BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD WEBB, JR.,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 474988
 
            LOVEJOY CONSTRUCTION COMPANY, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            BITUMINOUS CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This appeal is from a remand decision on the proper 
 
            amount to be approved as attorney's fees for claimant's 
 
            prior attorney, Arvid Oliver.  The record shows that a prior 
 
            appeal decision determined that Mr. Oliver was entitled to 
 
            an attorney's fee of one-third of the healing period and 
 
            one-third of 25 percent industrial disability benefits he 
 
            obtained for claimant.  That appeal decision remanded the 
 
            case to a deputy industrial commissioner to determine to 
 
            what extent, if any, Mr. Oliver was entitled to an 
 
            attorney's fee on another 70 percent industrial disability 
 
            claimant received as part of a commutation.  Claimant was 
 
            represented on the commutation proceedings by Channing 
 
            Dutton.
 
            
 
                                      ISSUE
 
            
 
                 It is not necessary to re-determine the matters and 
 
            issues set out in the prior appeal decision dated September 
 
            25, 1990.  The sole issue in this appeal is the extent of 
 
            attorney's fees Mr. Oliver is entitled to receive from the 
 
            70 percent additional industrial disability claimant 
 
            received as part of the commutation settlement.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed February 14, 1991 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.
 
            
 
                 *****
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 It is undisputed that claimant had a one-third attorney 
 
            fee agreement with Attorney Arvid Oliver in claimant's 
 
            initial dealings with Oliver in attempting to get workers' 
 
            compensation benefits.  There is no issue as to whether 
 
            there was a one-third attorney fee arrangement or not.  That 
 
            matter has been decided and has already been found that 
 
            there was an existence of a fee to which Mr. Oliver was 
 
            entitled to for services rendered in his workers' 
 
            compensation dealings with claimant and is entitled to that 
 
            one-third as to any benefits claimant would receive which 
 
            resulted from Oliver's work product and services.  There is 
 
            obvious acrimonious feelings between the claimant and Oliver 
 
            which resulted from the attorney fee dispute.
 
            
 
                 The initial dispute basically arose when workers' 
 
            compensation benefits were ultimately being received from 
 
            defendants as a result of considerable work and ultimate 
 
            successful appeals obtained by Mr. Oliver on behalf of 
 
            claimant.  No one, including the attorneys or the claimant, 
 
            had received certain benefits or fees for a considerable 
 
            period of time during the litigation including appeals.  
 
            When it came time to distribute the proceeds, Oliver thought 
 
            he had a 50 percent attorney fee agreement whereas the 
 
            claimant thought he had only one-third.  Oliver ultimately 
 
            agreed to take one-third.  The evidence indicates that 
 
            claimant was not then satisfied with paying Mr. Oliver 
 
            one-third of those proceeds being received and anticipated 
 
            to be received and that resulted in the litigation in which 
 
            there was a hearing on December 16, 1988, which resulted in 
 
            an attorney fee decision ***** on January 23, 1989.
 
            
 
                 Claimant sought the services of Attorney Gordon 
 
            Darling, who spent considerable time reviewing all the 
 
            workers' compensation matters and performing services for 
 
            the claimant in the attorney fee dispute.  Mr. Darling was 
 
            the attorney of record when the matter came before the 
 
            [deputy] ***** on December 16, 1988, at which time the 
 
            claimant was challenging the payment of one-third attorney 
 
            fee to Mr. Oliver.  Mr. Darling is not knowledgeable in the 
 
            area of workers' compensation and ultimately contacted 
 
            Channing Dutton, an attorney in Des Moines, to become 
 
            involved in this matter.  Mr. Darling and Mr. Dutton both 
 
            testified that they advised the claimant that Oliver would 
 
            not be entitled to any
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            more attorney fees on any more money that might be received 
 
            in the future after Oliver received his one-third fee on all 
 
            those funds received as a result of Oliver winning the court 
 
            of appeals case concerning the healing period.  The healing 
 
            period benefits were being terminated pursuant to an Auxier 
 
            notice that had been given by defendant insurance company 
 
            shortly before the December 16, 1988 hearing.  The attorneys 
 
            point to claimant's Exhibit D, which is a transcript of the 
 
            cross-examination of Attorney Oliver, at the December 16, 
 
            1988 hearing.  It is obvious both attorneys have 
 
            misinterpreted Mr. Oliver's December 16, 1988 testimony.  
 
            Their testimony and attempt to interpret Mr. Oliver's 
 
            testimony is immaterial and begs the question because the 
 
            undersigned has already held in his January 23, 1989 
 
            decision, which considered all the evidence including the 
 
            contents of the transcript referred to, that Oliver is 
 
            entitled to a one-third attorney fee on all those proceeds 
 
            received as a result of his work product in obtaining 
 
            benefits and successful decisions on behalf of claimant.  
 
            That decision is no longer appealable and is established 
 
            fact.
 
            
 
                 *****
 
            
 
                 Russ Hemmingson, an employee with the Bituminous 
 
            Insurance Company which was a defendant in this original 
 
            action, testified that he had been negotiating with Mr. 
 
            Oliver on behalf of claimant in 1986 and that negotiations 
 
            apparently discontinued when the claimant was desiring 
 
            around $225,000 in settlement.  He remembered being called 
 
            by Attorney Channing Dutton sometime prior to June 13, 1989, 
 
            concerning settlement of the case.  He then related his 
 
            complete surprise when shortly thereafter he received notice 
 
            that claimant had filed a review-reopening on June 13, 1989, 
 
            asking to reopen this case.  Mr. Hemmingson did not know the 
 
            purpose of this filing because they had been talking about 
 
            settling and that there was no need to file a review-
 
            reopening.
 
            
 
                 It is obvious from the record that there was no need to 
 
            file a review-reopening at that point in time as there was 
 
            more than two years left before there would be a statute of 
 
            limitations problem.  Mr. Dutton emphasized the importance 
 
            of the filing of the review-reopening in June 1989 as 
 
            triggering a new event in which Mr. Oliver under no 
 
            circumstances would be entitled to any fees regarding any 
 
            benefits claimant would receive after that date. ***** Mr. 
 
            Dutton felt that event nullified any effect the January 23, 
 
            1989 decision had on giving Oliver additional fees toward 
 
            benefits claimant would receive as the result of Oliver's 
 
            work product and services.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            ***** Claimant's Exhibit H, which is the attorney fee 
 
            agreement Mr. Dutton had with claimant, calls for a 
 
            one-third attorney fee or 40 percent after notice of appeal 
 
            is filed to district court.  Paragraph 9 provides that for 
 
            the first 60 days, which would end July 10, 1989, Mr. Dutton 
 
            would be working on an hourly basis at $175 per hour and 
 
            after which time the contingent fee would be triggered.
 
            
 
                 Claimant's Exhibit I indicates the settlement and 
 
            petition for commutation was signed by claimant and Mr. 
 
            Dutton on July 10, 1989.  It is obvious that claimant's 
 
            personal evaluation of the case substantially declined from 
 
            his original $225,000 request with the ultimate settlement 
 
            of $106,200.  *****
 
            
 
                 The record indicates that on March 12, 1984, it was 
 
            ruled that claimant was entitled to a healing period 
 
            beginning November 20, 1981 and was to continue until he 
 
            reached a maximum recovery period.  On November 20, 1985, a 
 
            court of appeals decision affirmed the district court, which 
 
            affirmed the previous referred-to industrial commissioner's 
 
            decision awarding medical care and a running healing period 
 
            award.  All of these successful appeals were performed by 
 
            Mr. Oliver.
 
            
 
                 At the time of the December 16, 1988 hearing, claimant 
 
            was still receiving the healing period benefits that had 
 
            been running all those years.  It is true that just prior to 
 
            the December 16, 1988 hearing, claimant had received an 
 
            Auxier notice from the insurance company indicating that 
 
            benefits would cease 30 days from that date, namely, 
 
            December 23, 1988, approximately seven days after the 
 
            hearing.
 
            
 
                 It is obvious from the record it was just a matter of 
 
            how much claimant would be entitled to as far as permanent 
 
            partial disability benefits.  Mr. Oliver had disposed of 
 
            many of the key ingredients and issues and through his 
 
            arduous and persistent work he won several appeals over the 
 
            years.  Defendants had been beaten at every step and they 
 
            seemed to be appealing literally every decision.
 
            
 
                 One of the key criteria in determining industrial 
 
            disability is the extent of the healing period.  In this 
 
            case, Oliver obtained seven plus years running of a healing 
 
            period.  That is a substantial period of time.  Considering 
 
            this agency's experience and expertise, the record, and the 
 
            testimony of the claimant, this would be a substantial 
 
            factor in contending that claimant was permanently totally 
 
            disabled which would in such case entitle the claimant to 
 
            benefits for the rest of his life unless there was a change 
 
            of circumstances.  Claimant's Exhibit I indicates that the 
 
            commutation was settled on a 95 percent of the whole
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            body which resulted in 475 weeks of permanent partial 
 
            disability benefits.  Claimant had received 480.714 weeks of 
 
            healing period benefits.  Claimant seemed to discount this.  
 
            Claimant's parade of attorney witnesses obviously steered 
 
            clear of this important factor.  It appeared that the 
 
            review-reopening was filed, when it was, as a tactical and 
 
            strategic move by claimant as a factor in dealing with the 
 
            attorney fee dispute as it gained no tactical benefit at the 
 
            time it was filed as to the ultimate settlement.  The 
 
            attorney filing that review-reopening was Mr. Dutton, who 
 
            later, shortly before this recent hearing, withdrew from the 
 
            case and became one of claimant's key witnesses.
 
