BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            LORRI BLAIR,     
 
                        
 
                 Claimant,                    File No. 970512
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            MERCY MEDICAL CENTER,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            The issue on appeal is:  Did the claimant sustain an injury 
 
            which arose out of and in the course of employment August 
 
            13, 1990?
 
            
 
                               FINDINGS OF FACT
 
            
 
            Claimant alleges she was injured while moving a patient at 
 
            work on August 13, 1990; employer denies claimant was 
 
            injured at work but instead contends claimant sustained her 
 
            injury at home on August 15, 1990.  (Please note that unless 
 
            otherwise indicated all dates appearing in this decision are 
 
            in 1990.)  In ultimately resolving the questions of fact and 
 
            law that are present in this contested case, the issue 
 
            involving the claimant's credibility or lack thereof is 
 
            crucial.  For reasons that will be reviewed and discussed in 
 
            this appeal decision, the industrial commissioner finds the 
 
            claimant is not a credible witness.
 
            
 
            Claimant was employed by defendant employer, Mercy Medical 
 
            Center, from March 5 until a few days after the alleged work 
 
            injury of August 13.  The claimant worked as a registered 
 
            nurse.
 
            
 
            On August 13 the claimant was working the 3:00 p.m. to 11:30 
 
            p.m. shift.  She was instructed to work in zone 41, a 
 
            medical floor that included patients who were unable to care 
 
            for themselves.  (Transcript, pages 53-54)
 
            On her work shift of August 13 the claimant was caring for a 
 
            stroke patient who needed to be turned in his bed every two 
 
            hours.  At approximately 4:00 p.m. the claimant determined 
 
            it was time to turn this patient.  The record is somewhat 
 
            unclear as to the actual number of nurses who assisted the 
 
            claimant in turning this patient, but for purposes of this 
 
            decision suffice it to say at least one other nurse assisted 
 
            the claimant.  (Tr., pp. 54-55, 101)
 
            The claimant described the procedure used in turning the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            patient and the industrial commissioner finds the claimant's 
 
            description of the procedure (Tr., p. 55, l. 18 through p. 
 
            57, l. 17) to be factually accurate.
 
            During the course of turning the stroke patient the claimant 
 
            alleges she was injured.  The claimant describes the onset 
 
            of symptoms as follows:
 
            Q.  What happened as you were turning the patient on August 
 
            13, 1990?
 
            A.  I felt a pull in the back of my neck and shoulder area 
 
            on the left side and that started when we were turning this 
 
            patient, and it continued to get worse as my shift went on.
 
            
 
            (Tr., p. 57)
 
            By the end of the August 13 work shift the claimant alleges 
 
            she was sore and having pain that she describes as follows:
 
            Q.  Where were you having pain?
 
            A.  Through the -- oh, I'd say the back of my neck, but it's 
 
            the shoulder area, up the back part of my neck.  I know 
 
            everybody says I motion to the front, but I can't get to the 
 
            back.  This general area on the back side, my shoulder, up 
 
            my neck a little bit.
 
            Q.  And you're indicating on the left side?
 
            A.  On the left side, correct.
 
            Q.  And what was the pain sensation like?
 
            A.  It was pain.  It was abnormal.  It was pain that I hoped 
 
            would go away.
 
            
 
            (Tr., p. 58, l. 23 through p. 59, l. 9)
 
            On direct examination the claimant was questioned as to 
 
            whether she told anybody at Mercy Medical Center on August 
 
            13 about the pain she was experiencing during her work 
 
            shift.  The claimant responded:
 
            A.  I believe I told the nurse that I was working with that, 
 
            you know, this really kind of hurts and its bothering me 
 
            more throughout the shift, and I believe I told either the 
 
            house supervisor or the supervisor on the floor, and I don't 
 
            know who those people were.
 
            
 
            (Tr., p. 59, ll. 13-18)
 
            On cross-examination the claimant again was unable to name 
 
            any of the individuals to whom she allegedly reported the 
 
            injury.  (Tr., p. 101)
 
            
 
            In addition to claimant's inability at hearing (held on 
 
            December 1, 1993, some three years after the date of the 
 
            alleged injury) to name the individuals to whom she reported 
 
            her injury on August 13, it is worth noting that only one 
 
            month after the alleged injury the claimant was unable to 
 
            recall the names of any individuals to whom she reported her 
 
            injury on August 13.  (See Employer's Exhibit C, a statement 
 
            given by claimant on September 13, 1990, to Carol Bowden, a 
 
            representative of United Fire & Casualty Co.)
 
