source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2006 SD 12
    STATE of South Dakota, Plaintiff and Appellee, v. Gerald BORDEAUX, Defendant and Appellant.
    No. 23766.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 9, 2006.
    Decided Feb. 1, 2006.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John R. Hinrichs, Office of the Minne-haha, County Public Defender, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Gerald Bordeaux appeals his conviction for driving or actual physical control of a vehicle while under the influence of an alcoholic beverage (DUI). We affirm.

FACTS

[¶ 2.] On the afternoon of October 4, 2004, a pedestrian on his way to a friend’s home in Sioux Falls observed a bicyclist repeatedly falling off of the bicycle he was attempting to ride on a city street. Suspecting that the bicyclist might be intoxicated and concerned for his safety, the pedestrian used a cell phone to contact law enforcement and report the matter. A law enforcement officer was dispatched to the location given by the pedestrian. On his arrival, the officer also observed the bicyclist falling with his bicycle. The officer approached the bicyclist and identified him as Bordeaux. Based upon the odor of intoxicants, Bordeaux’s admissions that he had been drinking and other indications of intoxication, the officer reached the conclusion that Bordeaux might be under the influence of an alcoholic beverage. The officer administered a series of field sobriety tests and, based upon his observations and the results of the tests, placed Bordeaux under arrest for DUI. The officer transported Bordeaux to the county jail where blood was drawn for a blood/alcohol test that later revealed a result of 0.225 percent by weight of alcohol in the blood.

[¶ 3.] Bordeaux was indicted for one count of driving or actual physical control of a vehicle while under the influence of an alcoholic beverage in violation of SDCL 32-23-1(2) and one count of driving or actual physical control of a vehicle while having 0.08 percent or more by weight of alcohol in the blood in violation of SDCL 32 — 23—l(l). A jury trial was held in magistrate court on January 4, 2005. At the close of the State’s case, Bordeaux’s counsel moved for a judgment of acquittal on the basis that there was no proof that Bordeaux was “driving” or had “actual physical control” of a vehicle at the time of his alleged offense. The trial court denied the motion and the case was submitted to the jury. The jury returned verdicts finding Bordeaux guilty of both counts of the indictment.

[¶4.] On February 3, 2005, Bordeaux was sentenced for one count of DUI to one hundred eighty days in the county jail with one hundred fifty days suspended on various terms and conditions. Bordeaux appealed his conviction to circuit court which affirmed in an order entered July 13, 2005. Bordeaux now appeals to this Court.

ISSUE

[¶ 5.] Did the trial court err in denying Bordeaux’s motion for a judgment of acquittal?

[¶ 6.] Bordeaux argues that the trial court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to sustain his conviction.

In reviewing a denial of a motion for judgment of acquittal, we determine “whether the ‘evidence was sufficient to sustain the convictions.’ ” State v. Janklow, 2005 SD 25, ¶ 16, 693 N.W.2d 685, 693 (citations omitted).
“In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, “we accept the evidence and the most favorable inferences fairly, drawn therefrom, which will support the verdict.” Moreover, “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.
[State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305] (citation omitted).

State v. McKinney, 2005 SD 73, ¶ 26, 699 N.W.2d 471, 480. Accord State v. Shaw, 2005 SD 105, ¶¶ 44, 51, 705 N.W.2d 620, 632-34.

[¶ 7.] Bordeaux’s argument concerning insufficiency of the evidence focuses on the elements of DUI. It is an element of that offense that a person “drive” or be in “actual physical control” of a vehicle. See SDCL 32-23-1. Bordeaux argues that the State failed to prove either of those elements here because the Legislature did not intend to prohibit the operation of a bicycle while under the influence of alcohol. In support of his assertions concerning legislative intent, Bordeaux points out that one does not generally describe the use of a bicycle as “driving” and that in other statutes regulating bicycles the Legislature referred to the “operation” of a bicycle. Thus, Bordeaux argues that had the Legislature intended to prohibit the use of a bicycle while under the influence of alcohol it would have referred to “operation” of a vehicle in the statute.

