1804, 2904, 3200, 3700
 
                                            April 10, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JIM D. ASAY,
 
        
 
             Claimant,
 
             
 
        vs.                                                File Nos. 
 
        407508
 
                                                              448505
 
        INDUSTRIAL ENGINEERING
 
        EQUIPMENT CO.,                                     R E V I E W -
 
        
 
            Employer,                                     R E O P E N I 
 
        N G
 
        
 
        and                                                D E C I S I O 
 
        N
 
        
 
        THE TRAVELERS INSURANCE COMPANY,
 
        
 
             Insurance Carrier,
 
             
 
        and
 
        
 
        SECOND INJURY FUND OF IOWA,
 
        
 
             Defendants.
 
             
 
             
 
        1804, 2904, 3200, 3700
 
        
 
             Claimant, who had lost use of one arm from polio during 
 
             childhood, was awarded permanent total disability for a 1973 
 
             injury to the other arm. In 1980, he obtained employment. In 
 
             1981 and 1982, he was self-employed. Though claimant earned 
 
             $65,000 in those three years, it was held that he remained 
 
             permanent]y totally disabled because the employment was so 
 
             sheltered, unique and adapted for claimant's physical condition 
 
             that it was not competitive employment. Claimant was not shown 
 
             capable of performing regular gainful employment in any well 
 
             recognized branch of the labor market.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JIM D. ASAY,
 
         
 
              Claimant,
 
         
 
         vs.                                       File Nos. 407508
 
                                                             448505
 
         INDUSTRIAL ENGINEERING
 
         EQUIPMENT CO.,                              R E V I E W -
 
         
 
              Employer,                           R E O P E N I N G
 
         
 
         and                                       D E C I S I O N
 
         
 
         THE TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by the 
 
         Second Injury Fund of Iowa.  The employer is no longer a party to 
 
         this proceeding.  The Second Injury Fund alleges that there has 
 
         been a change of condition that has occurred since the 
 
         commissioner's appeal decision was entered on September 28, 1977, 
 
         that claimant's degree of disability should be reevaluated and 
 
         that claimant is no longer permanently and totally disabled. 
 
         Claimant denies that there has been any substantial change in 
 
         condition and contends that he remains totally disabled.
 
         
 
              The case was heard and fully submitted at Davenport, Iowa on 
 
         July 6, 1988.  The record in the proceeding consists of testimony 
 
         from Jim D. Asay, Nolan Hamma, Steven Duffy and Jane Asay. 
 
         Exhibits 1, 2, 3, 4, 5 and 7 were received.  Official notice was 
 
         taken of all prior decisions.
 
         
 
                                      ISSUES
 
         
 
              The issues for determination are whether there has been a 
 
         substantial change in condition or circumstances which would 
 
         permit reopening of the award which was previously made.  
 
         Further, at the time of hearing, it was stipulated that claimant 
 
         is now totally disabled, but defendants assert that the current 
 
         total disability is related to a circulatory condition which 
 
         claimant developed subsequent to the injuries which are the basis 
 
         for this proceeding and which are unrelated to those injuries.
 
         
 
                        REVIEW OF THE EVIDENCE
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   2
 
         
 
         
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Jim D. Asay is a 53-year-old, married man who lives in 
 
         Davenport, Iowa and has for the past 24 years.  His educational 
 
         achievement is limited to the eighth grade, although he completed 
 
         a course in automotive electronics and carburetion at Scott 
 
         Community College subsequent to his 1976 injury.
 
         
 
              The facts and circumstances relating to claimant's injuries 
 
         of November 14, 1973 and February 16, 1976 are well described in 
 
         the review-reopening decision and appeal decision which have been 
 
         previously entered in this case.  The most pertinent facts are 
 
         that claimant contracted polio when he was five years of age.  
 
         His left arm was severely afflicted by the disease and the only 
 
         residual use of the arm or hand that remained was that claimant 
 
         could, under some circumstances, use the left arm as a guide or 
 
         as a device to steady articles.  Despite what was essentially a 
 
         total loss of use of his left arm, claimant was employed 
 
         primarily as a mechanic.  For approximately 15 years he was 
 
         employed at the same location as an automotive transmission 
 
         mechanic.  Subsequently, he worked approximately nine years as an 
 
         air compressor mechanic.  He also has other mechanical skills and 
 
         aptitudes.
 
         
 
              Claimant suffered two injuries to his right arm or wrist, 
 
         the first in 1973 when a fracture resulted.  The second was 
 
         diagnosed as something in the nature of a strain or sprain.  
 
         Following recuperation from the 1973 injury, claimant returned to 
 
         employment at Industrial Engineering Equipment Company as an air 
 
         conditioner mechanic.  The right wrist remained symptomatic to 
 
         the extent that claimant was never able to make a sustained, 
 
         long-term return to full-time work.  He was allowed to be off 
 
         work whenever his right wrist was troublesome.  Subsequent to the 
 
         1976 injury, the employer would not allow claimant to return to 
 
         work.
 
         
 
              The first hearing in this case was conducted at Davenport, 
 
         Iowa on May 13, 1976.  The deputy industrial commissioner who 
 
         heard the case at that time concluded that claimant was 
 
         permanently totally disabled under the provisions of Iowa Code 
 
         section 85.34(3) as a result of the 1976 injury.  It was 
 
         concluded that the 1973 injury had resulted only in temporary 
 
         disability.
 
         
 
              The deputy's decision was appealed to the commissioner.  The 
 
         commissioner agreed that claimant was totally disabled, but 
 
         attributed the total disability to the 1973 injury, pointing out 
 
         that claimant had never made a sustained, long-term return to 
 
         employment following that 1973 injury.  The commissioner's 
 
         rationale is found at pages 6 and 7 of that decision and is 
 
         hereinafter set forth as follows:
 
         
 
              The Iowa position on total disability was presented in 
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   3
 
         
 
         
 
         Diederich v. Tri-City Railway Co., 219 Iowa 587, 594, 258 N.W. 
 