            
 
                 Steve Ort testified on behalf of claimant.  He 
 
            basically concluded that Mr. Oliver is not entitled to any 
 
            more attorney fees than he has already received.  [At the 
 
            time of hearing Mr. Ort was] ***** an attorney in the 
 
            workers' compensation division of Employers Mutual Insurance 
 
            Company and had been in that position for the last 
 
            approximate three and one-half years.  It appears he was 
 
            called as an expert on the issues in this matter of which he 
 
            has very limited experience.  Prior to ***** [that] job he 
 
            was a deputy industrial commissioner for three and one-half 
 
            years and then the previous five years was in private 
 
            practice which involved 50 percent criminal work.  There was 
 
            no indication he was familiar with workers' compensation as 
 
            to the remaining part of his private practice.  It was clear 
 
            that he had little personal experience with contingent fee 
 
            agreements and the payment of overhead.  It would appear he 
 
            was brought in as a witness because of his limited 
 
            experience as a deputy industrial commissioner.
 
            
 
                 *****
 
            
 
                 [The record clearly shows that it was Mr. Oliver's 
 
            efforts on claimant's behalf that resulted in a 
 
            determination that claimant was an employee of defendant; 
 
            that claimant had suffered an injury; that claimant's injury 
 
            arose out of and was in the course of his employment; that 
 
            claimant's condition was causally connected to his injury; 
 
            the rate of compensation; and the extent of claimant's 
 
            disability at that time.  This case was strenuously 
 
            contested by defendants, and Mr. Oliver was required to 
 
            represent claimant in numerous appeals.  Mr. Oliver was 
 
            successful in each of these appeals.  
 
            
 
                 Thus, at the time of claimant's discharge of Mr. 
 
            Oliver, Mr. Oliver had obtained for claimant a determination 
 
            of a compensable injury and a 25 percent industrial 
 
            disability award.  Claimant's new counsel was able to obtain 
 
            for claimant an increase in the award from 25 percent to 95 
 
            percent industrial disability, and a change in the method of 
 
            payment from weekly benefits to a lump sum distribution.]
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Mr. Oliver's entitlement to his contingency fee 
 
            survived his discharge as claimant's attorney.  To rule 
 
            otherwise would make contingent fees worthless, as a 
 
            claimant could easily discharge his attorney after obtaining 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            an award the attorney's efforts had obtained for him without 
 
            paying for the legal services the claimant benefitted from.  
 
            
 
                 If the award that was the subject of the commutation 
 
            had remained 25 percent industrial disability, clearly Mr. 
 
            Oliver would be entitled to one-third of the commuted 
 
            amount.  Mr. Oliver is in fact entitled to one-third of the 
 
            portion of the commuted amount representing the 25 percent 
 
            industrial disability Mr. Oliver obtained for claimant and 
 
            the healing period awarded.  However, Mr. Oliver's services 
 
            alone did not obtain for claimant the additional 70 percent 
 
            forming the remainder of the commuted amount.  Mr. Dutton's 
 
            efforts obtained those benefits for claimant, and he is 
 
            entitled to be compensated for his services pursuant to the 
 
            fee agreement between claimant and Mr. Dutton.  That amount 
 
            is $1,915. 
 
            
 
                 Mr. Oliver is entitled to a fee for some portion of the 
 
            70 percent increase in benefits claimant obtained, as it was 
 
            Mr. Oliver's efforts on claimant's behalf that resulted in 
 
            the determination of compensability.  Mr. Oliver proved all 
 
            of the elements of the underlying case, but was not involved 
 
            in the establishment of the increase in the extent of 
 
            disability.  For the purposes of this case, it is determined 
 
            that Mr. Oliver's efforts on claimant's behalf in 
 
            establishing a compensable injury entitle him to 80 percent 
 
            of the increase in the industrial disability award.  
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That Attorney Arvid Oliver is entitled to an attorney's 
 
            fee of one-third of that portion of claimant's commutation 
 
            award representing 25 percent industrial disability, and 
 
            one-third of any healing period benefits awarded.
 
            
 
                 That Attorney Arvid Oliver is entitled to an attorney's 
 
            fee of one-third of 80 percent of the remaining 70 percent 
 
            of claimant's commutation award.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            That the costs of the appeal and the attorney fee dispute 
 
            are assessed to claimant.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph G. Bertogli
 
            Attorney at Law
 
            The Plaza, Suite 270
 
            300 Walnut
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Arvid D. Oliver
 
            Attorney at Law
 
            2635 Hubbell Avenue
 
            Des Moines, Iowa 50317
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                            1000
 
                                            Filed November 19, 1992
 
                                            Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD WEBB, JR.,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 474988
 
            LOVEJOY CONSTRUCTION COMPANY, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            BITUMINOUS CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1000
 
            In an attorney fee decision, claimant's first attorney was 
 
            awarded 33 percent of a 25 percent award of industrial 
 
            disability the attorney had obtained for claimant after 
 
            numerous successful appeals.  Claimant later retained 
 
            another attorney, who obtained a commutation of a 95 percent 
 
            industrial disability.  Claimant's first attorney was 
 
            awarded as a fee 33% of 80% of the increase in the award 
 
            (from 25 percent to 95 percent).  It was determined that the 
 
            first attorney's efforts on claimant's behalf had 
 
            established an injury arising out of and in the course of 
 
            the employment, causal connection, etc., and that this 
 
            constituted 80 percent of the later commutation settlement. 
 
            In rehearing, it was clarified that the 33 percent of the 
 
            increase did not apply to that portion of the commuted award 
 
            designated for future medical benefits, and that the first 
 
            attorney was not entitled to interest on the fee, citing 
 
            Toalson v. Purolator Courier Corp., Decision on Attorney 
 
            Fees, Feb. 27, 1989 (#808332).
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD WEBB, JR.,
 
         
 
              Claimant,                           File No. 474988
 
         
 
         VS.
 
                                                A T T 0 R N E Y
 
          LOVEJOY CONSTRUCTION COMPANY,
 
                                                    F E E
 
               Employer,
 
                                                D E C I S I 0 N
 
          and
 
          
 
          BITUMINOUS CASUALTY COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding on an application for determination of 
 
         attorney fees brought by Arvid D. Oliver, Attorney, asking the 
 
         industrial commissioner to determine the amount of attorney fees 
 
         due said attorney for representation of the claimant in prior 
 
         matters brought before the industrial commissioner.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commission in Des Moines, Iowa, on December 16, 1988.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         the claimant, the attorney, Arvid D. Oliver, and claimant's 
 
         exhibits 1 through 4; and applicant-attorney's exhibits A, B and 
 
         C.
 
         
 
              Hereafter in this decision, the claimant will continue to be 
 
         referred to as claimant, but the applicant-attorney, Arvid D. 
 
         Oliver, will hereafter be referred to as Oliver.  Where the 
 
         exhibits A, B and C are referred to as defendant's exhibits, on 
 
         the exhibits themselves, defendant is synonymous with applicant 
 
         and said exhibits will hereafter be referred as applicant's 
 
         exhibits A, B and C.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1. Whether Attorney Arvid Oliver is entitled to $6,200.20, 
 
         which is one-third of the compensation claimant has received 
 
         during the period of June 19, 1987 to December 23, 1988; and,
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              2. Whether the $5,580.78 already paid to Arvid Oliver as 
 
         one-third attorney fee for the period of February 15, 1986 
 
         through June 19, 1987 is reasonable.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              On April 11, 1980, the claimant entered into a retainer 
 
         agreement with the law firm of Baird and Bowers to represent the 
 
         claimant in their legal capacity with respect to all matters 
 
         arising from an incident which occurred on or about August 18, 
 
         1977.  The agreement further provided "clients agree to as fees a 
 
         sum equal to 1/3 of any and all sums secured for clients, 
 
         provided however, no fee shall be paid as a result of funds 
 
         collected from client's own 'Hospitalization,' 'Collision,' or 
 
         'Medical Pay' insurance."
 
         
 
              From the signing of the retainer feel contract, this case 
 
         had the following history:
 
         
 
            August 30, 1980              First case tried, decision.
 
         
 
            September 9, 1980            Appealed by Employer to 
 
         Commissioner.
 
         
 
            October 20, 1981             Commissioner's decision filed 
 
         reduced                                      the deputy's award.
 
         
 
            November 20, 1981            Appeal to District Court filed.
 
         
 
            June 21, 1982                Commissioner affirmed by 
 
         District Court                               decision.
 
         
 
            July 27, 1981                Notice of appeal to Supreme 
 
         Court                                        filed.
 
         
 
            August 17, 1982              Appeal dismissed.
 
         
 
            February 2, 1982             Review-reopening filed.  Refused 
 
         to                              provide medical care.
 
         
 
            March 15, 1982               Employer's Motion to Require 
 
                                         change of treating physician.  
 
                                         Deputy decision as to 
 
         examination only.
 
         
 
            October 24, 1983             Review-reopening decision filed.
 
         
 
            March 12, 1984               Appeal to commissioner by 
 
         employer                                     decision filed.  
 
         Employer appealed to                         District court.
 
         
 
         (Applicant's Exhibit A)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 
         Page 3
 
         
 
         
 
              Both parties agreed to the following:
 
         
 
              1.  That the dispute on attorney fees is for services 
 
         rendered beginning February 2, 1982 at the review-reopening in 
 
         which the employer refused to provide medical care.
 
         
 
              2.  That Attorney Oliver has been paid attorney fees through
 
         June 19, 1987.
 
         
 
              3.  The last check out of which Oliver was paid attorney 
 
         fees was for the period of May 19, 1987 to and including June 19, 
 
         1987.  The claimant's check was in the amount of $930.04, 
 
         representing a monthly benefit and Oliver received $310.01 in 
 
         attorney fees.
 
