BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GERALD ELDER,
Claimant,
vs.
File No. 943964
FRUEHAUF TRANSPORTATION,
A P P E A L
Employer,
D E C I S I O N
and
CNA INSURANCE CO.,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed February 11, 1992 is affirmed and is adopted as the
final agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of October, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James P. Hoffman
Attorney at Law
P.O. Box 1087
Keokuk, Iowa 52632
Mr. Elliott R. McDonald, Jr.
Attorney at Law
P.O. Box 2746
Davenport, Iowa 52809
9998
Filed October 29, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GERALD ELDER,
Claimant,
vs.
File No. 943964
FRUEHAUF TRANSPORTATION,
A P P E A L
Employer,
D E C I S I O N
and
CNA INSURANCE CO.,
Insurance Carrier,
Defendants.
____________________________________________________________
9998
Summary affirmance of deputy's decision filed February
11, 1992.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
GERALD ELDER, :
:
Claimant, :
:
vs. :
: File No. 943964
FRUEHAUF TRANSPORTATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE CO. :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Gerald
Elder, claimant, against Fruehauf Transportation, employer
(hereinafter referred to as Fruehauf), and CNA, insurance
carrier, defendants, for workers' compensation benefits as a
result of an alleged injury on February 24, 1989. Claimant
amended the injury date from February 1, 1989, in the pre
hearing report. On January 16, 1992, a hearing was held on
claimant's petition and the matter was considered fully sub
mitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations contained herein which were
approved and accepted as a part of the record of this case
at the time of hearing. The oral testimony and written
exhibits received during the hearing are set forth in the
hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. On February 24, 1989, claimant received an injury
arising out of and in the course of employment with
Fruehauf. (Although the prehearing report indicates that
the injury is in dispute, the brief attached to the report
indicates that the only issue was the extent of disability.
Also, the answer admits an injury on February 24, 1989.
Therefore, the prehearing report is probably in error).
2. Claimant is entitled to temporary total or healing
period benefits for the periods of time set forth in the
prehearing report and claimant is not seeking additional
benefits for healing period.
3. If the injury is found to have caused permanent dis
ability, the type of disability is an industrial disability
Page 2
to the body as a whole and any award of permanent partial
disability will begin on April 10, 1989, at the rate of
$416.03 per week.
4. All requested medical benefits have been or will be
paid by defendants.
ISSUE
The only issue submitted by the parties for determina
tion in this proceeding is the extent of claimant's entitle
ment to permanent disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant has been an over-the-road trucker for over 19
years. Claimant worked for Fruehauf as a trucker from
February 1989 until June 1, 1990, when Fruehauf sold its
trucking operation to Ruan. Fruehauf is a manufacturer of
trailers for semi-tractor trailer trucks. In his job
claimant delivered trailers and trailer parts.
On or about February 24, 1989, claimant injured his
low back while sliding a "5th wheel" during his employment
with Fruehauf. Claimant was treated for low back pain by J.
Michael Dykstra, D.O., and Darrel Fenton, D.O. The diagno
sis was back strain or lumbar myositis. After three weeks
of conservative treatment, claimant was released to return
to work.
Although he had no prior low back problems, claimant
was treated for a herniated disc of the neck or cervical
spine in 1985. As a result, claimant had a significant per
manent partial impairment to his body as a whole prior to
the work injury herein.
The injury of February 24, 1989, was a cause of a five
percent permanent impairment to the body as a whole. This
finding is based primarily upon the uncontroverted views of
Dr. Fenton in exhibit 4. Although he had no formal restric
tions, claimant was told by Dr. Fenton to "take it easy."
Claimant testified that since the injury herein he has dif
ficulty with lifting, prolonged sitting, bending or stooping
while lifting and climbing. He states that without air ride
seats in his truck he could not be a trucker.
The injury of February 24, 1989, was a cause of a two
percent permanent loss of earning capacity. Although he has
significant physical impairment to date, claimant's employ
ment has been affected only minimally. Claimant has been and
continues to be an over-the-road trucker. Claimant returned
to full duty at Fruehauf without loss of pay or benefits.
Although claimant has suffered a reduction in pay when Ruan
purchased the trucking operation, this is not the result of
the work injury but simply due to the fact that Ruan pays
less than Fruehauf. However, claimant testified that he had
Page 3
some difficulty getting rehired by Ruan and it took efforts
other than his own to obtain the job. His ability to secure
other employment is hampered but not to the extent to war
rant a large award, at this time.
CONCLUSIONS Of LAW
Claimant must establish by a preponderance of the evi
dence the extent of weekly benefits for permanent disability
to which claimant is entitled. As the claimant has shown
that the work injury was a cause of a permanent physical
impairment or limitation upon activity involving the body as
a whole, the degree of permanent disability must be measured
pursuant to Iowa Code section 85.34(2)(u). However, unlike
scheduled member disabilities, the degree of disability
under this provision is not measured solely by the extent of
a functional impairment or loss of use of a body member. A
disability to the body as a whole or an "industrial disabil
ity" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City Railway Co., 219 Iowa 587,
593, 258 N.W. 899 (1935). A physical impairment or restric
tion on work activity may or may not result in such a loss
of earning capacity. The extent to which a work injury and
a resulting medical condition has resulted in an industrial
disability is determined from examination of several fac
tors. These factors include the employee's medical condi
tion prior to the injury, immediately after the injury and
presently; the situs of the injury, its severity and the
length of healing period; the work experience of the
employee prior to the injury, after the injury and potential
for rehabilitation; the employee's qualifications intellec
tually, emotionally and physically; earnings prior and sub
sequent to the injury; age; education; motivation; func
tional impairment as a result of the injury; and inability
because of the injury to engage in employment for which the
employee is fitted. Loss of earnings caused by a job trans
fer for reasons related to the injury is also relevant.
Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125
N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe,
Inc., (Appeal Decision, February 28, l985).
In the case sub judice, claimant has suffered a signif
icant amount of physical impairment, but functional loss is
only one factor among many in determining loss of earning
capacity. Maintenance of employment without loss of earn
ings is evidence that claimant has no industrial disability.
Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991). However,
Bearce is distinguishable in many respects. The dispute in
Bearce was the extent of his prior existing condition and
Bearce had testified that he had little or no problems
before the work injury in that case. Also, Bearce had no
difficulty remaining employed at FMC prior to the work
injury. These facts are not true in this case. A showing
that claimant had no loss of actual earnings does not pre
clude a finding of industrial disability. See Michael v.
Harrison County, 34 Bien Rep., Ia Ind. Comm'r 218, 220 (App.
Dec. 1979).
Although claimant is apparently having some difficulty
working, should his condition worsen in the future to affect
Page 4
his ability to drive, this agency is available within three
years of the last payment of the award herein to review and
reassess this matter.
In the case sub judice, it was found that claimant suf
fered a two percent loss of his earning capacity as a result
of the work injury. Such a finding entitles claimant to 10
weeks of permanent partial disability benefits as a matter
of law under Iowa Code section 85.34(2)(u) which is two
percent of 500 weeks, the maximum allowable number of weeks
for an injury to the body as a whole in that subsection.
ORDER
1. Defendants shall pay to claimant ten (10) weeks of
permanent partial disability benefits at the stipulated rate
beginning on April 10, 1989.
2. Defendants shall pay the costs of this action pur
suant to Rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
Signed and filed this ____ day of February, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. James P. Hoffman
Attorney at Law
Middle Rd
Box 1087
Keokuk IA 52632
Mr. Elliott R. McDonald, Jr.
Attorney at Law
P O Box 2746
Davenport IA 52809
5-1803
Filed February 11, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
GERALD ELDER, :
:
Claimant, :
:
vs. :
: File No. 943964
FRUEHAUF TRANSPORTATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE CO. :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MARGARET R. LAFFERTY, :
:
Claimant, :
:
vs. :
: File No. 943974
FOUR SONS HANDY SHOPS, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
ILLINOIS NATIONAL INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Defendants' appeal and claimant's cross-appeals from an
arbitration decision awarding claimant death benefits on
account of the death of her husband, Jerry Deloy Lafferty,
Jr.
The record on appeal consists of the transcript of the
arbitration hearing; and joint exhibits 1 through 19 and 21
through 25. Both parties filed briefs on appeal.
issues
Defendants state the issues on appeal as:
(1) Whether sufficient evidence exists to support a
finding that decedent's blood alcohol level was less than
the .152 percent found on blood alcohol testing;
(2) Whether sufficient evidence exists, beyond mere
speculation, for the deputy industrial commissioner to make
a finding that decedent's intoxication was not a
"substantial factor" in causing decedent's accident and
death.
Claimant on cross-appeal states the additional issue;
(3) Whether the conduct of the employer's management
in providing free beer to maintenance workers and other
statements the company president made regarding maintenance
workers drinking on the job estops the employer from
asserting the defense of intoxication.
Page 2
findings of fact
Decedent, Jerry Deloy Lafferty, was born on March 29,
1959. He met his wife, Margaret, in Spirit Lake, Iowa.
They dated one and one-half years and married on August 30,
1986. Two children were born of the marriage. Mr. Lafferty
commenced work for the employer on a part-time basis in
1982. He was assigned to the maintenance department. In
1985, he assumed full time duties with the employer.
Because of his artistic and creative abilities, he was
assigned to maintain the interior and exterior aesthetics of
the company stores throughout the state. His job required
long hours and extensive travel. It was not uncommon for
him to leave his house at 7:00 a.m. and end his work day at
7:00 p.m. He made a northern Iowa tier trip which required
an on-the-road overnight stay every month.
On September 14, 1988, Mr. Lafferty was assigned to a
northern tier trip. There were approximately 10 Four Sons
Handy Shops within the northern tier. Mrs. Lafferty
testified that decedent left home at 7:00 a.m. and picked up
a new Dodge van at the maintenance shop two miles from their
home. He returned home before beginning his road trip and
started his road trip around 8:00 a.m. His final work
destination was a company store in Armstrong, Iowa. He
planned to stay overnight at his in-laws in Gruver, Iowa
which was about five miles from Armstrong. Decedent called
claimant between 12:30 and 1:00 p.m. and told her he was on
his way to Armstrong. Travel by car from Des Moines to
Armstrong takes approximately four hours.
At around 7:10 p.m., on September 14, 1988, Swea City,
Iowa Police Chief Paul Schweiger stopped decedent for
speeding. Decedent was going 58 in a 35 mile per hour speed
zone on Iowa State Highway 9. Chief Schweiger followed Mr.
Lafferty to the Four Sons Handy Shop where Lafferty and
Schweiger both stopped. Mr. Lafferty then got out of his
car and sat in the chief's car. Lafferty removed his
driver's license from his wallet and Chief Schweiger wrote a
citation. Lafferty was in the chief's vehicle about three
minutes and sat about two to three feet from the chief.
Chief Schweiger did not detect any odor of alcohol on Mr.