         899, 902 (1935) in which the court said that "disability may be 
 
         only a twenty-five or thirty per cent disability compared with 
 
         the one hundred per cent perfect man, but, from the standpoint of 
 
         his ability to go back to work to earn a living for himself and 
 
         his family, his disability is a total disability. . . ."  This 
 
         position was reiterated [sic] in Dailey v. Pooley Lumber Co., 233 
 
         Iowa 758, 764-65, 10 N.W.2d 569, (1943) wherein (although 
 
         recognizing that injury to a scheduled member is arbitrarily 
 
         compensable according to the schedule) total disability was 
 
         described as:
 
         
 
              an inability of the individual, . . .to earn - not a 
 
              mere inability of a certain member to function.  It may 
 
              arise solely from some injury to or loss of a scheduled 
 
              member; or it may result from some injury of wider 
 
              extent.
 
         
 
              . . . . Permanent total disability. . . .may be caused 
 
              by some scheduled injury, even though no other part of 
 
              the body except the scheduled member be affected.  This 
 
              may happen because of lack of training, age, or other 
 
              condition peculiar to the individual.
 
         
 
              Professor Arthur Larson in 2 Larson, Workmen's Compensation 
 
         Law, [section] 58.51 at 10-107 (1976) states total disability "is 
 
         not to be interpreted literally as utter and abject helplessness.  
 
         Evidence that claimant has been able to earn occasional wages or 
 
         perform certain kinds of gainful work does not necessarily rule 
 
         out a finding of total disability nor require that it be reduced 
 
         to partial."  Larson further suggests the modern rule may be 
 
         summarized as follows:  "An employee who is so injured that he 
 
         can perform no services other than those which are so limited in 
 
         quality, dependability, or quantity that a reasonably stable 
 
         market for them does not exist, may well be classified as totally 
 
         disabled."
 
         
 
                   The record presented in this case leads this 
 
              commissioner to conclude that claimant was 100 percent 
 
              permanently totally disabled as a result of his first 
 
              injury in spite of the fact that he was able to do some 
 
              work as shown by his own testimony.
 
         
 
              . . .
 
         
 
              Obviously, the services which claimant was able to 
 
              provide were limited in quantity and dependability 
 
              rendering his ability to earn a living such that he 
 
              could be classified as totally disabled.
 
         
 
         (Asay, Appeal Decision, September 28, 1977, pages 6 and 7)
 
         
 
              Claimant apparently did not engage in any significant 
 
         employment from 1976 until 1980 when Nolan Hamma, a person with 
 
         whom claimant had worked when he was a transmission mechanic, 
 
         offered claimant employment.  Hamma had been in the transmission 
 
         repair business since 1956. In 1980, Hamma broke his hand and 
 
         employed claimant to help rebuild transmissions.  Initially it 
 
         was on a part-time basis, but it became full-time.  Hamma 
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   4
 
         
 
         
 
         testified that claimant performed the same type of work in his 
 
         shop as what claimant had done when they were both employed at 
 
         the transmission shop on LeClaire Street.  Hamma testified that 
 
         he had performed the heavy work for claimant during the recent 
 
         period of employment, but that claimant also had assistance with 
 
         heavy work at the LeClaire Street shop.  Hamma testified that he 
 
         noticed no real difference in claimant's abilities when the 
 
         recent employment was compared to the work performed at the 
 
         LeClaire Street shop. Hamma acknowledged, however, that at times 
 
         claimant would have problems with his wrist, that it would swell 
 
         up and that claimant would not come to work.  Hamma also stated 
 
         that at times claimant worked as if he were in pain.  Hamma 
 
         related that claimant favored his right arm at times when they 
 
         were employed at the LeClaire Street shop.  Hamma surmised that 
 
         claimant probably performed heavier work at the LeClaire Street 
 
         shop than he performed when working for Hamma.
 
         
 
              Claimant testified that, following the hearing in 1973, he 
 
         allowed the wrist to heal for a couple of years during which time 
 
         he was unable to work on transmissions or anything else. 
 
         Claimant's rate of compensation is only $91.00 per week.  He 
 
         stated that he was forced to return to work in order to eat. 
 
         Claimant testified that he started working for Nolan Hamma in 
 
         1979 on a part-time basis.  Claimant stated that he helped with 
 
         transmissions.  Claimant related that he needed assistance from 
 
         Hamma for things that he could do by himself prior to the 
 
         injuries.  Claimant related that, while working with Hamma, his 
 
         right wrist would occasionally swell to where he was unable to 
 
         even pick up a cup of coffee.
 
         
 
              In 1982, claimant purchased Hamma's transmission repair 
 
         business.  Claimant worked out of Hamma's building for 
 
         approximately a year, paying Hamma $1,000 per month rent for use 
 
         of the building and of Hamma's tools.  Claimant hired Donnie 
 
         Weston, Hamma's son-in-law, to help perform the work.  Claimant 
 
         stated that he could not afford to keep paying the $1,000 per 
 
         month rent to Hamma so he built his own garage; hired others to 
 
         perform the heavy part of the work and continued to operate his 
 
         own transmission repair service until 1985.
 
         
 
         Claimant developed problems with his left leg and other physical 
 
         ailments which were diagnosed in early 1984 when he was 
 
         diagnosed-with bilateral internal carotid occlusions, a severe 
 
         circulatory disorder (exhibit 7).  Claimant underwent bypass 
 
         surgery, but has not been allowed by his physicians to resume any 
 
         type of moderate or heavy activity.
 
         
 
              Claimant testified that, when he returned to work with 
 
         Hamma, his right wrist was not improved in comparison to the 
 
         condition it had been in at the time of hearing in 1976.  
 
         Claimant stated that he developed some arthritis in the right arm 
 
         for which he sought treatment in Belvedere, Illinois in 1982.  
 
         Claimant testified that when he operated his own shop, he had two 
 
         employees who did 70%-80% of the actual work with claimant 
 
         supervising.  Claimant related that in operating his own 
 
         business, his wife and bookkeeper did the record keeping and that 
 
         Hamma would come to the shop at times to help.  Claimant 
 
         testified that no doctor has ever told him that his right wrist 
 
         has improved since 1976.
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   5
 
         
 
         
 
         
 
              Jan Asay, claimant's spouse since 1973, testified that, from 
 
         1976 until claimant went to work for Hamma, they lived on ADC. 
 