[¶ 8.] The intent of the Legislature in enacting laws is ascertained primarily from the language used in the statute. State v. Schouten, 2005 SD 122, ¶ 9, 707 N.W.2d 820, 823. “We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject.” Id. This Court is bound by the actual language of applicable statutes and their intent is determined from what the Legislature said and not what this Court thinks it should have said. M.B. v. Konenkamp, 523 N.W.2d 94, 97 (S.D.1994). “We assume that statutes mean what they say and that the legislators have said what they meant.” Crescent Elec. Supply Co. v. Nerison, 89 S.D. 203, 210, 232 N.W.2d 76, 80 (1975). Thus, “[w]hen the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.” MGA Ins. Co. v. Goodsell, 2005 SD 118, ¶9, 707 N.W.2d 483, 485 (quoting State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653-54).

[¶ 9.] Here, the plain meaning of the applicable statutes does not support Bordeaux’s contentions concerning legislative intent. SDCL 32-23-1(2) provides that “[n]o person may drive or be in actual physical control of any vehicle while ... [ujnder the influence of an alcoholic beverage!.]” (emphasis added). The Legislature has specifically defined the word “vehicle” in SDCL chapter 32-23 to include “bicycles.” SDCL 32-14-l(37)(2004 rev)(currently SDCL 32-14-1(39)). Thus, when the Legislature used the term “vehicle” in SDCL 32-23-1, it clearly intended that it refer to “bicycles.” This conclusion is consistent with this Court’s prior decisions in this area. See Sommervold v. Grevlos, 518 N.W.2d 733, 740 (S.D.1994)(bicyele a “vehicle” for purposes of SDCL 32-26-3 describing driver’s duty in passing oncoming vehicles); Finch v. Christensen, 84 S.D. 420, 424, 172 N.W.2d 571, 573 (1969)(bicy-cle considered a “vehicle” within meaning of traffic rules and regulations).

[¶ 10.] While it may be true that one does not generally use the word “drive” to describe the operation of a bicycle, the ordinary meaning of the word “drive” does not exclude that usage. The numerous definitions of the word “drive” include: “1. To push, propel, or press onward forcibly; urge forward.... 3. To guide, control, or direct (a vehicle) .... b. To traverse in a vehicle. 5. To supply the motive force or power to and cause to function.... 3. To operate a vehicle, such as a car.” The American Heritage College Dictionary 420 (Robert B. Costello ex. ed., 3rd ed., Houghton Mifflin Co.1997). Any one of these definitions would encompass the operation of a bicycle, particularly when the Legislature has specifically defined a bicycle as a “vehicle.” Thus, contrary to Bordeaux’s assertions, we conclude that it was within the intention of the Legislature to prohibit the operation of a bicycle while under the influence of alcohol.

[¶ 11.] Here, two witnesses testified that they saw Bordeaux riding his bicycle at a time when scientific evidence established that he was under the influence of an alcoholic beverage. Thus, there was clearly sufficient evidence to support his conviction for DUI under that part of SDCL 32-23-1 that prohibits a person from driving a vehicle while under the influence of an alcoholic beverage. Even if the evidence was insufficient to support his conviction under that part of the statute, Bordeaux has not addressed that part of SDCL 32-23-1 that prohibits a person from “actual physical control” of a vehicle while under the influence of an alcoholic beverage. This Court has previously approved the following definition of “actual physical control” of a vehicle:

A person is in “actual physical control” of a vehicle within the meaning of these instructions when the vehicle is operable and he is in a position to manipulate one or more of the controls of the vehicle that cause it to move or affects its movement in some manner or direction. It means existing or present bodily restraint, directing influence, domination or regulation of the vehicle. It means such control as would enable the defendant to actually operate his vehicle in the usual and ordinary manner. “Actual physical control” of a vehicle results, even though the [vehicle] merely stands motionless, so long as a person keeps the vehicle in restraint or is in a position to regulate its movements.

State v. Kitchens, 498 N.W.2d 649, 651 (S.D.1993)(quoting State v. Hall, 353 N.W.2d 37, 41-42 n2 (SD 1984)). Based upon this definition, even if Bordeaux was not “driving” his bicycle, he clearly had “actual physical control” of it while he was under the influence of an alcoholic beverage. Accordingly, the trial court did not err in denying his motioil for a judgment of acquittal based upon insufficiency of the evidence.

[¶ 12.]Affirmed.