Lafferty and did not observe anything in Lafferty's walk or
speech that would have indicated that Lafferty was under the
influence of alcohol. Chief Schweiger did not detect any
indicia of intoxication including slurred speech, fumbling
with the wallet, soiled clothing or dilated pupils. Chief
Schweiger testified that if he had observed any of these
characteristics, he would have called a deputy and would
have performed a primary breath tester. Chief Schweiger had
made perhaps six or seven driving under the influence
arrests in ten intermittent years as a law enforcement
official.
While Chief Schweiger was writing the citation, Mr.
Lafferty went into the Four Sons store for about five
minutes. He then returned to the patrol car for
approximately another five minutes. Chief Schweiger
Page 3
testified that decedent signed the ticket and while doing
so, "tears started rolling out of his eyes, and he didn't
know how he was going to pay for it, ..." Chief Schweiger
thought it was unusual for a grown man to cry over a
speeding ticket. When leaving Schweiger's vehicle, Lafferty
slammed the door, stated no one cared, and took off "real
fast driving 55 in a 45 [mile per hour zone]." Chief
Schweiger testified that Schweiger "didn't think [he] better
stop [decedent] again for the frame of mind [decedent] was
in."
Elizabeth Zane Roehler was the clerk on duty at the
Swea City Four Sons store on the evening of September 14,
1988. She stated that Mr. Lafferty came into the store
sometime after 7:00 p.m. and went to the supply room. She
characterized decedent as rude and obnoxious and as acting
as if he had been drinking although not smelling of alcohol.
She did not know that Mr. Lafferty had just received a
speeding citation.
Lafferty left Swea City between 7:30 and 7:40 p.m.
Armstrong is eight miles from Swea City.
Connie Linn was the clerk on duty in the Armstrong Four
Sons store on the evening of September 14, 1988. Decedent
was at the store from approximately 8:00 p.m. to 8:25 p.m.
Linn had never seen decedent before and did not know he was
a Four Sons' employee. Decedent came into the store, asked
Linn for the key to the restroom and upon returning from the
restroom, went to the storeroom at the back of building. He
went behind the service counter. At that point, Linn asked
Lafferty what business he had in the store. He then told
her he worked for Four Sons. Linn described Lafferty as
loud and obnoxious and as cussing. To her, Lafferty
appeared "loose," that is, as having lost his inhibitions
due to alcohol ingestion. Linn has worked in a bar and
testified she is familiar with person who are "loose" as
well as with persons in later stages of drunkenness. Linn
did not smell beer on Lafferty's breath and did not believe
his speech was slurred. She did not see him drink or buy
beer. Linn opined decedent's actions differed from those of
someone who is just naturally loud and boisterous. She
stated that Lafferty staggered a little and was "just
scary."
Nina Harbaugh encountered Mr. Lafferty as he was
leaving the Armstrong store on September 14, 1988. To her,
he appeared drunk although she did not smell alcohol on his
breath. Mr. Lafferty told Ms. Harbaugh he was single and
invited her to spend the night with him in a motel in Spirit
Lake, Iowa. She declined and they went their separate ways.
At approximately 8:30 p.m. on September 14, 1988, Mr.
Lafferty's van left the road and rolled over. He was thrown
from the vehicle. Barbara Mullen, a registered nurse, came
upon the accident. Another couple already had discovered
the accident and called the ambulance squad. Nurse Mullen
left the road and went into the ditch looking for accident
victims. The area was dark and unlit. She could see
Page 4
nothing. She shouted "Is there someone there?" She heard
moaning and went towards the sound. She came upon a person
who was face down. She rolled him over, cleared his mouth
and felt for a pulse. The individual had vomited; his
breath smelled of alcohol. Mullen works in the emergency
room frequently and is familiar with the odor of alcohol.
She cleared the victim's mouth, listened but could not hear
him breathing, and could not detect a pulse. She
immediately began CPR, mouth-to-mouth resuscitation and
chest compressions. She performed CPR until the ambulance
service arrived several minutes later. Ambulance personnel
continued resuscitation efforts and transported the victim,
subsequently identified as Decedent Lafferety, to the
emergency room at Holy Family Hospital.
CPR, mouth-to-mouth resuscitation and chest
compressions were continued from when Nurse Mullen found
decedent until Douglas V. Stangl, M.D., the physician on
call, pronounced decedent dead at 9:44 p.m. Dr. Stangl
smelled alcohol on Mr. Lafferty. Stangl testified in his
deposition as follows:
"A. Okay. The whole room, basically, reeked with
the smell of alcohol, and it's a very
characteristic smell of anyone who's been drinking
heavily and exhaling those fumes. In the process
of breaking down alcohol, the lung does excrete
the odor of alcohol, the gas of its degradation
products, and it's a smell that I learned well
when I was in my residency training so I know a
lot of people that had been inebriated."
(Ex. 4, p. 12, 11. 11-19)
Dr. Stangl took a blood alcohol sample from decedent's
heart after the code blue was stopped at 9:44 p.m. Stangl
took another inter cardiac specimen for law enforcement
officials at 10:00 p.m. Dr. Stangl opined that decedent
fractured his neck in the accident and that the neck
fracture probably caused decedent's death. Dr. Stagnl also
opined that decedent had ingested a large amount of alcohol.
He could not say with medical certainty that decedent's
blood alcohol level was higher when the blood sample was
taken than it had been when the accident occurred.
On testing on September 16, 1988, Lafferty's blood
sample showed an alcohol content of .152 percent.
Medical experts dispute the actual blood alcohol
content.
Lawrence Donovan, M.D., a pathologist, in his July 12,
1991 deposition, opined that decedent's blood alcohol level
was below the legal limit of .10 milligrams percent when the
motor vehicle accident occurred at 8:30 p.m. Dr. Donovan
stated that alcohol from a deceased person's stomach can
diffuse into the heart and thereby increase the blood
alcohol content. He stated that a blood sample drawn from
the heart an hour and a half after death would be higher
than would be a sample drawn at the time of the accident
Page 5
[resulting in the death].
Richard Wooters, M.D., Chief Medical Examiner of Polk
County, Iowa, in his July 26, 1991 deposition, opined that
the blood sample Dr. Stangl drew at 10:00 p.m. on September
14, 1988 was a fair and accurate report of decedent's blood
level when the accident occurred. Dr. Wooters opined that
decedent's blood continued to circulate throughout the time
when CPR was administered. He stated that, for that reason,
the blood alcohol result obtained upon testing the blood
drawn from the heart at 10:00 p.m. reasonably reflected
decedent's blood alcohol when the motor vehicle accident
occurred. Dr. Wooters further stated that the medical
literature demonstrates a considerable number of hours must
pass between death and the drawing of a blood sample for any
diffusion from the stomach to the heart to significantly
affect the blood alcohol level obtained. Dr. Wooters also
stated that reported differences between femoral and heart
blood samples involve samples drawn from the pericardial sac
and not from the heart chambers themselves and would,
therefore, not be applicable in this instance. Dr. Wooters
disagreed with Dr. Donovan's opinion that decedent's blood
alcohol when the accident occurred was below the legal limit
of .10. Dr. Wooters stated that the inability to detect the
odor of alcohol would mean the person was not highly
intoxicated but did not prove the individual had not been
drinking. He stated both that the absence of an alcohol
odor on the breath and the absence of slurred speech suggest
the individual is not highly intoxicated and that a .10
blood alcohol content possibly would not be detected as a
breath odor and that, therefore, one cannot attach
significance to the store clerk's inability to detect the
odor of alcohol on decedent. Dr. Wooters opined that if
decedent had started drinking at 8:25 p.m. decedent would
not have had a blood alcohol of .152 one and a half hours
later where CPR [had been continuously administered]. Dr.
Wooters testified that a person with a blood alcohol level
of .10 and above has significant impairment of driving
ability and slowed reaction time.
Dr. Wooters' testimony is accepted over Dr. Donovan's
testimony. Dr. Wooters' testimony is more consistent with
both the documentary evidence presented and with the fact of
decedent's actual demise only 16 minute before drawing of
the tested blood sample. It is expressly found that
decedent's blood alcohol at the time of the motor vehicle
accident was .152 percent. It is further expressly found
that that blood alcohol result, the lay testimony of Nina
Harbaugh and Connie Linn as well as the testimony of Nurse
Mullin and Dr. Stangl establishes decedent was intoxicated
when the motor vehicle accident occurred.
Dr. Wooters opined that decedent's intoxication was a
substantial factor in causing the motor vehicle accident.
Dr. Wooters stated that a man decedent's size (6 foot 3
inches tall, 240 pound), would have had to consume a minimum
of eight to ten beers to achieve a blood alcohol of .152.
Page 6
Larry Lamack was an Emmet County Deputy Sheriff on duty
the evening of September 14, 1988. He stated he saw four or
five empty beer cans in claimant's vehicle and in the ditch
near the vehicle at the accident site. None of the cans
were retained or examined to determine where they had been
purchased. Deputy Lamack and Armstrong police officer Chuck
Marlin took measurements of the accident scene. Decedent's
van had traveled 346 feet after leaving Highway 9. Sheriff
Lamack noted skid marks where the vehicle failed to
negotiate the curve and where the driver started to apply
the brakes. Lamack opined from the degree of the angle the
vehicle entered the ditch, the skid marks appeared to be
brake marks because the vehicle made an almost straight
approach rather than a sharp angle into the ditch. Lamack
opined that there were no road characteristics that would
have contributed to the van leaving the road. Weather
conditions were good and Lamack opined that the accident
site was not an area where people routinely missed the
curve.
After leaving the accident site, Lamack stopped at the
Four Sons store in Armstrong and spoke with Connie Linn.
After taking her statement, Lamack formed the impression
that decedent likely was intoxicated when he left the
Armstrong Four Sons store. Lamack opined that his
inspection of the accident site and from Connie Linn's
statement alcohol was a substantial factor in decedent's
fatal accident. Lamack stated: ".... would say with all
other possible factors ... alcohol would probably, be on top
of my list."
Dan Gronbeck, Emmet County Sheriff on September 14,
1988, made a visual investigation of the accident site. He
observed skid marks from the van which he characterized as
sliding skid marks due to excessive speed going around a
corner. He opined that the van's tires were sliding
sideward because the accident report shows that the hash
marks go in a curve rather than straight. Gronbeck found no
evidence of evasive [vehicle] maneuvers on the highway.
Gronbeck opined that loss of vehicle control due to
excessive speed while going around a curve caused decedent's
fatal accident. Gronbeck further stated that if an
individual were both under the influence and speeding when
the accident occurred both the intoxication and the speeding
would be substantial factors in the motor vehicle accident.
Donna Muhm, a clerk at Four Sons in Armstrong in 1984
and 1985, reported that Kent Bro, president of Four Sons,
purchased a six-pack of beer for decedent and Bro to drink.
