BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
GARY D. MOORE,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                         File No. 977466
 
MIDWEST FLY ASH AND   
 
MATERIALS, INC.,      
 
                                           A P P E A L
 
     Employer,   
 
                                         D E C I S I O N
 
and         
 
            
 
AETNA CASUALTY & SURETY    
 
COMPANY,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
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.
 
 
 
                               ISSUES
 
 
 
Claimant states the following issue on appeal:  "Does claimant have a 
 
disability of an industrial nature greater than 10% as a result of the 
 
accident on February 20, 1991."
 
 
 
Defendants state the following issues on cross-appeal: 
 
 
 
I.   Whether the entitlement to HP/TTD benefits extends beyond 7/10/71.
 
 
 
II.  Whether there is any basis to make an industrial disability award.
 
 
 
III. Whether the defendants are responsible for payment of physical 
 
therapy expenses at Mahaska County Hospital.
 
 
 
                          FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
August 29, 1994 are adopted as set forth below.  Segments designated by 
 
asterisks (*****) indicate portions of the language from the proposed 
 
agency decision that have been intentionally deleted and do not form a 
 
part of this final agency decision.  Segments designated by brackets ([ 
 
]) indicate language that is in addition to the language of the 
 
proposed agency decision.
 
 
 
Gary Moore is a 49-year-old married man who lives at Oskaloosa, Iowa.  
 
He dropped out of school during the ninth grade and has not completed 
 
high school or obtained a GED.  
 
 
 
During most of Gary's adult life he has worked in the construction 
 
industry.  For approximately the past 20 years he has operated heavy 
 
equipment.  
 
 
 

 
 
 
 
 
 
 
 
 
On February 28, 1991, Gary was injured when he slipped from an end 
 
loader and fell to the ground, hitting one of the fenders or steps with 
 
the lower part of his back.  He was initially treated by Donald Berg, 
 
M.D., an orthopedic surgeon.  He was hospitalized for approximately one 
 
week.  (Exhibit 3, page 2)  His care was then transferred to William R. 
 
Boulden, M.D., who became the primary authorized treating physician.  
 
Dr. Boulden found claimant to have no evidence of a herniated disc and 
 
no other identifiable surgical problems.  He placed claimant into an 
 
aggressive therapy program and work hardening.  (Ex. 2, pp. 12-13)  
 
Gary did well in the work hardening program and was released to return 
 
to work without restrictions effective July 10, 1991.  (Ex. 4, p. 1; 
 
Ex. 2, p. 9; Ex. 6, pp. 21 & 25)
 
 
 
According to Gary he improved but did not completely recover.  He 
 
worked off and on operating a dozer but was unable to tolerate the 
 
bouncing.  He then obtained work with J and J Steel from West 
 
Burlington, Iowa, operating cranes.  He stated that his back bothered 
 
all of the time.  He stated that his legs went numb and he was unable 
 
to hold the brake pedals safely.  On October 1, 1991, he returned to 
 
seek further care from Dr. Boulden and was again treated with therapy 
 
and a work hardening program.  (Ex. 4, p. 1; Ex. 6, pp. 10-11)  By 
 
January 14, 1992, it was indicated that claimant's problem was 
 
mechanical and soft tissue and that it was not correctable by surgery.  
 
It was reported that he had reached maximum medical improvement.  
 
Activity restrictions against repetitive bending and twisting and 
 
extended sitting were recommended.  (Ex. 2, p. 5; Ex. F, p. 6)
 
 
 
Claimant resumed employment working somewhat intermittently.  
 
 
 
In April 1993, claimant returned to Dr. Boulden for further care and 
 
was prescribed additional therapy.  (Ex. 2, p. 3; Ex. 6, pp. 17-18)  
 
The therapy was provided at Mahaska County Hospital.  Claimant incurred 
 
charges in the amount of $593.  (Ex. K, pp. 1-2)  
 
 
 
In 1994 claimant sought care from David Boarini, M.D., a neurosurgeon.  
 
The care was not successful at resolving Gary's symptoms.
 
 
 
Dr. Boulden and Dr. Boarini appear to be in agreement that the injury 
 
of February 28, 1991, was a temporary aggravation of a preexisting 
 
condition and that it did not cause any permanent disability.  (Ex. 1, 
 
p. 1; Ex. 2, p. 1)  An associate of Dr. Boulden, Richard S. Tunkel, 
 
M.D., reported on November 6, 1991, that claimant had come to the 
 
office on October 1, 1991, and that the symptoms were directly related 
 
to the February 28, 1991 injury.  (Ex. F, p. 4)  On March 6, 1992, Dr. 
 
Tunkel reported that the pain which claimant was experiencing in 
 
January 1992 was an aggravation of a preexisting condition that was 
 
directly related to the injury of February 1991.  Dr. Tunkel 
 
recommended permanent restrictions and provided a permanent impairment 
 
rating of seven percent.  (Ex. F, pp. 5-6).  When deposed Dr. Boulden 
 
stated that it was not probable that the fall of February 28, 1991, 
 
caused claimant's current pain complaints.  He could not provide any 
 
medical explanation for why claimant has pain and stated that a similar 
 
situation exits in 90 percent of the patient's who have back pain.  In 
 
only approximately 10 percent of the cases is the source of the pain 
 
identifiable.  (Ex. 6, pp. 16, 20, 22, & 23)
 
 
 
In view of the activity restrictions and symptoms Gary has had 
 
difficulty working the larger friction cranes which provide him the 
 
greatest opportunity for employment.  He is still able to operate 
 
hydraulic cranes. 
 
 
 
It is found that other than for the incident in 1986 when Gary was 
 
injured, he had little in the way of back complaints prior to this 
 
injury.  Since this injury he has had continuing back symptoms.  Those 
 
symptoms have affected his ability to be employed.  The extent to which 
 
they have been affected is not well documented in the record.  Gary 
 

 
 
 
 
 
 
 
 
 
continues to work although it appears that he worked less in 1992 and 
 
1993 than he did in 1990.  (Exs. G, I & J)
 
 
 
This case presents an irreconcilable conflict between the opinions of 
 
Drs. Boulden and Boarini when compared to the assessment from Dr. 
 
Tunkel and claimant's own apparently credible testimony.  It is found 
 
that the injury of February 28, 1991, did in fact aggravate a 
 
preexisting condition and cause it to become symptomatic.  It is also 
 
found that the amount of disability resulting from that aggravation is 
 
not corroborated by any objective medical evidence. ***** In making 
 
this assessment Dr. Boulden's statement that permanency was a 
 
possibility is coupled with the credible testimony of the claimant.  
 
The activity restrictions are found to be in part causally related to 
 
the February 28, 1991 injury.  He had no such restrictions before this 
 
injury.  [Permanent work restrictions can be an indication of permanent 
 
disability even in the absence of ratings of permanent impairments.  It 
 
is found that claimant has incurred permanent disability as a result of 
 
his February 28, 1991 work injury.]
 
 
 
                      CONCLUSIONS OF LAW
 
 
 
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, 312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period 
 
benefits can be interrupted or intermittent.  Teel v. McCord, 394 
 
N.W.2d 405 (Iowa 1986).
 
 
 
It is determined that the healing period in this case is intermittent.  
 
The first session runs from February 28, 1991 through July 10, 1991, a 
 
period of 19 weeks.  The second runs from October 1, 1991 through 
 
January 14, 1992, a period of 15 1/7 weeks.  It is arguable that there 
 
may have been a third instance of healing period commencing in April 
 
1993 but that cannot be determined with accuracy from the record made.  
 
There is no showing that claimant was taken off work by any physician 
 
or that he was released to resume work by any physician in connection 
 
with the 1993 physical therapy provided under the direction of Dr. 
 
Boulden.
 
 
 
Functional impairment is an element to be considered in determining 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience 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 disability 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 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.
 
 
 
     *****
 
 
 
It is determined that when all the factors of industrial disability are 
 
considered that the injury has had  a minimal impact on claimant's 
 
ability to be employed in his customary field.  It is determined that 
 
he has a 10 percent permanent partial disability as a result of the 
 
February 28, 1991 injury.  He likely also has other disability which is 
 
attributable to other unidentified factors.  He is entitled to receive 
 
compensation only for that which is shown by the evidence to have been 
 
caused by the injury.  
 
 
 
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).
 
 
 
Defendants directed claimant to Dr. Boulden for the purpose of 
 
receiving care for this injury.  There is no indication in the record 
 
that they ever directed him elsewhere or advised him that he should not 
 
seek his care from Dr. Boulden.  When an employer exercises the 
 
statutory right to control medical care and the employee complies with 
 
the directives of the employer, the employer is then responsible for 
 
paying the costs of the care that it has chosen.  Janssen v. United 
 
Parcel Service, file number 1019753 (App. Dec. April 29, 1994); 
 
Schofield v. W. A. Klinger, Inc., file number 531753 (R.R. Dec. 
 
September 28, 1984).  Claimant was acting in compliance with the 
 
employer's directive when he returned to Dr. Boulden in April 1993.  
 
There is nothing in the record to indicate that he was informed or 
 
advised that the employer's liability for his care was questioned or 
 
disputed.  Defendants are therefore responsible for the charges 
 

 
 
 
 
 
 
 
 
 
 
 
incurred by claimant under the direction of Dr. Boulden at Mahaska 
 
County Hospital in the amount of $593.  The remaining care shown in 
 
exhibit K was unauthorized and was not shown to have improved 
 
claimant's condition.  Defendants are therefore not responsible for its 
 
payment. 
 
 
 
WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendants pay claimant thirty-four and one-sevenths (34 1/7) 
 
weeks of compensation for healing period at the stipulated rate of two 
 
hundred ninety and 55/100 dollars ($290.55) with nineteen (19) weeks 
 
thereof payable commencing February 28, 1991 and with the remaining 
 
fifteen and one-sevenths (15 1/7) weeks payable commencing October 1, 
 
1991.
 