[¶ 13.]GILBERTSON, Chief-Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . The subdivisions of SDCL 32-23-1 describe four ways of committing the same offense. See State v. Likness, 386 N.W.2d 42, 44 (S.D. 1986). " 'It is permissible ... to charge in separate counts the commission of the same offense in different ways in order to meet the evidence which may be adduced.... If a defendant is convicted on two counts, relating to a single offense a general sentence may be imposed.' ” State v. Baker, 440 N.W.2d 284, 293 (S.D.1989)(quoting State v. Teutsch, 80 S.D. 462, 468, 126 N.W.2d 112, 116 (1964) (citations omitted)).

      . 2. The jury was instructed on both driving and actual physical control of a vehicle while under the influence of an alcoholic beverage.


author: WIGGINS, Justice. CARTER, Justice

text:
    Craig BOWMAN, Appellant, v. STATE of Iowa, Appellee.
    No. 03-1769.
    Supreme Court of Iowa.
    Feb. 17, 2006.
    Rehearing Denied March 1, 2006.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Fred H. McCaw, County Attorney, and Ralph Potter, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

In this case, we must decide if Craig Bowman received ineffective assistance of counsel during a prior criminal prosecution in which he was convicted of second-degree kidnapping, terrorism with intent, and assault while participating in a felony. After reviewing the record and considering the arguments presented, we conclude Bowman established that he received ineffective assistance of counsel based on his defense counsel’s failure to object to the prosecutor’s questions asking Bowman whether the State’s witnesses fabricated their trial testimony. Accordingly, we vacate the decision of the court of appeals, reverse the convictions, and remand the case for retrial.

I. Background Facts and Proceedings.

The convictions arise out of a series of events that began late in the evening of July 29, 1999 and ended in the early morning hours of July 30. At the time of the events leading to his convictions, Bowman was unemployed and on disability retirement. When Bowman was nineteen years old, a motorcycle accident caused his physicians to amputate a portion of his left leg. The doctors fitted him with a prosthesis for his left leg. During the next twenty years, he was on and off work, and in 1995 John Deere gave him a total disability retirement from the company due to the problems he experienced with his injury.

On the evening of July 29, Bowman and his then girlfriend, Theresa Carey, visited a bar in Dubuque and drank beer and mixed drinks. Later that evening, they drove to a bar called The Circle in East Dubuque, Illinois. Bowman and Carey had been arguing throughout the evening. They ordered two drinks at The Circle, but the evidence is inconclusive as to who drank them. Bowman acknowledged that at the time he and Carey left The Circle they were both intoxicated. As they were walking to their vehicle, Bowman asked Carey if she intended to repay Bowman for the money he loaned her to help pay for her divorce. At this point, Carey shoved Bowman’s head against a wall causing a large cut on his head. Although Carey testified she did not remember doing this, Karla Schwaegler and Melissa Dakin, who witnessed the events outside The Circle, saw Carey push Bowman’s head against the wall.

Schwaegler and Dakin then saw Bowman place his hands on Carey’s throat in an effort to choke her. When that occurred, the two women intervened seeking to separate Bowman and Carey. At about the same time, two unidentified men arrived on the scene, threw Bowman to the ground, and beat him up causing abrasions on his body that were the sources of profuse bleeding. At the conclusion of the beating, Bowman testified one of the assailants told him that he had not seen the last of them.

At this point,- Bowman asked Carey to leave with him. She refused. Carey asked Schwaegler and Dakin, whom she did not know, to retrieve her purse from Bowman’s vehicle. Schwaegler complied, and Bowman drove away. Carey, Schwaegler, and Dakin went back into The Circle and ordered drinks. Schwaegler admitted to having about six drinks that evening. She acknowledged and Dakin confirmed she had a buzz.

After awhile, Todd Williams, an acquaintance of Dakin, joined them at their table. Williams worked that morning until 2:00 a.m. He arrived at The Circle about 2:30 a.m. He admitted to having three to four drinks at The Circle. Williams offered to drive Schwaegler, Dakin, and Carey back to Dubuque to retrieve Carey’s automobile parked in front of Bowman’s residence. The plan was to have Carey and Dakin wait at a Kmart store parking lot while Williams and Schwaegler retrieved the car and brought it to the Kmart.