Muhm reported that at other times maintenance workers would
buy beer and drink it while eating supper in the van. She
stated that it was common knowledge that maintenance workers
got "special treatment" and were allowed to drink beer if
working late. Gail Larsen stated she also observed Kent Bro
and decedent buying the six-pack of beer and that she had
seen maintenance workers use "blue maintenance charge slips"
to purchase beer. The blue slips designated purchases as
Page 7
maintenances expenses only and did not designate the exact
nature of the expense. Shawn Conner, a former Four Sons
employee, stated that Kent Bro purchased a 12- pack of beer
for consumption during headquarters remodeling. Dana
Adreon, a former Four Sons employee and a friend of
decedent, stated that Kent Bro had given maintenance workers
express permission to drink and drive while returning from
long, late night, on-the-job, road trips. Kent Bro, John
Stone (comptroller for Four Sons from April 1985 through
October 1988), and Thomas Baughman (also a member of Four
Sons management), agreed that at times, beer would be
purchased and drank at headquarters after work. They
reported that Four Sons had a policy that anyone drinking on
the job would be terminated and further reported that store
clerks giving maintenance workers free beers at the end of
the maintenance workers' shifts were violating company
policy. They also reported that maintenance workers were
not to consume alcohol while driving company vans. The
greater weight of evidence supports a finding that while
Four Sons maintenance workers may have purchased alcohol
using blue charge slips and may have drank on the job on
occasion and at work sites and while driving, those actions
were individual acts in violation of company policy and not
condoned by company management.
conclusions of law
The first issue on appeal is whether sufficient
evidence exists to support a finding that decedent's blood
alcohol level was less than .152 percent as the blood
alcohol test showed.
Iowa Code section 85.16 states in pertinent part:
No compensation under this chapter shall be
allowed for an injury caused:
...
2. By the employee's intoxication, which did not
arise out of and in the course of employment but
which was due to the effects of alcohol or another
narcotic, depressant, stimulant, hallucinogenic,
or hypnotic drug not prescribed by an authorized
medical practitioner, if the intoxication was a
substantial factor in causing the injury.
Intoxication, is not defined by the workers'
compensation statute or by case law. Lawyer and Higgs,
section 7-3, page 63. This treatise suggest that evidence
might be presented by: (1) blood alcohol levels; (2) the
interpretation of blood alcohol test results; (3) the number
of drinks decedent ingested; and (4) decedent's conduct
prior to the injury.
The weight and credit to be given evidence of results
of clinical tests for intoxication is for the trier of fact.
Rigby v. Eastman, 217 N.W.2d 604, (1974).
Iowa law prohibits driving a motor vehicle while under
Page 8
the influence of an alcoholic beverage. Iowa Code section
321J.2 (1)(a)(b)(1991). Intoxication is presumed where the
driver has a blood alcohol concentration of .10 or above.
Intoxication can still be established from other evidence
where the blood alcohol level is below .10. Iowa Code
section 321J.2 (1); State v. Bratthauer, 357 N.W.2d 773
(Iowa 1984).
The issuance of an opinion regarding intoxication based
upon a blood alcohol test is competent. State v. Werling,
234 Iowa 1109, 13 N.W.2d 318 (Iowa 1944); State v. Haner,
231 Iowa 348, 1 N.W.2d 91 (1942).
Person are drunk in the legal sense when the persons
are so far under the influence of intoxicating liquors that
the liquor has visibly excited their passions or has
impaired their judgment. State v. Pierce, 65 Iowa 85; 21
N.W.195 (1884).
When the use of intoxicating liquors affect the
persons' reason or facilities or render persons incoherent
of speech or cause the persons to lose control in any
matter, or to any extent, of the action or motion of their
persons or bodies, the persons, in contemplation of law, are
intoxicated. State v. Baughn, 162 Iowa 308, 143 N.W.2d 1100
(1913). Persons are also intoxicated when liquor impairs
their judgment. State v. Wheelock, 218 Iowa 178, 24 N.W.2d
313 (1934).
The term "under the influence of an alcoholic beverage"
is synonymous with the term "in an intoxicated condition."
State v. Berch, 222 N.W.2d 741 (Iowa 1974).
[Under the driving under the influence section of the
Iowa Code] an intoxicated person means a person whose mental
or physical functioning is substantially impaired as the
result of the use of a chemical substance. While a precise
line is not easily drawn regarding whether or not a person
is intoxicated, it is certain that a person need not be
staggering drunk before the person is legally intoxicated.
State v. Stout, 247 Iowa 453, 74 N.W.2d 208 (Iowa 1956).
The evidence establishes a blood alcohol level of .152
percent as the blood alcohol test demonstrated. Dr.
Wooters' opinions were more consistent with the facts of
this case and with the medical literature in evidence.
Decedent's blood actually stopped circulating when CPR ended
at 9:44 p.m. The blood alcohol sample tested was taken at
10:00 p.m. Hence, decedent had not expired an hour and a
half prior to the taking of the test as Dr. Donovan opined.
Additionally, Dr. Wooters had readily available medical
literature when deposed. That literature clearly suggested
that any diffusion occurs over a substantial time period.
Additionally, the literature suggests that contamination due
to diffusion or other factors would likely affect blood in
the pericardial sac and not blood in the heart chambers
themselves. Decedent's blood alcohol test of .152 is
clearly sufficient to create an inference that decedent was
intoxicated when his fatal accident occurred.
Page 9
Additionally, the lay evidence and overall
circumstances regarding decedent's demeanor and behavior
after 7:00 p.m. on September 14, 1988 support a finding of
intoxication at the time of the accident. While Police
Chief Schweiger testified he did not smell alcohol on
decedent and did not believe decedent to be intoxicated,
decedent's behavior with Police Chief Schweiger clearly
showed a lack of judgment. Decedent apparently had lost
emotional control; decedent "teared up" on receiving a
traffic citation; slammed the car door and drove above the
legal rate of speed on leaving Police Chief Schweiger's
presence. These are clearly not behaviors that a person of
normal prudence engages in in the presence of a police
officer after receiving a traffic citation. Likewise, all
lay witnesses who had dealings with decedent from 7:00 p.m.
onward felt decedent showed evidence of being intoxicated.
Connie Linn, who has had previous experience working at a
bar, opined that decedent was "loose" when she had dealings
with him between 8:00 and 8:25 p.m. Decedent's proposition
of Nina Harbaugh surely showed a lack of judgment generally
not found in sober persons. Decedent had told both his
spouse and his in-laws that he would be spending the evening
with his in-laws. He was clearly expected at his in-laws'
home. Under those circumstances, a sudden decision to spend
the evening with a woman other than his spouse would be most
difficult to explain. While, in itself, not compelling
evidence of decedent's intoxication, this conduct in these
circumstances appears more consistent with an individual's
being significantly under the influence of alcohol than with
the individual's exercising the reasonable prudence of a
sober person.
There is clearly sufficient evidence to support a
finding of a blood alcohol level of .152 percent.
Additionally, the competent lay evidence also supports a
finding that decedent was intoxicated when his accident
occurred.
We consider issue two, that is, whether there was
sufficient evidence, beyond mere speculation, for the deputy
industrial commissioner to make a finding that decedent's
intoxication was not a substantial factor in causing
decedent's accident and death.
The intoxication defense requires a showing not only
that the worker was intoxicated at the time of the injury,
but also that the intoxication was a substantial factor in
bringing about the injury. Intoxication must be shown not
to just be a possible factor, but a probable substantial
factor. Stull v. Truesdal Coop Elevator Co., (File No.
780309, App. Decn., Dec. 14, 1987).
A factor is substantial when reasonable persons
considering that factor would regard it as a cause, that is,
as being in some pertinent part responsible for the result
produced. See, Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa
1972).
A factor is substantial when it is material in
producing a result. A factor may be substantial without
Page 10
being either exclusively or even predominantly the
determinant of the result, however. See, Jones v. City of
Des Moines, 355 N.W.2d 49 (Iowa 1984); Montgomery Properties
v. Economy Forms, 305 N.W.2d 470 (Iowa 1981).
Additionally, we consider the following:
We are cognizant of the fact that the compensation
law is for the benefit of workers and is to be
liberally administered to that end. But it must
be administered by the application of logical and
consistent rules or formulas notwithstanding its
benevolent purpose. It cannot be made to depend
on the whim or sympathetic sentiment of the
current administrator or presiding judge. We
apprehend every member of this court is
sympathetic to claimant in the instant case. But
the compensation statute is not a charity. It is
a humanitarian law to be administered, not by
sympathy, but by logical rules, evolved from the
determination of many cases under literally
countless factual variations. Compensation is to
be paid by the employer (or [the] insurer) as a
matter of contract, not as a gratuity. It is
payable only when the facts show the injury is
within the contract--that it 'arose out of and in
the course of the contracted employment.' Bulman
v. Sanitary Farm Dairies, 247 Iowa 488, 494, 495,
73 N.W.2d (1955).
There is insufficient evidence to support a finding
that decedent's intoxication was not a substantial factor in
causing decedent's accident and death. Decedent was
traveling a road decedent knew well. Even had he not
traveled the road in the course of his employment, this was
a route to his in-laws' residence. Claimant and decedent
had dated for approximately one and one-half years before
marrying. They had been married for just over two years at
the time of decedent's fatal accident. Decedent then had
traveled this road at least with the regularity with which
persons visit their in-laws or their perspective in-laws for
approximately three and one-half years. Hence, the road and
curve in the road were not conditions with which decedent
was unfamiliar. Likewise, there is no evidence decedent
engaged in any evasive maneuvers before the accident. This
would suggest that no outside factors such as an animal
crossing the road produced or contributed to the accident.
Similarly, no one having dealings with decedent that evening
indicated that decedent appeared sleepy near the time of the
fatal accident. Indeed, in decedent's last known encounter
with another individual, decedent appeared more interested
in continuing his evening than in obtaining sleep. While
decedent was driving a new van, decedent had been driving
that van intermittently for over 12 hours at the time of his
fatal accident. One presumes that by then he had developed
some familiarity with the van's handling on curves.
Likewise, one presumes decedent had some familiarity with
appropriate speeds on the section of Highway 9 on which he
was traveling. Decedent apparently was speeding and speed
might well have been a factor in decedent's fatal accident.
Page 11
One must go one step further, however. One must ask why
decedent, knowing this particular section of Highway 9 and
having undoubtedly traveled it on many prior occasions, did
not enter the curve at an appropriate speed? In considering
this question, reasonable persons must first look to those
factors of which they are aware. The evidence establishes
that decedent had been displaying a lack of judgment both in
his driving and in his personal demeanor with co-workers
from at least 7:00 p.m. on. This lack of judgment lead
three of the four persons who encountered decedent in that
time span to conclude that he was intoxicated. A reasonable
person; knowing that decedent was familiar with this section
of the road, and knowing that decedent had entered this
curve many times before and believing that decedent had,
under normal conditions, a reasonably competent sense of the
speed at which the curve could be negotiated, and also
knowing that decedent was intoxicated when he entered the
curve, would have to conclude that decedent's intoxication
played some pertinent part in decedent's fatal motor vehicle
accident. Where reasonable persons must sadly so conclude,
workers' compensation benefits are not available to the
decedent worker's dependents.