     
 
That defendants pay claimant fifty (50) weeks of compensation for 
 
permanent partial disability at the stipulated rate of two hundred 
 
ninety and 55/100 dollars ($290.55) per week.  The initial eleven and 
 
five-sevenths (11 5/7) weeks thereof are payable commencing July 11, 
 
1991.  The remaining thirty-eight and two-sevenths (38 2/7) weeks are 
 
payable commencing January 15, 1992.
 
 
 
That the entire amount of claimant's entitlement has been previously 
 
paid and that defendants have no further obligation to claimant for 
 
weekly compensation benefits.  Defendants have overpaid the claim by 
 
the amount of thirteen and five-sevenths (13 5/7) weeks.
 
 
 
That defendants pay claimant's bill with Mahaska County Hospital in the 
 
amount of five hundred ninety-three dollars ($593).
 
 
 
That claimant and defendants shall share equally the costs of the 
 
appeal including transcription of the hearing.  Defendants shall pay 
 
all other costs.
 
 
 
Signed and filed this ____ day of March, 1995.         
 
                           ________________________________                 
 
                           BYRON K. ORTON           
 
                           INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. James Q. Blomgren
 
Attorney at Law
 
P.O. Box 1066
 
Oskaloosa, Iowa 52577
 
 
 
Mr. Glenn Goodwin
 
Attorney at Law
 
4th Floor Equitable Building
 
Des Moines, Iowa  50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                          5-1402; 5-1402.40; 5-1803; 5-2501
 
                          Filed March 27, 1995
 
                          Byron K. Orton
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
GARY D. MOORE,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                    File No. 977466
 
MIDWEST FLY ASH AND   
 
MATERIALS, INC.,      
 
                                      A P P E A L
 
     Employer,   
 
                                    D E C I S I O N
 
and         
 
            
 
AETNA CASUALTY & SURETY    
 
COMPANY,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
5-1402
 
In the face of conflicting evidence it was found that the injury caused 
 
some degree of permanent disability.
 
 
 
5-1402.40; 5-1803
 
Where there were permanent activity restrictions but no objective 
 
medical finding, claimant awarded 10 percent permanent partial 
 
disability.
 
 
 
5-2501
 
Where employer directed claimant to Dr. Boulden defendants were held 
 
responsible for paying the costs of the care provided by Dr. Boulden.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            GARY D MOORE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 977466
 
            MIDWEST FLY ASH and           :
 
            MATERIALS, INC.,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Gary D. 
 
            Moore based upon an injury that occurred on February 28, 
 
            1991.  Claimant seeks compensation for healing period, 
 
            permanent partial disability and payment of medical 
 
            expenses.  The issues to be determined include causation.  
 
            Defendants seek to recover costs in the event that they are 
 
            successful.
 
            
 
                 The case was heard at Oskaloosa, Iowa, on May 3, 1994.  
 
            The evidence consists of testimony from Gary D. Moore and 
 
            Lyle Hirsh.  The record also contains claimant's exhibits A 
 
            through K and defendants' exhibits 1 through 7.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Gary Moore is a 49-year-old married man who lives at 
 
            Oskaloosa, Iowa.  He dropped out of school during the ninth 
 
            grade and has not completed high school or obtained a GED.  
 
            
 
                 During most of Gary's adult life he has worked in the 
 
            construction industry.  For approximately the past 20 years 
 
            he has operated heavy equipment.  
 
            
 
                 On February 28, 1991, Gary was injured when he slipped 
 
            from an end loader and fell to the ground, hitting one of 
 
            the fenders or steps with the lower part of his back.  He 
 
            was initially treated by Donald Berg, M.D., an orthopedic 
 
            surgeon.  He was hospitalized for approximately one week.  
 
            (exhibit 3, page 2).  His care was then transferred to 
 
            William R. Boulden, M.D., who became the primary authorized 
 
            treating physician.  Dr. Boulden found claimant to have no 
 
            evidence of a herniated disc and no other identifiable 
 
            surgical problems.  He placed claimant into an aggressive 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            therapy program and work hardening.  (ex. 2, pp. 12-13).  
 
            Gary did well in the work hardening program and was released 
 
            to return to work without restrictions effective July 10, 
 
            1991.  (ex. 4, p. 1; ex. 2, p. 9; ex. 6, pp. 21 & 25).
 
            
 
                 According to Gary he improved but did not completely 
 
            recover.  He worked off and on operating a dozer but was 
 
            unable to tolerate the bouncing.  He then obtained work with 
 
            J and J Steel from West Burlington, Iowa, operating cranes.  
 
            He stated that his back bothered all of the time.  He stated 
 
            that his legs went numb and he was unable to hold the brake 
 
            pedals safely.  On October 1, 1991, he returned to seek 
 
            further care from Dr. Boulden and was again treated with 
 
            therapy and a work hardening program.  (ex. 4, p. 1; ex. 6, 
 
            pp. 10-11).  By January 14, 1992, it was indicated that 
 
            claimant's problem was mechanical and soft tissue and that 
 
            it was not correctable by surgery.  It was reported that he 
 
            had reached maximum medical improvement.  Activity 
 
            restrictions against repetitive bending and twisting and 
 
            extended sitting were recommended.  (ex. 2, p. 5; ex. F, p. 
 
            6).
 
            
 
                 Claimant resumed employment working somewhat 
 
            intermittently.  
 
            
 
                 In April 1993, claimant returned to Dr. Boulden for 
 
            further care and was prescribed additional therapy.  (ex. 2, 
 
            p. 3; ex. 6, pp. 17-18).  The therapy was provided at 
 
            Mahaska County Hospital.  Claimant incurred charges in the 
 
            amount of $593.  (ex. K, pp. 1-2).  
 
            
 
                 In 1994 claimant sought care from David Boarini, M.D., 
 
            a neurosurgeon.  The care was not successful at resolving 
 
            Gary's symptoms.
 
            
 
                 Dr. Boulden and Dr. Boarini appear to be in agreement 
 
            that the injury of February 28, 1991, was a temporary 
 
            aggravation of a preexisting condition and that it did not 
 
            cause any permanent disability.  (ex. 1, p. 1; ex. 2, p. 1).  
 
            An associate of Dr. Boulden, Richard S. Tunkel, M.D., 
 
            reported on November 6, 1991, that claimant had come to the 
 
            office on October 1, 1991, and that the symptoms were 
 
            directly related to the February 28, 1991 injury.  (ex. F, 
 
            p. 4).  On March 6, 1992, Dr. Tunkel reported that the pain 
 
            which claimant was experiencing in January 1992 was an 
 
            aggravation of a preexisting condition that was directly 
 
            related to the injury of February 1991.  Dr. Tunkel 
 
            recommended permanent restrictions and provided a permanent 
 
            impairment rating of 7 percent.  (ex. F, pp. 5-6).  When 
 
            deposed Dr. Boulden stated that it was not probable that the 
 
            fall of February 28, 1991, caused claimant's current pain 
 
            complaints.  He could not provide any medical explanation 
 
            for why claimant has pain and stated that a similar 
 
            situation exits in 90 percent of the patient's who have back 
 
            pain.  In only approximately 10 percent of the cases is the 
 
            source of the pain identifiable.  (ex. 6, pp. 16, 20, 22, & 
 
            23).
 
            
 
                 In view of the activity restrictions and symptoms Gary 
 
            has had difficulty working the larger friction cranes which 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            provide him the greatest opportunity for employment.  He is 
 
            still able to operate hydraulic cranes. 
 
            
 
                 It is found that other than for the incident in 1986 
 
            when Gary was injured, he had little in the way of back 
 
            complaints prior to this injury.  Since this injury he has 
 
            had continuing back symptoms.  Those symptoms have affected 
 
            his ability to be employed.  The extent to which they have 
 
            been affected is not well documented in the record.  Gary 
 
            continues to work although it appears that he worked less in 
 
            1992 and 1993 than he did in 1990.  (exs. G, I & J).
 
            
 
                 This case presents an irreconcilable conflict between 
 
            the opinions of Drs. Boulden and Boarini when compared to 
 
            the assessment from Dr. Tunkel and claimant's own apparently 
 
            credible testimony.  It is found that the injury of February 
 
            28, 1991, did in fact aggravate a preexisting condition and 
 
            cause it to become symptomatic.  It is also found that the 
 
            amount of disability resulting from that aggravation is not 
 
            corroborated by any objective medical evidence.  While it 
 
            may be unexplainable from a medical standpoint as to how the 
 
            injury produced disability, it is found that it did.  In 
 
            making this assessment Dr. Boulden's statement that 
 
            permanency was a possibility is coupled with the credible 
 
            testimony of the claimant.  The activity restrictions are 
 
            found to be in part causally related to the February 28, 
 
            1991 injury.  He had no such restrictions before this 
 
            injury.  Claimant has no ratable permanent impairment as a 
 
            result of the injury when standard rating guides are 
 
            applied.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 It is determined that the healing period in this case 
 
            is intermittent.  The first session runs from February 28, 
 
            1991 through July 10, 1991, a period of 19 weeks.  The 
 
            second runs from October 1, 1991 through January 14, 1992, a 
 
            period of 15 1/7 weeks.  It is arguable that there may have 
 
            been a third instance of healing period commencing in April 
 
            1993 but that cannot be determined with accuracy from the 
 
            record made.  There is no showing that claimant was taken 
 
            off work by any physician or that he was released to resume 
 
            work by any physician in connection with the 1993 physical 
 
            therapy provided under the direction of Dr. Boulden.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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.  Standard rating 
 
            guides provide uniformity and consistency but are 
 
            necessarily arbitrary.  Loss of function is not necessarily 
 
            the same as an impairment rating.
 
            
 
                 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 
 
            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).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 It is determined that when all the factors of 
 
            industrial disability are considered that the injury has had  
 
            a minimal impact on claimant's ability to be employed in his 
 
            customary field.  It is determined that he has a 10 percent 
 
            permanent partial disability as a result of the February 28, 
 
            1991 injury.  He likely also has other disability which is 
 
            attributable to other unidentified factors.  He is entitled 
 
            to receive compensation only for that which is shown by the 
 
            evidence to have been caused by the injury.  
 