In the meantime, Bowman returned home to tend to his injuries. When he arrived, at his house, he retrieved two handguns from the basement thinking the two assailants from East Dubuque would come to his house and make good on their threat. Bowman had been bleeding so profusely that blood saturated his clothes and there were bloodstains throughout his house. Around 3:40 a.m., Bowman saw somebody lurking around ■ his house. Williams admits he was in the neighbor-' hood at that time with Schwaegler. Bowman thought the person he saw was one of the assailants from East Dubuque.- He grabbed a gurí and started to the door. At this point, he heard someone trying to start Carey’s vehicle. Bowman was able to see Carey was not the driver, and he feared someone was trying to steal her car. From this point on, the evidence is in dispute.

.Bowman testified upon seeing someone in Carey’s car, he fired a shot in the air. He then approached the vehicle with the gun. at his side and told the driver, Schwaegler, that two people just assaulted him in East Dubuque. He also told her he thought someone was there to assault him again, and then asked her to come inside while he called the police. He stated she obliged and entered his house voluntarily. He testified while in the house they drank beer together, smoked cigarettes, and talked about what happened in East Du-buque. Bowman testified their conversation convinced him Schwaegler was nqt involved in the East Dubuque assault. He further testified that the telephone rang and he left the room to get a cordless phone. Upon returning to the room, Schwaegler grabbed the phone and answered it. At this point, Bowman saw the police were outside of his house. He proceeded to exit the house with his gun in his hand. He returned to the house, put his gun down, and re-exited the house. The police tackled him as he exited the second time.' As the police tackled him, he told the officers he was just trying to defend himself.

Schwaegler testified when she and Williams arrived at Bowman’s house,. Williams stayed in the background of a neighbor’s yard while she entered Carey’s automobile and started the engine. At this point, both Schwaegler and Williams heard a gunshot and soon observed Bowman standing nearby pointing a gun at Carey’s car. Williams retreated to a Mo-' tel 6 and caused the attendant there to call the police. Bowman, who was still bleeding profusely, approached the vehicle and questioned Schwaegler concerning Carey’s whereabouts. She testified Bowman threatened to shoot her if she did not accompany him into his house. Schwae-gler entered Bowman’s house and, at his direction, sat on a stool in the kitchen.

Schwaegler further testified Bowman continued to question her concerning Carey’s whereabouts and he accused her of somehow being involved with the two unidentified men who had roughed him up outside The Circle. Schwaegler testified that Bowman kept his gun pointed at her and threatened to kill her several times while she was in his kitchen. Schwaegler contradicted this statement later in her testimony when she admitted Bowman left the room for twenty to thirty seconds to get the phone when the police called. Based on the size and layout of the house, twenty to thirty seconds would have given her ample time to walk out the door.

When police officer Eric Schneider arrived at the scene, he observed Bowman’s front door was open. He testified he saw Bowman walk by the front door, but did not observe Bowman with a gun in his possession. The officers confirmed Bowman first exited the house with the gun in his possession. After the police told him to put the gun down, Bowman walked back in the house, put the gun on the counter, and immediately exited the house without using Schwaegler as a hostage or human shield. The officers also confirmed Bowman’s state of mind when they testified Bowman stated he was only trying to defend himself as they were tackling him to place him in handcuffs.

After the police subdued Bowman, Schneider interviewed Schwaegler and Williams. As to Schwaegler’s intoxication, Schneider testified he believed she was intoxicated, but on further questioning, he stated she might also have been upset because she was crying. Regarding Williams’ intoxication, Schneider testified he did not have an opportunity to assess Williams’ intoxication when he interviewed him. He further testified:

I really didn’t spend a lot of time with him. I’ve known Mr. Williams slightly to see and so on. I mean, he’s always struck me as being, I don’t know, oafish maybe so I wasn’t really looking for a lot of intelligence from him on this particular morning.

The jury convicted Bowman of second-degree kidnapping, terrorism with intent, and assault while participating in a felony. On direct appeal, our court of appeals affirmed the convictions. Bowman then filed an application for postconviction relief. The district court denied the application. Bowman appealed the denial. The court of appeals affirmed the denial of his application. We granted Bowman’s application for further review.

II. Issue.

Although Bowman raised numerous issues in his appeal from the district court’s postconviction ruling, this appeal may be resolved on the basis of Bowman’s claim that he received ineffective assistance of trial counsel based on the failure of his defense counsel to object to the prosecutor’s questions asking Bowman whether the State’s witnesses fabricated their testimony at trial.

