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.