            
 
                 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).
 
            
 
                 Defendants directed claimant to Dr. Boulden for the 
 
            purpose of receiving care for this injury.  There is no 
 
            indication in the record that they ever directed him 
 
            elsewhere or advised him that he should not seek his care 
 
            from Dr. Boulden.  When an employer exercises the statutory 
 
            right to control medical care and the employee complies with 
 
            the directives of the employer, the employer is then 
 
            responsible for paying the costs of the care that it has 
 
            chosen.  Janssen v. United Parcel Service, file number 
 
            1019753 (App. Dec. April 29, 1994); Schofield v. W. A. 
 
            Klinger, Inc., file number 531753 (R.R. Dec. September 28, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1984).  Claimant was acting in compliance with the 
 
            employer's directive when he returned to Dr. Boulden in 
 
            April 1993.  There is nothing in the record to indicate that 
 
            he was informed or advised that the employer's liability for 
 
            his care was questioned or disputed.  Defendants are 
 
            therefore responsible for the charges incurred by claimant 
 
            under the direction of Dr. Boulden at Mahaska County 
 
            Hospital in the amount of $593.  The remaining care shown in 
 
            exhibit K was unauthorized and was not shown to have 
 
            improved claimant's condition.  Defendants are therefore not 
 
            responsible for its payment. 
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That defendants pay claimant thirty-four and 
 
            one-sevenths (34 1/7) weeks of compensation for healing 
 
            period at the stipulated rate of two hundred ninety and 
 
            55/100 dollars ($290.55) with nineteen (19) weeks thereof 
 
            payable commencing February 28, 1991 and with the remaining 
 
            fifteen and one-sevenths (15 1/7) weeks payable commencing 
 
            October 1, 1991.
 
            
 
                 It is further ordered that defendants pay claimant 
 
            fifty (50) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of two hundred ninety and 
 
            55/100 dollars ($290.55) per week.  The initial eleven and 
 
            five-sevenths (11 5/7) weeks thereof are payable commencing 
 
            July 11, 1991.  The remaining thirty-eight and two-sevenths 
 
            (38 2/7) weeks are payable commencing January 15, 1992.
 
            
 
                 It is further ordered that the entire amount of 
 
            claimant's entitlement has been previously paid and that 
 
            defendants have no further obligation to claimant for weekly 
 
            compensation benefits.  Defendants have overpaid the claim 
 
            by the amount of thirteen and five-sevenths (13 5/7) weeks.
 
            
 
                 It is further ordered that defendants pay claimant's 
 
            bill with Mahaska County Hospital in the amount of five 
 
            hundred ninety-three dollars ($593).
 
            
 
                 It is further ordered that each party pay the costs 
 
            that each has incurred in participating in this proceeding 
 
            with neither to receive an award of costs from the other.
 
            
 
                 Signed and filed this __________ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James Q. Blomgren
 
            Attorney at Law
 
            1201 High Ave W
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            PO Box 1066
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor Equitable Bldg
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                      51402 51402.40 51803 52501
 
                                      Filed August 29, 1994
 
                                      Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            GARY D MOORE,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 977466
 
            MIDWEST FLY ASH and 
 
            MATERIALS, INC.,   
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            51402
 
            In the face of conflicting evidence it was found that the 
 
            injury caused some degree of permanent disability.
 
            
 
            51402.40 51803
 
            Where there were permanent activity restrictions but no 
 
            objective medical finding, claimant awarded 10 percent 
 
            permanent partial disability.
 
            
 
            52501
 
            Where employer directed claimant to Dr. Boulden defendants 
 
            were held responsible for paying the costs of the care 
 
            provided by Dr. Boulden.  
 
            
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERTA J. DEETS,   
 
                      
 
                 Claimant, 
 
                     
 
            vs.       
 
                                         File Nos. 977577 & 1003243
 
            SKYLINE CENTER,     
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            INSURANCE COMPANY OF     
 
            NORTH AMERICA,                
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Roberta J. 
 
            Deets, claimant, against Skyline Center, employer, and 
 
            Insurance Company of North America, insurance carrier, 
 
            defendants, for benefits arising out of an injury which 
 
            occurred on February 13, 1991, when claimant injured her low 
 
            back while lifting a resident (file no. 977577) and an 
 
            alleged injury which occurred on February 15, 1991 (file no. 
 
            1003243) that allegedly occurred when claimant was pushed 
 
            against the wall when several other employees were 
 
            restraining and subduing a resident which injured claimant's 
 
            neck and upper thoracic area as well as her low back area.  
 
            A hearing was held at Davenport, Iowa, on August 2, 1993, 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Robert J. McGee.  
 
            Defendants were represented by Mark A. Woollums.  The record 
 
            consists of the testimony of Roberta J. Deets, claimant, Kim 
 
            Lucky, program manager, Letha Schilling, human resources 
 
            manager, and joint exhibits 1 through 5, 7, 9 through 15, 
 
            and 17 through 19.
 
            
 
                 The hearing assignment order was issued on January 27, 
 
            1993 and the hearing was held on August 2, 1993.  Thus, the 
 
            parties had six months in which to prepare the exhibits in 
 
            compliance with the instructions in the hearing assignment 
 
            order.  
 
            
 
                 Paragraph 9.  Exhibit Requirements.  provides as 
 
            follows, "All exhibits including medical records and reports 
 
            shall be organized by author in chronological form.  Exhibit 
 
            pages shall be consecutively numbered."  The exhibits in 
 
            this case were not arranged in chronological order by author 
 
            or otherwise.  On the contrary, the dates of the various 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            exhibits were scattered throughout the packet in no 
 
            observable order.  Thus, in order to examine the exhibits in 
 
            chronological order it was necessary to search through all 
 
            155 pages of exhibits each time it was necessary to find the 
 
            next chronological event.  
 
            
 
                 The hearing assignment order also states:  "The 
 
            provisions of Iowa Code section 17A.14(1) require the 
 
            exclusion of irrelevant, immaterial and unduly repetitious 
 
            evidence.  However, absent objection, a party's submission 
 
            of 50 pages or less of written evidence will not be subject 
 
            to detailed review at hearing for compliance with this Code 
 
            section."  Counsel appeared at hearing with far more than 50 
 
            pages each of written evidence.  They were requested to and 
 
            did eliminate many of these exhibits near the end of the 
 
            hearing and dictated a new exhibit list which then consisted 
 
            of 155 pages (the deposition of Eugene Herzberger, M.D. and 
 
            the telephonic deposition of Joseph B. Neiweem, M.D., each 
 
            counted as only one page).  Nevertheless, upon examination 
 
            of each of these remaining exhibits, approximately 45 
 
            percent of them were not relevant, material, essential or 
 
            helpful in the determination of the issues in this case 
 
            (Transcript page 8).
 
            
 
                 Defendants ordered a transcript and furnished the 
 
            original copy of it to the Industrial Commissioner's Office.
 
            
 
                 Both attorneys submitted excellent post-hearing briefs.  
 
            
 
                 Also present in the courtroom at the time of the 
 
            hearing was Rita Barnhart, claimant's aunt and Jennifer 
 
            Smith, a representative of defendants' law firm (Tran. p. 
 
            4).
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated that claimant did in fact 
 
            sustain an injury on February 13, 1991 to her back when she 
 
            lost her footing while lifting a heavy resident.  
 
            
 
                 It was further stipulated that this injury was the 
 
            cause of temporary disability and that claimant was paid 51 
 
            weeks of temporary disability benefits prior to hearing and 
 
            that causal connection and entitlement to temporary 
 
            disability benefits were no longer in dispute at the time of 
 
            the hearing.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury on February 15, 
 
            1991, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether either the injury of February 13, 1991 or the 
 
            alleged injury of February 15, 1991 were the cause of 
 
            permanent disability.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which she is 
 
            entitled.
 
            
 
                 Whether claimant is entitled to the payment of the 
 
            medical bill of Dr. Neiweem for his services on July 16, 
 
            1993 in the amount of $58, and whether claimant is entitled 
 
            to the payment of the functional capacity examination 
 
            ordered by Dr. Neiweem  and performed by Clinton Physical 
 
            Therapy Services on July 19, 1993 in the amount of $250 
 
            (Tran. pp. 7 & 14-16).
 
            
 
                                      INJURY
 
                 File Number 1003243-Combative Resident Incident
 
            
 
                 Defendants admit that claimant sustained an injury to 
 
            her back, more particularly, her low back, on February 13, 
 
            1991, which occurred while she was lifting a resident and 
 
            lost her footing and felt something pull in her back (Tran. 
 
            pp. 44-48).  
 
            
 
                 Defendants denied that claimant sustained an injury on 
 
            February 15, 1991 to her back, more particularly her neck, 
 
            upper torso spine and her entire back when staff members 
 
            were restraining and subduing a combative resident and 
 
            claimant was pushed against the wall (Tran. pp. 48-53).
 
            
 
                 Claimant testified that on Friday, February 15, 1991, 
 
            which was two days after the lifting injury on Wednesday, 
 
            February 13, 1991, she was injured a second time when staff 
 
            members were restraining an out-of-control resident and she 
 
            was inadvertently pushed against the wall.  Claimant 
 
            testified that the upper part of her back struck the wall.  
 
            She said that she felt pain in her entire back.  
 
            
 
                 Claimant further testified that she reported the injury 
 
            to Deb Hagge her supervisor substitute and Hagge told 
 
            claimant to go to the doctor (Tran. pp. 48-54).  Claimant 
 
            related that she asked her husband to pick her up from work 
 
            because she was stiff.  At home that night she took Tylenol 
 
            and applied a heating pad.  She asserted that later in the 
 
            evening when she could not turn her head from side to side 
 
            she went to the emergency room.  Claimant testified that the 
 
            emergency room doctor provided her with a soft collar and 
 
            some medications and told her to see Jay Ginther, M.D., an 
 
            orthopedic surgeon, at the Bluff Medical Center in Clinton, 
 
            Iowa on Monday, February 18, 1991.
 