III. Scope of Review.

A claim of ineffective assistance of counsel requires a de novo review because the claim is derived from the Sixth Amendment of the United States Constitution. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). In order to succeed on a claim of ineffective assistance of counsel, a defendant must prove (1) counsel failed to perform an essential duty and (2) prejudice resulted. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). When “ ‘there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different,’ ” prejudice results. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).

IV. Analysis.

A. Counsel’s failure to perform an essential duty: It is well-settled law in Iowa that a bright-line rule prohibits the questioning of a witness on whether another witness is telling the truth. State v. Carey, 709 N.W.2d 547, 557 (Iowa 2006); Nguyen v. State, 707 N.W.2d 317, 323-24 (Iowa 2005); State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003). There are no exceptions to this rule. See Graves, 668 N.W.2d at 873 (stating “prosecutors and trial judges will have more guidance in assuring proper examination of witnesses with a bright-line rule that bars such inquiries without exception”).

The prosecutor asked Bowman whether another witness was telling ,the truth., at least eight different times in his cross-examination, of Bowman. Near the beginning of his cross-examination, the questioning went as follows:

Q. Okay. So if it was Todd [Williams], then he obviously didn’t tell the truth when he testified that he didn’t come any closer than the yard? A. That would be correct. I think a police officer said that he told him he was in the corner of my house at one .point too.

A little later in the cross-examination the following occurred:

Q. So when [Williams] testified that you brought the gun down in the shooter’s position, he just made that all up, didn’t he? A. He had to have because I didn’t do it.

Soon after that exchange the following occurred:

Q. Did you force Karla [Schwaegler] into that house that night? A. No, I did not.
Q.' Did she lie when she said you did? A. Obviously she did.
Q. Did she lie when she said you threatened to kill her five or six times?
A. Yes, she did.
Q. Do you remember her going into great detail about this phone — or this conversation she alleged you had where she told you she was a school teacher and she didn’t want to -die this way and please promise not to shoot her in the back? Did that ever occur? A. That never occurred, and to be honest with you, I didn’t hear or see her story until I got out of jail and I was shocked beyond belief at what I was reading.
Q. She just made up .that whole elaborate story? A. I’m not accusing her of doing anything but it’s on paper and it didn’t, happen so I’d have to say, yes.

A few- questions later the following exchange took place:

Q. But you’re saying [Schwaegler is] lying about pretty much everything else that , happened at your house? A. She was — it was a totally different situation. She was in East Dubuque. She was at my house, so again, I don’t know. I don’t know why she did what she did but she did.

Another exchange went as follows:

Q. So when Karla [Schwaegler] and Missy [Dakin] and Theresa [Carey] all said .she didn’t want to go with you, that wasn’t the truth either? A. All I can say, Mr. Potter, is that I reached my hand out, I said, Let’s go, honey, and they wouldn’t — by they, I don’t know who they were. It was, like, within a second or two. I wasn’t really looking at anybody.. , I was just kind of in a shock, blank stare basically.

Later in Bowman’s cross-examination, the following exchange took place:

■ Q. Can you explain why Karla [Schwaegler] said she didn’t even get [the car]. into gear how it moved? • A. No, I can’t explain that.

At the conclusion of Bowman’s cross-examination, the following exchange took place:

Q. Okay. In summary, Mr. Bowman, would it be fair to say that Karla Schwaegler got up here and told a lot of lies? A. She had to have because it didn’t happen that way.

On redirect examination, Bowman’s trial counsel attempted to rehabilitate Bowman’s testimony by pursuing the following questions and answers:

Q. Mr. Bowman, I know Mr. Potter’s been using the term did Karla Schwae-gler lie. Is that maybe a bit strong in terms of terminology? A. Yes. I’m not accusing her of lying. I just think her perception and the mood she was in, the alcohol, she possibly didn’t see things, you know, clearly.
Q. So mistaken would probably be a better word? A. Yeah, much better.
Q. You’re not saying that she’s up here doing something intentionally against you or whatever? A. Not whatsoever.