         She stated that claimant continues to have problems with his 
 
         right arm.  She related that it is bothered by heat or cold.  She 
 
         stated that at times it swells up clear to the elbow and that it 
 
         happens more frequently than a couple weeks per year.  Jan Asay 
 
         stated that, when claimant worked, transmission jacks and power 
 
         tools were available, that Hamma did heavy work and that claimant 
 
         did a lot of running for parts.  Jan Asay testified that 
 
         claimant's grip is reduced since the injuries.  She stated that, 
 
         prior to his injuries, she had seen claimant lift a transmission 
 
         onto a bench using only one hand.
 
         
 
              Claimant's spouse related that Harold Gonyard is a long-time 
 
         friend who has a transmission shop and that claimant sometimes 
 
         hangs out at the shop and refers business to Harold.
 
         
 
              Steven Duffy was employed as an independent insurance 
 
         adjustor and investigator in 1986.  Duffy stated that, in the 
 
         last week of January, 1986, he performed an activity check of 
 
         claimant's home and observed the home and a building where it 
 
         appeared that automotive work was being performed.  Duffy 
 
         testified that he inquired about transmission work and that 
 
         claimant then phoned him and said that it would have to be worked 
 
         on at a different location.  Duffy stated that he checked out the 
 
         location described and found a building and a pickup truck with a 
 
         plaque on the door which stated "Harold's Transmission Service." 
 
         Duffy testified that no one was around Asay's garage at the time 
 
         when he observed it and that he did not know if t was open for 
 
         business.
 
         
 
         On April 1, 1987, claimant was evaluated at the Iowa Occupational 
 
         Medicine Corporation at the Mercy Hospital Medical Occupation 
 
         Evaluation Center in Des Moines, Iowa.  The physical examination 
 
         states that claimant had good grip strength in his right upper 
 
         extremity, but that he lacked approximately 45 degrees in 
 
         dorsiflexion and 30 degrees in palm reflection.  It was noted 
 
         that claimant had good pronation and supination and good 
 
         flexion-extension.  X-rays showed permanent impairment in 
 
         claimant's right wrist.  Claimant was determined to have a 
 
         permanent impairment of 10%-15% of the right hand.
 
         
 
              Claimant was also determined to have poor reading skills. 
 
         Other testing procedures were employed.  Those test results found 
 
         no alternative vocational opportunities for claimant, but when 
 
         claimant's skills as an automatic transmission mechanic were 
 
         used, some light work possibilities were identified, including 
 
         machine operation, machine tending, inspection occupations and 
 
         light bench mechanics, gas meter checker, battery charger tester, 
 
         dump operator and security guard.  The list did not take into 
 
         account claimant's circulatory problems, but the vocational 
 
         consultant concluded that even for those identified job titles 
 
         and vocational areas, claimant might well require selective 
 
         placement due to his atrophic left upper extremity.  The 
 
         consultant stated that alternative vocational possibilities for 
 
         claimant would depend upon claimant's own personal interests and 
 
         motivation.
 
         
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   6
 
         
 
         
 
              Joshua Kimelman, D.O., the orthopedist who performed the 
 
         physical examination of claimant's right wrist, recommended that 
 
         claimant be limited to occupations which were either sedentary or 
 
         light with lifting 20 maximum and frequently lifting of up to 10 
 
         pounds (exhibit 3).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Issue preclusion, formerly referred to as res judicata, 
 
         applies in administrative proceedings.  Board of Supervisors, 
 
         Carroll County v. Chicago & Northwestern Transportation Co., 260 
 
         N.W.2d 813 (Iowa 1977).  Review-reopening under Code section 
 
         86.14(2) is an exception to the normal rules of preclusion.  A 
 
         party seeking review-reopening of an award must demonstrate, by a 
 
         preponderance of the evidence, that a change of condition has 
 
         occurred subsequent to that initial award.  Fischer v. W. F. 
 
         Priebe & Co., 178 Iowa 611, 118 N.W.2d 570 (1962); Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1980).  Such a change of condition is not limited to a physical 
 
         change of condition.  A change in earning capacity subsequent to 
 
         the original award also constitutes a change which permits 
 
         review-reopening.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
         (Iowa 1980); Blacksmith v. All-American, Inc. 290 N.W.2d 348 
 
         (Iowa 1980).  The change must be something which was not 
 
         anticipated at the time of the initial award.  It must be 
 
         something which was unknown and could not have been discovered by 
 
         the exercise of reasonable diligence.  Meyers v. Holiday Inn of 
 
         Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978); Gosek v. 
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   7
 
         
 
         
 
         Garmer and Stiles Co. 158 N.W.2d 731 (Iowa 1968); Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).
 
         
 
              There is no direct evidence in the record of this case which 
 
         clearly shows any unanticipated physical change in the condition 
 
         of claimant's right wrist.  Dr. Kimelman recently assigned a 
 
         10%-15% impairment rating of the hand.  While the previous appeal 
 
         decision found a 20% permanent partial disability of the right 
 
         upper extremity, that determination, however, was made upon 
 
         ratings which ranged from 5% to 65% with two physicians rating 
 
         claimant at 20%.  None of those same physicians have given a new 
 
         rating in this case.  The rating from Dr. Kimelman is not at 
 
         substantial variance with the 20% rating previously determined in 
 
         the appeal decision.  Interestingly, Dr. Kimelman found 
 
         claimant's range of motion in dorsiflexion and palmar flexion to 
 
         be substantially more limited than it was at the time of the 
 
         evaluations which were relied upon when the appeal decision was 
 
         entered in 1977.  Claimant's description of his ability to use 
 
         his right arm does not present any substantial change from the 
 
         descriptions that were given in the 1976 hearing.
 