We consider issue three, whether the employer's conduct
estopped the employer from asserting the intoxication
defense.
"Even in a case in which the intoxication defense
might otherwise apply, the employer may be
estopped to assert it if the employer helped to
cause the episode." 1A Larson The Law of
Workmen's (sic) Compensation, section 34.35
(1990).
The deputy correctly concluded that the employer did
not cause the intoxication involved with decedent's death.
As the deputy stated, the evidence demonstrates that the
employer on occasion encouraged employees to drink at the
workday's end. Decedent's drinking in the course of his
employment on the afternoon and evening of September 14,
1988, appears to have been a purely voluntary act, in
violation of the employer's policies and to which the
employer neither contributed nor condoned. The employer is
not estopped from raising the affirmative defense of
intoxication.
Wherefore the decision is affirmed in part and reversed
in part.
Page 12
order
THEREFORE, IT IS ORDERED:
Claimant take nothing from this proceeding.
Claimant pay costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of February, 1993.
______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies to:
Mr. Maynard M. Mohn
Attorney at Law
104 North Ninth St.
P.O. Box 72
Estherville, IA 51334
Mr. Richard G. Blane, II
Attorney at Law
8th Floor Fleming Bldg.
218 Sixth Ave.
Des Moines, IA 50309
Page 1
1601; 1403.30
Filed February 26, 1993
Byron K. Orton
JMI
before the iowa industrial commissioner
____________________________________________________________
:
MARGARET R. LAFFERTY, :
:
Claimant, :
:
vs. :
: File No. 943974
FOUR SONS HANDY SHOPS, INC., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
ILLINOIS NATIONAL INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1601; 1403.30
Deputy affirmed in part and reversed in part. Found that
claimant's decedent was intoxicated at time of fatal motor
vehicle accident and that decedent's intoxication was a
substantial factor in producing the motor vehicle accident.
Under Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 1972), a factor
is substantial when reasonable persons considering that
factor would regard it as a cause, that is, as being in some
pertinent part responsible for the result produced. Jones
v. City of Des Moines, 355 N.W.2d 49 (Iowa 1984) and
Montgomery Properties v. Economy Forms, 305 N.W.2d 470
(Iowa 1981) were cited for the proposition that a factor is
substantial when it is material in producing a result and
for the proposition that a factor may be substantial without
being either exclusively or even predominantly the
determinant of the result. Lawyer and Higgs, section 7-3,
page 63 was cited for the proposition that evidence of
intoxication may be presented by (1) blood alcohol levels;
(2) the interpretation of blood alcohol test results; (3)
the number of drinks ingested; and (4) the individual's
conduct prior to the injury.
All but one person who encountered decedent in the hour and
one-half prior to decedent's fatal accident believed
decedent to be intoxicated at the time of the encounter.
The nurse who attended decedent at the site of the accident
and the physician who attendant decedent in the hospital
emergency room both stated that claimant reeked of the odor
of alcohol. Blood drawn from decedent's heart chamber some
Page 2
16 minutes after CPR efforts ended tested at a blood alcohol
level of .152 percent. These facts demonstrated that
decedent was intoxicated at the time of the fatal injury.
Decedent's fatal accident occurred at approximately 8:25 at
night when decedent failed to negotiate a curve in a road
with which decedent was familiar. The evidence was that
decedent was traveling at an excessive speed. Given
decedent's failure to judge the correct speed at which to
enter a curve with which he was familiar and given the
overall evidence that decedent's behavior from approximately
7 p.m. onward had showed a lack of judgment which lack was
consistent with intoxication a reasonable person would
conclude the decedent's intoxication played some pertinent
part, that is, was a substantial factor in decedent's fatal
motor vehicle accident.
Deputy's conclusion that the employer was not estopped from
asserting the intoxication defense affirmed. The employer
may be estopped from asserting the defense if the employer
helped to cause the episode of intoxication. Evidence did
not show that the employer had either condoned or encouraged
employees in drinking on the job even though the employer
did permit drinking at business locations after work hours.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MARGARET R. LAFFERTY, :
:
Claimant, :
:
vs. :
: File No. 943974
FOUR SONS HANDY SHOPS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ILLINOIS NATIONAL INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding for death benefits upon the
petition of Margaret R. Lafferty, widow of Jerry DeLoy
Lafferty, Jr., filed on July 18, 1990. Jerry DeLoy
Lafferty, Jr., is the deceased husband of Margaret R.
Lafferty and the father of two minor children. Claimant's
petition alleges that her husband's death arose out of and
in the course of his employment with defendant, Four Sons
Handy Shops, Inc., employer on September 14, 1988 and seeks
benefits under the Iowa Workers' Compensation Act from that
employer who is insured by Illinois National Insurance
Company.
This matter came on for hearing before the undersigned
deputy industrial commissioner on August 13, 1991, in Storm
Lake, Iowa. The record consists of joint exhibits 1-19 and
21-25 which include 14 depositions. The record also
consists of testimony from the following witnesses:
Margaret R. Lafferty, Dana A. Adreon, Kent Bro, Tim
Williams, Elizabeth Zane Roehler, and Nina Harbaugh. The
case was considered fully submitted at the close of the
hearing.
issues
Pursuant to the prehearing report and order dated
August 13, 1991, the parties have stipulated that an
employer-employee relationship existed between Jeffery DeLoy
Lafferty, Jr., and employer and that Mr. Lafferty sustained
an injury on September 14, 1988, which arose out of and in
the course of his employment with employer and that such
injury resulted in his death on September 14, 1988. The
parties further stipulate that at the time of his death, Mr.
Lafferty was married and entitled to four exemptions. His
Page 2
gross weekly earnings were $334.62.
Defendants assert an affirmative defense of intoxication
under Iowa Code section 85.16(2). The issue to be decided
is whether intoxication was a substantial factor in causing
Mr. Lafferty's automobile accident and death which will bar
the workers' compensation claim of his widow.
Claimant argues that defendants should be estopped from
raising the intoxication defense.
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, the arguments made, the
evidence identified in the exhibits herein, and makes the
following findings:
Mr. Lafferty was born on March 29, 1959. He met his
wife Margaret in Spirit Lake, Iowa. They dated 1 1/2 years
and married on August 30, 1986. Two children were born of
the marriage. Mr. Lafferty commenced working for employer
on a part-time basis in 1982. He was assigned to the
maintenance department. In 1985, he assumed full time
duties with employer. Because of his artistic and creative
abilities, he was assigned to maintain the interior and
exterior aesthetics of the company stores throughout the
state. His job required long hours and extensive travel.
It was not uncommon for him to leave his house at 7:00 a.m.
and end his work day at 7:00 p.m. He made a Northern Iowa
tier trip every month which required an on-the-road
overnight stay.
On September 14, 1988, Mr. Lafferty was assigned to a
northern tier trip. There were approximately 10 Four Sons
Handy Shops within the northern tier area. Mrs. Lafferty
testified that decedent left home at 7:00 a.m. and picked up
a new white Dodge van at the maintenance shop two miles from
their home. Before embarking on his road trip, he returned
home to pick up some cash and started on his journey around
8:00 a.m. His final work destination was a company store in
Armstrong, Iowa. He planned to stay overnight at his
in-laws in Gruver, Iowa which was about five miles from
Armstrong. Mrs. Lafferty testified that decedent called her
between 12:30 and 1:00 p.m. and indicated he was on his way
to Armstrong.
The documentary evidence indicates that approximately
around 7:10 p.m., the evening of September 14, 1988,
claimant was stopped by Police Chief Paul Schweiger in Swea
City, Iowa for speeding. He was going 58 in a 35 mile speed
zone on Iowa State Highway 9. Mr. Lafferty was followed by
Chief Schweiger and he pulled up to the Handy Shop and
stopped. Mr. Lafferty then got out of his car and sat in
the chief's car, got his driver's license out and a citation
was written up. He stayed in the chief's vehicle about
three minutes and sat about two - three feet away. Chief
Schweiger testified in his deposition that he did not detect
any odor of alcohol on Mr. Lafferty nor did he observe
anything in the manner of his walk or speech which would
indicate that he was under the influence of alcohol. He
Page 3
testified that he did not detect any indicia of intoxication
including slurred speech, fumbling with the billfold, soiled
clothing or dilated pupils. Chief Schweiger testified that
if he had observed any of these characteristics, he would
have called the deputy and a primary breath tester would
have been performed. While Chief Schweiger was writing the
citation, Mr. Lafferty went into the Four Sons Store for
about five minutes and then returned to the patrol car for
another five minutes. Chief Schweiger testified that
decedent signed the ticket and while doing so, "tears
started rolling out of his eyes, and he didn't know how he
was going to pay for it, ..." (Exhibit 11, page 18, lines
10-12). In conclusion, Chief Schweiger testified that when
Mr. Lafferty left town, he appeared to have exceeded the 25
mile speed limit and when he got to the edge of town on
Highway 9 it appeared that he was doing more than 55 miles
an hour (Ex. 11).
Elizabeth Zane Roehler testified at the hearing that
she was the clerk on duty at the Four Sons Store in Swea
City on the evening of September 14, 1988. She stated that
Mr. Lafferty came into the store sometime after 7:00 p.m.
and went to the supply room. She commented that he appeared
rude and obnoxious and acted as if he had been drinking
although he did not smell of alcohol. She admitted that she
did not know that Mr. Lafferty had just received a speeding
citation.
Claimant drove from the Swea City Four Sons Store to
the store in Armstrong, Iowa. Connie Linn, the clerk on
duty in the Armstrong store on the evening of September 14,
1988, testified by deposition. She stated she was working
the 3:00 p.m. to 11:00 p.m. shift that day. During the
course of her shift, Mr. Lafferty stopped at the store. She
testified that she had never seen him before and did not
know he was employed by Four Sons. When he came into the
store he asked for the key to the rest room and when he
returned he went to the storeroom in the back part of the
store. While going about his business he did not tell her
that he worked for Four Sons. However, she finally asked
him what business he had in the store and he then told her
he worked for Four Sons. She described him as loud and
obnoxious. She said he appeared loose. She testified that
she did not smell any beer on Mr. Lafferty's breath and his
speech was not slurred. Also, she did not see him drink or
buy any beer that night (Ex. 16).
Nina Harbaugh testified at the hearing. She stated she
came upon Mr. Lafferty as he was leaving the Armstrong store
the evening of September 14, 1988. She testified that he
appeared drunk but she did not smell alcohol on his breath.
Mr. Lafferty indicated to her that he was single and invited
her to spend the night with him in a motel room in Spirit
Lake, Iowa. She declined and they went their separate ways.