            Claimant's deposition and trial testimony that she reported 
 
            the work incident to supervisors on August 13 is clearly 
 
            inconsistent with her own earlier written account.  Joint 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Exhibit 3 is an incident report filled out by the claimant.  
 
            (Tr., p. 124, l. 25 through p. 126, l. 11)  Toward the upper 
 
            right hand corner of the exhibit appears the following:  
 
            "Time/Date Supervisor Notified."  In her own handwriting 
 
            claimant responded:  "8/16/90 Eve. Shift."
 
            
 
            In the event of a work injury, normal procedure at Mercy 
 
            Medical Center requires the injured employee to report the 
 
            injury to a supervisor, fill out an incident report and be 
 
            seen at the trauma center.  The supervisor to whom the 
 
            injury is reported is then required to note the incident in 
 
            writing in a nursing service report.  Claimant did not 
 
            submit an incident report until August 16.  (Joint Exhibit 
 
            3)  Even though the claimant could not recall the names of 
 
            any of the individuals to whom she reported her injury, and 
 
            even though the claimant failed to timely submit an incident 
 
            report, the claimant's verbal communication to a supervisor 
 
            should have resulted in the work incident being noted in a 
 
            nursing service report on August 13.  The alleged injury of 
 
            August 13 does not appear in a nursing service report until 
 
            August 15.  (Jt. Ex. 1)
 
            
 
            Claimant believes she telephoned Mercy Medical Center on 
 
            August 14 and spoke with Suzanne Landsverk, staffing 
 
            secretary.  Claimant contends she either asked for the day 
 
            off or asked for light-duty assignment.  (Tr., p. 60)  
 
            Claimant contends she was told she absolutely had to come to 
 
            work because the hospital was short-handed.  (Tr., p. 61)  
 
            Claimant contends she told Landsverk during this telephone 
 
            conversation that she had hurt herself the previous work 
 
            shift while lifting the stroke patient.  (Tr., p. 62)  The 
 
            industrial commissioner finds the claimant did not have a 
 
            telephone conversation with Landsverk on August 14.  Rather, 
 
            it is found the claimant's telephone conversation with 
 
            Landsverk occurred on August 15.  (Tr., p. 20)  (Findings 
 
            regarding this August 15 telephone conversation will appear 
 
            later in this decision.)  The claimant worked her scheduled 
 
            shift on August 14.
 
            
 
            While at home on the morning of August 15 the claimant was 
 
            putting away dishes and while lifting a small glass dish 
 
            felt a pop in the back of her neck in the same area as the 
 
            alleged August 13 work injury.  Claimant described the 
 
            feeling as much worse than the alleged August 13 work 
 
            injury, with some numbness and tingling in the left shoulder 
 
            and arm.  (Tr., pp. 64-65)
 
            
 
            Before the beginning of her work shift on August 15 the 
 
            claimant telephoned Landsverk and reported she could not 
 
            come to work because she had injured her neck pulling up a 
 
            patient at work and also injured herself at home while 
 
            reaching in a cupboard.  (Tr., p. 16)  The industrial 
 
            commissioner finds that it was during this telephone 
 
            conversation that the claimant first reported a work injury 
 
            to anyone at Mercy Medical Center.  Later that same day 
 
            claimant telephoned Landsverk saying she would try to come 
 
            in to work that day.  Landsverk told claimant she would try 
 
            to get her light duty work.  Claimant worked light duty on 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            August 15 but had to leave work early because she could not 
 
            tolerate the pain.
 
            The claimant first sought medical treatment for her injury 
 
            on August 16 at Mercy Care North and was seen by Dr. 
 
            Stuelke.  In a notation dated August 16 Dr. Stuelke states:  
 
            "S. [subjective] felt something pop in neck yesterday.  Now 
 
            pain down left arm."  (Employer's Exhibit A, p. 2)  Again, 
 
            the doctor's notation is dated August 16 and makes reference 
 
            to "yesterday" (emphasis added), meaning August 15.  
 
            Further, Dr. Stuelke indicates the following:  "Onset of 
 
            injury 8/15/90 A.M." (emphasis added).  (Em. Ex. A, p. 1)  
 
            The morning of August 15 is the time and date the claimant 
 
            admits she felt a pop in the back of her neck while putting 
 
            away dishes at home.  The industrial commissioner finds the 
 
            claimant never reported any injury to Dr. Stuelke on the 
 
            visit of August 16 other than the incident that occurred at 
 
            home on August 15.
 