         
 
              What did occur subsequent to 1976 is that claimant was hired 
 
         by an old coworker, Nolan Hamma, to help out in Hamma's shop at a 
 
         time when Hamma himself was suffering from a broken hand.  The 
 
         arrangement moved from part-time to full-time.  There were times, 
 
         however, when claimant did not work due to the symptoms affecting 
 
         his right hand.  This is a factual situation which was not at 
 
         great divergence from the situation that existed when claimant 
 
         worked for Industrial Engineering Equipment Company between the 
 
         1973 and 1976 injuries.  The further occurrence subsequent to 
 
         1976 is that claimant acquired and operated his own transmission 
 
         repair service, albeit with others performing most of the actual 
 
         labor and with claimant acting in a supervisory role.  Claimant's 
 
         income tax returns, exhibit 5, show that in 1980 he earned 
 
         $15,723.10 from his business operation.  In 1981, the net profit 
 
         was $23,208.72.  In 1982, the net profit was $27,872.00.  It was 
 
         at that point that claimant's health deteriorated due to the 
 
         circulatory condition, the business became unprofitable and 
 
         subsequently closed.
 
         
 
              The evidence from Steven Duffy does not show claimant to 
 
         have been engaged in any gainful activity in 1986.  It does not 
 
         conflict with testimony given by claimant or claimant's spouse.
 
         
 
              There is no evidence to indicate that the circulatory 
 
         condition is any way causally connected to claimant's 1973 or 
 
         1976 injuries.
 
         
 
              The law regarding total disability is well established as 
 
         set forth by the industrial commissioner in his appeal decision 
 
         in 1977.  The test of permanent total disability in a workers' 
 
         compensation setting has long been established and may be 
 
         summarized as follows:  When the combination of factors 
 
         considered in determining industrial disability precludes the 
 
         worker from obtaining regular, stable employment in which he can 
 
         earn a living for himself, his disability is a total disability.  
 
         Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); 
 
         McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); 
 
         Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   8
 
         
 
         
 
         902 (1935). There are few individuals in our society whose 
 
         earning capacity is zero.  There are numerous examples of 
 
         individuals with severe physical impairments, even quadriplegics, 
 
         who are able to produce some level of earnings.  The key is 
 
         whether the individual has the ability to perform the physical 
 
         and mental exertions necessary to obtain and hold stable, 
 
         continuing employment in a well-known branch of the labor market.  
 
         The competitive labor market is the setting in which the 
 
         determination is to be made, not a setting where some benevolent 
 
         employer makes accommodations or a setting where a selective 
 
         placement is the only source of employment.
 
         
 
              Jim D. Asay has a great deal of valuable expertise in the 
 
         field of automotive transmissions.  That expertise has not 
 
         changed appreciably since 1976.  Asay has essentially no use of 
 
         his left arm now and did not in 1976.  Asay has limited use of 
 
         his right hand much as he did in 1976.  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.  
 
         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, 34th Biennial Report, 
 
         218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 
 
         and 57.31.
 
         
 
              Claimant's record of earnings for 1980, 1981, and 1982 are 
 
         strong evidence that claimant was not totally disabled.  That 
 
         evidence is, however, rebutted by the fact that claimant's only 
 
         employment was arranged through accommodations of a long-time 
 
         acquaintance.  It is also rebutted by the fact that claimant was 
 
         not able to manage the business himself and needed the assistance 
 
         of his wife and bookkeeper.  Claimant was certainly able to 
 
         perform some physical activities which were beneficial to the 
 
         businesses, but the actual labor and work was performed by others 
 
         whom he hired.  The situation in which claimant was able to earn 
 
         the earnings which he achieved in 1980, 1981, and 1982 was in a 
 
         very specialized, unique setting.  It was a setting wherein 
 
         claimant could refrain from working when he needed to do so.  It 
 
         was a setting where he could rely upon others to perform 
 
         functions which are integral parts of the overall process of 
 
         transmission repair which were beyond his own capabilities.  When 
 
         the entire situation is examined, it becomes apparent that 
 
         claimant's work, although economically rewarding, was not a job 
 
         that is found in any well-known branch of the competitive labor 
 
         market.  Claimant could not succeed financially based solely upon 
 
         his supervisory skills.  He still has those skills at the present 
 
         time, yet is clearly totally disabled due to the impact of his 
 
         circulatory ailment.  There is precedent for the proposition that 
 
         income from a business owned by the claimant is irrelevant to the 
 
         issue of total disability.  2 Larson Workmen's Compensation Law, 
 
         section 57.51(e).  This agency has held that self-employment 
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page   9
 
         
 
         
 
         earnings are not earnings from work as an employee as defined in 
 
         Iowa Code section 85.61(2).  Winters v. Te Slaa, I Iowa 
 
         Industrial Commissioner Report, 367 (App. Decn., 1981).  While 
 
         claimant was employed by Hamma, the evidence also shows that 
 
         claimant was paid based upon the revenues that he generated.  He 
 
         was, in essence, self-employed even when working for Hamma.  He 
 
         filed his 1980 income tax return as a self-employed individual.  
 
         It is particularly important in the consideration of this case 
 
         that no evidence has been introduced to show that claimant was 
 
         employable on a regular, sustained, full-time basis in any 
 
         well-known branch of the competitive labor market.  The 
 
         presumption or inference that is raised by claimant's earnings 
 
         has been overcome by the unique circumstances in which those 
 
         earnings occurred.  This decision considers claimant's 
 
         capabilities as they existed immediately prior to the time that 
 
         the circulatory disorder manifested itself.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant's physical condition has not changed 
 
         appreciably since 1976, other than for the circulatory disorder 
 
         which is not causally connected to the injuries for which 
 
         compensation has been awarded.
 
         
 
              2.  During the years 1980, 1981, and 1982, claimant engaged 
 
         in self-employed business activities from which he experienced 
 
         net profits totalling in excess of $65,000.
 
         
 
              3.  Those earnings were obtained in a unique, specialized 
 
         situation which permitted claimant to make use of his knowledge 
 
         and expertise in the field of automotive transmissions without 
 
         performing the full range of physical activities normally 
 
         conducted by individuals who engage in the occupation of 
 
         automotive transmission mechanics.
 