On his recross-examination of Bowman, the prosecutor continued to ask Bowman to comment on the credibility of the State’s witnesses. He asked and Bowman answered as follows:

Q. So you’re saying that when [Schwaegler] said — well, you’re saying that for five or six times when she said you threatened to kill her, she was mis-perceiving the situation, not lying about it? A. Maybe in her own mind that’s what she thought she heard, but I can’t speak for her mind. I’m sorry.
Q. And for two or three times she thought you heard — she thought she heard you say you’re going to shoot her? A. Yeah, could have been 20. I mean, I can’t explain that. That’s beyond my power.
Q. Are you suggesting she’s delusional? A. I’m not suggesting anything. I’m just suggesting that — I’m not suggesting anything. I’m just thinking that she’s not clear in her thoughts.
Q. Let’s put it another way. Is it true or not that you pointed a gun at her? A. It’s not true.
Q. And she said you did it the whole time, so was she telling the truth? A. I don’t know how to explain. I don’t want to call her a liar because I don’t think she is a liar, but I don’t — what she said was not true.
Q. And the same with Mr. Williams, are you saying he just simply misper-ceived you in a three-pointed — or in a stance, shooter’s stance shooting that gun? A. He had to.
Q. You’ve indicated that maybe she misheard you. How about her story that she said she told you about not wanting to get shot in the back and wanting to live for something as a school teacher, did she make that up? A. I know she didn’t say that. I’m not saying she made it up or not. Obviously she did not say that so it came from somewhere.

The prosecutor’s questions asked Bowman to comment on the credibility of the State’s witnesses. Such questions are improper under our bright-line rule and Bowman’s trial counsel had a duty to make a proper objection to these questions. Had counsel done so, the trial court was obligated to sustain the objection. Consequently, Bowman has established trial counsel failed to perform an essential duty by failing to object to these questions.

B. Prejudice. We have previously addressed the prejudice prong of the Strickland test in the context of a prosecutor asking a defendant to comment on the veracity of another witness by asking the defendant whether the other witness lied on the witness stand. Graves, 668 N.W.2d at 882-83. There we said the prejudice prong of-the Strickland test

does not mean a defendant must establish “that counsel’s deficient conduct more likely than not altered the outcome in the case.” A defendant' need only show that the probability of a different result is “sufficient to undermine confidence in the outcome.” In determining whether this standard has been met, we must consider the totality of the evidence, what factual findings would have been affected by counsel’s errors, and whethér the effect was pervasive or isolated and trivial.

Id. (citations omitted). To determine whether the prosecutor’s conduct in this case was prejudicial under the standard articulated by us in Graves, we must examine the entire record, not just the prosecutor’s cross-examination.

It is apparent from our review of the entire record the jury was required to determine Bowman’s guilt or innocence by determining whether they believed the State’s witnesses’ version or- Bowman’s version of the facts. Realizing the crucial role the credibility of the witnesses played in Bowman’s defense, Bowman’s trial counsel retained two expert witnesses to testify concerning the ability of a frightened, stressed, fatigued, and intoxicated person to perceive and recall facts and events. One of Bowman’s experts testified when confronted with a situation such as Schwaegler was at the time of this incident, a person thinks she is being truthful, but in reality, she is being unwittingly inaccurate as to the events she is recalling.

The State retained its own expert to refute the testimony of Bowman’s experts. The State’s expert testified that the type of inaccuracies referred to by Bowman’s experts only apply to the unimportant details, not to the type of details Schwaegler relayed to the jury in her testimony.

Knowing that the verdict would turn on the credibility of the witnesses, the prosecutor initiated an all-out, name-calling attack on Bowman’s credibility using an impermissible line of questioning at least eight different times during his cross-examination. Nevertheless, the prosecutor did not stop there. In his final argument, the prosecutor commented:

Why would Karla [Schwaegler] make up this story? That’s back when he was still saying she was lying arid not just mis^erceiving it. And he says, Well, she’s’a school teacher and she might be embarrassed about being in East Du-buque and, you know, Karla Schwaegler is not embarrassed by being in East Dubuque. Karla Schwaegler was a bartender for a number of years. She’s out with a friend going to a dance place and to suggest, as he did, that, gee, that’s probably or could be the reason why she’s making up these gigantic fibs is rather ludicrous.

At another point in his final argument, he commented:

Theresa [Carey] — and when we start talking about whether people are trying to pile on on Mr. Bowman or whether people are trying to lie to get him into trouble, Theresa — the easiest thing for her to have said was, yeah, yeah, he had both hands on my throat and I was off the ground. She says, I know he’s choking me; I don’t-know if my feet are off the ground, I just know-I can’t breathe.