            
 
            Still referring to Dr. Stuelke's notes, the reader's 
 
            attention is directed to Employer's Exhibit A, p. 3.  A-3 
 
            shows the same August 16 notation that appears at A-2, but 
 
            has an additional sentence appearing at the bottom of the 
 
            page that reads:  "Patient states she was pulling a patient 
 
            up in bed."  Claimant admits that this sentence was added 
 
            because she stopped by Dr. Stuelke's office some time after 
 
            August 16 and asked that the additional sentence be added.  
 
            (Tr., pp. 119-120)  Clearly, Dr. Stuelke had not made such a 
 
            notation at the time of the claimant's visit on August 16.  
 
            To reiterate, the industrial commissioner finds that A-2 
 
            accurately reflects the information claimant provided Dr. 
 
            Stuelke on August 16, i.e., "S. felt something pop in neck 
 
            yesterday.  Now pain down left arm."
 
            
 
                        REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 In the instant case there is no evidence corroborating 
 
            claimant's contention that she was injured while lifting a 
 
            patient on August 13.  While the lack of corroborative 
 
            evidence is not necessarily fatal to claimant's position, 
 
            when considered with other facts present in this record it 
 
            is very disquieting to this trier of fact:
 
            
 
                 1.  Claimant contends she reported her injury to 
 
            co-worker(s) and supervisor(s) on August 13, but cannot name 
 
            even one of the individuals to whom she reported the injury.  
 
            Standing alone, claimant's inability to name any individual 
 
            to whom she reported the injury is highly suspicious 
 
            although not fatal to her burden of showing by a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that she sustained an injury 
 
            arising out of and in the course of her employment.
 
            
 
                 2.  Claimant contends she reported her injury to 
 
            co-worker(s) and supervisor(s) on August 13, but when 
 
            filling out an incident report she, in her own handwriting, 
 
            stated she reported the work injury to a supervisor on the 
 
            evening shift of August 16.  The inconsistency between 
 
            claimant's sworn testimony and documentary evidence in the 
 
            claimant's own handwriting is indeed very disturbing to this 
 
            trier of fact.
 
            
 
                 3.  The claimant contends she reported her injury to 
 
            co-worker(s) and supervisor(s) on August 13, yet the 
 
            supervisor to whom the claimant allegedly reported her 
 
            injury on August 13 failed to note the work injury and 
 
            reporting thereof in a nursing service report, thereby 
 
            acting contrary to normal procedure.  Remember, even though 
 
            the claimant allegedly cannot name the individuals to whom 
 
            she reported the injury, the injury and reporting thereof 
 
            should still be corroborated by documentary evidence, i.e., 
 
            a nursing service report.  The first mention of the alleged 
 
            work injury does not appear in a nursing service report 
 
            until August 15, which of course is the very date the 
 
            claimant admits being injured while at home.  Based upon the 
 
            evidence in this record, the industrial commissioner 
 
            believes it is very doubtful that claimant could have been 
 
            injured while working with others and have reported such 
 
            injury during the same shift without claimant being able to 
 
            produce corroborating evidence.
 
            
 
                 4.  Claimant first seeks medical treatment on August 16 
 
            and provides Dr. Stuelke with information that is clearly 
 
            consistent with a finding that her injury was sustained at 
 
            home on the morning of August 15.  When seeing Dr. Stuelke 
 
            on August 16 the claimant makes no mention of a work injury 
 
            or onset of injury on August 13.
 
            
 
                 Taking all of this evidence into consideration, the 
 
            industrial commissioner does not believe the claimant 
 
            sustained an injury while at work on August 13:  The 
 
            claimant cannot name even one individual to whom she 
 
            reported the injury on August 13.  There is no nursing 
 
            service report prior to August 15.  Claimant mentions 
 
            nothing to Dr. Stuelke about an August 13 work injury.  Dr. 
 
            Stuelke's medical report refers to the morning of August 15 
 
            as the onset of injury.  The claimant filled out an incident 
 
            report on August 16 indicating therein that she first 
 
            reported the injury to a supervisor on that same date.  The 
 
            claimant waited until August 15 to first report an injury 
 
            (see findings of fact regarding claimant's telephone 
 
            conversation with Suzanne Landsverk).
 
            
 
                 In addition to the foregoing reasons for finding the 
 
            claimant has failed to establish by a preponderance of the 
 
            evidence that she sustained a work injury on August 13, 
 
            please note the claimant's testimony on crucial points 
 
            frequently consists of "I don't know" or "I believe" type of 
 
            responses.  (See, e.g., Tr., p. 59, l. 10-18; Tr., p. 60, l. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            21-24; Tr., p. 98, l. 23 through p. 99, l. 4; Tr., p. 116, 
 
            l. 4-17)  These type of responses, especially when viewed in 
 
            light of the many inconsistencies in the claimant's 
 
            testimony, certainly do not bode well for the party having 
 
            the burden of proof.
 