            
 
                 There is an employer's incident report made out by 
 
            claimant on March 4, 1991 for the incident of February 13, 
 
            1991 but it does not mention the incident of February 15, 
 
            1991 (Exhibit 1, p. 18).  Likewise, a separate incident 
 
            report was not introduced into evidence for the pushing 
 
            incident of February 15, 1991.  Claimant did not testify 
 
            that she completed a separate incident report for the second 
 
            injury.  There is no evidence in the record as to whether it 
 
            was the responsibility of the employer or the employee to 
 
            see that incident reports were completed.  
 
            
 
                 Claimant testified that she reported both injuries at 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the emergency room (Tran. p. 53).  The emergency room record 
 
            verifies that claimant did in fact report two incidents.  
 
            The record shows that she was pushed against the wall on 
 
            February 15, 1991 and heard a pop in her neck and that two 
 
            days earlier she was lifting a resident at work and felt a 
 
            pull in her lower back (Ex. 5, p. 4).  The hospital 
 
            admission form for February 15, 1991 shows that she was 
 
            admitted for "sore neck and back" (Ex. 5, p. 1).  
 
            
 
                 An x-ray at that time reported "Essentially normal bony 
 
            structures of the cervical spine." (Ex. 5, p. 3).  However, 
 
            Dr. Ginther's interpretation of the x-ray said it showed 
 
            muscle spasm (Ex. 11, p. 3).  The ER doctor diagnosed 
 
            probable disc herniation, provided a soft collar and 
 
            medications and told claimant to see a physician for further 
 
            evaluation on Monday (Ex. 5, p. 4).  
 
            
 
                 Thus, it is demonstrated from the medical evidence that 
 
            claimant did in fact report both injuries at the time of her 
 
            first encounter with medical personnel.  It is also 
 
            demonstrated that the first doctor who saw her diagnosed 
 
            "Probable disc herniation." (Ex. 5, p. 4).
 
            
 
                 Claimant reported both injuries several times to 
 
            several of the medical providers (Ex. 11, p. 3; Ex. 10, p. 
 
            5; Ex. 2, p. 4; Ex. 2, p. 15; Ex. 7, p. 1; & Tran. pp. 82, 
 
            83 & 86).
 
            
 
                 Defendants' counsel said that he had subpoenaed a 
 
            witness to controvert claimant's testimony on this issue but 
 
            the alleged witness, Carolyn Newsom, did not appear at the 
 
            hearing.  
 
            
 
                 Thus, claimant's assertion that she was pushed against 
 
            the wall during a fracas caused by several employees 
 
            attempting to restrain a combative resident is supported by 
 
            the medical evidence in this case.  Furthermore, claimant's 
 
            testimony and the above cited references to the record 
 
            showing that claimant reported both injuries to several 
 
            medical authorities was not controverted, contradicted, 
 
            rebutted or refuted.  
 
            
 
                 Wherefore, it is determined that claimant did in fact 
 
            sustain an injury to her neck and upper back which arose out 
 
            of and in the course of employment with employer on February 
 
            15, 1991.  
 
            
 
                CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
 
            
 
                 It is determined that claimant has sustained a 15 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 75 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 Claimant, born February 27, 1960, was 30 years old at 
 
            the time of these two injuries and 33 years old at the time 
 
            of the hearing.  She completed high school in 1978.  She 
 
            took some secretarial courses where she learned to type but 
 
            did not complete the course because she was a single parent 
 
            and she was required to work part-time (Tran. pp. 21-24).  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            She did not receive any kind of certificate, diploma or 
 
            degree from this training.
 
            
 
                 Claimant's first job during high school and after high 
 
            school was physically caring for and providing workshop 
 
            training to blind, deaf and mentally handicapped persons.  
 
            At this time she completed the full-time four-week Tech 1 
 
            and six-week Tech 2 course for which she received a 
 
            certificate which allowed her to dispense medications.  
 
            While working for this employer she completed and received a 
 
            certificate for a two-day training course called Mandt in 
 
            which she learned how to manage aggressive and nonaggressive 
 
            persons (Tran. pp. 24-28, & 36; Ex. 1, p. 6).  Claimant also 
 
            worked as a waitress, a building cleaning employee, a 
 
            shipping clerk, a department store clerk, cashier and a 
 
            receptionist.
 
            
 
                 The Skyline Center in Clinton, Iowa is a rehabilitation 
 
            center for handicapped persons (Tran. p. 34).  Claimant 
 
            started to work for this employer on September 25, 1990 as 
 
            occupational therapy aide at the ICFMR department (Tran. pp. 
 
            34, 35 & 38; Ex. 1, pp. 2 & 3).  The letters ICFMR stand for 
 
            Immediate Care Facility for Mentally Retarded (Tran. p. 
 
            111).  Letha Schilling, human resources manager, testified 
 
            that employer provides various levels of community living 
 
            and training for persons who are mentally or physically 
 
            disabled.  The organization also manages a recycling center 
 
            in order to provide employment to the residents of their 
 
            center (Tran. p. 110).
 
            
 
                 Kim Lucky, who was claimant's ICFMR supervisor, 
 
            testified that an occupational therapy aide carries out 
 
            programs directed by the occupational therapist such as 
 
            range of motion exercises, tooth brushing skills, daily 
 
            hygiene skills, and toiletry skills (Tran. pp. 97, 98 & 
 
            106).  Lucky related that the residents in the ICFMR unit 
 
            are the lowest functioning individuals in the center.  They 
 
            have severe and profound behavior disorders or they are 
 
            physically handicapped.  She said some of them cannot 
 
            verbalize.  Sometimes these residents are physically 
 
            combative.  They hit, bite and scream at employees at the 
 
            center (Tran. pp. 97-99, 108 & 109).  Lucky said an employee 
 
            must be able to physically subdue physically aggressive 
 
            residents (Tran. p. 103).  Also an employee must be able to 
 
            lift adult residents (Tran. 104).
 
            
 
                 Claimant testified that the job entailed lifting 
 
            residents who weighed up to 170 pounds and also restraining 
 
            physically combative residents at times.  Claimant testified 
 
            that she is 5' 4" tall and weighs 125 pounds (Tran. pp. 
 
            39-44).  Claimant averred that she was required to take a 
 
            preemployment physical examination with her own doctor at 
 
            her own expense.  Schilling testified that she did not have 
 
            a copy of this physical examination (Tran. p. 115).  
 
            Claimant denied that she had any prior problems with her 
 
            neck or back.  She said that her preemployment physical 
 
            examination did not disclose any prior problems with her 
 
            neck or back.  (Tran.  pp. 36 & 37).
 
            
 
                 Claimant saw Dr. Ginther on February 18, 1991.  He 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            found that she had a restricted range of motion, took 
 
            claimant off work and prescribed medications and physical 
 
            therapy (Ex. 1, p. 15; Ex. 11, p. 3).  On March 4, 1991, 
 
            claimant was still stiff and had not increased her range of 
 
            motion (Ex. 11, pp. 4, 6 & 7).
 
            
 
                 Claimant then elected to see a physician of her own 
 
            choice, Joseph B. Neiweem, M.D., a board certified 
 
            orthopedic surgeon, at the Sterling/Rock Falls Clinic in 
 
            Sterling, Illinois on March 5, 1991 (Tran. p. 57; Ex. 10, p. 
 
            2).  Dr. Neiweem related that claimant's condition was a 
 
            cervical syndrome.  He ordered an MRI to rule out disc 
 
            herniation.  The MRI of the cervical spine done on March 11, 
 
            1992 disclosed a moderate sized herniation of C6-7 
 
            intervertebral disk with extrinsic pressure over the thecal 
 
            sac and slight impingement of the spinal cord.  The MRI also 
 
            disclosed a mild bulging or herniation of C4-5 disk (Ex. 9, 
 
            p. 82; Ex. 10, p. 3).
 
            
 
                 Dr. Neiweem then referred claimant to a neurosurgeon in 
 
            Rockford, Illinois by the name of Dr. Yake (full name 
 
            unknown).  However, the insurance carrier, through its 
 
            rehabilitation nurse, directed claimant to see Eugene E. 
 
            Herzberger, M.D., a board certified neurosurgeon in Dubuque, 
 
            Iowa (Tran. pp. 57 & 58).
 
            
 
                 Dr. Herzberger saw claimant on April 1, 1991.  Dr. 
 
            Herzberger ordered a cervical myelogram coupled with a 
 
            cervical CT scan (Ex. 12, pp. 1 & 2).  Claimant was admitted 
 
            to Finley Hospital from April 3, 1991 through April 6, 1991 
 
            for these tests (Ex. 4, pp. 1 & 2).
 
            
 
                 The MRI of the lumbar spine made on April 5, 1991 
 
            disclosed that, "There are no disc deformities and basically 
 
            the lumbar MR appears to be within limits of normal." (Ex. 
 
            4, p. 3).
 
            
 
                 The cervical spine MRI that was taken by Dr. Neiweem in 
 
            Sterling, Illinois on March 20, 1991 was compared with the 
 
            one taken by Dr. Herzberger in Dubuque on April 3, 1991.  It 
 
            was determined that there was a herniated nucleus pulposus 
 
            and a small disc fragment present at C6-7.  The radiologist 
 
            said that based on size it was potentially significant.  
 
            However, the fragment was on the left and claimant's 
 
            symptoms were more pronounced on the right, and he 
 
            recommended further clinical correlation (Ex. 4, pp. 3 & 7).
 
            
 
                 On April 3, 1991, Dr. Herzberger commented, 
 
            
 
                    "This combined study which was technically very 
 
                 good showed the patient has only a small disc 
 
                 herniation at C6-7, not a moderate one.  Small 
 
                 disc herniations most of the time do not need 
 
                 surgical treatment as they may heal spontaneously 
 
                 over a period of time with additional conservative 
 
                 treatment." (Ex. 4, p. 5).  
 
