation. Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71 (1929).
However, where it is shown that the employee even before customary working hours is
doing or is on the way from home to perform some special service or errand, or some
duty incidental to the nature of his employment in the interest of or under the direction of
his employer, an injury arising en route from home to the place where the work is to be
performed is considered as arising out of and in the course of the employment. Id. at
1040.
The rule has several exceptions, including trips to and from the work site that are
classified as special errands. Special errands are those trips to work which are made in
response to a special request, agreement, or instructions to travel from home to work to
do something for the employer’s benefit.
That the claimant suffered an injury on January 29, 2003 is not in dispute, only
whether that injury arose out of and in the course of employment.
The claimant was on a special errand when she was injured at Aladdin’s. IBP
employees in Waterloo must wear white uniforms. If they want that uniform with the
Tyson logo via a payroll deduction, the employee must go to Aladdin’s to get it. The
claimant had just been told of that arrangement in orientation when she went to
Aladdin’s to order her uniform and was injured while doing so.
The next issue is whether the injury of August 25, 2003 is the cause of any
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. Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa
App. 1997); George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 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.

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Page 5
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.,
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).
The claimant has permanent restrictions as a result of her injury of January 29,
2003. Drs. Mouw and Neiman relate those restrictions to the work injury and I so found.
The claimant suffered permanent impairment as a result of the January 29, 2003 injury.
The next issue is whether the injury is to a scheduled member or to the body as a
whole.
Where an injury is limited to scheduled member the loss is measured
functionally, not industrially. Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983).
The Courts have repeatedly stated that for those injuries limited to the schedules
in Iowa Code section 85.34(2)(a-t), this agency must only consider the functional loss of
the particular scheduled member involved and not the other factors which constitute an
“industrial disability”. Iowa Supreme Court decisions over the years have repeatedly
cited favorably the following language in the 66 year old case of Soukup v. Shores, 222
Iowa 272, 277; 268 N.W. 598, 601(1936): “The legislature has definitely fixed the
amount of compensation that shall be paid for specific injuries . . . and that, regardless
of the education or qualifications, or nature of the particular individual or of his
inability . . . to engage in employment, . . . the compensation payable . . . is limited to
the amount therein fixed.”
Our Court has even specifically upheld the constitutionality of the scheduled
member compensation scheme. Gilleland v. Armstrong Rubber Co., 524 N.W.2d 404
(Iowa 1994). Permanent partial disabilities are classified as either scheduled or
unscheduled. A specific scheduled disability is evaluated by the functional method; the
industrial method is used to evaluate an unscheduled disability. Graves, 331 N.W.2d
116 (Iowa 1983); Simbro v. Delong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983);
Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960).
When the result of an injury is loss to a scheduled member, the compensation
payable is limited to that set forth in the appropriate subdivision of Code section
85.34(2). Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 1961.
"Loss of use" of a member is equivalent to "loss" of the member. Moses v. National
Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1921). Pursuant to Code section
85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in

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those cases wherein the loss is something less than that provided for in the schedule.
Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969).
Evidence considered in assessing the loss of use of a particular scheduled
member may entail more than a medical rating pursuant to standardized guides for
evaluating permanent impairment. A claimant's testimony and demonstration of
difficulties incurred in using the injured member and medical evidence regarding general
loss of use may be considered in determining the actual loss of use compensable.
Soukup , 222 Iowa 272, 268 N.W. 598 (1936). Consideration is not given to what effect
the scheduled loss has on claimant's earning capacity. The scheduled loss system
created by the legislature is presumed to include compensation for reduced capacity to
labor and to earn. Schell v. Central Engineering Co., 232 Iowa 421, 4 N.W.2d 339
(1942).
The right of a worker to receive compensation for injuries sustained which arose
out of and in the course of employment is statutory. The statute conferring this right can
also fix the amount of compensation to be paid for different specific injuries, and the
employee is not entitled to compensation except as provided by statute. Soukup, 222
Iowa 272, 268 N.W. 598 (1936).
The claimant’s injury included permanent injury to the back. The back is not a
scheduled member and is an injury to the body as a whole. The claimant suffered an
industrial injury to the whole body on January 29, 2003.
The next issue is the extent of the claimant’s entitlement to permanent partial
disability for the injury of January 29, 2003.
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. Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa
App. 1997); George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 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.,
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