            
 
                 When reviewing a deputy industrial commissioner's 
 
            findings of fact the industrial commissioner gives deference 
 
            to credibility findings based on demeanor.  However, as 
 
            previously discussed, the record in the instant case is 
 
            replete with matters that adversely reflect on claimant's 
 
            credibility.  For all of the foregoing reasons, the 
 
            industrial commissioner finds the claimant is not a credible 
 
            witness and concludes the claimant has failed to establish 
 
            by a preponderance of the evidence that she sustained an 
 
            injury arising out of and in the course of her employment 
 
            with Mercy Medical Center on August 13, 1990.
 
            WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That claimant shall take nothing from these proceedings.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  
 
            Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                        BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            P.O. Box 998
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. Jack C. Paige
 
            Mr. David A. Elderkin
 
            Attorneys at Law
 
            P.O. Box 1968
 
            Cedar Rapids, Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.10
 
                                               Filed July 29, 1994
 
                                               Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            LORRI BLAIR,     
 
                        
 
                 Claimant,                   File No. 970512
 
                        
 
            vs.                                A P P E A L
 
                        
 
            MERCY MEDICAL CENTER,             D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            1402.10
 
            
 
            Claimant failed to prove that a work injury occurred.  
 
            Claimant alleged that she hurt herself while turning a 
 
            patient.  She testified that she told co-employees of the 
 
            incident but was unable to name the individuals either at 
 
            the time of the hearing or one month after the alleged 
 
            incident.  The date she testified she told her supervisors 
 
            was inconsistent with her own written account.  Claimant's 
 
            report of a work incident and her medical treatment followed 
 
            a non-work incident.  Claimant's report of a work incident 
 
            to her doctor was added as an addendum to the doctor's notes 
 
            sometime after the doctor had made original notes.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LORRI BLAIR,                  :
 
                                          :       File No. 970512
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            MERCY MEDICAL CENTER,         :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Lorri 
 
            Blair, claimant, against Mercy Medical Center, self-insured 
 
            employer, hereinafter referred to as Mercy, defendant, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on August 13, 1990.  On December 1, 1993, a hearing 
 
            was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Mercy at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits from April 6, 1991.
 
            
 
                 3.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $431.68; she was married; and she 
 
            was entitled to two exemptions.  Therefore, claimant's 
 
            weekly rate of compensation is $270.74 according to the 
 
            Industrial Commissioner's published rate booklet for this 
 
            injury.
 
            
 
                 4. It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their 
 
            reasonableness and defendant is not offering contrary 
 
            evidence.
 
            
 
                 Subsequent to the hearing, defendant filed a motion to 
 
            reopen the record due to the discovery of other evidence 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            allegedly having relevance to the extent of claimant's 
 
            current disability.  Given the holding in this case that 
 
            claimant has not as yet reached maximum healing and that an 
 
            evaluation of permanent disability at this time is 
 
            premature, this motion is denied as moot.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                    I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II.  The extent of claimant's entitlement to 
 
            disability benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her appearance, demeanor and 
 
            mannerisms while testifying, claimant is found credible. 
 
            
 
                 Claimant worked for Mercy as a registered nurse from 
 
            March 1990 until a few days after the work injury herein.  
 
            She briefly returned part-time on a trial basis in February 
 
            1991 but could not continue due to continuing symptoms.  The 
 
            job at Mercy primarily consisted of patient care.
 
            
 
                 On or about August 13, 1990, claimant suffered a injury 
 
            while moving a heavy patient lying on a bed.  She began to 
 
            experience neck and left shoulder area pain.  This pain 
 
            continued to get worse but she completed her shift.  The 
 
            next day her pain continued and she attempted to call in 
 
            sick but was told she was needed.  Claimant then reported 
 
            for work but was given light duty.  Defendant has made much 
 
            of a report by claimant of symptoms following lifting a 
 
            small dish at home before she called in.  However, 
 
            claimant's account that this incident at home, although 
 
            causing symptoms,  was relatively minor as compared to the 
 
            patient incident is believed.  For the most part, claimant's 
 
            account of the events at work is verified by incident 
 
            reports and the nursing staff records possessed by 
 
            defendant.
 
            
 
                 The injury is found to be a thoracic outlet syndrome.  
 
            Claimant saw several medical doctors including specialists 
 
            in orthopedics; neurology; neurosurgery; and psychiatry.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            The most convincing medical opinions were those of David 
 
            Roos, M.D., a board certified thoracic and vascular surgeon.  
 