According to the accident report, at approximately 8:30
p.m. on September 14, 1988, Mr. Lafferty's van left the
road, rolled over and threw him from the vehicle. Barbara
Page 4
Mullen testified in her deposition that she came upon the
accident on her way home from church. She stopped beside a
vehicle that was parked on the side of the road and spoke to
a woman who was standing nearby. She told the woman that
she was a registered nurse who worked in the emergency room
at Holy Family Hospital. The woman's husband called the
ambulance squad. Mrs. Mullen testified that she went over
toward the edge of the shoulder of the road and went down
into the dark ditch. As she did so she hollered: "Is there
someone there?" However, it was so dark and there were no
lights, she could not see anything. She testified that she
heard moaning and went down to the embankment and toward the
area of the moaning. She came upon a person who was face
down. She rolled him over, cleared his mouth and felt for a
pulse. She testified that she knew he had vomited and she
smelled the odor of alcohol on his breath. She cleared his
mouth and listened but could not hear him breathing and
could not feel his pulse. She immediately began CPR,
mouth-to-mouth resuscitation and chest compressions. She
performed CPR a few minutes until the Armstrong ambulance
service came by. They continued with resuscitation efforts
and transported the victim to the emergency room (Ex. 5).
Claimant was transported via ambulance to Holy Family
Hospital emergency room. He was pronounced dead at 9:44
p.m. by Douglas V. Stangl, M.D., the physician on call that
evening. Dr. Stangl testified by deposition that he smelled
alcohol on Mr. Lafferty. He explained as follows:
A. Okay. The whole room, basically, reeked
with the smell of alcohol, and it's a very
characteristic smell of anyone who's been drinking
heavily and exhaling those fumes. In the process
of breaking down alcohol, the lung does excrete
the odor of alcohol, the gas of its degradation
products, and it's a smell that I learned well
when I was in my residency training so I know a
lot of people that had been inebriated.
(Ex. 4, p. 12, ll. 11-19)
Dr. Stangl further testified that he took a blood
alcohol sample from decedent's heart after the code blue was
stopped that evening. He also took another intercardiac
specimen for law enforcement officials at 10:00 p.m. It was
Dr. Stangl's opinion that Mr. Lafferty fractured his neck in
the accident and that probably caused his demise. It was
also his opinion that decedent had ingested a large amount
of alcohol. However, he could not say with medical
certainty that decedent's blood alcohol level was actually
higher when the blood sample was taken as opposed to the
time of the accident (Ex. 4).
The blood alcohol report indicates that claimant's
blood sample was tested on September 16, 1988, and showed an
alcohol content of .152 percent (Ex. 10). There is a
dispute between medical experts as to the actual blood
alcohol content. Lawrence Donovan, M.D., pathologist,
Page 5
testified in a deposition on July 12, 1991, that, in his
opinion, Mr. Lafferty's blood alcohol level at the time of
the accident at approximately 8:30 p.m. was below the legal
limit of .10 milligrams percent. Dr. Donovan explained that
alcohol from the stomach of a deceased person can diffuse
into the heart which increases the blood alcohol content.
He testified that a better location by which to obtain an
accurate blood test is the vessels in the groin because they
do not change even after death. Dr. Donovan stated that a
blunt sample drawn from the heart an hour and a half after
death would be higher than it would have been at the time of
the accident. This, however, would not be true if the blood
sample had been taken from the groin or leg area. In
conclusion, Dr. Donovan conceded that Mr. Lafferty had
alcohol in his blood a hour and a half after the accident
(Ex. 1).
Richard Wooters, M.D., Chief Medical Examiner of Polk
County, Iowa, testified in a deposition on July 26, 1991,
that, in his opinion, the blood sample taken by Mr. Stangl
and tested at Dickerson County Hospital at a level of .152
is a fair and accurate report of decedent's blood alcohol
level. He disagreed with Dr. Donovan that decedent's blood
level on September 14, 1988, was below the legal limit of
.10. Dr. Wooters testified that a person with the blood
alcohol level of .10 and above has significant impairment of
driving ability and slowing of reaction time. He opined
that decedent's alcohol condition was a substantial factor
in causing his accident. Dr. Wooters stated that for a man
of decedent's size (6 foot 3 inches tall, 240 pounds), he
would have had to consume a minimum of eight to ten beers to
get a blood alcohol level of .152 (Ex. 2).
Larry Lamack was Emmet County Deputy Sheriff and on
duty the night decedent was killed. He testified by way of
deposition on July 12, 1991. He stated that he was called
to the scene of the accident and when he arrived he had a
brief discussion with Armstrong Police Officer Chuck Marlin.
Afterwards, the immediate area where the accident had
occurred was searched for any other possible occupants.
When none were found, they started taking measurements of
the accident scene. He estimated seeing four to five empty
beer cans in and around the van. He indicated that none of
the empty beer cans were retained or examined to determined
where they had been purchased. Measurements of the accident
scene were taken and showed that the van traveled 346 feet
after leaving Highway 9. While making his measurements,
Sheriff Lamack noted skid marks where the vehicle failed to
negotiate the curve and where the driver started to apply
the breaks. He stated that from the degree of angle the
vehicle entered the ditch, the skid marks appeared to be
break marks because the vehicle made an almost straight
approach rather than a sharp angle into the ditch. Because
no one at that time was trained to do a speed factor,
Sheriff Lamack could only speculate as to why decedent's
vehicle left the curve. Based on all the factors involved,
Page 6
Sheriff Lamack indicated that alcohol was a substantial
factor in causing decedent's accident (Ex. 17).
Dan Gronbeck, Sheriff of Emmet County, on September 14,
1988, testified in a deposition on July 12, 1991. He stated
that he made a visual investigation of the fatal accident
which resulted in Jerry Lafferty's death. In investigating
the incident, he observed skid marks from the van which he
characterized as sliding skid marks due to excessive speed
going around the corner. It was his opinion that the tires
were sliding sideward because the accident report shows that
the hash marks go in a curve rather than straight. It was
Sheriff Gronbeck's opinion that the cause of the accident
was loss of control of the vehicle due to excessive speed
going around the curve (Ex. 12).
conclusions of law
Claimant argues that employer's knowledge,
encouragement and condonation of drinking on the job should
estop defendants from raising the intoxication defense. The
undersigned agrees that there is evidence to show that
employer encouraged drinking by his employees at the end of
the work day on occasion, however, there is no evidence that
he approved of drunkenness or drinking and driving. "Even
in a case in which the intoxication defense might otherwise
apply, the employer may be estopped to assert it if he
helped to cause the episode." 1A Larson The Law of Work
men's Compensation, section 34.35 (1990).
After carefully considering the total evidence in this
case, including the testimony at the hearing, the
undersigned concludes that employer did not cause the
intoxication involved with decedent's death. Therefore,
they are not estopped from raising the affirmative defense
of intoxication.
The Iowa Supreme Court in Reddick v. Grand Union Tea
Co., 230 Iowa 108, 296 N.W. 800 (1941) sets forth the rule
for dealing with affirmative defenses. The opinion in
Reddick states that once claimant sustains the burden of
showing that an injury arose out of and in the course of
employment, claimant prevails unless defendants can prove by
a preponderance of the evidence an affirmative defense.
Iowa Code section 85.16 states in pertinent part as
follows:
No compensation under this chapter shall be
allowed for an injury caused:
...
2. By the employee's intoxication, which did not
arise out of and in the course of employment but
which was due to the effects of alcohol or another
narcotic, depressant, stimulant, hallucinogenic,
or hypnotic drug not prescribed by an authorized
medical practitioner, if the intoxication was a
substantial factor in causing the injury.
Page 7
The intoxication defense requires a showing not only
that claimant was intoxicated at the time of the injury, but
also that the intoxication was a substantial factor in
bringing about the injury. Intoxication must be shown not
just to be a possible factor, but a probable substantial
factor. Stull v. Truesdale Coop Elevator Company, (File No.
780309, Appeal Decision, December 14, 1987).
Although there is some dispute in this record, medical
evidence indicates that claimant had a blood alcohol level
between .10 - .152 percent. Barbara Mullen testified that
when she encountered decedent in the ditch his vomitus
smelled of alcohol. Dr. Stangl, the physician on call in
the emergency room the night decedent was brought into Holy
Family Hospital, testified that the room reeked with the
smell of alcohol. It is evident therefore that, at the time
of the accident, decedent had previously ingested some
alcohol. The undersigned is persuaded that claimant had
ingested alcohol at the time of his death
Defendants must also prove that the intoxication was a
substantial factor in bringing about decedent's accident
which resulted in his death.
The Iowa Supreme Court in Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980) stated at 354:
A cause is proximate if it is a substantial factor
in bringing about the result. See Holmes v. Bruce
Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa
1974). It only needs to be one cause; it does not
have to be the only cause. See Langford v.
Keller Excavating & Grading, Inc., 191 N.W.2d at
670.
For a cause to be proximate, it must be substantial.
It must exist to the degree that the event, in this case the
accident, would not have occurred in its absence. The
cause, in order to be proximate, cannot be insignificant or
trivial. There is conflicting evidence in the record
concerning the cause of this accident. Dr. Donovan could
not state with medical certainty that alcohol was a factor
in causing the accident. Dr. Wooters emphatically stated
that drinking was a substantial factor in the accident.
Deputy Sheriff Lamack testified that he considered the
accident alcohol related but Sheriff Gronbeck attributed the
accident to excessive speed in going around the curve.
Individuals who observed and encountered decedent
shortly before the accident had different perceptions as to
claimant's demeanor. Elizabeth Roehler described claimant
as rude and obnoxious and testified that he acted "as if" he
had been drinking but admitted that she did not smell
alcohol on his breath. Nina Harbaugh described decedent as
"kind of drunk" but stated that he did not appear sleepy or
tired nor did she smell alcohol on his breath. Police Chief
Paul Schweiger observed that decedent acted normal and did
not display any indicia of alcoholism. He detected no odor
of alcohol on decedent's breath and he observed him to walk,
Page 8
talk and write normally.
After careful consideration of the total evidence in
this case, the undersigned concludes that while it is
possible intoxication may have been a factor in the
accident, it is also possible that the accident may have
occurred even if decedent had not had any alcohol in his
system. The evidence does not exclude other reasonable
causes for the accident totally unrelated to decedent's
alcohol use. It is noteworthy that decedent was completing
a long 13 hour day on the road and could have for an instant
fallen asleep at the wheel. One hour prior to the accident
he had received a speeding ticket and was observed speeding
after the citation was issued. He was driving a vehicle he
had never driven before and was unfamiliar with how the
vehicle handled curves. He was driving on a country
blacktop road which although dry and unobstructed, had no
road markings or side markings because of recent
construction work. Nurse Mullen described the accident
scene as pitch black and under the circumstances mentioned
above, he could have been stressed out and distracted thus
failing to negotiate the curve.
In view of the above factors, the undersigned concludes
that defendants have failed to prove by a preponderance of
the evidence that decedent's intoxication was a substantial
factor in causing the accident which resulted in his death.
order
THEREFORE, IT IS ORDERED THAT:
Defendants pay to decedent's surviving spouse, Margaret
R. Lafferty, workers' compensation benefits in accordance
with the provisions of Iowa Code section 85.31. Any accrued
but unpaid amounts shall be paid in a lump sum together with
interest pursuant to section 85.30.