         
 
              4.  That Oliver has been paid for services rendered 
 
         beginning with the review-reopening on February 2, 1982 in the 
 
         following amounts: $20,012.29 on January 29, 1986 (see claimant's 
 
         exhibit 3).  An additional amount of $5,580.18 was paid over a 
 
         period of time February 15, 1986 through June 19, 1987.  This 
 
         total sum of $25,592.47 has been paid from the review-reopening 
 
         on February 2, 1982 through June 19, 1987 representing the 
 
         maximum amount of attorney fees that would be allowable for that 
 
         period of time pursuant to a one-third attorney fee agreement.
 
         
 
              5.  That the $5,580.18 has been paid on a monthly basis by 
 
         the claimant's workers' compensation benefits checks being paid 
 
         into the trust account of Attorney Gordon Darling, Winterset, 
 
         Iowa, who in turn during February 15, 1986 through June 19, 1987, 
 
         would send Attorney Oliver a check in the amount of $310.01, 
 
         representing one-third of a monthly check.  This arrangement was 
 
         made through an agreement between the claimant and his then 
 
         attorney, Mr. Darling, and Oliver.
 
         
 
              6.  That the maximum amount of attorney fees of which 
 
         nothing has been paid is a total of $6,200.20, and would cover 
 
         the period from June 19, 1987 to December 23, 1988, which would 
 
         represent a one-third share ($310.01)of twenty monthly checks.
 
         
 
              7.  That the attorney fee dispute arose in January 1986 when 
 
         Attorney Oliver advised the claimant that a check in the amount 
 
         of $59,106.00 representing workers' compensation benefits to the 
 
         claimant had been received by him and that an additional check 
 
         for $930.04 representing additional workers' compensation 
 
         benefits for the period of December 31, 1985 to January 28, 1986 
 
         was also received.
 
         
 
              8.  That Oliver asserted a claim of entitlement to a fee of 
 
         one-half of all such benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              9.  That this dispute as to Oliver's contention for 50 
 
         percent fee was resolved by Oliver agreeing to the one-third and 
 
         the checks totaling $60,036.04 were deposited into claimant's 
 
         then attorney Gordon Darling's trust account and Oliver was
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 
         Page 4
 
         
 
         
 
         paid his one-third on January 29, 1986 (claimant's exhibit 3).
 
         
 
              10.  That Oliver was continually paid one-third of the 
 
         monthly checks deposited into Attorney Darling's trust account 
 
         for the period of February 15, 1986 through June 19, 1987, in the 
 
         amount of $5,580.18 until Oliver was notified on June 26, 1987 by 
 
         a letter from Attorney Gordon Darling to Oliver which stated the 
 
         following: "Don Webb has asked me to communicate with you, 
 
         advising that he no longer requires your services, and does not 
 
         regard you as representing him in any matters at the present 
 
         time."
 
         
 
              11.  That the June 26, 1987 letter referred to above 
 
         resulted in no additional attorney fees being received by Oliver 
 
         from the monthly checks that claimant continued to receive from 
 
         that date up to the present.
 
         
 
              Oliver testified "without hesitation, hundreds of  hours 
 
         were incurred to satisfy the claimant's goals as to post February 
 
         2, 1982 services." Oliver stated that he believed there had been 
 
         a 50 percent attorney fee arrangement due to the difficulty and 
 
         considerable services rendered in this case and believed the 
 
         claimant had understood this arrangement.  Oliver further 
 
         disclosed that he then agreed to the one-third that had been the 
 
         previous arrangement in order to resolve this matter since the 
 
         claimant apparently had misunderstood the arrangement.
 
         
 
              Oliver emphasized that all expenses incurred in the 
 
         proceeding with claimant's claims were paid by the attorneys and 
 
         nothing came out of the claimant's funds nor was anything charged 
 
         for these expenses to the claimant.
 
         
 
              Claimant testified that he obtained the services of Attorney 
 
         Gordon Darling when the dispute arose between claimant and 
 
         Attorney Oliver over the amount of attorney fees that were to be 
 
         taken from the approximately $60,000 received in January 1986.  
 
         Claimant stated that he had understood the attorney fee 
 
         arrangement was one-third and not 50 percent and did not recall 
 
         any oral agreement increasing the attorney fees from the 
 
         one-third to the 50 percent amount.
 
         
 
              Claimant acknowledged that he asked Attorney Darling to 
 
         write the June 26, 1987 letter (def. ex. B) to Attorney Oliver 
 
         discontinuing any additional services that might be rendered by 
 
         Attorney Oliver.  Claimant revealed that the reason for this 
 
         letter was: "He could no longer afford two attorneys and decided 
 
         to get rid of Mr. Oliver."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 
         Page 5
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 86.39 provides:
 
         
 
                 All fees or claims for legal, medical, hospital, and 
 
              burial services rendered under this chapter and chapters 85, 
 
              85A, 85B, and 87 are subject to the approval of the 
 
              industrial commissioner, and no lien for such service is 
 
              enforceable without the approval of the amount of the lien 
 
              by the industrial commissioner.  For services rendered in 
 
              the district court or appellate court, the attorney's fee is 
 
              subject to the approval of a judge of the court.
 
         
 
              The Rules of Professional Responsibility of the Iowa Code 
 
         provides:
 
         
 
              EC 2-20.  The determination of  the  reasonableness of a fee 
 
              requires consideration of all relevant circumstances, 
 
              including those stated in the disciplinary rules.  The fees 
 
              of a lawyer will vary according to many factors, including 
 
              the time required, his experience, ability, and reputation, 
 
              the nature of the employment, the responsibility involved, 
 
              and the results obtained....
 
              
 
              EC2-21.  As soon as feasible after a lawyer has been 
 
              employed, it is desirable that he reach a clear agreement 
 
              with his client as to the basis of the fee charges to be 
 
              made.  Such a course will not only prevent later 
 
              misunderstanding but will also work for good relations 
 
              between the lawyer and the client. it is usually beneficial 
 
              to reduce to writing the understanding of the parties 
 
              regarding the fee, particularly when it is contingent ....
 
              
 
              EC2-22.  Contingent fee arrangements in civil cases have 
 
              long been commonly accepted in the United States in 
 
              proceedings to enforce claims.  The historical bases of 
 
              their acceptance are that (1) they often, and in a variety 
 
              of circumstances, provide the only practical means by which 
 
              one having a claim against another can economically afford, 
 
              finance, and obtain the services of a competent lawyer to 
 
              prosecute his claim, and (2) a successful prosecution of the 
 
              claim produced a res out of which the fee can be paid.
 
         
 
                        DR2-106.  FEES FOR LEGAL SERVICES
 
         
 
              (A)  A lawyer shall not enter into an agreement for, charge, 
 
              or collect an illegal or clearly excessive fee.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              (B)  A fee is clearly excessive when, after a review of the 
 
              facts, a lawyer of ordinary prudence would be left with a 
 
              definite and firm conviction that the fee is in excess of a 
 
              reasonable fee.  Factors
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 
         Page 6
 
         
 
         
 
              to be considered as guides in determining the reasonableness 
 
              of a fee include the following:
 
              
 
              (1)  The time and labor required, the novelty and difficulty 
 
              of the questions involved, and the skill requisite to 
 
              perform the legal service properly.
 
              
 
              (2)  The likelihood, if apparent to the client, that the 
 
              acceptance of the particular employment will preclude other 
 
              employment by the lawyer.
 
              
 
              (3)  The fee customarily charged in the locality for similar 
 
              legal services.
 
              
 
              (4)  The amount involved and the results obtained.
 
              
 
              (5)  The limitations imposed by the client or by the 
 
              circumstances.
 
              
 
              (6)  The nature and length of the professional relationship 
 
              with the client.
 
              
 
              (7)  The experience, reputation, and ability of the lawyer 
 
              or lawyers performing the services.
 
              
 
              (8)  Whether the fee is fixed or contingent.
 
         
 
              There is no dispute that the parties are operating under or 
 
         are agreeable to the one-third attorney fee on all amounts 
 
         collected as a result of the services performed by Attorney 
 
         Oliver and his partner or associate for work beginning February 
 
         2, 1982 to the present.
 
         
 
              Although there had been a temporary dispute as to Attorney 
 
         Oliver believing there had been an oral agreement of 50 percent 
 
         of those proceeds received or to be received due to the 
 
         complexity and many appeals and the results he was obtaining in 
 
         this matter, this dispute was resolved by the parties when the 
 
         claimant then sought the services of Attorney Darling.  This 
 
         agreement made in January 1986 resulted in one-third attorney 
 
         fees being paid out of funds received on behalf of the claimant 
 
         from that period through June 19, 1987.  Gordon Darling, as 
 
         attorney for the claimant, paid Oliver, through Mr. Darling's 
 
         trust account, one-third of each monthly check received from the 
 
         time of the dispute in January 1986 through June 19, 1987.  This 
 
         fully indicates that this one-third attorney fee arrangement was 
 
         still agreeable and applicable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant disputes owing Oliver his one-third share of any 
 
         benefits received from June 19, 1987 to present, which amounts to 
 
         $6,200.20 through December 23, 1988.  Claimant also contends that 
 
         the $5,580.18 paid from February 15, 1986 through June 19, 1987 
 
         should not be allowed, at least in that amount.
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 
         Page 7
 
         
 
         
 
              There is no testimony of the claimant that he was 
 
         dissatisfied with Oliver's services or that they were not 
 
         necessary.
 
         
 
              It is obvious that claimant decided that he could no longer 
 
         afford two attorneys and decided to do away with the services of 
 
         Attorney Oliver at which time he thought this would do away with 
 
         having to pay Mr. Oliver for any other past services or results 
 
         he obtained for him.  From the record, the proceedings and 
 
         exhibits, it is very clear that Attorney Oliver performed very 
 
         valuable services to this claimant and incurred substantial 
 
         hours.  The one-third attorney fee is a reasonable fee in this 
 
         matter and has been recognized as a reasonable fee when the 
 
         parties agree to.the same in matters of this kind.  A one-third 
 
         fee is even more reasonable when they involve many appeals.  It 
 
         is also common that fees increase when there are appeals due to 
 
         the complexity of additional matters not originally anticipated.
 