A third time during his final argument, he commented:

[Schwaegler] says he threatens to kill her at least five times, threatens to shoot her at least two to three times if she did not do what he demanded. She is not a liar, ladies and gentlemen of the jury, what the Defendant agreed she was before he took a break and then decided, well, gee, she’s misper-ceiving things. She’s not a liar. She’s not delusional. And to acquit him on the kidnapping charge or the assault while participating in a felony charge, you’re going to have to find she’s a liar or delusional.

A fourth time during his final argument, he commented:

And to acquit him on the terrorism charge, you’re going to have to find Todd Williams is a liar and that he made up this whole three-point stance story, which I’ve already got into as how he would know this guy’s an expert marksman — or a trained marksman, I should say, if he just fired the gun in the air.

A fifth time during his final argument, he commented:

[Schwaegler would] sit there and think for awhile and say, yeah, that’s exactly what he said. That would be lying, ladies and gentlemen, if she did that. If he didn’t do that then and threaten to kill her or do all this, she’s a world class liar or she’s delusional and there’s nothing in the facts to support either one of those.

Finally, for a sixth time during his final argument, he commented:

I must have asked him what, ten, eleven times during the course of my first cross-examination is [Schwaegler] lying? And my final question was: Did she get up here and tell a pack of lies? Yeah. He takes a break and says, whoa, whoa, whoa, it’s misperception, it’s misperception. And I still say to you, ladies and gentlemen, if it didn’t happen, she’s lying.

The prosecutor’s all-out, name-calling attack on Bowman’s credibility shifted the focus of the trial from the real issue — what really happened based on the admissible evidence in this case. A trial is not a modern day political campaign where a voter usually makes a decision after being bombarded by name-calling attack ads. Our criminal justice system requires a jury to decide a criminal case on a thorough and thoughtful review of the evidence to determine whether the State proved the defendant’s guilt beyond a reasonable doubt. The defendant’s guilt is not supposed to be determined by the jurors answering the simple question of whether the defendant or the State’s witnesses were lying. By distorting the State’s burden of proof, the prosecutor took the jury’s focus away from the State’s obligation to prove the defendant’s guilt beyond a reasonable doubt.

Finally, the State’s case was not particularly strong. The State relied on the credibility of witnesses who had been drinking in the hours before the incident. The experts disagreed on the effect the events of the evening had on the witnesses’ recollection of the facts. Additionally, the events leading up to the alleged kidnapping were bizarre and left largely unexplained. Why did Schwaegler and Dakin not call the police after they witnessed the initial assault? Why did Schwaegler and Dakin get involved in a complete stranger’s domestic dispute? Finally, why did Schwaegler and Dakin enlist the help of a third party to retrieve Carey’s vehicle, rather than requesting police intervention?

Instead of presenting the evidence for the jury to consider under the instructions of the court, the prosecutor chose to engage in an all-out, name-calling attack. The pervasiveness of the prosecutor’s conduct coupled with the relative weakness of the State’s case shows there is a reasonable probability that the result of this case would have been different if Bowman’s trial counsel had objected to the prosecutor’s questions. Therefore, our confidence in the outcome of this case is undermined. Compare Graves, 668 N.W.2d at 883 (finding prejudice where the county attorney’s misconduct “related to a critical issue in the case and was the centerpiece of the prosecution’s trial strategy” and the evidence of the defendant’s guilt was not strong), with Carey, 709 N.W.2d at 558 (finding no prejudice in asking a witness to comment on the credibility of another witness on a collateral issue when the State’s case was strong), and Nguyen, 707 N.W.2d at 326-27 (finding no prejudice in asking a witness to comment on the credibility of another witness, which did not become a theme in the case and did not amount to name-calling when the State’s case was strong).

Accordingly, Bowman established his ineffective-assistance-of-counsel claim and is entitled to a new trial.

Y. Disposition.

Because Bowman established his claim of ineffective assistance of counsel, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for retrial of the criminal charges in the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED FOR RETRIAL.

All justices concur except CARTER, LARSON, and CADY, JJ., who dissent.

CARTER, Justice

(dissenting).

I respectfully dissent.