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Page 7
testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc.,
516 N.W.2d 910 (Iowa App. 1994).
Based on the finding that the claimant has sustained a 30 percent loss of earning
capacity, the claimant has sustained a 30 percent permanent partial industrial disability
entitling her to 150 weeks of permanent partial disability pursuant to Iowa Code
section 85.34(2)(u).
The next issue is whether the claimant suffered any temporary disability due to
her injury of August 25, 2003.
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 (Iowa 1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
An employee is entitled to appropriate temporary partial disability benefits during
those periods in which the employee is temporarily, partially disabled. An employee is
temporarily, partially disabled when the employee is not capable medically of returning
to employment substantially similar to the employment in which the employee was
engaged at the time of the injury, but is able to perform other work consistent with the
employee's disability. Temporary partial benefits are not payable upon termination of
temporary disability, healing period, or permanent partial disability simply because the
employee is not able to secure work paying weekly earnings equal to the employee's
weekly earnings at the time of the injury. Section 85.33(2).
When an injured worker has been unable to work during a period of recuperation
from an injury that did not produce permanent disability, the worker is entitled to
temporary total disability benefits during the time the worker could not work. Those
benefits are payable until the employee has returned to work, or is medically capable of
returning to work substantially similar to the work performed at the time of injury.
Section 85.33 (1).
The claimant missed work on January 30 through May 30, 2003 due to the injury
of January 29, 2003. She also was unable to work from January 19, 2005 through
March 7, 2005 due to surgery which was necessary due to the January 29, 2003 injury.
The injury produced permanent disability so this was a healing period. The claimant is
entitled to healing period benefits for the 24.143 weeks of work she missed due to the
injury of January 29, 2003.
The next issue is that of medical expenses.

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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-reopen October 16, 1975).
The claimant seeks payment of $81,652.86 in medical bills incurred for the
treatment of her work injury which manifested on January 29, 2003. Those expenses
are causally connected to the work injury, were fair and reasonable, and necessary for
the treatment of the injury. The defendants are responsible for those expenses.
The last issue is penalty.
In Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996), and
Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996), the Supreme Court
said:
Based on the plain language of section 86.13, we hold an employee is
entitled to penalty benefits if there has been a delay in payment unless the
employer proves a reasonable cause or excuse. A reasonable cause or
excuse exists if either (1) the delay was necessary for the insurer to
investigate the claim or (2) the employer had a reasonable basis to
contest the employee’s entitlement to benefits. A “reasonable basis” for
denial of the claim exists if the claim is “fairly debatable.”
Christensen, 554 N.W.2d at 260.
The supreme court has stated:
(1) If the employer has a reason for the delay and conveys that
reason to the employee contemporaneously with the beginning of the
delay, no penalty will be imposed if the reason is of such character that a
reasonable fact finder could conclude that it is a "reasonable or probable
cause or excuse" under Iowa Code section 86.13. In that case, we will
defer to the decision of the commissioner. See Christensen, 554 N.W.2d
at 260 (substantial evidence found to support commissioner’s finding of
legitimate reason for delay pending receipt of medical report); Robbennolt,
555 N.W.2d at 236.
(2) If no reason is given for the delay or if the “reason” is not one
that a reasonable fact finder could accept, we will hold that no such cause
or excuse exists and remand to the commissioner for the sole purpose of