Defendants shall pay the reasonable expenses of burial,
not to exceed one thousand dollars ($1,000). Iowa Code
section 85.28.
Defendants shall pay to the Treasurer of State for the
Second Injury Fund the sum of four thousand dollars
($4,000). Iowa Code section 85.65.
Defendants shall pay the cost of this action pursuant
to rule 343 IAC 4.33.
Defendants shall file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.l.
Signed and filed this ____ day of September, 1991.
Page 9
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Maynard M. Mohn
Attorney at Law
103 North Ninth St
P O Box 72
Estherville IA 51334
Mr. Richard G. Blane, II
Attorney at Law
803 Fleming Bldg
Des Moines IA 50309
1403.30; 1601
Filed September 3, 1991
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
MARGARET R. LAFFERTY, :
:
Claimant, :
:
vs. :
: File No. 943974
FOUR SONS HANDY SHOPS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ILLINOIS NATIONAL INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1403.30; 5-1601
The parties do not dispute that decedent's injury, which
resulted in his death, arose out of and in the course of his
employment with employer. Defendants have raised the
affirmative defense of alcohol intoxication. There is
conflicting medical evidence as to decedent's blood alcohol
level. An intercardiac sample revealed a .152 level. This
finding was contested by a pathologist who indicated that an
intercardiac blood sample is higher than one taken from the
groin or leg area. He estimated that decedent's alcohol
content was below .10. In any event, a nurse who had
administered CPR at the scene of the accident testified that
decedent's vomitus smelled of alcohol. The emergency room
physician testified that the room reeked with the smell of
alcohol. It was determined that defendants met the first
criteria of the intoxication defense.
However, the intoxication defense requires a showing not
only that decedent was intoxicated at the time of the
accident, but also that the intoxication was a substantial
factor in bringing about his death. Intoxication must be
shown not just to be a possible factor, but a probable
substantial factor. Stull v. Truesdale Coop Elevator Co.,
(File No. 780309, Appeal Decision, December 14, 1987).
There is conflicting medical opinion as to the cause of the
accident. The Polk county medical examiner stated that
drinking was a substantial factor in the accident. A
pathologist could not say with certainty that alcohol was a
substantial factor in causing the accident. A police chief
who issued decedent a speeding citation one hour before the
accident detected no odor of alcohol on decedent's breath.
Other individuals who encountered decedent prior to the
accident observed no signs of being "under the influence."
Decedent was observed to walk, talk, write and coordinate in
a normal manner. Too many other possible causes for the
accident were apparent to the undersigned. Decedent had
been on the road almost 13 hours. He was driving a new
Dodge van for the first time. The accident occurred on a
curved pitch black, unmarked, blacktop road. Decedent could
have lost control of the car due to excessive speed. He
could have been unduly fatigued due to the long working day.
It is possible that he was unfamiliar with how the van
handled on curves.
Accordingly, defendants failed to prove by a preponderance
of the evidence that intoxication of decedent was a
substantial factor in causing the injury which resulted in
his death.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARGARET R. LAFFERTY,
Claimant,
vs.
File No. 943974
FOUR SONS HANDY SHOPS, INC.,
R E M A N D
Employer,
D E C I S I O N
and
ILLINOIS NATIONAL INS. CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
Defendants appeal and claimant cross-appeals from an
arbitration decision awarding claimant death benefits on
account of the death of her husband, Jerry Deloy Lafferty,
Jr.
The record on appeal consists of the transcript of the
arbitration hearing, and joint exhibits 1 through 19 and 21
through 25. Both parties filed briefs on appeal.
In an appeal decision dated February 26, 1993, the
industrial commissioner affirmed in part and reversed in
part the arbitration decision of the deputy industrial
commissioner and ordered that the claimant take nothing from
this proceeding. A petition for judicial review was filed
in the Iowa District Court for Dickinson County. In a
ruling dated December 28, 1993, the Honorable Joseph J.
Straub remanded this case to the industrial commissioner to
apply the correct legal standard and determine whether the
employee's intoxication was a substantial factor in causing
the injury which resulted in the employee's death.
ISSUES
Defendants state the issues on appeal as:
(1) Whether sufficient evidence exists to support a
finding that decedent's blood alcohol level was less than
the .152 percent found on blood alcohol testing;
(2) Whether sufficient evidence exists, beyond mere
speculation, for the deputy industrial commissioner to make
a finding that decedent's intoxication was not a
"substantial factor" in causing decedent's accident and
death. (In this portion of the decision the industrial
commissioner simply stating the issue in the same words used
by defendants in their appeal brief. As pointed out in the
remand order, and as recognized by the industrial
Page 2
commissioner, this issue is more accurately stated as
whether defendants have carried their burden of establishing
by a preponderance of the evidence that decedent's
intoxication was a substantial factor in causing decedent's
accident and death.)
Claimant on cross-appeal states the additional issue:
(3) Whether the conduct of the employer's management
in providing free beer to maintenance workers and other
statements the company president made regarding maintenance
workers drinking on the job estops the employer from
asserting the defense of intoxication.
FINDINGS OF FACT
Decedent, Jerry Deloy Lafferty, was born on March 29,
1959. He met his wife, Margaret, in Spirit Lake, Iowa.
They dated one and one-half years and married on August 30,
1986. Two children were born of the marriage. Mr. Lafferty
commenced work for the employer on a part-time basis in
1982. He was assigned to the maintenance department. In
1985, he assumed full time duties with the employer.
Because of his artistic and creative abilities, he was
assigned to maintain the interior and exterior aesthetics of
the company stores throughout the state. His job required
long hours and extensive travel. It was not uncommon for
him to leave his house at 7:00 a.m. and end his work day at
7:00 p.m. He made a northern Iowa tier trip which required
an on-the-road overnight stay every month.
On September 14, 1988, Mr. Lafferty was assigned to a
northern tier trip. There were approximately 10 Four Sons
Handy Shops within the northern tier. Mrs. Lafferty
testified that decedent left home at 7:00 a.m. and picked up
a new Dodge van at the maintenance shop two miles from their
home. He returned home before beginning his road trip and
started his road trip around 8:00 a.m. His final work
destination was a company store in Armstrong, Iowa. He
planned to stay overnight at his in-laws in Gruver, Iowa
which was about five miles from Armstrong. Decedent called
claimant between 12:30 and 1:00 p.m. and told her he was on
his way to Armstrong. Travel by car from Des Moines to
Armstrong takes approximately four hours.
At around 7:10 p.m., on September 14, 1988, Swea City,
Iowa Police Chief Paul Schweiger stopped decedent for
speeding. Decedent was going 58 in a 35 mile per hour speed
zone on Iowa State Highway 9. Chief Schweiger followed Mr.
Lafferty to the Four Sons Handy Shop where Lafferty and
Schweiger both stopped. Mr. Lafferty then got out of his
car and sat in the chief's car. Lafferty removed his
driver's license from his wallet and Chief Schweiger wrote a
citation. Lafferty was in the chief's vehicle about three
minutes and sat about two to three feet from the chief.
Chief Schweiger did not detect any odor of alcohol on Mr.
Lafferty and did not observe anything in Lafferty's walk or
speech that would have indicated that Lafferty was under the
influence of alcohol. Chief Schweiger did not detect any
indicia of intoxication including slurred speech, fumbling
Page 3
with the wallet, soiled clothing or dilated pupils. Chief
Schweiger testified that if he had observed any of these
characteristics, he would have called a deputy and would
have performed a primary breath tester. Chief Schweiger had
made perhaps six or seven driving under the influence
arrests in ten intermittent years as a law enforcement
official.
While Chief Schweiger was writing the citation, Mr.
Lafferty went into the Four Sons store for about five
minutes. He then returned to the patrol car for
approximately another five minutes. Chief Schweiger
testified that decedent signed the ticket and while doing
so, "tears started rolling out of his eyes, and he didn't
know how he was going to pay for it, ..." Chief Schweiger
thought it was unusual for a grown man to cry over a
speeding ticket. When leaving Schweiger's vehicle, Lafferty
slammed the door, stated no one cared, and took off "real
fast driving 55 in a 45 [mile per hour zone]." Chief
Schweiger testified that Schweiger "didn't think [he] better
stop [decedent] again for the frame of mind [decedent] was
in."
Elizabeth Zane Roehler was the clerk on duty at the
Swea City Four Sons store on the evening of September 14,
1988. She stated that Mr. Lafferty came into the store
sometime after 7:00 p.m. and went to the supply room. She
characterized decedent as rude and obnoxious and as acting
as if he had been drinking although not smelling of alcohol.
She did not know that Mr. Lafferty had just received a
speeding citation.
Lafferty left Swea City between 7:30 and 7:40 p.m.
Armstrong is eight miles from Swea City.
Connie Linn was the clerk on duty in the Armstrong Four
Sons store on the evening of September 14, 1988. Decedent
was at the store from approximately 8:00 p.m. to 8:25 p.m.
Linn had never seen decedent before and did not know he was
a Four Sons'
Page 4
employee. Decedent came into the store, asked Linn for the
key to the restroom and upon returning from the restroom,
went to the storeroom at the back of the building. He went
behind the service counter. At that point, Linn asked
Lafferty what business he had in the store. He then told
her he worked for Four Sons. Linn described Lafferty as
loud and obnoxious and as cussing. To her, Lafferty
appeared "loose," that is, as having lost his inhibitions
due to alcohol ingestion. Linn has worked in a bar and
testified she is familiar with persons who are "loose" as
well as with persons in later stages of drunkenness. Linn
did not smell beer on Lafferty's breath and did not believe
his speech was slurred. She did not see him drink or buy
beer. Linn opined decedent's actions differed from those of
someone who is just naturally loud and boisterous. She
stated that Lafferty staggered a little and was "just
scary."
Nina Harbaugh encountered Mr. Lafferty as he was
leaving the Armstrong store on September 14, 1988. To her,
he appeared drunk although she did not smell alcohol on his
breath. Mr. Lafferty told Ms. Harbaugh he was single and
invited her to spend the night with him in a motel in Spirit
Lake, Iowa. She declined and they went their separate ways.
At approximately 8:30 p.m. on September 14, 1988, Mr.
Lafferty's van left the road and rolled over. He was thrown
from the vehicle. Barbara Mullen, a registered nurse, came
upon the accident. Another couple already had discovered
the accident and called the ambulance squad. Nurse Mullen
left the road and went into the ditch looking for accident
victims. The area was dark and unlit. She could see
nothing. She shouted "Is there someone there?" She heard
moaning and went towards the sound. She came upon a person
who was face down. She rolled him over, cleared his mouth
and felt for a pulse. The individual had vomited; his
breath smelled of alcohol. Mullen works in the emergency
room frequently and is familiar with the odor of alcohol.