         
 
              Mr. Oliver incurred all the expenses and the claimant was 
 
         assessed nothing.  This is unusual as usually expenses are paid 
 
         by the claimant off the top of any proceeds received.  This, in 
 
         fact further reduced Mr. Oliver's one-third contingent fee 
 
         amount.  A contingent fee arrangement in this case was exactly 
 
         what the claimant wanted and what he received.  He obviously was 
 
         not receiving benefits and needed the services of an attorney to 
 
         obtain same.  This latest action involving the attorney fee 
 
         dispute began in February 1982 and the first proceeds weren't 
 
         received until January 1986.  Without the services of Mr. Oliver, 
 
         the claimant would not have been as successful and would not have 
 
         received any benefits.  The employer appealed every decision it 
 
         could to the highest court in this state.  Attorney Oliver was 
 
         successful in every instance.  It is often common that a client 
 
         like claimant forgets the services rendered by his attorney when 
 
         the money does not come in for months or years after the services 
 
         are rendered.  This does not change the law or the entitlement to 
 
         attorney fees by Mr. Oliver.  Mr. Oliver would have liked to have 
 
         had his fees up front for the benefits that have been incurred by 
 
         this claimant over the years.  He has waited like the claimant 
 
         has waited and Mr. Oliver should not be penalized.  In fact, Mr. 
 
         Oliver should be congratulated for his efforts, perseverance and 
 
         the results he obtained for claimant.  Oliver should continue to 
 
         be paid for any benefits claimant obtains which resulted from 
 
         Oliver's efforts and work product.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  There was an attorney fee arrangement between the 
 
         claimant and Oliver for one-third attorney fees be paid on any 
 
         benefits claimant received as a result of services rendered by 
 
         Attorney Oliver resulting from the February 2, 1982 proceedings.
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 
         Page 8
 
         
 
         
 
              2.  That the court of appeals affirmed the district court, 
 
         which affirmed the appeal decision of the industrial 
 
         commissioner, which affirmed the deputy industrial commissioner's 
 
         decision, which resulted in the claimant being awarded healing 
 
         period benefits beginning on November 20, 1981 and continuing 
 
         until he has reached maximum medical recovery at a weekly 
 
         compensation rate of $232.51 and that accrued benefits are 
 
         payable in a lump sum together with statutory interest from 
 
         October 24, 1983.  The decision further provided that the 
 
         defendants were to provide future medical care to this claimant 
 
         and that it is in the best interest of claimant that Jerome G. 
 
         Bashara, M.D., should be in his order to be the claimant's 
 
         attending orthopedic surgeon.
 
         
 
              3.  That Attorney Oliver provided valuable services and that 
 
         the same were reasonable and necessary.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              That Attorney Oliver is entitled to the sum of $6,200.00 in 
 
         attorney fees for the 20 checks received by the claimant in the 
 
         amount of $930.04 each out of which Attorney Oliver is to receive 
 
         $310.01. This represents a period from June 19, 1987 to December 
 
         23, 1988.
 
         
 
              The amount of $5,580.18 already received by by Mr. Oliver as 
 
         attorney fees representing the period of February 15, 1986 to 
 
         June 19, 1987 is approved.
 
         
 
              That the $20,012.29 received by Mr. Oliver on January 29, 
 
         1986 beginning with services rendered with the review-reopening 
 
         on February 2, 1982 to February 15, 1986 is approved.
 
         
 
              That Mr. Oliver should continue to be paid attorney fees on 
 
         any benefits the claimant continues to receive as a result of 
 
         Oliver's services and work product.
 
         
 
                                      ORDER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall pay to Attorney Arvid D. Oliver the sum 
 
         of six thousand two hundred and 20/100 dollars ($6,200.20) for 
 
         attorney fee services rendered.
 
         
 
              That this amount shall be payable by claimant to the 
 
         attorney in a lump sum together with statutory interest from June 
 
         19, 1987.
 
         
 
              Costs provided for Industrial Commissioner Rule 343-4.33 are 
 
         charged to the claimant.
 
         
 
         
 
         
 
         WEBB V. LOVEJOY CONSTRUCTION COMPANY
 
         Page 9
 
         
 
         
 
              Signed and filed this 23rd day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Gordon K. Darling
 
         Attorney at Law
 
         53 Jefferson Blvd.
 
         Winterset, IA 50273
 
         
 
         Mr. Arvid D. Oliver
 
         Attorney at Law
 
         2635 Hubbell Ave
 
         Des Moines, IA 50317
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1000
 
                                         Filed January 23, 1989
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD WEBB, JR.,
 
         
 
              Claimant,                           File No. 474988
 
         
 
         VS.
 
                                                 A T T 0 R N E Y 
 
         LOVEJOY CONSTRUCTION COMPANY,
 
                                                     F E E
 
              Employer,
 
                                                 D E C I S I 0 N 
 
         and
 
         
 
         BITUMINOUS CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                        
 
         1000
 
         
 
              An application was filed for determination of attorney fees 
 
         due claimant's original attorney for services rendered in a 
 
         review-reopening proceeding.
 
         
 
              Claimant and his attorney had a written contingent fee 
 
         agreement for attorney fees to be one-third of the benefits 
 
         collected.
 
         
 
              Claimant paid the one-third attorney fee amount to the 
 
         attorney up to one and one-half years prior to the hearing at 
 
         which time claimant instructed his new attorney to write a letter 
 
         to the original attorney stopping any further attorney fee 
 
         payments from the monthly benefits as claimant received them.  
 
         Claimant contended he now could no longer afford two attorneys, 
 
         therefore, he was dropping former attorney.
 
         
 
              Attorney awarded one-third of the weekly benefits received 
 
         and to be received by claimant as a result of the attorney's 
 
         services rendered and the attorney fee agreement.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD WEBB, JR.,             :      File No. 474988
 
                                          :
 
                 Claimant,                :
 
                                          :        R E M A N D
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            LOVEJOY CONSTRUCTION COMPANY, :
 
                                          :            O N
 
                 Employer,                :
 
                                          :      A T T O R N E Y
 
            and                           :
 
                                          :          F E E S
 
            BITUMINOUS CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on January 16, 1991.  
 
            Claimant had appealed the undersigned's denial of a motion 
 
            for rehearing, which motion was filed by claimant's then 
 
            attorney, Channing L. Dutton and Gordon K. Darling.
 
            
 
                 On September 25, 1990, an appeal decision was rendered 
 
            by Clair R. Cramer, acting industrial commissioner, which 
 
            ordered that "this matter is remanded to a deputy industrial 
 
            commissioner for determination of the entitlement of 
 
            Attorney Arvid Oliver to an attorney's extent of a fee on 
 
            benefits that are the basis of a commutation of July 11, 
 
            1989."  Attorneys Dutton and Darling withdrew as claimant's 
 
            counsel on December 13, 1990.  The record consists of the 
 
            testimony of the claimant, Gordon L. Darling, Channing L. 
 
            Dutton, Steven Ort, Russ Hemmingson, and Arvid Oliver; 
 
            claimant's exhibits A through J; and Attorney Arvid Oliver, 
 
            hereafter referred to Oliver, offered exhibits 1 through 8.
 
            
 
                 On January 23, 1989, the undersigned issued an attorney 
 
            fee decision which concluded among other things that, "Mr. 
 
            Oliver should continued to be paid attorney fees on any 
 
            benefits that claimant continues to receive as a result of 
 
            Oliver's services and work product."
 
            
 
                                      issue
 
            
 
                 The issue in this matter is whether Attorney Oliver, 
 
            who originally had an attorney fee for minimum of one-third, 
 
            is entitled to any additional attorney fees as a result of 
 
            his work product regarding a later commutation of $106,200 
 
            obtained by Attorneys Channing Dutton and Gordon Darling.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The parties requested that the undersigned take 
 
            judicial notice of the claimant's file and agency records 
 
            and the undersigned acknowledged that he would not only take 
 
            judicial notice but offical notice of the claimant's file 
 
            and agency records concerning this total matter.
 
            
 
                 It is undisputed that claimant had a one-third attorney 
 
            fee agreement with Attorney Oliver in the claimant's initial 
 
            dealings with Oliver in attempting to get workers' 
 
            compensation benefits.  There is no issue as to whether 
 
            there was a one-third attorney feel arrangement or not.  
 
            That matter has been decided and has already been found that 
 
            there was an existence of a fee to which Mr. Oliver was 
 
            entitled to for services rendered in his workers' 
 
            compensation dealings with claimant and is entitled to that 
 
            one-third as to any benefits claimant would receive which 
 
            resulted from Oliver's work product and services.  There is 
 
            obvious acrimonious feelings between the claimant and Oliver 
 
            which resulted from the attorney fee dispute.
 
            
 
                 The initial dispute basically arose when workers' 
 
            compensation benefits were ultimately being received from 
 
            defendants as a result of considerable work and ultimate 
 
            successful appeals obtained by Mr. Oliver on behalf of 
 
            claimant.  No one, including the attorneys or the claimant, 
 
            had received certain benefits or fees for a considerable 
 
            period of time during the litigation including appeals.  
 