         
 
              4.  Jim D. Asay, considering only the condition of his upper 
 
         extremities, and excluding all disability related to his 
 
         circulatory disorder, is not regularly, stably employable in any 
 
         well-recognized branch of the competitive labor market in the 
 
         geographic area in and surrounding Davenport, Iowa.  Asay is not 
 
         physically capable of generating sufficient earning capacity to 
 
         be self-supporting.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  The Second Injury Fund has failed to prove, by a 
 
         preponderance of the evidence, that there has been any 
 
         substantial change in claimant's condition or circumstances that 
 
         occurred subsequent to 1976 which reduced his degree of 
 
         industrial disability from that which existed in 1976.
 
         
 
              2.  The evidence concerning the circumstances in which 
 
         claimant's earnings in 1980, 1981 and 1982 were obtained rebuts 
 
         the presumption of earning capacity which would normally result 
 
         from those earnings.
 
         
 
              3.  Jim D. Asay is permanently and totally disabled under 
 
         the provisions of Code section 85.34(3) and has been so disabled 
 
         continuously since 1976.
 

 
         
 
         
 
         
 
         ASAY V. INDUSTRIAL ENGINEERING EQUIPMENT CO.
 
         Page  10
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that the Second Injury Fund of Iowa 
 
         continue to pay claimant ninety-one and 00/100 dollars ($91.00) 
 
         per week as compensation for permanent total disability without 
 
         interruption from March 27, 1979.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the Second Injury Fund of Iowa.
 
         
 
              Signed and filed this 10th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL  G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Seymore Raben
 
         Attorney at Law
 
         306 Northwest Bank Building
 
         101 West Second Street
 
         Davenport, Iowa  52801
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         GARY TEEL,
 
         
 
              Claimant,
 
         
 
         vs.                                         File No. 411444
 
         
 
         HAROLD R. McCORD,                           D E C I S I 0 N
 
         
 
              Employer,                                    0 N
 
         
 
         and                                           R E M A N D
 
         
 
         FARM BUREAU MUTUAL
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This case has been remanded by a district court decision 
 
         filed October 23, 1985.  The district court remanded this case:
 
         
 
              ...for a determination of the interest award at the 
 
              rate of 10% on all weekly benefits due to the claimant 
 
              commencing with the first week of permanent partial 
 
              disability which was due at the termination of the 
 
              initial healing period on May 7, 1974 and on all weekly 
 
              compensation for permanent partial disability due each 
 
              week thereafter except for those times during which he 
 
              was paid healing period benefits, until the full 150 
 
              weeks of compensation had been paid. (Pages 5-6).
 
         
 
              The district court decision was subsequently affirmed by the 
 
         supreme court.  The supreme court sets out a brief procedural 
 
         history of this case at the beginning of its decision:
 
         
 
                 Gary Teel, a truck driver employed by Harold R. 
 
              McCord, was severely burned while refueling a truck on 
 
              February 4, 1974.  Pursuant to a memorandum of 
 
              agreement, he received weekly healing-period payments 
 
              from his employer until he returned to work on May 7. 
 
              Over a year later, however, Teel underwent surgery to 
 
              alleviate the disability that resulted from his burns, 
 
              and again was unable to work.  He again received weekly 
 
              payments until his return.
 
         
 
                 In 1976 Teel petitioned the industrial commissioner 
 
              to determine the nature and extent of his permanent 
 
              partial disability.  Two years passed, and then Teel 
 
              underwent the first of several more operations.  
 
              Following each one he received weekly payments for the 
 
              varying periods of time he was unable to work.  In 
 

 
              1980, after the last operation, the extent of his 
 
              disability finally became known.  He returned to work 
 
              for good on February 14, 1981.
 
         
 
                 In 1982 a hearing was held on the petition he filed 
 
              in 1976.  On September 30 a deputy industrial 
 
              commissioner awarded him 150 weeks of compensation for 
 
              a permanent partial disability, with interest.  The 
 
              employer and his insurer, Farm Bureau Mutual Insurance 
 
              Company, then sought a declaratory judgment on the date 
 
              from which the interest was to accrue.  Another deputy 
 
              industrial commissioner held that it accrued from the 
 
              date of the award: September 30, 1982.  This rule was 
 
              affirmed on appeal to the industrial commissioner.  The 
 
              district court reversed this ruling, however, holding 
 
              that the interest accrued from the date Teel returned 
 
              to work after his injury: May 7, 1974.  The court 
 
              remanded the case to the commissioner.  He was 
 
              instructed to determine the amount of interest due 
 
              Teel, starting with the first week he returned to work, 
 
              and excluding those weeks he received healing-period 
 
              payments.  From this judgment the employer and insurer 
 
              have now appealed.  See generally Iowa Code SS 
 
              17A.20(1985). We affirm. -
 
         
 
         Teel v. McCord, 395 N.W.2d 405, 406 (Iowa 1986).
 
         
 
              The record on remand consists of the review-reopening 
 
         decision and the filings and stipulations of the parties in the 
 
         declaratory proceeding.
 
         
 
         
 
                                      ISSUE
 
         
 
              The issue on remand is the amount of interest due to the 
 
         claimant commencing with the first week of permanent partial 
 
         disability which was due at the termination of the initial 
 
         healing period on May 7, 1974 and on weekly compensation for 
 
         permanent partial disability due each week thereafter, except for 
 
         those times during which he was paid healing period benefits, 
 
         until the full 150 weeks of compensation had been paid.
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              In a December 2, 1983 letter to Deputy Industrial 
 
         Commissioner Moranville which was filed with this agency on 
 
         December 5, 1983, defendants stipulated the following with regard 
 
         to claimant's post-accident work record:  "That the work record 
 
         of the claimant, post-accident, regarding healing period is the 
 
         same as set forth by attorney Cosgrove in his Exhibit "A", 
 
         attachment to his letter dated September 1, 1983, a copy of which 
 
         is attached hereto."
 