            
 
                 In his discharge summary report on April 6, 1991, Dr. 
 
            Herzberger provides causal connection between claimant's 
 
            employment and this injury.  He states that he believes that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant's condition was caused by her employment.  Dr. 
 
            Herzberger recorded, "She injured herself in the course of 
 
            her employment in the middle of February, 1991." (Ex. 4, p. 
 
            5).  
 
            
 
                 Claimant asserted that the dye from the myelogram 
 
            caused her to have paralyses in her legs for two days for 
 
            which she received steroid shots every two hours.  Claimant 
 
            asserted that Dr. Herzberger was forced to keep her in the 
 
            hospital for two additional days (Tran. pp. 59-61).  
 
            
 
                 Dr. Herzberger did not mention paralyses but he 
 
            partially confirms claimant's assertion.  On the discharge 
 
            summary of April 6, 1991, he wrote, "Following the 
 
            myelogram, however, the patient had headaches and nausea and 
 
            a feeling of general weakness for which she had to be given 
 
            intravenous fluids and steroids and after 2 days of this she 
 
            improved a great deal." (Ex. 4, p. 5).  
 
            
 
                 On May 7, 1991, Dr. Herzberger repeated that the disc 
 
            herniation shown on his cervical myelogram and CT scan was 
 
            small and did not warrant surgery.  He recommended the 
 
            continuation of the soft collar and medications.  He 
 
            recommended the pain clinic at The University of Iowa but 
 
            said claimant did not want to go there (Ex. 12, p. 3; Tran. 
 
            pp. 65 & 66).  
 
            
 
                 On July 19, 1991, Dr. Herzberger said that the 
 
            rehabilitation nurse told him that claimant's job entailed, 
 
            
 
                    "... dealing with severe mentally retarded 
 
                 patients that sometimes are violent and need to be 
 
                 subdued.  I don't think Mrs. Deets can do this 
 
                 work at this time.  She does have a cervical disc 
 
                 herniation which is a minor one but might either 
 
                 rupture further in case of effort or become again 
 
                 severely symptomatic." (Ex. 12, p. 3).  
 
            
 
                 On September 17, 1991, Dr. Herzberger said that he 
 
            discontinued walking exercise and physical therapy because 
 
            they aggravated claimant's condition.  He recommended the 
 
            pain clinic at The University of Iowa to further investigate 
 
            the stresses claimant seemed to be under and that if further 
 
            diagnostic studies were needed they would be ordered by the 
 
            pain clinic (Ex. 12, p. 4).  
 
            
 
                 On November 20, 1991, Daniel Reasoner, M.D., a resident 
 
            and Winston Barcellos, M.D., medical director of the pain 
 
            clinic at The University of Iowa reported to Dr. Herzberger 
 
            that claimant had "Chronic thoracic and lumbar back pain of 
 
            unclear etiology.  There is no evidence for a radicular 
 
            component.  There is only minimal muscle spasm present.  
 
            Exam is inconsistent." (Ex. 2, p. 5).  
 
            
 
                 On January 13, 1992, Dr. Herzberger imposed 
 
            restrictions on claimant's work which foreclosed her from 
 
            returning to her former job.  This comment also indicates 
 
            that the doctor believed that claimant's complaints were 
 
            caused by her employment for employer.  
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    "I have discussed with her her job where she 
 
                 got injured in the first place, it seems that she 
 
                 has to deal with many defective patients who most 
 
                 of the time are not cooperative and there is a 
 
                 need for wrestling with them in order to subdue 
 
                 them.  I don't think Mrs. Deets can do that type 
 
                 of work as she is liable to get injured again.  
 
                 ... She is an occupational therapist and she 
 
                 probably could work as an occupational therapist 
 
                 in a hospital as the usual hospital patients are 
 
                 cooperative and this work would not involve any 
 
                 maximal physical efforts." (Ex. 12, p. 4).
 
            
 
                 On January 30, 1992, Dr. Herzberger again causally 
 
            linked the injury to claimant's disability and gave a 
 
            permanent impairment rating, 
 
            
 
                    Mrs. Deets' diagnosis is that of a small disc 
 
                 herniation at C6-7 and does result from her injury 
 
                 at work on February 13, 1991.  
 
            
 
                    The permanent partial disability rating for 
 
                 Mrs. Deets is 5% for the body as a whole. (Ex. 12, 
 
                 p. 6).
 
            
 
                 On November 12, 1991, claimant's husband asked Dr. 
 
            Neiweem to recommend a neurosurgeon in Iowa City in order to 
 
            get a second opinion (Ex. 10, p. 4; Tran. p. 69).  Dr. 
 
            Neiweem recommended and claimant saw John C. VanGilder, 
 
            M.D., a professor of neurosurgery at The University of Iowa 
 
            on April 21, 1992 (Ex. 2, p. 2).  Dr. VanGilder summarized 
 
            his findings on April 22, 1992 as follows, 
 
            
 
                    I reviewed her myelogram both of the cervical 
 
                 area and lumbar areas.  I can see no specific root 
 
                 cutoff and she does have a small transverse bar at 
 
                 C6-7.
 
            
 
                    Review of her MRI shows a transverse bar at 
 
                 C6-7 without impingement upon the spinal cord or 
 
                 nerve roots.  There is also a small bar at C4-5 
 
                 again indenting the subarachnoid space but no 
 
                 evidence of deformity of the spinal cord.  An MRI 
 
                 of the lumbar spine to my interpretation is 
 
                 normal.
 
            
 
                    In summary, Ms. Deets has a multiplicity of 
 
                 pain complaints with remissions and exacerbations.  
 
                 I can find no evidence of objective neurological 
 
                 deficit on examination.  She does have a mild 
 
                 abnormality on the MRI in relation to the cervical 
 
                 spine, but I cannot correlate this with her 
 
                 symptoms or neurological findings. (Ex. 2, p. 3).
 
            
 
                 The day after claimant saw Dr. VanGilder, she fell at 
 
            home and was treated by Dr. Neiweem and Dean J. Fondahn, 
 
            M.D., for left renal contusion, left hydronephrosis, lumbar 
 
            strain and pelvic inflammatory disease none of which is 
 
            related to either one of these two injuries (Ex. 9, pp. 
 
            89-94).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 On September 15, 1992, Michael Cullen, M.D., a 
 
            neurologist, reported to the insurance carrier that he had 
 
            examined claimant at their request (Ex. 7, pp. 1-2).  His 
 
            examination was essentially negative for any serious 
 
            physical problem.  Dr. Cullen concluded, "Chronic 
 
            cervical/thoracic strain." (Ex. 7, p. 3).  
 
            
 
                 Claimant did not demonstrate any neurological deficits 
 
            to Dr. Herzberger or any of the other physicians.
 
            
 
                 Claimant returned to Dr. Neiweem on July 6, 1993 with 
 
            more complaints of neck and back problems (Tran. p. 83).  
 
            Dr. Neiweem said he had nothing to offer claimant but did 
 
            set up a functional capacity evaluation for her (Ex. 10, p. 
 
            7).  
 
            
 
                 The functional capacity examination was performed on 
 
            July 19, 1993 by Clinton Physical Therapy Services.  The 
 
            physical therapist said that claimant was cooperative 
 
            although she was unable to complete the entire evaluation.  
 
            The therapist stated that based on the partial results of 
 
            the examination that claimant was able to work at the 
 
            sedentary physical demand level for a period of four hours 
 
            but must be able to change positions frequently.  No bending 
 
            (Ex. 3, p. 3).
 
            
 
                 Under the heading Behavioral Profile, the therapist 
 
            reported as follows, 
 
            
 
                    Mrs. Deets did exhibit some Symptom 
 
                 Exaggeration or Inappropriate Illness Behavior and 
 
                 she failed 33% of her Validity Criteria giving her 
 
                 an equivocal Validity Profile.  Therefore the 
 
                 results of this evaluation are considered 
 
                 partially invalid and are at best a measure of her 
 
                 minimal capabilities on this date.  True 
 
                 functional abilities must be left to speculation.  
 
                 (Refer to the evaluation form for limitations on 
 
                 the completed portion of the evaluation.) 
 
            
 
                 Under the heading of Work-Hardening the therapist 
 
            recommends a conditional work-hardening.
 
            
 
                    The results of the Functional Capacity 
 
                 Evaluation are considered equivocal but suggest 
 
                 Mrs. Deets may benefit from a work-hardening 
 
                 program.  She presents as an overall moderately 
 
                 deconditioned individual with a high pain profile 
 
                 more than 2 years post injury.  The program will 
 
                 be terminated when the objective test data show 
 
                 the program to be plateaued.  Functional 
 
                 capacities at that time will then be recorded. 
 
                 (Ex. 3, p. 1).
 
            
 
                 The therapist concluded with a job analysis,
 
            
 
                    The results of the Functional Capacity 
 
                 Evaluation indicate Mrs. Deets can work today at 
 
                 the sedentary physical demand level for 4 hours.  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Certain aspects of this job level may be above her 
 
                 safe functional ability.  These activities should 
 
                 be limited to prevent an exacerbation of her 
 
                 existing conditions.  Specifically, these include 
 
                 standing or sitting greater than one hour at a 
 
                 time. (Ex. 3, p. 2).
 
            
 
                 Dr. Herzberger gave a deposition on July 14, 1993 (Ex. 
 
            19).  He stated that he had been a board certified 
 
            neurosurgeon since 1965.  He said that the C6-7 disc 
 
            herniation was not very large and did not require surgery 
 
            (Ex. 18, pp. 5 & 6).  Dr. Herzberger unequivocally stated 
 
            that this herniation was caused by the incident that 
 
            occurred on February 13, 1991 and that it caused a 5 percent 
 
            permanent impairment (Ex. 19, pp. 7 & 8).  
 
            
 
                 The question of casual connection is essentially within 
 
            the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 Both Dr. Herzberger and Dr. Neiweem unequivocally 
 
            established that the injuries of February, 1991 were the 
 
            cause of claimant's injury and it follows that these 
 
            injuries were the cause of any resulting temporary or 
 
            permanent disability.  Neither one of these two doctors, or 
 
            any of the other doctors who examined claimant, suspected or 
 
            suggested any other cause for claimant's injury and 
 
            disability.
 