            When it came time to distribute the proceeds, Oliver thought 
 
            he had a 50 percent attorney fee agreement whereas the 
 
            claimant thought he had only one-third.  Oliver ultimately 
 
            agreed to take one-third.  The evidence indicates that 
 
            claimant was not then satisfied with paying Mr. Oliver 
 
            one-third of those proceeds being received and anticipated 
 
            to be received and that resulted in the litigation in which 
 
            there was a hearing on December 16, 1988, which resulted in 
 
            an attorney fee decision rendered by the undersigned on 
 
            January 23, 1989.
 
            
 
                 Claimant sought the services of Attorney Gordon 
 
            Darling, who spent considerable time reviewing all the 
 
            workers' compensation matters and performing service for the 
 
            claimant in the attorney fee dispute.  Mr. Darling was the 
 
            attorney of record when the matter came before the 
 
            undersigned on December 16, 1988, at which time the claimant 
 
            was challenging the payment of one-third attorney fee to Mr. 
 
            Oliver.  Mr. Darling is not knowledgeable in the area of 
 
            workers' compensation and ultimately contacted Channing 
 
            Dutton, an attorney in Des Moines, to become involved in 
 
            this matter.  Mr. Darling and Mr. Dutton both testified that 
 
            they advised the claimant that Oliver would not be entitled 
 
            to any more attorney fees on any more money that might be 
 
            received in the future after Oliver received his one-third 
 
            fee on all those funds received as a result of Oliver 
 
            winning the court of appeals case concerning the healing 
 
            period.  The healing period benefits were being terminated 
 
            pursuant to an Auxier notice that had been given by 
 
            defendant insurance company shortly before the December 16, 
 
            1988 hearing.  The attorneys point to claimant's Exhibit D, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            which is a transcript of the cross-examination of Attorney 
 
            Oliver, at the December 16, 1988 hearing.  It is obvious 
 
            both attorneys have misinterpreted Mr. Oliver's December 16, 
 
            1988 testimony.  Their testimony and attempt to interpret 
 
            Mr. Oliver's testimony is immaterial and begs the question 
 
            because the undersigned has already held in his January 23, 
 
            1989 decision, which considered all the evidence including 
 
            the contents of the transcript referred to, that Oliver is 
 
            entitled to a one-third attorney fee on all those proceeds 
 
            received as a result of his work product in obtaining 
 
            benefits and successful decisions on behalf of claimant.  
 
            That decision is no longer appealable and is established 
 
            fact.
 
            
 
                 The limited issue we have in this current proceeding is 
 
            whether Mr. Oliver's work product resulted, in any part and 
 
            to what extent, in claimant receiving $106,200 in a 
 
            commutation.  It is readily apparent from the evidence in 
 
            this case and the testimony of the claimant that he didn't 
 
            want to pay Mr. Oliver his entitlement to one-third of the 
 
            attorney fees for the money in dispute at the time of the 
 
            December 16, 1988 hearing.  It is not unusual for a 
 
            claimant, who has a contingent fee arrangement and waits a 
 
            considerable period of time, months or years, to suddenly 
 
            forget either the attorney fee arrangement or conclude that 
 
            a one-third fee is a rather large sum.
 
            
 
                 It is obvious claimant had other plans for the money 
 
            particularly since he waited so long.  It is also obvious 
 
            that Mr. Oliver had substantial time involved.  He didn't 
 
            keep time records.  Keeping time records is not usually done 
 
            in contingent fee cases since the number of hours is not 
 
            important as far as computing the fee.  The attorney was to 
 
            receive a percent and that is what the claimant agreed to.  
 
            There are times when a contingent fee results in a lucrative 
 
            attorney fee compared to an hourly rate but there are often 
 
            times in which a normal hourly rate would have been 
 
            substantially more than the ultimate contingent fee 
 
            received.  Hindsight is always better than foresight.
 
            
 
                 Russ Hemmingson, an employee with the Bituminous 
 
            Insurance Company which was a defendant in this original 
 
            action, testified that he had been negotiating with Mr. 
 
            Oliver on behalf of claimant in 1986 and that negotiations 
 
            apparently discontinued when the claimant was desiring 
 
            around $225,000 in settlement.  He remembered being called 
 
            by Attorney Channing Dutton sometime prior to June 13, 1989, 
 
            concerning settlement of the case.  He then related his 
 
            complete surprise when shortly thereafter he received notice 
 
            that claimant had filed a review-reopening on June 13, 1989, 
 
            asking to reopen this case.  Mr. Hemmingson did not know the 
 
            purpose of this filing because they had been talking about 
 
            settling and that there was no need to file a review-
 
            reopening.
 
            
 
                 It is obvious from the record that there was no need to 
 
            file a review-reopening at that point in time as there was 
 
            more than two years left before there would be a statute of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            limitations problem.  Mr. Dutton emphasized the importance 
 
            of the filing of the review-reopening in June 1989 as 
 
            triggering a new event in which Mr. Oliver under no 
 
            circumstances would be entitled to any fees regarding any 
 
            benefits claimant would receive after that date.  The 
 
            undersigned was left with the impression that that event was 
 
            of the utmost importance in resolving this fee dispute 
 
            against Mr. Oliver.  Mr. Dutton felt that event nullified 
 
            any effect the January 23, 1989 decision had on giving 
 
            Oliver additional fees toward benefits claimant would 
 
            receive as the result of Oliver's work product and services.
 
            
 
                 The undersigned notes that claimant's Exhibit H, which 
 
            is the attorney fee agreement Mr. Dutton had with claimant, 
 
            calls for a one-third attorney fee or 40 percent after 
 
            notice of appeal is filed to district court.  Paragraph 9 
 
            provides that for the first 60 days, which would end July 
 
            10, 1989, Mr. Dutton would be working on an hourly basis at 
 
            $175 per hour and after which time the contingent fee would 
 
            be triggered.
 
            
 
                 Claimant's Exhibit I indicates the settlement and 
 
            petition for commutation was signed by claimant and Mr. 
 
            Dutton on July 10, 1989.  It is obvious that claimant's 
 
            personal evaluation of the case substantially declined from 
 
            his original $225,000 request with the ultimate settlement 
 
            of $106,200.  Claimant, through his witnesses, repeatedly 
 
            attempted to impress the undersigned that whatever work Mr. 
 
            Oliver did, which included winning a court of appeals, 
 
            district court appeal and agency appeal challenging healing 
 
            period benefits on behalf of claimant, was of no benefit 
 
            once the claimant fired Mr. Oliver, and particularly once a 
 
            new action for benefits, in this case a review-reopening, 
 
            was filed.
 
            
 
                 The record indicates that on March 12, 1984, it was 
 
            ruled that claimant was entitled to a healing period 
 
            beginning November 20, 1981 and was to continue until he 
 
            reached a maximum recovery period.  On November 20, 1985, a 
 
            court of appeals decision affirmed the district court, which 
 
            affirmed the previous referred to industrial commissioner's 
 
            decision awarding medical care and a running healing period 
 
            award.  All of these successful appeals was performed by Mr. 
 
            Oliver.
 
            
 
                 At the time of the December 16, 1988 hearing, claimant 
 
            was still receiving the healing period benefits that had 
 
            been running all those years.  It is true that just prior to 
 
            the December 16, 1988 hearing, claimant had received an 
 
            Auxier notice from the insurance company indicating that 
 
            benefits would cease 30 days from that date, namely, 
 
            December 23, 1988, approximately seven days after the 
 
            hearing.
 
            
 
                 It is obvious from the record it was just a matter of 
 
            how much claimant would be entitled to as far as permanent 
 
            partial disability benefits.  Mr. Oliver had disposed of 
 
            many of the key ingredients and issues and through his 
 
            arduous and persistent work he won several appeals over the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            years.  Defendants had been beaten at every step and they 
 
            seemed to be appealing literally every decision.
 
            
 
                 One of the key criteria in determining industrial 
 
            disability is the extent of the healing period.  In this 
 
            case, Oliver obtained seven plus years running of a healing 
 
            period.  That is a substantial period of time.  Considering 
 
            this agency's experience and expertise, the record, and the 
 
            testimony of the claimant, this would be a substantial 
 
            factor in contending that claimant was permanently totally 
 
            disabled which would in such case entitle the claimant to 
 
            benefits for the rest of his life unless there was a change 
 
            of circumstances.  Claimant's Exhibit I indicates that the 
 
            commutation was settled on a 95 percent of the whole body 
 
            which resulted in 475 weeks of permanent partial disability 
 
            benefits.  Claimant had received 480.714 weeks of healing 
 
            period benefits.  Claimant seemed to discount this.  
 
            Claimant's parade of attorney witnesses obviously steered 
 
            clear of this important factor.  It appeared that the 
 
            review-reopening was filed, when it was, as a tactical and 
 
            strategic move by claimant as a factor in dealing with the 
 
            attorney fee dispute as it gained no tactical benefit at the 
 
            time it was filed as to the ultimate settlement.  The 
 
            attorney filing that review-reopening was Mr. Dutton, who 
 
            later, shortly before this recent hearing, withdrew from the 
 
            case and became one of claimant's key witnesses.
 
            
 
                 Steve Ort testified on behalf of claimant.  He 
 
            basically concluded that Mr. Oliver is not entitled to any 
 
            more attorney feels than he has already received.  Mr. Ort 
 
            is currently an attorney in the workers' compensation 
 
            division of Employers Mutual Insurance Company and has been 
 
            in this position for the last approximate three and one-half 
 
            years.  It appears he was called as an expert on the issues 
 
            in this matter of which he has very limited experience.  
 
            Prior to his current job he was a deputy industrial 
 
            commissioner for three and one-half years and then the 
 
            previous five years was in private practice which involved 
 
            50 percent criminal work.  There was no indication he was 
 
            familiar with workers' compensation as to the remaining part 
 
            of his private practice.  It was clear that he had little 
 
            personal experience with contingent fee agreements and the 
 
            payment of overhead.  It would appear he was brought in as a 
 
            witness because of his limited experience as a deputy 
 
            industrial commissioner.
 