         
 
              The exhibit A referred to in this stipulation states:
 
         
 
                WORK RECORD OF THE CLAIMANT - POST-ACCIDENT
 
         
 
                 The employer furnished, at the time of the hearing, 
 
              an exhibit reflecting the amounts of healing period 
 
              benefits from the time of the accident of February 4, 
 
              1974, to February 13, 1981.  There was no claim for any 
 
              healing period benefits after February 13, 1981.  That 
 
              exhibit reflected as follows:
 

 
         
 
         
 
         
 
         TEEL V. HAROLD R. MC CORD
 
         Page   3
 
         
 
         
 
         
 
                   Claimant was unable to work during the following 
 
                   periods and received benefits as shown for each 
 
                   period.  During the interval of time between any 
 
                   period listed here, the claimant was engaged in 
 
                   some sort of employment on a full-time basis.
 
         
 
                   2-4-74 to 5-7-74 ...
 
                   9-24-75 to 11-12-75...
 
                   2-23-78 to 5-14-78...
 
         
 
              The review-reopening decision awarded benefits at the rate 
 
         of $84 per week.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The applicable law is set out in the statement of the case 
 
         portion of this decision.
 
         
 
                                     ANALYSIS
 
         
 
              Using the stipulated periods of post-accident work the 150 
 
         weeks is calculated as follows:
 
         
 
              Times Claimant Worked                      Number of
 
              receiving no healing period                  Weeks  
 
         
 
                    5-7-74 to 9-24-75                      72.286
 
                    11-12-75 to 5-8-77                     77.714
 
                                                 Total    150
 
              The 1987 Guide to Iowa Workers' Compensation Claim Handling 
 
         describes how to compute interest on late payments:
 
         
 
              Three steps are usually necessary to compute the 
 
              interest due on past due weekly benefits.
 
         
 
              In the first step the principal changes from week to 
 
              week, while in the second step, the principal remains 
 
              constant because all payments are accrued.
 
         
 
              Step 1 -- compute the interest while the benefits are 
 
              payable by applying the following instructions to the 
 
              10% interest table on page 141 of this booklet:
 
         
 
              Locate the number of weeks during which the benefits 
 
              are payable in column A.
 
         
 
              Locate the interest multiplier from that line in column 
 
              B.
 
         
 
              Multiply the weekly benefit amount by the interest 
 
              multiplier to determine the interest payable.
 
         
 
              Example:  52 weeks at $200.00 per week
 
                        interest multiplier is 2.55
 
                        $200.00 x 2.55 = $510.00 of interest
 
         
 
         (Guide to Iowa Workers' Compensation Claim Handling 1987, pages 
 
         VI and VII).
 

 
         
 
         
 
         
 
         TEEL V. HAROLD R. MC CORD
 
         Page   4
 
         
 
         
 
         
 
              Applying this step to the facts in this case, the interest 
 
         while the benefits are payable is calculated as follows (the 
 
         number of weeks will be rounded to the next whole number):
 
         
 
              Number of   Rounded    Interest   x   Rate   =  Interest
 
                Weeks               Multiplier                        
 
         
 
               72.286       72        4.9154    x    84    =   $412.89
 
               77.714       78        5.7750    x    84    =    485.10
 
                                                    Total  =    $897.99
 
         
 
              Step 2 -- compute the interest from the end of the period 
 
              during which benefits are payable until the date the 
 
              benefits are actually paid by using the following formula:
 
         
 
              I = P x R x T
 
                 I = interest
 
                 P = principal--total number of weeks/days of
 
                     compensation due multiplied by the compensa-
 
                     tion rate
 
                 R = rate of interest (10%)
 
                 T = time--number of weeks from end of period
 
                     during which benefits are payable until date
 
                     of payment, divided by 52
 
         
 
         (Ibid., page VII).
 
         
 
              The principal is calculated as follows:
 
         
 
              Number of     x     Rate     Principal
 
                Weeks                               
 
         
 
               72.286       x      84      $ 6,072.02
 
               77.714       x      84        6,527.98
 
         Total 150          x      84       12,6000.00
 
         
 
         The principal ($12,600) was  paid by  defendants on March 29, 
 
         1983.  The interest after the benefits are due through March 29, 
 
         1983 is calculated as follows:
 
         
 
              Principal    x   Interest   x   Time    =   Interest
 
                                Rate        in years              
 
         
 
              6,072.02     x     .10      x  392/52      $4,577.37
 
              6,527.98     x     .10      x  307.429/52   3,860.19
 
                                                 Total   $8,437.56
 
         
 
         Step 3 -- add the two types of interest together.
 
         
 
         (Ibid., page VII).
 
         
 
         The amount of interest that was due on March 29, 1983 is $897.98 
 
         + $8,437.56 = $9,335.54. Defendants owe this amount plus interest 
 
         at the rate of 10 percent per year until it is ultimately paid.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
         
 
         
 
         TEEL V. HAROLD R. MC CORD
 
         Page   5
 
         
 
         
 
              1.  Claimant's rate of compensation is $84 per week.
 
         
 
              2.  Claimant was awarded 150 weeks of permanent partial 
 
         disability benefits in the review-reopening decision filed 
 
         September 30, 1982.
 
         
 
              3.  Claimant worked from May 7, 1974 through September 24, 
 
         1975 and was not paid permanent partial disability benefits for 
 
         this period until March 29, 1983.
 
         
 
              4.  Claimant worked from November 12, 1975 through May 8, 
 
         1977 and was not paid permanent partial disability benefits for 
 
         this period until March 29, 1983.
 
         
 
              5.  On March 29, 1983, claimant was paid $12,600 for the 15 
 
         
 
         weeks of permanent partial disability he was awarded.
 
         
 
              6.  On March 29, 1983, $9,335.54 in interest had accrued on 
 
         the 150 weeks of permanent partial disability awarded in the 
 
         review-reopening decision.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Defendants owed claimant $9,335.54 in interest on March 29, 
 
         1983 for the 150 weeks of permanent partial disability benefits 
 
         awarded to claimant.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant nine thousand three hundred 
 
         thirty-five and 54/100 dollars ($9,335.54) plus interest at the 
 
         rate of ten percent (10%) per year from March 29, 1983 until it 
 
         is ultimately paid.
 