            
 
                 With respect to permanent impairment the opinion of Dr. 
 
            Herzberger, the employer selected and authorized treating 
 
            neurosurgeon, is preferred over Dr. Neiweem, Dr. Cullen and 
 
            Dr. VanGilder for the reason that he was the primary 
 
            treating physician and bore a certain amount of 
 
            responsibility for claimant's ultimate recovery or failure 
 
            to recover.  It is apparent that Dr. Neiweem preferred to 
 
            refer claimant to other physicians rather than to actively 
 
            treat her himself.  First he referred her to Dr. Yake, a 
 
            neurosurgeon, and on claimant's last contact with Dr. 
 
            Neiweem he referred her to the Clinton Physical Therapy 
 
            Services rather than make his own independent evaluation of 
 
            claimant's impairment and what her restrictions should be.  
 
            Dr. Cullen, Dr. Reasoner, Dr. Barcellos and Dr. VanGilder 
 
            were one-time evaluating physicians.  Rockwell Graphics 
 
            Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
            
 
                 Since all of the doctors summarized above treated all 
 
            of claimant's back symptoms (cervical, dorsal and lumbar) 
 
            simultaneously it is the interpretation of this deputy that 
 
            Dr. Herzberger did not mean that this injury was not caused 
 
            by the other incident when claimant was pushed against the 
 
            wall on February 15, 1991.  There is no evidence that any of 
 
            the doctors at any time attempted to segregate these two 
 
            injuries, the treatment for these injuries, or to separate 
 
            out what injury caused what physical complaints.  Actually, 
 
            a careful reading of the medical evidence establishes that 
 
            the lifting incident of February 13, 1991 caused lumbar 
 
            symptoms and complaints and the pushing against the wall 
 
            incident of February 15, 1991 caused claimant's upper 
 
            thoracic and cervical complaints.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Thus, it is determined that it was actually, in fact, 
 
            the injury of February 15, 1991 which caused the cervical 
 
            disc herniation and the 5 percent permanent impairment to 
 
            the body as a whole.
 
            
 
                 Dr. Herzberger agreed that wrestling with uncooperative 
 
            residents might cause the herniation to rupture more and 
 
            cause a worse injury.  The only lifting restriction that he 
 
            would impose is whatever a small delicate woman could lift 
 
            and he described claimant as a small delicate woman.  Dr. 
 
            Herzberger agreed that the herniation made claimant more 
 
            susceptible to reinjury (Ex. 19, p. 9).  He said that 
 
            because of this injury claimant might understandably be more 
 
            sensitive about her neck (Ex. 19, pp. 10 & 11).  
 
            
 
                 Dr. Neiweem gave a telephonic deposition on the morning 
 
            of the hearing on August 2, 1993 (Ex. 18).  He stated that 
 
            he had been a certified orthopedic surgeon since 1980 (Ex. 
 
            18, p. 4).  He reaffirmed that his diagnosis was cervical 
 
            syndrome which he defined as a catch-all diagnosis for a 
 
            person with complaints of neck pain who may also have some 
 
            complaints of pain in the arms.  He agreed that he 
 
            previously found a moderate herniation of C6-7 and a mild 
 
            posterior bulging of the C4-5 intervertebral disk (Ex. 18, 
 
            pp. 6 & 7).  Dr. Neiweem further agreed that with this 
 
            condition that any pressure on the spinal cord could be a 
 
            source of pain (Ex. 18, pp. 8, 13 & 14).
 
            
 
                 Dr. Neiweem unequivocally stated that the disc 
 
            herniation was the caused by the injury of February 13, 
 
            1991.  He related, "So given the history that she gave me 
 
            and our findings, I would have to say that this was 
 
            secondary to her injury at work." (Ex. 18, p. 8).  Dr. 
 
            Neiweem further added, "Unless you have something different, 
 
            what I have is that she had sustained an injury to her neck 
 
            while at work on February 13." (Ex. 18, p. 9).
 
            
 
                 Dr. Neiweem's initial history was incomplete and 
 
            inaccurate.  He was under the mistaken belief that lifting 
 
            the patient on February 13, 1991 injured her neck, whereas, 
 
            all of the other medical records and claimant's testimony 
 
            establish that the injury on February 13, 1991 affected her 
 
            low back and that the incident with the combative patient on 
 
            February 15, 1991 injured claimant's upper thoracic and 
 
            cervical area (Ex. 10, p. 2).
 
            
 
                 It is the determination of this deputy from a careful 
 
            examination of all of the medical evidence in this case that 
 
            after Dr. Herzberger and Dr. Neiweem began treating claimant 
 
            they made no distinction between what symptoms were caused 
 
            by the two separate incidents.  However, the medical records 
 
            disclose that it was the incident of February 15, 1991, 
 
            where claimant was pushed against the wall, that initiated 
 
            her cervical complaints.
 
            
 
                 Dr. Neiweem confirmed that claimant was cooperative 
 
            with him but the therapist questioned how much effort she 
 
            was putting forth on the functional capacity examination 
 
            (Ex. 18, p. 9).  The doctor said he could not say what 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            restrictions were appropriate for claimant.  He explained 
 
            that he sent her to the functional capacity examination to 
 
            find that out himself but the results of the test were not 
 
            valid (Ex. 18, p. 10).  Dr. Neiweem added that for the same 
 
            reason he could not determine whether claimant had a 
 
            permanent impairment without a valid functional capacity 
 
            evaluation examination (Ex. 18, p. 12).
 
            
 
                 Claimant testified that her current situation is that 
 
            she has stiffness and pain in the middle of her back which 
 
            is located between her shoulder blades and also between her 
 
            neck and the middle of her back (Tran. p. 70).  She said 
 
            that she could no longer restrain combative clients (Tran. 
 
            p. 72).  She related the only medications she was currently 
 
            taking were Excedrin and Advil (Tran. p. 74).  Claimant 
 
            admitted that she had not tried to find employment for a 
 
            year and was not looking for employment at this time because 
 
            she was going through a divorce, she was also going through 
 
            the liquidation of a business, and her son had physical 
 
            problems (Tran. p. 88).  Claimant testified that she did 
 
            perform some book work for her husband at home and that this 
 
            did not present a problem for her (Tran. pp. 76 & 77).  
 
            
 
                 Claimant admitted that she had had numerous health 
 
            problems in the past which involved her liver, kidney, and 
 
            hepatitis B (Tran. pp. 89-91).  However, it is the 
 
            determination of this deputy that none of the symptoms and 
 
            complaints that she had manifested for her previous 
 
            illnesses were manifested in any significant degree during 
 
            her treatment for these two injuries (Ex. 9, pp. 18-88, 
 
            which are 70 pages of health problems and treatment, none of 
 
            which were medically linked to either one of these two 
 
            injuries.)  None of the physicians who treated claimant for 
 
            these two injuries related any of these prior symptoms and 
 
            complaints to either one of these two injuries.  There is 
 
            absolutely no medical evidence that any of this prior health 
 
            history is in any way connected with these two injuries.  
 
            Defendants' innuendos are groundless and not supported by 
 
            any medical evidence.  
 
            
 
                 Lucky, claimant's former supervisor, testified that she 
 
            attempted to contact claimant several times without success.  
 
            She testified that she left messages but never was called 
 
            back (Tran. pp. 99 & 100).  However, Lucky made these calls, 
 
            five of them, while claimant was taken off work by the 
 
            doctor.  The dates of these calls are:  (1) two calls were 
 
            made on March 7, 1991, (2) one call was made on March 15, 
 
            1991, (3) one call was made on March 18, 1991 and (4) one 
 
            call was made on April 9, 1991 (Tran. p. 102).  Lucky 
 
            admitted that she was not aware of the fact that claimant 
 
            had been taken off work during this period of time by Dr. 
 
            Ginther and Dr. Herzberger (Tran. p. 102).  Thus, these 
 
            calls by Lucky were certainly not a true and realistic 
 
            effort on the part of defendants to return claimant to work 
 
            at that time.  Thus, it is not possible that these were bona 
 
            fide calls to offer claimant employment because she was not 
 
            authorized to return to work at that time.
 
            
 
                 Schilling, the manager of human services, testified 
 
            that in March of 1993 (two years after the injuries) she had 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            a part-time position as a direct care worker which claimant 
 
            could perform without difficulty at the same rate of pay 
 
            that claimant was earning at the time of the injury in 
 
            February of 1991.  However, this position was on the third 
 
            shift, which were nighttime and early morning hours.
 
            
 
                 It is noted that this offer appears to be instigated by 
 
            defendants' attorney on or about March 15, 1993, just a few 
 
            months prior to the hearing (Tran. p. 118; Ex. 14, p. 1; Ex. 
 
            13, p. 3).  Thus, it would appear that this belated job 
 
            offer was more of a legal maneuver than a bona fide offer of 
 
            employment by the employer to the employee.  
 
            
 
                 This job offer, however, is a moot point for the reason 
 
            that claimant admitted that she had not worked since the 
 
            injury and was not looking for work at the time of the 
 
            hearing because of a divorce, the liquidation of the 
 
            business, and a physical problem with her son.  
 
            
 
                 The true state of affairs was that claimant had not 
 
            requested to be reemployed by employer and employer had not 
 
            on their own initiative considered offering continued 
 
            employment to the employee.  As far as the employer was 
 
            concerned a new employee had replaced claimant in her 
 
            position as an occupational therapy aide.  As far as 
 
            claimant was concerned since the injury (1) she had moved to 
 
            Sterling, Illinois which was approximately 45 miles from 
 
            Clinton, Iowa and (2) entailed a one hour drive in order to 
 
            get to Clinton, Iowa and (3) another one hour drive to get 
 
            home again.  Furthermore, claimant admitted that the job was 
 
            not feasible for her at the time the offer was made because 
 
            she would have to pay for day care for her two children, 
 
            purchase gas for the car and spend two hours getting to and 
 
            from a part-time job which only paid $5.25 per hour and 
 
            required her to work the nighttime shift (Tran. p. 78).  The 
 
            job did not provide claimant with any employee benefits 
 
            (Tran. p. 128).
 