            
 
                 The undersigned feels no further necessity to set out 
 
            in detail the particulars of any additional testimony as the 
 
            issues are very limited in this matter and a considerable 
 
            amount of the testimony went to factors that the undersigned 
 
            believes had already been touched upon or had been 
 
            considered in a prior decision.
 
            
 
                 Channing Dutton's fee for representing the claimant in 
 
            this workers' compensation matter amounted to $1,925, which 
 
            is based on $175 per hour.  The per hour fee is rather 
 
            substantial.
 
            
 
                 As to Gordon Darling's fee, the undersigned finds that 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            this is solely at the expense of the claimant.  The claimant 
 
            is entitled to have as many attorneys as he desires and as 
 
            many second opinions as he desires.  Claimant had the right 
 
            to dispute the attorney fee situation at his expense.  The 
 
            undersigned finds that Mr. Oliver did nothing wrong and 
 
            under the circumstances has been more than fair.  The 
 
            undersigned does not understand why Mr. Oliver did not take 
 
            out the actual out-of-pocket expenses to which he would have 
 
            been entitled, but Mr. Oliver waives those and they are not 
 
            at issue at this time.  Claimant made his own choice of 
 
            firing Mr. Oliver.  Likewise, if one allowed a claimant to 
 
            relieve or fire his attorney who had done substantial work 
 
            for him so as to put the claimant in a better position 
 
            financially by challenging a fee and hopefully change the 
 
            terms of the contract, then this agency would be starting a 
 
            dangerous precedent.  This action would send the message to 
 
            the claimants that they can fire their attorney without good 
 
            cause because they decided that the attorney contingent fee 
 
            agreement was a sum larger than they anticipated.  By 
 
            dismissing a pending action and filing a new action, they 
 
            would automatically eliminate the advantages their prior 
 
            attorney obtained for them in a workers' compensation case.  
 
            This would then leave the claimants in a better position to 
 
            deal with another attorney for a different fee arrangement 
 
            and take advantage of the work product and services rendered 
 
            and the advantages sought by the claimant through the prior 
 
            attorney.
 
            
 
                 The undersigned realizes that holding a client to his 
 
            prior contract may have some effect on the claimant seeking 
 
            additional counsel or making new, better or different deals 
 
            with another attorney, thereby, locking the client into his 
 
            former attorney or otherwise paying double fees.
 
            
 
                 This agency, under 86.39, can prevent that from 
 
            happening in workers' compensation cases.  As in the present 
 
            case, claimant's actions are such that he may have to pay to 
 
            some extent double fees for some services.  It may become 
 
            difficult in certain cases to decide which attorney should 
 
            be protected.  The second or third attorney upon assuming a 
 
            case must fully realize the circumstances.  It is obvious 
 
            that Mr. Dutton considered that in his unique contingent fee 
 
            agreement.  It seems as though he further realized that when 
 
            he did not take a one-third fee under the terms of his 
 
            contract.  It appears to the undersigned that the 
 
            commutation was not agreed to until the sixty-first day.  
 
            His contingent fee agreement provided that the hourly rate 
 
            would only be for the first sixty days and thereafter the 
 
            one-third and possibly 40 percent contingent fee would be 
 
            considered.  Mr. Dutton was wise in his final decision which 
 
            would have been subject to this agency's approval.  The 
 
            undersigned finds that any fees to which Mr. Darling was 
 
            paid or is entitled as to himself and claimant is solely at 
 
            the expense of the claimant.
 
            
 
                 The undersigned completely disagrees with the apparent 
 
            contention of the claimant that when the commutation was 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            agreed to that Deputy Industrial Commission Deborah Dubik 
 
            was fully aware of the attorney fee provision in the 
 
            decision.  It is also apparent that when the papers were 
 
            presented to Deborah Dubik there was no attention called to 
 
            her of the prior decision concerning the attorney fees that 
 
            Mr. Oliver would be entitled to as to any results from his 
 
            prior work.  All these facts were kept from the deputy 
 
            industrial commissioner.  The undersigned finds that Arvid 
 
            Oliver is entitled to one-third attorney fee based on the 
 
            $106,200 settlement minus the $1,925 fee that claimant owes 
 
            to Attorney Channing Dutton.  The undersigned further finds 
 
            that, as set out in claimant's Exhibit I, that portion 
 
            entitled "Joint Stipulation In Support Of Stipulation For 
 
            Commutation," item 1 at the bottom of said page entitled 
 
            "Healing Period," the healing period was obtained by 
 
            Attorney Oliver after substantial time and successful 
 
            appeals.  This resulted in 480.714 weeks of healing period 
 
            benefits which was a substantial benefit and service 
 
            rendered by Oliver and which had a substantial effect on the 
 
            ultimate settlement referred to in claimant's Exhibit I.  
 
            Considering the short period of time that elapsed from the 
 
            last healing period payment on or around December 23, 1988, 
 
            to the commutation agreement approximately six months 
 
            thereafter, it is obvious that the work of Attorney Oliver 
 
            was used to a great advantage in the ultimate settlement of 
 
            this case.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 86.39 provides:
 
            
 
                    All fees or claims for legal, medical, 
 
                 hospital, and burial services rendered under this 
 
                 chapter and chapters 85, 85A, 85A, and 87 are 
 
                 subject to the approval of the industrial 
 
                 commissioner, and no lien for such service is 
 
                 enforceable without the approval of the amount of 
 
                 the lien by the industrial commissioner.  For 
 
                 services rendered in the district court or 
 
                 appellate court, the attorney's fee is subject to 
 
                 the approval of a judge of the court.
 
            
 
                 The Rules of Professional Responsibility of the Iowa 
 
            Code provides:
 
            
 
                 EC 2-20.  The determination of the reasonableness 
 
                 of a fee requires consideration of all relevant 
 
                 circum-stance, including those stated in the 
 
                 disciplinary rules.  The fees of a lawyer will 
 
                 vary according to many factors, including the time 
 
                 required, his experience, ability, and reputation, 
 
                 the nature of the employment, the responsibility 
 
                 involved, and the results obtained...
 
            
 
                 EC2-21.  As soon as feasible after a lawyer has 
 
                 been employed, it is desirable that he reach a 
 
                 clear agree-able with his client as to the basis 
 
                 of the fee charges  to be made.  Such a course 
 
                 will not only prevent later misunderstanding but 
 
                 will also work for good relations between the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 lawyer and the client.  It is usually beneficial 
 
                 to reduce to writing the understanding of the 
 
                 parties regarding the fee, particularly when it is 
 
                 contingent....
 
            
 
                 EC2-22.  Contingent fee arrangements in civil 
 
                 cases have long been commonly accepted in the 
 
                 United States in proceedings to enforce claims.  
 
                 The historical bases of their acceptance are that 
 
                 (1) they often, and in a variety of circumstances, 
 
                 provide the only practical means by which one 
 
                 having a claim against another can economically 
 
                 afford, finance, and obtain the services of a 
 
                 competent lawyer to prosecute his claim, and (2) a 
 
                 successful prosecution of the claim produced a res 
 
                 out of which the fee can be paid.
 
            
 
                        dr2-106.  fees for legal services
 
            
 
                    (A)  A lawyer shall not enter into an agreement 
 
                 for, charge, or collect an illegal or clearly 
 
                 excessive fee.
 
            
 
                    (B)  A fee is clearly excessive when, after a 
 
                 review of the facts, a lawyer of ordinary prudence 
 
                 would be left with a definite and firm conviction 
 
                 that the fee is in excess of a reasonable fee.  
 
                 Factors to be considered as guides in determining 
 
                 the reasonableness of a fee include the following:
 
            
 
                    (1)  The time and labor required, the novelty 
 
                 and difficulty of the questions involved, and the 
 
                 skill requisite to perform the legal service 
 
                 properly.
 
            
 
                    (2)  The likelihood, if apparent to the client, 
 
                 that the acceptance of the particular employment 
 
                 will preclude other employment by the lawyer.
 
            
 
                    (3)  The fee customarily charged in the 
 
                 locality for similar legal services.
 
            
 
                    (4)  The amount involved and the results 
 
                 obtained.
 
            
 
                    (5)  The limitations imposed by the client or 
 
                 by the circumstances.
 
            
 
                    (6)  The nature and length of the professional 
 
                 relationship with the client.
 
            
 
                    (7)  The experience, reputation, and ability of 
 
                 the lawyer or lawyers performing the services.
 
            
 
                    (8)  Whether the fee is fixed or contingent.
 
            
 
                 It is further concluded that:
 
            
 
                 Attorney Arvid Oliver is entitled to 33-1/3 percent of 
 
            $106,200 after $1,915 has been subtracted from the gross 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            amount.
 
            
 
                 Any attorney fees that claimant owes to Attorney Gordon 
 
            Darling are to be paid by the claimant and is not subtracted 
 
            from the $106,200 in figuring the one-third attorney fee to 
 
            which Mr. Oliver is entitled.
 
            
 
                 Mr. Oliver performed substantial services, which 
 
            services and work product carried over into and was 
 
            substantially material in the ultimate settlement and 
 
            recovery by the claimant resulting in a commutation.
 
            
 
                 Claimant had a right to relieve or fire Attorney Oliver 
 
            from further representation with or without cause but that 
 
            claimant had no right to breach an agreement claimant had 
 
            with the claimant nor did claimant have any right to prevent 
 
            Attorney Oliver from not benefiting from the substantial 
 
            services that he rendered to claimant, which services and 
 
            work product were substantial and material in the ultimate 
 
            resolution and commutation in this case.
 