         
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
                                            
 
                                                 
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joe Cosgrove
 
         Attorney at Law
 
         813 Frances Building
 
         Sioux City, Iowa 51101
 
         
 

 
         
 
         
 
         
 
         TEEL V. HAROLD R. MC CORD
 
         Page   6
 
         
 
         
 
         Mr. Robert Laubenthal
 
         Mr. Curtis Hewett
 
         Attorneys at Law
 
         370 Midlands Mall
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                3800
 
                                                Filed February 22, 1988
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY TEEL,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 411444
 
         
 
         HAROLD R. McCORD,                              D E C I S I 0 N
 
         
 
              Employer,                                       0 N
 
         
 
         and                                              R E M A N D
 
         
 
         FARM BUREAU MUTUAL
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         3800
 
         
 
              The issue in this remand was the amount of interest due the 
 
         claimant commencing with the first week of permanent partial 
 
         disability which was due at the termination of the initial 
 
         healing period and on weekly compensation for permanent partial 
 
         disability due each week thereafter, except for those times 
 
         during which he was paid healing period benefits until the full 
 
         150 weeks of compensation had been paid.  See Teel v. McCord, 395 
 
         N.W.2d 405, 406 (Iowa 1986).
 
         
 
              The 1987 Guide to Iowa Workers' Compensation Claim Handling 
 
         describes how to compute interest on late payments.
 
 
 
         
 
         
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDDIE WILLARD RICE, (DEC)     :
 
            ANDREA C. RICE, Spouse,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 422180
 
            BITUCOTE PRODUCTS COMPANY,    :
 
                                          :     C O M M U T A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding for a partial commutation brought 
 
            by Andrea C. Rice, widow of Eddie Willard Rice deceased 
 
            (claimant) commenced with the filing of a petition on June 
 
            22, 1990 against Bitucote Products Company (Bitucote), 
 
            employer and Aetna Insurance Company (Aetna),(collectively 
 
            defendants) Bitucote's insurer for worker's compensation 
 
            benefits.  Eddie Willard Rice died as a result of a work 
 
            related injury on September 25, 1974.  On February 5, 1991, 
 
            the matter came on for hearing in Des Moines, Iowa.  The 
 
            parties appeared as follows:  the claimant in person and by 
 
            her counsel Jeffrey G. Flagg of Des Moines, Iowa and 
 
            Bitucote and Aetna by their counsel Charles E. Cutler of Des 
 
            Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant.
 
            
 
                 2.  Joint exhibits 1-10.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 An employer-employee relationship existed between 
 
            claimant and employer at the time of Eddie Willard Rice's 
 
            death.
 
            
 
                 Eddie Willard Rice died on September 25, 1974 from an 
 
            injury which arose out of and in the course of employment.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The death caused a temporary disability 
 
            
 
                 The death caused a permanent disability.
 
            
 
                 The rate of compensation, in the event of an award, is 
 
            $87.96.  At the time of Eddie Willard Rice's death he was 
 
            married and entitled to 5 exemptions.
 
            
 
            Issues
 
 
 
                 The only issue for resolution is as follows:
 
            
 
                 1.  Whether claimant is entitled to a partial 
 
            commutation of her remaining benefits.
 
            
 
                                      facts
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  Eddie Willard Rice died on September 25, 1974 while 
 
            working.  At the time of his death, Andrea C. Rice was 
 
            28.994 years old.  Mrs. Rice was born on November 2, 1945.  
 
            Since the sixth anniversary of Eddie Willard Rice's death to 
 
            the date of this decision, 10.71 years have passed.
 
            
 
                 2.  At the time of the hearing, Mrs. Rice was 45.41 
 
            years of age.  She is employed by Marriott Hotel as a 
 
            housekeeper.  She earns approximately $5.15 per hour.  At 
 
            the time of the hearing she was working on a reduced work 
 
            week of 32 hours per week.  Her hours should have increased 
 
            to 40 hours per week toward the end of February 1991.
 
            
 
                 3.  Prior to claimant's first commutation request, 
 
            claimant was paid $87.96 per week.  Sometime before 1986 
 
            claimant received a partial commutation of 103 weeks.  This 
 
            commuted amount is contained in the agency records and is 
 
            judicially noticed for purposes of this decision.  The 
 
            second partial commutation was in 1986.  Claimant was 
 
            awarded 69 weeks of benefits.  Claimant used the proceeds 
 
            from that commutation to buy a car and assist her mother.  
 
            The award amount in dollars was approximately $6,000.
 
            
 
                 4.  The third partial commutation occurred in 1989.  
 
            Claimant received a partial commutation in the amount of 41 
 
            weeks or approximately $3,000.  Claimant again purchased a 
 
            car and repaid some indebtedness.  Currently, the car is not 
 
            working and claimant has acquired new indebtedness.
 
            
 
                 5.  Claimant has received 818.286 weeks of weekly 
 
            benefit payments to the date of the filing of the partial 
 
            commutation petition.  Claimant was paid $2,752.27 shortly 
 
            after the hearing on February 5, 1991 was completed.  This 
 
            totals 31.29 weeks of benefits.  Claimant has received 
 
            849.576 weeks of compensation benefits.(1)  For purposes of 
 
            this partial commutation request, claimant is entitled to a 
 
            gross benefit amount equal to 1404.99 weeks based on the 
 
            table in rule 343 IAC 6.3(3).(2)
 
            
 
            (1)
 
            .  Since claimant's last commutation was for 41 weeks, 
 
            weekly payments should have resumed, on approximately August 
 
            1, 1990.  This presumption is based on an October 18, 1989 
 
            approval date for the last commutation.  However, at the 
 
            time of the hearing, the implication given by questions 
 
            directed to claimant suggested that payments had not 
 
            resumed.  Aetna subsequently made a lump sum payment shortly 
 
            after the hearing in this matter and paid claimant 31.29 
 
            weeks of benefits.  However, since the true nature of this 
 
            payment is unknown and this writer has no way to discern 
 
            from agency records the exact number of weeks that have been 
 
            paid in this matter, for the purposes of this decision, the 
 
            paid weeks on the claimant's petition and the additional 
 
            amount paid after the hearing will be used to calculate 
 
            claimant's net award of weekly benefits available for 
 
            commutation.
 