            
 
                 Claimant testified that she was instructed by the 
 
            rehabilitation nurse that she was not to communicate 
 
            directly with employer or to go to her former place of 
 
            employment and she was not allowed to visit any of the 
 
            residents (Tran. p. 131).  Schilling testified that she did 
 
            not know the rehab nurse assigned to the case (Tran. p. 
 
            130).  
 
            
 
                 Thus, neither employer or employee have made any real 
 
            serious attempt to return claimant to duty with employer.
 
            
 
                 At age 30 claimant's industrial disability is decreased 
 
            because of her young age.  She still has several employable 
 
            years in which to develop the skills or ability for 
 
            remunerative work.  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Walton v. B & H Tank Corp., II 
 
            Iowa Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Dec. 1989).
 
            
 
                 With a high school education claimant has the typical 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            basic education in order to obtain employment in the 
 
            competitive employment market.
 
            
 
                 Claimant is capable of retraining either academically 
 
            or on the job.  After high school she attended a secretarial 
 
            course and learned to type.  While working for her first 
 
            employer she completed Tech 1 and Tech 2, four-week and 
 
            six-week courses respectively, and obtained a certificate 
 
            from those courses.  She attended the two day Mandt training 
 
            and obtained a certificate for that course.  Claimant is 
 
            intelligent and articulate and her overall employment 
 
            prospects, even in spite of these injuries, should be good 
 
            on the long-term.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).
 
            
 
                 With respect to lumbar area, physically, claimant 
 
            sustained a strain of the lumbar spine which produced no 
 
            objective of permanent disability.  Nevertheless, she has 
 
            complained of pain in her low back, buttock and into her 
 
            legs at times.  At the same time, the medical evidence said 
 
            there were no true radicular symptoms.
 
            
 
                 With respect to her cervical area claimant has 
 
            sustained a herniated disc at C6-7 and lesser suspected 
 
            herniation at C4-5.  Such minor herniations have been known 
 
            to heal themselves.  At the same time, Dr. Herzberger, the 
 
            employer selected neurosurgeon agreed that the herniation 
 
            made claimant more susceptible to reinjury (Ex. 19, p. 9).
 
            
 
                 Dr. Herzberger restricted claimant from working with 
 
            residents who are violent or need to be subdued for the 
 
            reason that a future injury might cause either a rupture or 
 
            the injury to become severely symptomatic again (Ex. 12, p. 
 
            3).  
 
            
 
                 Thus, it must be determined that claimant sustained a 
 
            serious cervical injury which has made her more susceptible 
 
            to reinjury and is restricted from types of work that could 
 
            cause a rupture or cause her symptoms to become severely 
 
            symptomatic again.  Therefore, claimant's employability and 
 
            access to the competitive employment market is substantially 
 
            limited.  Both Dr. Herzberger and Dr. Neiweem unequivocilly 
 
            stated that the C6-7 herniation was caused by the injuries 
 
            which claimant sustained in February of 1991.  
 
            
 
                 Claimant's ability to work is further restricted for 
 
            the reason that her pain symptoms are activity related.  
 
            This is her testimony.  Relying on her statements Dr. 
 
            Herzberger discontinued physical therapy, home traction and 
 
            long distance walking which claimant said aggravated her 
 
            symptoms.
 
            
 
                 At the same time, it must be stated that consciously or 
 
            unconsciously claimant magnifies and exaggerates her pain 
 
            complaints.  Either way, her behavior has obstructed the 
 
            ability of the physical therapist performing the functional 
 
            capacity examination to make a realistic estimate of 
 
            claimant's true abilities and impairment.  
 
            
 
                 It is determined that claimant is not restricted to 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            sedentary work four hours a day to include no standing or 
 
            sitting greater than one hour at a time (Ex. 3, p. 2).  At 
 
            the same time it is not possible to accurately determine 
 
            claimant's true disability for the reason that she has not 
 
            actually sought and obtained employment to the best of her 
 
            ability in the competitive employment market.  Schofield v. 
 
            Iowa Beef Processors, Inc., II Iowa Industrial Commissioner 
 
            Report 334, 336 (1981).
 
            
 
                 Therefore, claimant's industrial disability cannot be 
 
            increased for the reason that she has not been able to find 
 
            employment since this injury.
 
            
 
                 At the time of the injury claimant was earning $5.25 
 
            per hour.  If and when claimant returns to the employment 
 
            market it is not unusual to find that entry level jobs often 
 
            pay $5.25 per hour.  At the present time, however, claimant 
 
            has not demonstrated any loss of actual earnings for the 
 
            reason that she admits that she has not actively sought, 
 
            found or engaged in any employment after this injury.
 
            
 
                 Claimant's attorney in his brief called attention to 
 
            the following legal authorities, 
 
            
 
                    Industrial disability is loss of earnings 
 
                 capacity rather than actual earnings.  Impairment 
 
     
 
            
 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 of physical capacity creates an inference of 
 
                 lessened earning capacity.  The basic element to 
 
                 be determined is loss of earning capacity rather 
 
                 than lack of actual wages or earnings in a 
 
                 specific occupation.  Holmquist v. Volkswagon of 
 
                 American, 261 N.W. 2d, 516 (Iowa Appeals, 1977); 
 
                 Larson Workers' Compensation Law, Section 57.21, 
 
                 57.31.
 
            
 
                 Wherefore, based upon all of the factors used to 
 
            determine industrial disability and based in particular upon 
 
            the following factors (1) that claimant sustained two 
 
            traumatic injuries, one to her cervical area which was 
 
            caused by being pushed into a wall and one to her lumbar 
 
            area which was caused by losing her footing while lifting a 
 
            heavy resident, (2) that objective tests have established 
 
            that claimant has sustained a herniation of C6-7 and C4-5, 
 
            (3) that both Dr. Herzberger and Dr. Neiweem said that 
 
            claimant's injuries were caused by these events at work in 
 
            February of 1991, and considering that claimant was taken 
 
            off work for approximately one year and pursued several 
 
            months of physical therapy, (4) that Dr. Herzberger, the 
 
            employer selected board certified treating orthopedic 
 
            surgeon, determined that claimant had sustained a 5 percent 
 
            impairment to the body as a whole, (5) that Dr. Herzberger 
 
            determined that these injuries made claimant more 
 
            susceptible to reinjury in the future, (6) that Dr. 
 
            Herzberger restricted claimant from strenuous work or work 
 
            which might cause another traumatic contact with the 
 
            cervical spine, (6) based on claimant's age in the early 
 
            thirties, (7) based on claimant's high school education, 
 
            subsequent training and potential for retraining, (8) based 
 
            upon the fact that claimant has either consciously or 
 
            unconsciously magnified and exaggerated her symptoms and 
 
            pain complaints, (9) based upon the fact that claimant has 
 
            not actively searched for employment since this injury, and 
 
            (10) applying agency expertise [Iowa Administrative 
 
            Procedure Act 17A.14(5)], and based upon all the factors 
 
            used to determined industrial disability, Christensen v. 
 
            Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. Dec. March 26, 1985); 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. 
 
            February 28, 1985), it is determined that claimant has 
 
            sustained a 15 percent industrial disability to the body as 
 
            a whole and is entitled to 75 weeks of permanent partial 
 
            disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                                 MEDICAL EXPENSES
 
            
 
                 At the time of the hearing defendants had paid all of 
 
            claimant's medical expenses except the bill from Dr. Neiweem 
 
            for his office visit on July 6, 1993 in the amount of $58 
 
            and the charges of the Clinton Physical Therapy Services for 
 
            the functional capacity examination ordered by Dr. Neiweem 
 
            which was performed on July 19, 1993 in the amount of $250.
 
            
 
                 Defendants declined to pay the bills because they had 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            never seen them before.  At the same time did not state they 
 
            would not pay the bills, but rather wished to examine them 
 
            in order to make a decision on whether they should be paid 
 
            or denied.
 
            
 
                 Claimant's counsel asserted that these two bills should 
 
            be considered an issue to be determined by this decision 
 
            (Tran. pp. 17 & 14).
 
            
 
                 The prehearing conference report signed by both 
 
            attorneys on January 6, 1993 specified that medical benefits 
 
            would be an issue to be determined by this decision.  The 
 
            hearing report further specified that claimant sought an 
 
            order for payment of these two medical expenses.  
 
            
 
                 Possibly defendants have paid the bills because neither 
 
            attorney addressed this issue in their post-hearing brief.  
 
            Nevertheless, the industrial commissioner was requested to 
 
            make a determination on the payment of these two bills at 
 
            the hearing and has no subsequent information that these two 
 
            bills are not an issue which is needed to be decided by this 
 
            decision.
 
            
 
                 It is determined that both of these two expenses were 
 
            caused by these two injuries.  Both claimant and Dr. Neiweem 
 
            said that claimant saw the doctor for continued complaints 
 
            of pain to both her neck and back.  It was Dr. Neiweem who 
 
            decided that claimant should receive a functional capacity 
 
            examination.  Referral by an authorized doctor to another 
 
            physician constitutes the other physician as an authorized 
 
            physician.  Limoges v. Meier Auto Salvage, I Iowa Industrial 
 
            Commissioner Report 207 (1981); Kittrell v. Allen Memorial 
 
            Hospital, 34 Biennial Report, Iowa Industrial Commissioner 
 
            164 (1979).  
 
            
 
                 Likewise, an authorized physician can select whatever 
 
            treatment methods that his judgment determines is reasonable 
 
            and employers and insurance carriers are not entitled to 
 
            interfere with the professional judgment of the authorized 
 
            treating physician.  Pote v. Mikow Corp., File No. 694639 
 
            (Review-Reopening Decn., June 17, 1986); Smith v. Acme 
 
            Electric, File No. 995667 Decided March 25, 1993; Martin v. 
 