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assessing penalties under section 86.13. See Christensen, 554 N.W.2d at
261.
(3) Reasonable causes or excuses include (a) a delay for the
employer to investigate the claim, Christensen, 554 N.W.2d at 260;
Kiesecker v. Webster City Meats, Inc., 528 N.W.2d at 109, 111
(Iowa1995); or (b) the employer had a reasonable basis to contest the
claim--the “fairly debatable” basis for delay. See Christensen, 554 N.W.2d
at 260 (holding two-month delay to obtain employer’s own medical report
reasonable under the circumstances).
(4) For the purpose of applying section 86.13, the benefits that are
underpaid as well as late-paid benefits are subject to penalties, unless the
employer establishes reasonable and probable cause or excuse.
Robbennolt, 555 N.W.2d at 237 (underpayment resulting from application
of wrong wage base; in absence of excuse, commissioner required to
apply penalty).
If we were to construe [section 86.13] to permit the avoidance of
penalty if any amount of compensation benefits are paid, the purpose of
the penalty statute would be frustrated. For these reasons, we conclude
section 86.13 is applicable when payment of compensation is not
timely . . . or when the full amount of compensation is not paid.
Id.
(5) For purposes of determining whether there has been a delay,
payments are “made” when (a) the check addressed to a claimant is
mailed (Robbennolt, 555 N.W.2d at 236; Kiesecker, 528 N.W.2d at 112),
or (b) the check is delivered personally to the claimant by the employer or
its workers’ compensation insurer. Robbennolt, 555 N.W.2d at 235.
(6) In determining the amount of penalty, the commissioner is to
consider factors such as the length of the delay, the number of delays, the
information available to the employer regarding the employee’s injury and
wages, and the employer’s past record of penalties. Robbennolt, 555
N.W.2d at 238.
(7) An employer’s bare assertion that a claim is “fairly debatable”
does not make it so. A fair reading of Christensen and Robbennolt, makes
it clear that the employer must assert facts upon which the commissioner
could reasonably find that the claim was “fairly debatable.” See
Christensen, 554 N.W.2d at 260.
Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).

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Weekly compensation payments are due at the end of the compensation week.
Robbennolt, 555 N.W.2d 229, 235.
Penalty is not imposed for delayed interest payments. Davidson v. Bruce,
594 N.W.2d 833, 840 (Iowa App.1999).
When an employee’s claim for benefits is fairly debatable based on a good faith
dispute over the employee’s factual or legal entitlement to benefits, an award of penalty
benefits is not appropriate under the statute. Whether the issue was fairly debatable
turns on whether there was a disputed factual dispute that, if resolved in favor of the
employer, would have supported the employer's denial of compensability. Gilbert v.
USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001).
The employer never accepted this claim. It did communicate a basis of the
denial to the claimant, and given the application of the special errand rule herein, such
denial was not so unreasonable as to make an award of penalty benefits appropriate.
ORDER
THEREFORE, it is ordered:
That the defendant pay the claimant twenty-four point one four three (24.143)
weeks of healing period benefits at the rate of two hundred fifty-eight and 60/100 dollars
($258.60).
That the defendant pay claimant one hundred fifty (150) weeks of permanent
partial disability commencing of May 16, 2005 at the rate of two hundred fifty-eight and
60/100 dollars ($258.60).
That the defendant pay the claimant’s medical expenses of eighty-two thousand
six hundred fifty-two and 86/100 dollars ($82,652.86) as detailed above.
Accrued benefits shall be paid in lump sum together with interest pursuant to
Iowa Code section 85.30 with subsequent reports of injury pursuant to rule 876 IAC 3.1.
Defendant shall receive credit for all benefits previously paid.
Costs are taxed to the defendant pursuant to 876 IAC 4.33.
Signed and filed this ____27th____ day of October, 2005.

________________________
STAN MCELDERRY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER

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Copies to:
Obie Saddler
Attorney at Law
PO Box 2696
Waterloo, IA 50704-2696
James L. Drury
Attorney at Law
Ste. 713, 800 Stevens Port Dr.
Dakota Dunes, SD 57049-5005
SRM/srs