            
 
                 Attorney Oliver did nothing contrary to the Code of 
 
            Professional Ethics or the law that would give rise to the 
 
            claimant relieving or firing Mr. Oliver from representation, 
 
            but that claimant exercised a right he had at law even if 
 
            claimant had no otherwise lawful reason for his actions.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant and/or the escrow agent pay to Arvid 
 
            Oliver a sum of thirty-four thousand seven hundred 
 
            fifty-four and 86/100 dollars ($34,754.86).
 
            
 
                 That this amount to be payable to Attorney Arvid Oliver 
 
            in a lump sum together with statutory interest from July 11, 
 
            1989.
 
            
 
                 That claimant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That claimant shall file a report upon payment of this 
 
            fee and Arvid Oliver shall file a receipt and satisfaction 
 
            of attorney fees upon receipt and bank clearance of the 
 
            funds ordered herein.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Joseph G Bertogli
 
            Attorney at Law
 
            The Plaza  Ste 270
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            300 Walnut
 
            Des Moines IA 50309
 
            
 
            Mr Arvid D Oliver
 
            Attorney at Law
 
            2635 Hubbell Ave
 
            Des Moines IA 50317
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1000
 
                      Filed February 14, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD WEBB, JR.,             :      File No. 474988
 
                                          :
 
                 Claimant,                :
 
                                          :        R E M A N D
 
            vs.                           :
 
                                          :      D E C I S I O N
 
            LOVEJOY CONSTRUCTION COMPANY, :
 
                                          :            O N
 
                 Employer,                :
 
                                          :      A T T O R N E Y
 
            and                           :
 
                                          :          F E E S
 
            BITUMINOUS CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1000
 
            Claimant awarded attorney fees for the value that his work 
 
            product and services were worth in the ultimate commutation 
 
            settlement obtained by claimant through another attorney 
 
            obtained by claimant after claimant fired his original 
 
            attorney over a fee dispute.  Fee was one-third of 
 
            commutation after deducting $1,925.  Claimant's original 
 
            attorney won several successful appeals and obtained a very 
 
            lengthy (several years) running healing period.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLENE HENDERSON, Surviving :
 
            Spouse of Craig Henderson,    :
 
            Deceased,                     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 475752
 
            SCHOON CONSTRUCTION CO.,      :
 
                                          :   C O M M U T A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION, On Behalf of     :
 
            Insolvent Iowa National Ins.  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            defendants, employer Schoon Construction Company and 
 
            insurance carrier Iowa Insurance Guaranty Association on 
 
            behalf of insolvent Iowa National Insurance Company, 
 
            pursuant to section 515B.5(2)(h), Iowa Code, for commutation 
 
            of all remaining unpaid workers' compensation benefits.  
 
            
 
                 This matter came on for telephonic hearing before the 
 
            undersigned deputy industrial commissioner on December 21, 
 
            1992.  Defendants were represented by their attorney, Mr. 
 
            Cecil L. Goettsch and claimant was represented by her 
 
            attorney, Mr. John D. Loughlin.  The attorneys discussed the 
 
            issues involved in this case and presented legal argument.
 
            
 
                                      issues
 
            
 
                 The parties have presented the following issues for 
 
            resolution:
 
            
 
                 .  Whether Iowa Insurance Guaranty Association is 
 
            entitled to a full commutation of all remaining benefits 
 
            pursuant to Iowa Code section 515B.5(2)(h) and section 
 
            85.45;
 
            
 
                 .  Whether defendants are entitled to a credit for the 
 
            advance payment of $10,381.41, which insolvent insurance 
 
            carrier paid to claimant pursuant to a stipulation filed 
 
            with the industrial commissioner on July 28, 1978;
 
            
 
                 .  Whether rule 343 IAC 6.3 sets forth the tables to be 
 
            used in determining the sum to be paid in commutation 
 
            proceedings;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 .  Whether the 10 percent discount table established in 
 
            rule 343 IAC 6.3(2) is the mandatory percentage, unless 
 
            waived by the employer or insurance carrier; and
 
            
 
                 .  Whether the death and remarriage tables establish 
 
            the maximum compensation for a lump sum payment and include 
 
            any provision for an additional two years of benefits in the 
 
            event of the surviving spouse's remarriage.
 
            
 
                                Statement of facts
 
            
 
                 The undersigned has carefully considered the arguments 
 
            made and legal briefs submitted and makes the following 
 
            findings:
 
            
 
                 1.  Craig Henderson died on September 6, 1977 as a 
 
            result of injuries sustained on September 6, 1977 in the 
 
            course and scope of his employment by Schoon Construction 
 
            Co.  
 
            
 
                 2.  Charlene Henderson is the surviving spouse and sole 
 
            dependent of Craig Henderson.  
 
            
 
                 3.  Neither Craig Henderson nor Charlene Henderson had 
 
            any children as of the date of the death of Craig Henderson.  
 
            Pursuant to section 85.42 and section 85.43, Iowa Code, the 
 
            only beneficiary for workers' compensation benefits as a 
 
            result of Craig Henderson's work-related death is the 
 
            surviving spouse, Charlene Henderson.
 
            
 
                 4.  The applicable weekly rate for death benefits is 
 
            the sum of $104.82.
 
            
 
                 5.  All medical and burial expenses have been paid by 
 
            the employer and insurance carrier.
 
            
 
                 6.  On October 10, 1985, Iowa National Mutual Insurance 
 
            Co., the workers' compensation insurer for Schoon 
 
            Construction Co., was declared insolvent and ordered 
 
            liquidated.
 
            
 
                 7.  Pursuant to chapter 515B, Iowa Code, the Iowa 
 
            Insurance Guaranty Association assumed responsibility for 
 
            covered claims of the insolvent insurance carrier, Iowa 
 
            National Mutual Insurance Co.  The liability of Iowa 
 
            Insurance Guaranty Association for workers' compensation 
 
            benefits is limited by the statutory provisions of chapter 
 
            515B.
 
            
 
                 8.  Through December 20, 1991, claimant has been paid 
 
            745  4/7 weeks of benefits at the rate of $104.82.  In 
 
            addition, claimant has received the equivalent of 104 weeks 
 
            of benefits in a lump sum payment of $10,381.41 as a result 
 
            of a stipulation between the parties filed July 28, 1978.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether section 
 
            515B(2)(h), Iowa Code, 1991, permits the Iowa Insurance 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Guaranty Association to conclude claims by a full 
 
            commutation of all remaining unpaid benefits.  
 
            
 
                 On October 10, 1985, Iowa National Mutual Insurance 
 
            Company, the workers' compensation insurer for Schoon 
 
            Construction Company, was declared insolvent and ordered 
 
            liquidated.
 
            
 
                 Pursuant to chapter 515B Iowa Code, the Iowa Insurance 
 
            Guaranty Association assumed responsibility for covered 
 
            claims of the insolvent insurance carrier, Iowa National 
 
            Mutual Insurance Company.  The liability of Iowa Insurance 
 
            Guaranty Association for workers' compensation benefits is 
 
            limited by the statutory limitations of chapter 515B.  
 
            
 
                 Section 515B.5(2), Code 1991, was amended by adding a 
 
            new paragraph (h).  Section 515B(2)(h), provides as follows:
 
            
 
                    Request that all future payments of workers' 
 
                 compensation weekly benefits, medical expenses, or 
 
                 other payments under chapter 85, 85A, 85B, 86, or 
 
                 87 be commuted to a present lump sum and upon the 
 
                 payment of which, either to the claimant or to a 
 
                 licensed insurer for purchase of an annuity or 
 
                 other periodic payment plan for benefit of the 
 
                 claimant, the employer and the association shall 
 
                 be discharged from all further liability for the 
 
                 workers' compensation claim.  Notwithstanding the 
 
                 provisions of section 85.45, any future payment of 
 
                 medical expenses, weekly compensation benefits, or 
 
                 other payment by the association under this 
 
                 chapter pursuant to chapter 85, 85A, 85B, 86, or 
 
                 87, is deemed an undue expense, hardship, or 
 
                 inconvenience upon the employer for purposes of a 
 
                 full commutation pursuant to section 85.45, 
 
                 subsection 2, and the industrial commissioner 
 
                 shall fix the lump sum of the probable future 
 
                 medical expenses and weekly compensation benefits 
 
                 capitalized at their present value upon the basis 
 
                 of interest at the rate provided section 535.3 for 
 
                 court judgments and decrees.
 
            
 
                 Claimant contends that the industrial commissioner 
 
            cannot approve a commutation unless there is first a 
 
            determination that a commutation is in the best interest of 
 
            claimant.  Claimant relies on Iowa Code section 85.45 to 
 
            support her contention.  
 
            
 
                 Iowa Code section 85.45(2) provides as follows:
 
            
 
                    When it shall be shown to the satisfaction of 
 
                 the industrial commissioner that such commutation 
 
                 will be for the best interest of the person or 
 
                 persons entitled to the compensation, or that 
 
                 periodical payments as compared with the lump sum 
 
                 payment will entail undue expense, hardship, or 
 
                 inconvenience upon the employer liable therefor.
 
            
 
                 Section 515B(2)(h) clearly provides:
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                    Notwithstanding the provisions of section 
 
                 85.45, any future payment of medical expenses, 
 
                 weekly compensatation will be for the best 
 
            interests of the person or persons entitled to the 
 
            compensation."  The second situation is when the "periodical 
 
            payments as compared with a lump sum payment will entail 
 
            undue expense, hardship, or inconvenience upon the employer 
 
            liable therefor."
 
            
 
                 The subsection is written with the disjunctive "or" 
 
            which creates an either/or situation.  Therefore, when the 
 
            periodic payments entail undue expense, hardship, or 
 
            inconvenience upon the employer, the industrial commissioner 
 
            is not required to make any determination whether the 
 
            commutation would be in the best interests of the person 
 
            entitled to the compensation.  Accordingly, the Iowa 
 
            Insurance Guaranty Association may conclude this claim by a 
 
            full commutation.
 