            Armour-Dial Inc., File No. 754732 (Arb. Decn., filed July 
 
            31, 1985).
 
            
 
                 It is true that Dr. Neiweem was chosen by claimant.  
 
            Nevertheless, with respect to Iowa Code section 85.39, a 
 
            physician chosen by the employee but adopted by employer's 
 
            insurance carrier, is considered to be an employer retained 
 
            physician.  Coble v. Metromedia, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 71 (1979).  
 
            Likewise, with respect to Iowa Code section 85.27, even 
 
            though the employer has the right to choose the care, when 
 
            the employer and insurance acquiesce in the care of the 
 
            physician chosen by claimant then this physician is 
 
            considered to be an employer retained physician.  By paying 
 
            his medical charges defendants have acquiesced in the care 
 
            of Dr. Neiweem and he became an authorized treating 
 
            physician.  Munden v. Iowa Steel & Wire, Thirty-third 
 
            Biennial Report of the Industrial Commissioner 99 (1977).
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
                 Wherefore, it is determined that Dr. Neiweem is an 
 
            authorized physician within the purview of Iowa Code section 
 
            85.27 in this case.  Defendants acquiesced in his care and 
 
            paid all of claimant's previous bills from Dr. Neiweem 
 
            (Tran. p. 16).  Conte v. Heartland Lysine, Inc., File No. 
 
            900546 (filed June 13, 1991).  Therefore, it is determined 
 
            that Dr. Neiweem was an authorized treating physician and as 
 
            such he was entitled to order a functional capacity 
 
            examination and that defendants are liable for both of these 
 
            medical expenses.  Santucci v. Air and Water Technologies 
 
            Corp., File No. 967995 Memorandum of Decision on Alternate 
 
            Medical Care, filed April 23, 1993.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            to her neck, upper back and entire back on February 15, 
 
            1991, which arose out of and in the course of employment 
 
            with employer.  Section 85.3(1); McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury to her neck 
 
            was the cause of permanent impairment and disability.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 
 
            607 (1945).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that she has sustained a 15 
 
            percent industrial disability to the body as a whole and is 
 
            entitled to 75 weeks of permanent partial disability 
 
            benefits.  Iowa Code section 85.34(2)(u).  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 
 
            (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury of February 
 
            13, 1991 and the injury of February 15, 1991 were the cause 
 
            of the charge of Dr. Neiweem on July 6, 1993 in the amount 
 
            of $58 and the charge of Clinton Physical Therapy Services 
 
            on July 19, 1993 in the amount of $250 and that these 
 
            charges were incurred at the direction of an authorized 
 
            physician and that these charges are reasonable.  Iowa Code 
 
            section 85.27; See also the cites in the body of this 
 
            decision.
 
            
 
                 If claimant's medical expenses had not been allowed 
 
            pursuant to Iowa Code section 85.27 it would appear that 
 
            claimant has a good case to have them allowed pursuant to 
 
            Iowa Code section 85.39 based on the facts of this case.  
 
            Pirozek v. Swift Independent Packing, File No. 753643, 
 
            753642 and 724893 (Appeal Decn. February 18, 1987).
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of one hundred ten and 26/100 dollars ($110.26) per 
 
            week in the total amount of eight thousand two hundred 
 
            sixty-nine and 50/100 dollars ($8,269.50) and that these 
 
            benefits are to commence on January 31, 1992 as stipulated 
 
            to by the parties.
 
            
 
                 That defendants are entitled to a credit for workers' 
 
            compensation weekly benefits paid to claimant prior to 
 
            hearing for twenty-five (25) weeks in the amount of one 
 
            hundred ten and 26/100 dollars ($110.26) in the total amount 
 
            of two thousand seven hundred fifty-six and 50/100 dollars 
 
            ($2,756.50). 
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That these permanent partial disability benefits are to 
 
            be charged to the injury of February 15, 1991 which is claim 
 
            file number 1003243.
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services fifty-eight dollars ($58) for the bill of 
 
            Dr. Neiweem and two hundred fifty dollars ($250) for the 
 
            bill of Clinton Physical Therapy Services.  Iowa Code 
 
            section 85.27
 
            
 
                 That these medical expenses are to be charged equally 
 
            to the injury of February 13, 1991 which is file number 
 
            977577 and the injury of February 15, 1991 which is file 
 
            number 1003243.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of hearing, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            Copies to:
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            
 
            Mr. Robert McGee
 
            Attorney at Law
 
            230 4th Ave. S.
 
            Clinton, IA  52732
 
            
 
            
 
            Mr. Mark Woolums
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, IA  52801
 
            
 
            
 
 
            
 
            
 
            
 
              
 
                                1106, 1108.50, 1401, 1402.20
 
                                1402.30, 1402.40, 1803, 2501, 2700
 
                                2901, 2906, 3700
 
                                Filed March 8, 1994
 
                                Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERTA J. DEETS,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                       File Nos. 977577 & 1003243
 
            SKYLINE CENTER,     
 
                                         A R B I T R A T I O N
 
                 Employer, 
 
                                           D E C I S I O N
 
            and       
 
                      
 
            INSURANCE COMPANY OF     
 
            NORTH AMERICA,                
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            2901, 2906, 3700
 
            The deputy observed that counsel had over six months from 
 
            the date of the hearing assignment order until the hearing 
 
            to prepare the exhibits according to the instructions in the 
 
            hearing assignment order but nevertheless failed to (1) 
 
            reduce the pages to approximately 50 pages or less of 
 
            relevant and material evidence and (2) prepare the exhibits 
 
            in chronological form of some kind.  Even though the 
 
            attorneys did eliminate several pages of written evidence at 
 
            the time of the hearing and dictated a new exhibit list the 
 
            deputy observed that about 45 percent of the exhibits 
 
            remaining were not relevant, material, essential or helpful 
 
            in the determination of the issues in this case.
 
            
 
            1106, 1108.50, 1401, 1402.20, 1402.30
 
            
 
                 Claimant alleged two injuries, two days apart.  
 
            Defendants admitted the first one but denied the second one.  
 
            Claimant sustained the burden of proof on the second injury.  
 
            Her reports to the medical care providers tallied with her 
 
            testimony at the hearing.  Claimant was credible.
 
            
 
            1402.40
 
            
 
                 The two primary doctors said the work caused her neck 
 
            and back condition.  This evidence was not controverted.  
 
            Claimant had a multitude of prior health problems but none 
 
            of her complaints from these two injuries were the same as 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            her prior problems and no medical care provider linked up 
 
            any of claimant's prior problems with her current 
 
            complaints.
 
            
 
            1803
 
            
 
                 The primary authorized treating physician assessed a 5 
 
            percent permanent impairment.  He said this injury made her 
 
            more susceptible to other cervical injuries.  He said she 
 
            was foreclosed from her employment as an occupational 
 
            therapy aide with mentally or physically disturbed persons.  
 
            She sustained two traumatic injuries.  She had two bulging 
 
            cervical disks, one worse than the other, but neither one 
 
            required surgery.  She had a long recovery period.  Claimant 
 
            magnified her symptoms and exaggerated her complaints.  She 
 
            was age 33, completed high school, retrainable, intelligent, 
 
            articulate but had not yet sought work due to personal 
 
            problems.  Claimant was awarded 15 percent industrial 
 
            disability.
 
            
 
            2501, 2700
 
            
 
                 Claimant awarded two unpaid medical expenses on the 
 
            basis of Limoges, Kittrell, Pote, Cobble, Munden, Conte, and 
 
            Santucci.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CONNIE OLDENBURGER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 977623
 
            HOTEL FORT DES MOINES, INC.,  :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            HAWKEYE-SECURITY/UNITED  :
 
            SECURITY,                     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            This is a proceeding in arbitration brought by the claimant, 
 
            Connie Oldenburger, against her employer, Hotel Fort Des 
 
            Moines, and its insurance carrier, Hawkeye-Security/United 
 
            Security, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury allegedly 
 
            sustained on February 21, 1991.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner at Des Moines, Iowa, on January 19, 1993.  A 
 
            first report of injury has been filed.  Defendants appeared 
 
            through their counsel, John Fatino.  Claimant who is pro se 
 
            in this matter did not appear.
 
            issues 
 
            Pursuant to the prehearing report filed by defendants, 
 
            defendants admit an employer-employee relationship and 
 
            acknowledge gross weekly wages of $149.79 for claimant.  All 
 
            other matters including whether claimant received an injury 
 
            which arose out of and in the course of her employment 
 
            remain disputed.  
 
            findings of fact
 
            Claimant having not appeared, no evidence was taken on 
 
            claimant's behalf.  Defendants declined to present evidence 
 
            as well.  Wherefore, it is found that claimant has not 
 
            carried her evidentiary burden of showing that claimant did 
 
            receive an injury arising out of and in the course of her 
 
            employment on February 21, 1991.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            Therefore, it is concluded that claimant has not established 
 
            an injury arising out of and in the course of her employment 
 
            on February 21, 1991.  
 
            order
 
            THEREFORE, IT IS ORDERED:
 
            Claimant take nothing from this proceeding.  
 
            Claimant pay costs of this proceeding pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Ms. Connie Oldenburger
 
            475 N.E. 43rd Pl.
 
            Des Moines, IA  50313
 
            
 
            Mr. John F. Fatino
 
            Attorney at Law
 
            317 6th Ave., Ste. 1200
 
            Des Moines, IA  50319-4110
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      51402.10, 51402.20
 
                                Filed January 19, 1993
 
                      Helenjean M. Walleser
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CONNIE OLDENBURGER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 977623
 
            HOTEL FORT DES MOINES, INC.,  :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            HAWKEYE-SECURITY/UNITED  :
 
            SECURITY,                     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51402.10, 51402.20
 
            Claimant did not appear at hearing.  Found that claimant had 
 
            failed to carry claimant's burden of establishing an injury 
 
            arising out of and in the course of her employment.