            After his evaluation in 1992, Dr. Roos concluded that 
 
            claimant suffered from thoracic outlet syndrome or a chronic 
 
            inflammation of tissue in the brachial plexus or a 
 
            congenital narrowing of the thoracic outlet.  Dr. Roos, 
 
            whose qualifications include a full professorship of surgery 
 
            are impressive, recommends a surgical release procedure that 
 
            he has often performed over his many years of practice.  Dr. 
 
            Roos is convinced that claimant can be significantly 
 
            improved by the surgery although he admits that claimant may 
 
            never be able to return to jobs requiring moderate lifting 
 
            such as nursing.
 
            
 
                 Other physicians such as a neurologist, Erich Strieb, 
 
            M.D., disagree with this diagnosis.  However, in the words 
 
            of another neurosurgeon involved in this case, Chad 
 
            Abernathy, M.D., any qualified physician who believes that 
 
            he can help should be given the opportunity.  The 
 
            recommended procedure was not disputed by most other 
 
            physicians such as James LaMorgese, M.D., and Kris Thompson, 
 
            M.D., who believe that claimant is severely disabled but 
 
            offer no explanation or treatment alternative.  Claimant has 
 
            been evaluated by two medical centers, the University of 
 
            Iowa and the Mayo Clinic.  University physicians had no 
 
            explanation and Mayo's suspected thoracic outlet syndrome 
 
            but claimant was pulled out by defendant's physician before 
 
            tests could be made.  Claimant has not had the surgery 
 
            suggested by Dr. Roos as defendant has declined to pay for 
 
            it and claimant has no money or insurance for the procedure.
 
            
 
                 Therefore, it is found that claimant has not reached 
 
            maximum healing and specifically that it is medically 
 
            indicated that significant improvement from the injury is 
 
            anticipated and claimant has not as yet returned to work.  
 
            Except for a brief time in February 1991, claimant has been 
 
            temporarily totally disabled from any form of work since a 
 
            few days after the injury on or about August 16, 1990 and 
 
            specifically since April 6, 1991, the time when claimant's 
 
            temporary benefits were ended by defendant, until August 1, 
 
            1993 at which time claimant began working for her husband 
 
            selling insurance on a part-time basis.
 
            
 
                 It is further found that all requested medical expenses 
 
            listed in the hearing report are causally connected to the 
 
            work injury found herein for the same reasons as set forth 
 
            above.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury arising out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury. See generally, Cedar Rapids 
 
            Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments.  A work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. U.S. Gypsum, 
 
            252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, claimant's credible testimony 
 
            backed up by defendant's own records established the alleged 
 
            work injury.
 
            
 
                 II. It was found that claimant had not achieved as yet 
 
            maximum healing.  Weekly benefits for temporary total or 
 
            healing period benefits under Iowa Code section 85.33 and 
 
            85.34 begin from the date of injury until claimant returns 
 
            to work; until claimant is medically capable of returning to 
 
            substantially similar work to the work she was performing at 
 
            the time of injury; or, until it is indicated that 
 
            significant improvement from the injury is not anticipated, 
 
            whichever occurs first.  Given the findings of fact, 
 
            claimant is entitled to weekly benefits from April 9, 1991 
 
            until she began working for her husband in August 1993.  
 
            After that time, she is entitled to temporary partial 
 
            disability under Iowa Code section 85.33.  Upon a return to 
 
            full time work, claimant's weekly benefits will end.  Should 
 
            she require further absences from work to receive additional 
 
            treatment by Dr. Roos, weekly benefits shall resume.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, claimant established causal 
 
            connection and the requested expenses will be awarded along 
 
            with a change in authorized care to Dr. Roos for whatever 
 
            treatment he may recommend including but not limited to TOS 
 
            decompression surgery.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant temporary total 
 
            disability/healing period benefits from April 6, 1991 until 
 
            August 1, 1993.  Beginning on August 1, 1993, defendant 
 
            shall pay temporary partial disability benefits as set forth 
 
            in Iowa Code section 85.33.  Upon a return to full time 
 
            nursing work; upon a return to substantially similar work; 
 
            or, upon reaching maximum healing, claimant's weekly 
 
            benefits will end.  However, any subsequent absence from 
 
            work to receive authorized treatment by Dr. Roos shall be 
 
            compensated by defendant as set forth in Iowa Code section 
 
            85.33.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
                 2.  Defendant shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendant shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.  
 
            Furthermore, defendant shall provide medical care and 
 
            treatment by David Roos, M.D., including but not limited to 
 
            TOS decompression surgery and defendant shall pay for all 
 
            reasonable expenses associated with that treatment including 
 
            travel expenses.
 