            (2).  Since claimant is making her request for a partial 
 
            commutation 16 years after the death of her spouse, the 
 
            appropriate column to use is Column F.  See Rule 343 IAC 
 
            6.3(3).  According to the regulation, claimant's remaining 
 
            weekly benefits are determined by finding claimant's age in 
 
            the table at the time of decedent's death and then adding 
 
            the number of years from the sixth anniversary of the 
 
            decedent's death to the date of the award of the partial 
 
            commutation and moving down Column F one line for each year 
 
            to find the gross number of weeks the claimant would be 
 
            entitled to commute.  In this case, the number of years from 
 
            the sixth anniversary of the death of Eddie Willard Rice 
 
            (September 25, 1980) to the date of the award (May 30, 1991) 
 
            is 10.71 years.  Counting 10 lines down from the number of 
 
            weeks in Column F for a person aged 28, claimant is entitled 
 
            to commute 1,404.99 weeks of benefits
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 6.  Claimant is requesting a net partial commutation of 
 
            $45,000 in order to purchase a house and a car.  Claimant 
 
            believes that she can purchase a car for $10,000 to $12,000 
 
            and a house for $30,000.  The amount claimant intends to 
 
            spend apparently does not contemplate an award of attorney 
 
            fees from the commuted amount since claimant intends to use 
 
            the entire amount for the proposed purchases.
 
            
 
                                conclusions of law
 
            
 
                 The only issue for resolution is whether claimant is 
 
            entitled to a partial commutation of some of the remaining 
 
            benefits she is entitled to as a result of her husband's 
 
            death.  
 
            
 
                 Iowa Code section 85.45 governs commutations.  This 
 
            section provides in pertinent part that future payments of 
 
            compensation may be commuted to a present worth lump sum 
 
            payment if the claimant is able to meet the following 
 
            conditions:
 
            
 
                 a.  The period during which compensation is payable can 
 
                 be definitely determined.
 
            
 
                 b.  The commutation is in the best interest of the 
 
                 claimant.
 
            
 
                 c.  In the case of a surviving spouse, future benefits 
 
                 that may be commuted shall not exceed the number of 
 
                 weeks which shall be indicated by probability tables 
 
                 designated by the industrial commissioner.  
 
            
 
                 Each time a claimant seeks a partial commutation, the 
 
            life expectancy and remarriage table is consulted anew.  
 
            Claimant's life expectancy and remarriage potential is not 
 
            static.  There is no concept of total entitlement for a 
 
            surviving spouse collecting death benefits because, 
 
            presumably the survivor will be entitled to a weekly amount 
 
            until death.  See Iowa Code section 85.31(1991).  A total 
 
            entitlement concept is limited to the times when the 
 
            survivor wants to commute the remaining actuarial value of 
 
            benefits based upon the statistical likelihood of death or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            remarriage.  
 
            
 
                 Moreover, in reviewing the life expectancy and 
 
            remarriage table in the regulations, there is no total 
 
            weekly entitlement that equals 1670.03 weeks.  Consequently, 
 
            since this value is not a legal value it will be disregarded 
 
            for purposes of this decision.  See e.g. Piippo v. Kellum, 
 
            File No. 861388, Slip op. at 1 (Iowa Ind. Comm'r Arb. 
 
            December 5, 1990) (Where parties stipulated to a rate, the 
 
            rate was disregarded because it was nonexistent).
 
            
 
                 In this instance, based upon the information contained 
 
            in the life expectancy and remarriage table, claimant is 
 
            entitled to a gross benefit amount of 1404.99 weeks of 
 
            benefits.  849.576 weeks of benefits have been paid.  
 
            Claimant has a remainder of 555.414 weeks of benefits to 
 
            commute.  If claimant was seeking a full commutation, 
 
            claimant would be entitled to receive $29,991.84 (340.9713 x 
 
            $87.96 = $29,991.83554).  In order for claimant to reach a 
 
            net commuted value of $45,000.00, claimant would have to 
 
            commute 2,148 weeks (511.6101 x $87.96 = $45,001.22).  Since 
 
            these amounts exceed the number of weeks that claimant has 
 
            remaining, the partial commutation cannot be approved.  See, 
 
            Zuetlau v. M.& J.R. Hakes, 34 Biennial Report, Iowa 
 
            Industrial Commissioner 351 (1979) (Failure to properly 
 
            calculate award is a ground for denial of approval).
 
            
 
                 The question of whether claimant should receive a 
 
            partial commutation based on the standards set forth in 
 
            Dameron v. Neumann Bros., Inc., 339 N.W.2d 160, 164 (Iowa 
 
            1983); Diamond v. Parsons Co., 129 N.W.2d 608, 616-17 (Iowa 
 
            1964), will not be addressed since the award claimant seeks 
 
            is beyond the scope of her entitlement.  
 
            
 
                                      Order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  That claimant, Andrea C. Rice petition for approval 
 
            of a partial commutation is denied.
 
            
 
                 2.  The costs of this action shall be assessed to 
 
            Andrea C. Rice.
 
            
 
                 3.  Bitucote and Aetna shall file claim activity 
 
            reports as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jeffrey G Flagg
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            2716 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
            Mr Charles E Cutler
 
            Attorney at Law
 
            729 Ins Exchange Bldg
 
            Des Moines Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-3303
 
                      Filed May 30, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            EDDIE WILLARD RICE, (DEC),    :
 
            ANDREA C. RICE, Spouse,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 422180
 
            BITUCOTE PRODUCTS COMPANY,    :
 
                      :    C O M M U T A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            AETNA INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-3303
 
            Partial commutation was denied.  Claimant miscalculated the 
 
            number of remaining weeks that she had available to commute.  
 
            See, Zuetlau v. M. & J.R. Hakes, 34 Biennial Reprot, Iowa 
 
            Industrial Commissioner 351 (1979).