She cleared the victim's mouth, listened but could not hear
him breathing, and could not detect a pulse. She
immediately began CPR, mouth-to-mouth resuscitation and
chest compressions. She performed CPR until the ambulance
service arrived several minutes later. Ambulance personnel
continued resuscitation efforts and transported the victim,
subsequently identified as decedent Lafferty, to the
emergency room at Holy Family Hospital.
CPR, mouth-to-mouth resuscitation and chest
compressions were continued from when Nurse Mullen found
decedent until Douglas V. Stangl, M.D., the physician on
call, pronounced decedent dead at 9:44 p.m. Dr. Stangl
smelled alcohol on Mr. Lafferty. Stangl testified in his
deposition as follows:
"A. Okay. The whole room, basically, reeked with
the smell of alcohol, and it's a very
characteristic smell of anyone who's been drinking
heavily and exhaling those fumes. In the process
Page 5
of breaking down alcohol, the lung does excrete
the odor of alcohol, the gas of its degradation
products, and it's a smell that I learned well
when I was in my residency training so I know a
lot of people that had been inebriated."
(Ex. 4, p. 12, 11. 11-19)
Dr. Stangl took a blood alcohol sample from decedent's
heart after the code blue was stopped at 9:44 p.m. Stangl
took another inter cardiac specimen for law enforcement
officials at 10:00 p.m. Dr. Stangl opined that decedent
fractured his neck in the accident and that the neck
fracture probably caused decedent's death. Dr. Stangl also
opined that decedent had ingested a large amount of alcohol.
He could not say with medical certainty that decedent's
blood alcohol level was higher when the blood sample was
taken than it had been when the accident occurred.
On testing on September 16, 1988, Lafferty's blood
sample showed an alcohol content of .152 percent.
Medical experts dispute the actual blood alcohol
content.
Lawrence Donovan, M.D., a pathologist, in his July 12,
1991 deposition, opined that decedent's blood alcohol level
was below the legal limit of .10 milligrams percent when the
motor vehicle accident occurred at 8:30 p.m. Dr. Donovan
stated that alcohol from a deceased person's stomach can
diffuse into the heart and thereby increase the blood
alcohol content. He stated that a blood sample drawn from
the heart an hour and a half after death would be higher
than would be a sample drawn at the time of the accident
[resulting in the death].
Richard Wooters, M.D., Chief Medical Examiner of Polk
County, Iowa, in his July 26, 1991 deposition, opined that
the blood sample Dr. Stangl drew at 10:00 p.m. on September
14, 1988 was a fair and accurate report of decedent's blood
level when the accident occurred. Dr. Wooters opined that
decedent's blood continued to circulate throughout the time
when CPR was administered. He stated that, for that reason,
the blood alcohol result obtained upon testing the blood
drawn from the heart at 10:00 p.m. reasonably reflected
decedent's blood alcohol when the motor vehicle accident
occurred. Dr. Wooters further stated that the medical
literature demonstrates a considerable number of hours must
pass between death and the drawing of a blood sample for any
diffusion from the stomach to the heart to significantly
affect the blood alcohol level obtained. Dr. Wooters also
stated that reported differences between femoral and heart
blood samples involve samples drawn from the pericardial sac
and not from the heart chambers themselves and would,
therefore, not be applicable
Page 6
in this instance. Dr. Wooters disagreed with Dr. Donovan's
opinion that decedent's blood alcohol when the accident
occurred was below the legal limit of .10. Dr. Wooters
stated that the inability to detect the odor of alcohol
would mean the person was not highly intoxicated but did not
prove the individual had not been drinking. He stated both
that the absence of an alcohol odor on the breath and the
absence of slurred speech suggest the individual is not
highly intoxicated and that a .10 blood alcohol content
possibly would not be detected as a breath odor and that,
therefore, one cannot attach significance to the store
clerk's inability to detect the odor of alcohol on decedent.
Dr. Wooters opined that if decedent had started drinking at
8:25 p.m. decedent would not have had a blood alcohol of
.152 one and a half hours later where CPR [had been
continuously administered]. Dr. Wooters testified that a
person with a blood alcohol level of .10 and above has
significant impairment of driving ability and slowed
reaction time.
Dr. Wooters' testimony is accepted over Dr. Donovan's
testimony. Dr. Wooters' testimony is more consistent with
both the documentary evidence presented and with the fact of
decedent's actual demise only 16 minutes before drawing of
the tested blood sample. It is expressly found that
decedent's blood alcohol at the time of the motor vehicle
accident was .152 percent. It is further expressly found
that the blood alcohol result, the lay testimony of Nina
Harbaugh and Connie Linn as well as the testimony of Nurse
Mullen and Dr. Stangl establishes decedent was intoxicated
when the motor vehicle accident occurred.
Dr. Wooters opined that decedent's intoxication was a
substantial factor in causing the motor vehicle accident.
Dr. Wooters stated that a man decedent's size (6 foot 3
inches tall, 240 pound), would have had to consume a minimum
of eight to ten beers to achieve a blood alcohol of .152.
Larry Lamack was an Emmet County Deputy Sheriff on duty
the evening of September 14, 1988. He stated he saw four or
five empty beer cans in claimant's vehicle and in the ditch
near the vehicle at the accident site. None of the cans
were retained or examined to determine where they had been
purchased. Deputy Lamack and Armstrong police officer Chuck
Marlin took measurements of the accident scene. Decedent's
van had traveled 346 feet after leaving Highway 9. Sheriff
Lamack noted skid marks where the vehicle failed to
negotiate the curve and where the driver started to apply
the brakes. Lamack opined from the degree of the angle the
vehicle entered the ditch, the skid marks appeared to be
brake marks because the vehicle made an almost straight
approach rather than a sharp angle into the ditch.
Page 7
Lamack opined that there were no road characteristics that
would have contributed to the van leaving the road. Weather
conditions were good and Lamack opined that the accident
site was not an area where people routinely missed the
curve.
After leaving the accident site, Lamack stopped at the
Four Sons store in Armstrong and spoke with Connie Linn.
After taking her statement, Lamack formed the impression
that decedent likely was intoxicated when he left the
Armstrong Four Sons store. Lamack opined that his
inspection of the accident site and from Connie Linn's
statement alcohol was a substantial factor in decedent's
fatal accident. Lamack stated: ".... would say with all
other possible factors ... alcohol would probably, be on top
of my list."
Dan Gronbeck, Emmet County Sheriff on September 14,
1988, made a visual investigation of the accident site. He
observed skid marks from the van which he characterized as
sliding skid marks due to excessive speed going around a
corner. He opined that the van's tires were sliding
sideward because the accident report shows that the hash
marks go in a curve rather than straight. Gronbeck found no
evidence of evasive [vehicle] maneuvers on the highway.
Gronbeck opined that loss of vehicle control due to
excessive speed while going around a curve caused decedent's
fatal accident. Gronbeck further stated that if an
individual were both under the influence and speeding when
the accident occurred both the intoxication and the speeding
would be substantial factors in the motor vehicle accident.
Donna Muhm, a clerk at Four Sons in Armstrong in 1984
and 1985, reported that Kent Bro, president of Four Sons,
purchased a six-pack of beer for decedent and Bro to drink.
Muhm reported that at other times maintenance workers would
buy beer and drink it while eating supper in the van. She
stated that it was common knowledge that maintenance workers
got "special treatment" and were allowed to drink beer if
working late. Gail Larsen stated she also observed Kent Bro
and decedent buying the six-pack of beer and that she had
seen maintenance workers use "blue maintenance charge slips"
to purchase beer. The blue slips designated purchases as
maintenance expenses only and did not designate the exact
nature of the expense. Shawn Conner, a former Four Sons
employee, stated that Kent Bro purchased a 12- pack of beer
for consumption during headquarters remodeling. Dana
Adreon, a former Four Sons employee and a friend of
decedent, stated that Kent Bro had given maintenance workers
express permission to drink and drive while returning from
long, late night, on-the-job, road trips. Kent Bro, John
Stone (comptroller for Four Sons from April 1985 through
October 1988), and Thomas Baughman (also a member of Four
Sons management), agreed that at times, beer would be
purchased and drank at headquarters after work. They
reported that Four Sons had a policy that anyone drinking on
the job would be terminated and further reported that store
Page 8
clerks giving maintenance workers free beers at the end of
the maintenance workers' shifts were violating company
policy. They also reported that maintenance workers were
not to consume alcohol while driving company vans. The
greater weight of evidence supports a finding that while
Four Sons maintenance workers may have purchased alcohol
using blue charge slips and may have drank on the job on
occasion and at work sites and while driving, those actions
were individual acts in violation of company policy and not
condoned by company management.
CONCLUSIONS OF LAW
The first issue on appeal is whether sufficient
evidence exists to support a finding that decedent's blood
alcohol level was less than .152 percent as the blood
alcohol test showed.
Iowa Code section 85.16 states in pertinent part:
No compensation under this chapter shall be
allowed for an injury caused:
...
2. By the employee's intoxication, which did not
arise out of and in the course of employment but
which was due to the effects of alcohol or another
narcotic, depressant, stimulant, hallucinogenic,
or hypnotic drug not prescribed by an authorized
medical practitioner, if the intoxication was a
substantial factor in causing the injury.
Intoxication, is not defined by the workers'
compensation statute or by case law. Lawyer and Higgs,
section 7-3, page 63. This treatise suggest that evidence
might be presented by: (1) blood alcohol levels; (2) the
interpretation of blood alcohol test results; (3) the number
of drinks decedent ingested; and (4) decedent's conduct
prior to the injury.
The weight and credit to be given evidence of results
of clinical tests for intoxication is for the trier of fact.
Rigby v. Eastman, 217 N.W.2d 604, (1974).
Iowa law prohibits driving a motor vehicle while under
the influence of an alcoholic beverage. Iowa Code section
321J.2 (1)(a)(b)(1991). Intoxication is presumed where the
driver has a blood alcohol concentration of .10 or above.
Intoxication can still be established from other evidence
where the blood alcohol level is below .10. Iowa Code
section 321J.2 (1); State v. Bratthauer, 357 N.W.2d 773
(Iowa 1984).
The issuance of an opinion regarding intoxication based
upon a blood alcohol test is competent. State v. Werling,
234 Iowa 1109, 13 N.W.2d 318 (Iowa 1944); State v. Haner,
231 Iowa 348, 1 N.W.2d 91 (1942).
Persons are drunk in the legal sense when the persons
Page 9
are so far under the influence of intoxicating liquors that
the liquor has visibly excited their passions or has
impaired their judgment. State v. Pierce, 65 Iowa 85; 21
N.W.195 (1884).
When the use of intoxicating liquors affect the
persons' reason or facilities or render persons incoherent
of speech or cause the persons to lose control in any
matter, or to any extent, of the action or motion of their
persons or bodies, the persons, in contemplation of law, are
intoxicated. State v. Baughn, 162 Iowa 308, 143 N.W.2d 1100
(1913). Persons are also intoxicated when liquor impairs
their judgment. State v. Wheelock, 218 Iowa 178, 24 N.W.2d
313 (1934).
The term "under the influence of an alcoholic beverage"
is synonymous with the term "in an intoxicated condition."