            
 
                 3.  This agency will review the extent of claimant's 
 
            entitlement to permanent disability upon claimant reaching 
 
            maximum healing.  The issue of the extent of claimant's 
 
            entitlement to permanent disability benefits is bifurcated 
 
            and shall be heard by this agency at such time as the 
 
            parties indicate readiness by filing a prehearing conference 
 
            report setting the permanency issues and requesting a 
 
            hearing.
 
            
 
                 4.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 5.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendant shall pay the costs of this action 
 
            pursuant to  rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendant shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to  rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd SE
 
            P O Box 998
 
            Cedar Rapids, Iowa  52406
 
            
 
            Mr. Jack C. Paige
 
            Mr. David A. Elderkin
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Attorneys at Law
 
            700 Higley Building
 
            P O Box 1968
 
            Cedar Rapids, Iowa  52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed February 21, 1994
 
                                               LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LORRI BLAIR,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 970512
 
            MERCY MEDICAL CENTER,    
 
                                                A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured,                     D E C I S I O N
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            ERNEST WEDERQUIST,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 970592
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ernest 
 
            Wederquist, claimant, against Glenwood State Hospital 
 
            School, employer, and State of Iowa, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            December 19, 1990.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on April 7, 
 
            1994, in Council Bluffs, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The claimant 
 
            was present and testified.  Also present and testifying were 
 
            Steven Hauser, Mike Bauge, Judith Piercy, Jess Bergantzel, 
 
            and Brenda Wederquist.  The documentary evidence identified 
 
            in the record consists of claimant's exhibits 1 through 14 
 
            and defendants' exhibits B, D, E, and F.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated April 7, 1994, the parties have presented the 
 
            following issues for resolution:
 
            
 
                   Whether claimant's injury is a cause of permanent 
 
            disability and if so, the extent thereof;
 
            
 
                   Whether claimant is entitled to payment of medical 
 
            benefits pursuant to Iowa Code section 85.27; and
 
            
 
                   Whether claimant is an odd-lot employee.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
                               FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on June 17, 1935 and completed the 
 
            twelfth grade of school and one year of college.  His past 
 
            work activity includes packing house laborer, self-employed 
 
            dime store owner, maintenance man, and plumber.  Claimant 
 
            commenced working for employer on June 22, 1978.  He was 
 
            hired as a maintenance repair man.  This job included, among 
 
            other functions, taking care of plumbing maintenance at the 
 
            school.  Claimant testified that on December 19, 1990, while 
 
            lifting a 96 gallon water heater, he injured his low back.  
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was originally seen by Thomas C. Bush, M.D., on 
 
            July 12, 1990, with low back and bilateral leg pain, more on 
 
            the right than the left.  An examination revealed right 
 
            sciatic pain and some in the left buttock region, but mainly 
 
            on the right side in the L5 nerve root distribution.  
 
            Routine x-rays showed a paraintra-articularis defect at L5 
 
            on S1, with slight forward displacement of the L5 vertebral 
 
            body on S1.  After several repeated episodes of low back 
 
            pain and right leg pain over a period of months, claimant 
 
            underwent a lumbar spine CT scan.  This revealed the 
 
            paraintra-articularis defect at the L5 level and a herniated 
 
            disc at the L4-L5 level on the right side with degenerative 
 
            discs at L4 and L5.  [ex. 1(a)(1)].
 
            
 
                 On January 9, 1991, claimant underwent a microlumbar 
 
            diskectomy at L4-5 on the right with excision of a large 
 
            extruded disc and decompression of the L5 root and 
 
            posterolateral fusion from L4 to the sacrum using an 
 
            otogenous iliac bone graft.  This surgery was performed by 
 
            Dr. Bush and Leslie C. Hellbusch, M.D., at Iowa Methodist 
 
            Hospital.  The surgical report is not in the evidence 
 
            presented by the parties, however, information regarding the 
 
            procedure is contained in a letter from Dr. Bush dated 
 
            August 6, 1993 and office notes found in exhibit 1.  
 
            
 
                 According to Dr. Bush, claimant's post-operative period 
 
            was basically within normal limits for a period of several 
 
            weeks but then his low back and buttock pain reoccurred.  He 
 
            had intermittent episodes of back spasms and leg pain worse 
 
            with activity and somewhat resolved with rest and 
 
            anti-inflammatory medications.  A CT scan of the lumbar 
 
            spine and an MRI of the lumbar spine taken in February and 
 
            March 1992, respectively, showed no surgical pathology.  
 
            [ex. 1(a)(1) and ex. 3(a)(1)].
 