            
 
                 The next issue to be determined is whether claimant's 
 
            commuted benefits are subject to the 10 percent discount 
 
            table set out in rule 343 IAC 6.3(2).
 
            
 
                 Claimant contends that rule 343 IAC 6.3(2) is not 
 
            applicable to this proceeding and that a "present value" 
 
            connotation for any ordered lump sum payment should be based 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            upon a 4 percent discount table.  Claimant submitted an 
 
            affidavit from Bonnie L. Conley, vice president of the 
 
            Valley Bank and Trust in Cherokee, Iowa, to support her 
 
            contention.  
 
            
 
                 Rule 343 IAC 6.3 provides that the tables set out in 
 
            6.3(1) through (3) are to be used in determining the sum to 
 
            be paid in appropriate commutation proceedings.  It further 
 
            states that the employer or insurance carrier may waive the 
 
            discount table in 6.3(2).  However, the undersigned has no 
 
            authority to either waive the 10 percent discount or to 
 
            substitute another discount in its place.  
 
            
 
                 The Iowa Supreme Court has stated "that Section 85.45 
 
            clearly indicates that the goal of commutation is to commute 
 
            to a present worth lump sum the total of the probable future 
 
            payments capitalized at the rate provided by statute (in the 
 
            present case 10%)."  Sidles Distributing Co. v. Heath, 366 
 
            N.W.2d 1, 5 (Iowa 1985).  Section 515B.5(2)(h) specifically 
 
            provides that "the Industrial Commissioner shall fix the 
 
            lump sum of the probable future medical and weekly 
 
            compensation benefits capitalized at their present value 
 
            upon the basis of interest at the rate provided in section 
 
            535.3 for court judgments and decrees."  Section 535.3, Iowa 
 
            Code, 1992, provides that money due on judgments and decrees 
 
            of the courts shall bear interest at the rate of 10% per 
 
            year.  Unless employer or insurance carrier waives the 10 
 
            percent discount, the parties shall use table 6.3(2) in 
 
            calculating the commutation of benefits herein.
 
            
 
                 The next issue to be determined is whether the death 
 
            and remarriage tables establish the maximum compensation for 
 
            a lump sum payment.
 
            
 
                 In this regard, claimant contends that Iowa Code 
 
            section 85.45(4) makes reference to the death and remarriage 
 
            tables in rule 343 IAC 6.3(3) as guidelines only and not as 
 
            mandatory maximum limitations.  Claimant further contends 
 
            that even if the life expectancy and remarriage probability 
 
            table set out in rule 343 IAC 6.3(3) must be followed, 
 
            claimant is still entitled to an additional two years of 
 
            benefits as set out in Iowa Code section 85.31(1)(a).
 
            
 
                 Subsection 4 of section 85.45 provides, in relevant 
 
            part:  "When a person seeking a commutation is a surviving 
 
            spouse, ... the future payments which may be commuted shall 
 
            not exceed the number of weeks which shall be indicated by 
 
            probability tables designated by the Industrial commissioner 
 
            for death and remarriage, ..."   This statutory language 
 
            establishes the maximum benefits to which a surviving spouse 
 
            would be entitled.  See Sidles, 366 N.W.2d 1, 4.  The 
 
            provisions of the death and remarriage tables take into 
 
            account any additional payment which claimant might allege 
 
            for the two-year period following the remarriage of the 
 
            surviving spouse.  
 
            
 
                 A review of the record in this case reveals that on 
 
            March 8, 1978, Claire Carlson, defendants' attorney, wrote 
 
            to this agency stating, "We are going to be filing a 
 
            Stipulation for commutation of the 2-year widow benefit 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            within the next weeks of so and would like the approval of 
 
            your office of this stipulation."  On April 20, 1978, Barry 
 
            Moranville, deputy industrial commissioner, wrote to 
 
            claimant's attorney, John D. Loughlin and defendants' 
 
            attorney, Claire F. Carlson.  He stated as follows:
 
            
 
                    We have received the stipulation filed March 
 
                 27, 1978.  Although the matter you bring up is 
 
                 rather unusual, we are willing to approve of the 
 
                 idea.
 
            
 
                    However, we do not believe that the amount due 
 
                 should be discounted.  That is, Claimant's 
 
                 entitlement would be the full value of 104 weeks.  
 
                 Under Section 85.31, Code of Iowa, the payment is 
 
                 itself a lump sum and not payable weekly.  Thus, 
 
                 the present value of 104 weeks would be 104 weeks.
 
            
 
                 On July 29, 1978, the parties filed a Memorandum 
 
            Agreement with the industrial commissioner.  The stipulation 
 
            included that following paragraph, "WHEREAS both parties 
 
            agree that two year benefit payable upon the remarriage of 
 
            the Widow can be commuted at this time and paid in a lump 
 
            sum and thereby relieve the insurance carrier of this 
 
            obligation in the vent of remarriage of this Widow."  The 
 
            parties stipulated and agreed that the two-year benefit 
 
            payable on widow's remarriage is the commuted value of 
 
            $10,381.41.  They further agreed that upon execution of the 
 
            agreement, the insurance carrier was relieved of the 
 
            obligation to pay claimant a lump sum final benefits of two 
 
            years in the event of her remarriage.  
 
            
 
                 Claimant now requests that the undersigned nullify this 
 
            agreement and require the insurance carrier to pay these 
 
            benefits a second time.  Rule 343 IAC 6.3(3) provides that 
 
            the commutation table expresses the combined probability of 
 
            life expectancy and remarriage in weeks.  Thus, any 
 
            commutation of unpaid benefits at this time would include 
 
            consideration of the two-year benefit provided to widows 
 
            under Iowa Code section 85.31(1)(a).  If the undersigned 
 
            were to ignore the 1978 stipulation and previously paid 
 
            two-year widow benefits, claimant would receive these 
 
            benefits twice.  
 
            
 
                 Therefore, claimant cannot extend the death and 
 
            remarriage table future weeks by an additional 104 weeks on 
 
            the speculation that those benefits would be authorized were 
 
            claimant to remarry.
 
            
 
                 The final issue to be determined is whether defendants 
 
            are entitled to a credit for the advance payment of 
 
            $10,381.41 which insolvent insurance carrier Iowa National 
 
            Mutual Insurance Co. paid to claimant pursuant to a 
 
            stipulation filed with the industrial commissioner on July 
 
            28, 1978.
 
            
 
                 As previously noted, the provisions of the death and 
 
            remarriage tables take into account any additional payment 
 
            which claimant might allege for the two-year period 
 
            following the remarriage of the surviving spouse.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Defendants previously advanced to claimant $10,381.41 
 
            which represented the full value of 104 weeks of benefits 
 
            which was anticipated to be due claimant upon her 
 
            remarriage.  By stipulation of the parties in July 1978, 
 
            defendants would not be required to pay claimant any 
 
            additional money in the event she remarried.
 
            
 
                 Upon the insolvency of Iowa National Mutual Insurance 
 
            Co., the administration of this claim was assumed by Iowa 
 
            Insurance Guaranty Association.  In reviewing the file, a 
 
            representative of the Guaranty Association noted that the 
 
            surviving spouse had not remarried even though the 
 
            employee's death occurred on September 6, 1977.  On December 
 
            4, 1992, defendant Iowa Insurance Guaranty Association filed 
 
            a petition with the industrial commissioner for commutation 
 
            of all remaining benefits.  On December 21, 1991, claimant's 
 
            benefits were suspended.  As of December 21, 1992, 
 
            defendants have recouped 52 weeks of the 104 weeks of 
 
            advanced benefits at the rate of $104.82 ($5,450,64).
 
            
 
                 Defendants are entitled to a credit of 52 weeks or 
 
            $4,930,77 against the previously paid benefits of 
 
            $10,381.41.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Pursuant to Iowa Code section 515B(2)(h), 1991, a full 
 
            commutation of all remaining benefits is granted.  The 
 
            parties are directed to prepare a current Form 9 in 
 
            conformance with this decision.  This form should be 
 
            submitted to this agency within twenty (20) days from the 
 
            date of this order.
 
            
 
                  Costs of this action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. John D. Loughlin
 
            Attorney at Law
 
            231 West Maple
 
            Cherokee, Iowa  51012
 
            
 
            Mr. Cecil Goettsch
 
            Attorney at Law
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            801 Grand Ave, STE 3700
 
            Des Moines, Iowa 50309-2727
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          3303
 
                                          Filed December 29, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLENE HENDERSON, Surviving :
 
            Spouse of Craig Henderson,    :
 
            Deceased,                     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 475752
 
            SCHOON CONSTRUCTION CO.,      :
 
                                          :   C O M M U T A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION, On Behalf of     :
 
            Insolvent Iowa National Ins.  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3303
 
            Pursuant to Iowa Code section 515B.5(2)(h), 1991, the Iowa 
 
            Insurance Guaranty Association's request for full 
 
            commutation of remaining widow's benefits was granted. 
 
            The following contentions made by claimant were found to be 
 
            without merit:
 
            1.  That Iowa Code section 85.45(4) reference to the death 
 
            and remarriage tables in rule 343 IAC 6.3(3) are guidelines 
 
            only and not mandatory maximum limitations;
 
            2.  That defendants are not entitled to a credit of 
 
            $10,381.41 of benefits previously paid as a result of a 
 
            partial commutation on July 28, 1978, of 85.31(a) two-year 
 
            lump sum widow's benefits; and
 
            3.  That the 10 percent discount table set out in rule 343 
 
            IAC 6.3(2) is not applicable to this proceeding but rather a 
 
            present value connotation for any ordered lump sum payment 
 
            should be based upon a 4 percent discount table.