State v. Berch, 222 N.W.2d 741 (Iowa 1974).
[Under the driving under the influence section of the
Iowa Code] an intoxicated person means a person whose mental
or physical functioning is substantially impaired as the
result of the use of a chemical substance. While a precise
line is not easily drawn regarding whether or not a person
is intoxicated, it is certain that a person need not be
staggering drunk before the person is legally intoxicated.
State v. Stout, 247 Iowa 453, 74 N.W.2d 208 (Iowa 1956).
The evidence establishes a blood alcohol level of .152
percent as the blood alcohol test demonstrated. Dr.
Wooters' opinions were more consistent with the facts of
this case and with the medical literature in evidence.
Decedent's blood actually stopped circulating when CPR ended
at 9:44 p.m. The blood alcohol sample tested was taken at
10:00 p.m. Hence, decedent had not expired an hour and a
half prior to the taking of the test as Dr. Donovan opined.
Additionally, Dr. Wooters had readily available medical
literature when deposed. That literature clearly suggested
that any diffusion occurs over a substantial time period.
Additionally, the literature suggests that contamination due
to diffusion or other factors would likely affect blood in
the pericardial sac and not blood in the heart chambers
themselves. Decedent's blood alcohol test of .152 is
clearly sufficient to create an inference that decedent was
intoxicated when his fatal accident occurred.
Additionally, the lay evidence and overall
circumstances regarding decedent's demeanor and behavior
after 7:00 p.m. on September 14, 1988 support a finding of
intoxication at the time of the accident. While Police
Chief Schweiger testified he did not smell alcohol on
decedent and did not believe decedent to be intoxicated,
decedent's behavior with Police Chief Schweiger clearly
showed a lack of judgment. Decedent apparently had lost
emotional control; decedent "teared up" on receiving a
traffic citation; slammed the car door and drove above the
legal rate of speed on leaving Police Chief Schweiger's
presence. These are clearly not behaviors that a person of
normal prudence engages in the presence of a police officer
after receiving a traffic citation. Likewise, all lay
Page 10
witnesses who had dealings with decedent from 7:00 p.m.
onward felt decedent showed evidence of being intoxicated.
Connie Linn, who has had previous experience working at a
bar, opined that decedent was "loose" when she had dealings
with him between 8:00 and 8:25 p.m. Decedent's proposition
of Nina Harbaugh surely showed a lack of judgment generally
not found in sober persons. Decedent had told both his
spouse and his in-laws that he would be spending the evening
with his in-laws. He was clearly expected at his in-laws'
home. Under those circumstances, a sudden decision to spend
the evening with a woman other than his spouse would be most
difficult to explain. While, in itself, not compelling
evidence of decedent's intoxication, this conduct in these
circumstances appears more consistent with an individual's
being significantly under the influence of alcohol than with
the individual's exercising the reasonable prudence of a
sober person.
There is clearly sufficient evidence to support a
finding of a blood alcohol level of .152 percent.
Additionally, the competent lay evidence also supports a
finding that decedent was intoxicated when his accident
occurred.
We consider issue two, that is, whether defendants have
carried their burden of establishing by a preponderance of
the evidence that decedent's intoxication was a substantial
factor in causing decedent's accident and death.
The intoxication defense requires a showing not only
that the worker was intoxicated at the time of the injury,
but also that the intoxication was a substantial factor in
bringing about the injury. Intoxication must be shown not
to just be a possible factor, but a probable substantial
factor. Stull v. Truesdal Coop Elevator Co., (File No.
780309, App. Decn., Dec. 14, 1987).
A factor is substantial when reasonable persons
considering that factor would regard it as a cause, that is,
as being in some pertinent part responsible for the result
produced. See, Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa
1972).
Page 11
A factor is substantial when it is material in producing a
result. A factor may be substantial without being either
exclusively or even predominantly the determinant of the
result, however. See, Jones v. City of Des Moines, 355
N.W.2d 49 (Iowa 1984); Montgomery Properties v. Economy
Forms, 305 N.W.2d 470 (Iowa 1981).
Additionally, we consider the following:
We are cognizant of the fact that the compensation
law is for the benefit of workers and is to be
liberally administered to that end. But it must
be administered by the application of logical and
consistent rules or formulas notwithstanding its
benevolent purpose. It cannot be made to depend
on the whim or sympathetic sentiment of the
current administrator or presiding judge. We
apprehend every member of this court is
sympathetic to claimant in the instant case. But
the compensation statute is not a charity. It is
a humanitarian law to be administered, not by
sympathy, but by logical rules, evolved from the
determination of many cases under literally
countless factual variations. Compensation is to
be paid by the employer (or [the] insurer) as a
matter of contract, not as a gratuity. It is
payable only when the facts show the injury is
within the contract--that it 'arose out of and in
the course of the contracted employment.' Bulman
v. Sanitary Farm Dairies, 247 Iowa 488, 494, 495,
73 N.W.2d (1955).
After having carefully reviewed all evidence of record,
the industrial commissioner concludes that decedent's
intoxication was a substantial factor in causing decedent's
accident and death. Decedent was traveling a road decedent
knew well. Even had he not traveled the road in the course
of his employment, this was a route to his in-laws'
residence. Claimant and decedent had dated for
approximately one and one-half years before marrying. They
had been married for just over two years at the time of
decedent's fatal accident. Hence, the road and curve in the
road were not conditions with which decedent was unfamiliar.
Likewise, there is no evidence decedent engaged in any
evasive maneuvers before the accident. This would suggest
that no outside factors such as an animal crossing the road
produced or contributed to the accident. Similarly, no one
having dealings with decedent that evening indicated that
decedent appeared sleepy near the time of the fatal
accident. Indeed, in decedent's last known encounter with
another individual, decedent appeared more interested in
continuing his evening than in obtaining sleep. While
decedent was driving a
Page 12
new van, decedent had been driving that van intermittently
for over 12 hours at the time of his fatal accident. One
presumes that by then he had developed some familiarity with
the van's handling on curves. Likewise, one presumes
decedent had some familiarity with appropriate speeds on the
section of Highway 9 on which he was traveling. Decedent
apparently was speeding and speed might well have been a
factor in decedent's fatal accident. One must go one step
further, however. One must ask why decedent, knowing this
particular section of Highway 9 and having undoubtedly
traveled it on many prior occasions, did not enter the curve
at an appropriate speed? In considering this question,
reasonable persons must first look to those factors of which
they are aware. The evidence establishes that decedent had
been displaying a lack of judgment both in his driving and
in his personal demeanor with co-workers from at least 7:00
p.m. on. This lack of judgment lead three of the four
persons who encountered decedent in that time span to
conclude that he was intoxicated. A reasonable person,
knowing that decedent was familiar with this section of the
road, and knowing that decedent had entered this curve many
times before and believing that decedent had, under normal
conditions, a reasonably competent sense of the speed at
which the curve could be negotiated, and also knowing that
decedent was intoxicated when he entered the curve, would
have to conclude that decedent's intoxication was a
substantial factor in decedent's fatal motor vehicle
accident. Where reasonable persons must sadly so conclude,
workers' compensation benefits are not available to the
decedent worker's dependents.
We consider issue three, whether the employer's conduct
estopped the employer from asserting the intoxication
defense.
"Even in a case in which the intoxication defense
might otherwise apply, the employer may be
estopped to assert it if the employer helped to
cause the episode." 1A Larson The Law of
Workmen's Compensation, section 34.35 (1990).
The deputy correctly concluded that the employer did
not cause the intoxication involved with decedent's death.
As the deputy stated, the evidence demonstrates that the
employer on occasion encouraged employees to drink at the
workday's end. Decedent's drinking in the course of his
employment on the afternoon and evening of September 14,
1988, appears to have been a purely voluntary act, in
violation of the employer's policies and to which the
employer neither contributed nor condoned. The employer is
not estopped from raising the affirmative defense of
intoxication.
Wherefore the decision is affirmed in part and reversed
in part.
ORDER
THEREFORE, it is ordered:
Page 13
That claimant take nothing from this proceeding.
That claimant pay costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of March, 1994.
______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies to:
Mr. Joseph L. Fitzgibbons
Attorney at Law
P.O. Box 496
Estherville, IA 51334
Mr. Richard G. Blane, II
Attorney at Law
8th Floor Fleming Bldg.
218 Sixth Ave.
Des Moines, IA 50309
1601; 1403.30
Filed March 23, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARGARET R. LAFFERTY,
Claimant,
vs.
File No. 943974
FOUR SONS HANDY SHOPS, INC.,
R E M A N D
Employer,
D E C I S I O N
and
ILLINOIS NATIONAL INS. CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
1601; 1403.30
Deputy affirmed in part and reversed in part. Found that
claimant's decedent was intoxicated at time of fatal motor
vehicle accident and that decedent's intoxication was a
substantial factor in producing the motor vehicle accident.
Under Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 1972), a factor
is substantial when reasonable persons considering that
factor would regard it as a cause, that is, as being in some
pertinent part responsible for the result produced. Jones
v. City of Des Moines, 355 N.W.2d 49 (Iowa 1984) and
Montgomery Properties v. Economy Forms, 305 N.W.2d 470
(Iowa 1981) were cited for the proposition that a factor is
substantial when it is material in producing a result and
for the proposition that a factor may be substantial without
being either exclusively or even predominantly the
determinant of the result. Lawyer and Higgs, section 7-3,
page 63 was cited for the proposition that evidence of
intoxication may be presented by (1) blood alcohol levels;
(2) the interpretation of blood alcohol test results; (3)
the number of drinks ingested; and (4) the individual's
conduct prior to the injury.
All but one person who encountered decedent in the hour and
one-half prior to decedent's fatal accident believed
decedent to be intoxicated at the time of the encounter.
The nurse who attended decedent at the site of the accident
and the physician who attended decedent in the hospital
emergency room both stated that claimant reeked of the odor
of alcohol. Blood drawn from decedent's heart chamber some
Page 2
16 minutes after CPR efforts ended tested at the blood
alcohol level of .152 percent. These facts demonstrated
that decedent was intoxicated at the time of the fatal
injury.
Decedent's fatal accident occurred at approximately 8:25 at
night when decedent failed to negotiate a curve in a road
with which decedent was familiar. The evidence was that
decedent was traveling at an excessive speed. Given
decedent's failure to judge the correct speed at which to
enter a curve with which he was familiar and given the
overall evidence that decedent's behavior from approximately
7 p.m. onward had showed a lack of judgment which lack was
consistent with intoxication a reasonable person would
conclude the decedent's intoxication played some pertinent
part, that is, was a substantial factor in decedent's fatal
motor vehicle accident.
Deputy's conclusion that the employer was not estopped from
asserting the intoxication defense affirmed. The employer
may be estopped from asserting the defense if the employer
helped to cause the episode of intoxication. Evidence did
not show that the employer had either condoned or encouraged
employees in drinking on the job even though the employer
did permit drinking at business locations after work hours.