            
 
                 Claimant was sent by defendants to Peter D. Wirtz, 
 
            M.D., for evaluation on May 13, 1993.  Dr. Wirtz stated that 
 
            claimant's post-operative condition includes:  
 
            
 
                   Congenital L5 S1 spondylolysis and with 
 
                 spondylolisthesis; 
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                   Degenerative disc disease with extrusion, right 
 
                 side, L4-5; and
 
            
 
                   Status post-op partial discectomy L4-5 and 
 
                 spinal fusion L4 to S1.  [ex. 4(c)(2)].
 
            
 
                 Dr. Bush referred claimant to the Spine Center at the 
 
            Mayo Clinic for evaluation on July 27-28, 1993.  After 
 
            reviewing the claimant's medical history and noting his 
 
            complaints (burning in the arch of his right foot and right 
 
            low back pain radiating into the right buttock and 
 
            posterolateral thigh), Gregory S. Peterson, M.D., conducted 
 
            a physical examination.  Based on clinical and laboratory 
 
            findings, Dr. Peterson concluded that claimant has chronic 
 
            radiculopathy although his March 1992 MRI is negative and 
 
            his EMG from July 27, 1993 shows no evidence of active 
 
            radiculopathy.  He stated that his symptoms relate to an old 
 
            peroneal neuropathy or an old inactive right L5 
 
            radiculopathy.  (ex. 3).  On June 2, 1993, Dr. Wirtz gave 
 
            claimant a 15 percent body as a whole impairment rating.  He 
 
            stated that claimant's right leg complaints are consistent 
 
            with the neurologic involvement.  He indicated that the 
 
            symptoms are best managed with activities that restrict 
 
            aggravation such as lifting, walking and carrying 
 
            limitations.  He noted that a back brace was beneficial to 
 
            avoid excessive bending and to allow support for the back 
 
            area.  Also, a TENS unit was recommended to transfer 
 
            discomfort in the muscular areas and anti-inflammatory 
 
            agents and analgesic medications are also aides for these 
 
            symptoms.  [ex. 4(b)].
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant is 
 
            permanently and totally disabled as a result of his back 
 
            injury either as an odd-lot employee or otherwise. 
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist.  Id., citing Lee v. 
 
            Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 
 
            N.W.2d 433, 436 (1950).  The rule of odd-lot allocates the 
 
            burden of production of evidence.  If the evidence of degree 
 
            of obvious physical impairment, coupled with other facts 
 
            such as claimant's mental capacity, education, training or 
 
            age, places claimant prima facie in the odd-lot category, 
 
            the burden should be on the employer to show that some kind 
 
            of suitable work is regularly and continuously available to 
 
            the claimant.  Certainly in such cases it should not be 
 
            enough to show that claimant is physically capable of 
 
            performing light work and then round out the case for non
 
            compensable by adding a presumption that light work is 
 
            available.  Guyton, 373 N.W.2d at 105.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 Claimant testified that he returned to light work duty 
 
            with employer on September 9, 1991, and worked until August 
 
            28, 1992, when he voluntarily retired.  Claimant then 
 
            applied for and received social security disability benefits 
 
            and state disability benefits.  He testified that he 
 
            receives $453 per month in IPERS benefits, $857 in social 
 
            security disability and $925 per month from Hartford 
 
            Disability Plan.  In addition, he co-owns a farm with his 
 
            sister and receives 1/4 of the cash crop and money generated 
 
            from selling stock cows.  From this enterprise, he earned 
 
            $22,000 in 1991; $18,000 in 1992 and $22,000 in 1993.  In 
 
            addition, he breeds quarter horses.  He has 10-15 brood 
 
            mares and raises colts.  He and his wife testified that this 
 
            is a losing business and he does it purely for enjoyment and 
 
            not income. 
 
            
 
                 In determining whether claimant is an odd-lot employee, 
 
            it must first be determined whether claimant has made a 
 
            prima facie case of total disability by producing 
 
            substantial evidence that he is not employable in the 
 
            competitive labor market.  Although the undersigned cannot 
 
            dispute that claimant has obstacles to employment, it 
 
            clearly has not been shown that he is unemployable.  Merely 
 
            because claimant cannot return to work as a maintenance 
 
            repair man with employer, does not mean that he is not 
 
            employable.  Claimant worked one full year at light duty 
 
            with employer and voluntarily quit.  There is no indication 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            from any medical practitioner that claimant's light work 
 
            activity with employer was more than his restrictions would 
 
            allow.  In fact, Dr. Bush gave him a 50-pound maximum weight 
 
            lifting limit and a 25-pound maximum repetitive lifting 
 
            limit.  [ex. 1(f)].  The evidence presented by claimant on 
 
            this issue falls far short of that needed to establish a 
 
            prima facie showing that he is unemployable in the same 
 
            sense contemplated in Guyton, 373 N.W.2d 101.  Although 
 
            claimant made some attempts to find work in October 1992 (3 
 
            attempts) and March 1994 (2 inquiries), his efforts in this 
 
            regard are less than satisfactory or aggressive and probably 
 
            by design after he was notified of his eligibility to 
 
            receive social security benefits.  (ex. 10).  The evidence 
 
            does not establish that the only services claimant can 
 
            perform are so limited in quality, dependability or quantity 
 
            that a reasonable stable market for them does not exist.  
 
            Claimant stated that he consulted with a vocational 
 
            rehabilitation counselor but produced no records from that 
 
            consultation and no vocational assessment indicating that he 
 
            is unemployable.  A determination made by the social 
 
            security administration as to claimant's disability is not 
 
            binding on this agency.  
 
            
 
                 Although the evidence does not support a finding that 
 
            claimant is an odd-lot employee, it does support a finding 
 
            that claimant has a permanent disability which is causally 
 
            related to his injury.  Claimant has clearly demonstrated 
 
            that he sustained industrial disability as a result of his 
 
            work-related injury.  
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 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 is currently 58 years old.  Even though he was 
 
            not planning to retire, he testified that his back 
 
            impairment forced him to retire.  Claimant indicated that he 
 
            was unable to perform even light duty work with employer.  
 
            However, no physician who has treated and/or examined 
 
            claimant has indicated that he is unable to perform any work 
 
            activity.  In fact, Dr. Bush, his treating surgeon, 
 
            indicated that he is capable of performing light work 
 
            activity.  
 
            
 
                 Employers are responsible for the reduction in earnings 
 
            capacity caused by the injury.  They are not responsible for 
 
            a loss of actual earnings because the employee resists or 
 
            refuses to return to work.  Williams v. Firestone Tire and 
 
            Rubber Co., III Iowa Industrial Commissioner Report 279 
 
            (1982).
 
            
 
                 Claimant is a high school graduate and has one year of 
 
            college.  However, his employment background is primarily 
 
            manual labor and production work.  He is now limited from 
 
            performing heavy work activity.  Nevertheless, employer was 
 
            willing and did in fact accommodate claimant's restrictions 
 
            and should not be penalized for claimant's decision to 
 
            retire.  Claimant alleges that he is inactive due to his 
 
            back injury.  However, surveillance tapes indicate that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant is more active then he testified.  Since claimant 
 
            became eligible for social security benefits, he appears 
 
            unmotivated to become gainfully employed.  In any event, 
 
            claimant is near the end of normal work life.  Compared to a 
 
            younger worker with the same injury, claimant has lost less 
 
            future earning capacity as a result of his injury.  
 
            McClellan v. Midwest Biscuit Co., file number 802020, 
 
            (App. September 20, 1989); Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Merrill v. Eaton Corp., file 
 
            number 707565 (App. May 9, 1990).  
 
            
 
                 After carefully considering all the factors of 
 
            industrial disability, and employing agency expertise, it is 
 
            determined that claimant is 50 percent industrially disabled 
 
            and is entitled to 250 weeks of permanent partial disability 
 
            benefits at the rate of $267.34 per week commencing 
 
            September 9, 1991.
 
            
 
                 The next issued to be determined is whether claimant is 
 
            entitled to medical benefits pursuant to Iowa Code section 
 
            85.27.
 
            
 
                 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 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.   Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Since claimant has proven a compensable injury, he is 
 
            entitled to all reasonable and necessary medical expenses, 
 
            hospital services and supplies and reasonable and necessary 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            transportation expenses incurred for such services.  
 
            Employer will pay all medical bills designated by claimant 
 
            as medical expenses for treatment of his back impairment.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants pay to claimant two hundred fifty (250) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred sixty-seven and 34/100 dollars ($267.34) 
 
            commencing September 9, 1991.
 
            
 
                 That defendants pay for all medical and mileage 
 
            expenses incurred for treatment of his work-related injury.  
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid. 
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ________ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Ave 
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. James Christenson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                                51803 52500
 
                                                Filed May 5, 1994
 
                                                Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            ERNEST WEDERQUIST,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 970592
 
            GLENWOOD STATE HOSPITAL  
 
            SCHOOL,   
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            51803
 
            Claimant found to be 50 percent industrially disabled as a 
 
            result of a back injury which precludes him from performing 
 
            his usual heavy work activity as a maintenance repair man.  
 
            
 
            52500
 
            Claimant found entitled to payment of medical and mileage 
 
            expenses incurred for treatment of his work-related injury.