Prosecutorial- misconduct by itself is not a basis for overturning a criminal conviction. It must be shown that the misconduct denied the defendant a fair trial. State v. Wilkins, 693 N.W.2d 348, 352 (Iowa 2005). This requirement to demonstrate prejudice exists even in those cases in which error has been preserved at trial. Id.; State v. Piper, 663 N.W.2d 894, 913 (Iowa 2003). When, as here, the issue is raised in the context of an ineffective-assistance-of-counsel claim, the degree of prejudice that must be shown is that set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

To sustain an ineffective-assistance-of-counsel claim under the Strickland standard the applicant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 669, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We have articulated this standard in terms. of our confidence level with respect to the validity of the outcome in the face of counsel’s omissions. State v. Graves, 668 N.W.2d 860, 883 (Iowa 2003). In applying this standard, the court of appeals determined that Bowman had not demonstrated sufficient prejudice to warrant the granting of relief. I agree with the court of appeals.

Our opinion in Graves considered the views of some courts that approved questioning an accused concerning the truthfulness of another witness’s testimony in those situations in which the contradiction between the defendant’s testimony and that of the other witness cannot be attributed to a difference in perception or inaccuracies in memory, but can only be explained by the conclusion that someone is lying. We rejected that exception for purposes of determining whether prosecutorial misconduct has occurred. We recognized, however, that this may be a factor in determining the extent to which a defendant has been prejudiced by the improper questioning. Id- at 873.

In the present case, the contradiction between Bowman’s testimony on the one hand and that of Karla Schwaegler and Todd Williams on the other may not in the ordinary course of human experience be attributed to differences in perception or inaccuracies in memory. The testimony of Schwaegler and Williams concerned emotionally charged events that would leave a vivid impression as to whether an abduction at gunpoint occurred or did not occur, notwithstanding possible misimpressions as to the details of how it occurred. I am convinced that this is the way in which ordinary jurors would view the conflict in testimony and that they would conscientiously consider and reject the possibility that the State’s witnesses might be lying even if that suggestion had not been presented in the cross-examination of Bowman and the prosecutor’s final argument.

Although an investigating officer expressed the opinion that Karla appeared to be intoxicated when police came on the scene, he believed it was also possible that her demeanor may have been an emotional reaction to what had occurred to her. Karla was able to provide a lucid account of the events that had transpired, and her account was corroborated by Williams. The possibility that these witnesses’ description of the alleged abduction, so soon after the event, was an innocent mistake is sufficiently slight that the prosecutor’s failure to admit that possibility was not something that would divert the jurors’ focus from the essential components of their fact-finding mission. I am confident that the prosecutorial misconduct that occurred when considered within the context of the entire trial did not result in sufficient prejudice to satisfy the Strickland standard for granting relief. I would affirm the decision of the court of appeals and the judgment of the district court.

LARSON and CADY, JJ., join this dissent.


author: LAVORATO, Chief Justice.

text:
    Donald McNERTNEY, as Executor of the Estate of Harold J. McNertney, Appellee, v. Thomas KAHLER, Appellant, Charles McNertney, Intervenor-Appellee.
    No. 04-1012.
    Supreme Court of Iowa.
    Feb. 17, 2006.

      Harold W. White of Fitzgibbons Law Firm, Estherville, for appellant.
    Eldon J. Winkel, Algona, for appellee.
    Thomas W. Lipps of Peterson & Lipps, Algona, for intervenor-áppellee.
   LAVORATO, Chief Justice.

In this declaratory judgment proceeding, Donald McNertney, as executor of the. Estate of Harold J. McNertney, sued Thomas Kahler to have a deed declared invalid. Before he died, the decedent altered the deed by adding Kahler as a grantee and then recorded it. The executor moved for summary judgment, which the district court granted. We affirm.

I. Scope of Review.

A party' seeking a declaratory judgment is entitled to move for summary judgment. See Iowa R. Civ. P. 1.981(1). Under Iowa Rule of Civil Procedure 1.981(3), 'summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. In ruling upon a motion for summary judgment, the court considers “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Iowa R. Civ. P, 1.981(3). “No fact question exists if the only dispute concerns the legal consequences flowing from undisputed facts.” In re Estate of Beck v. Engene, 557 N.W.2d 270, 271 (Iowa 1996). We therefore examine the record before the district court in deciding whether the court correctly applied the law. id.

II. Facts.

The record before the district court in this case consists of the pleadings and affidavits. Based on this record, we glean the following undisputed facts.

On July 27, 1994, Gerald J. Menke agreed to sell on contract the following described real estate to Harold J. McNert-ney:

The East Half of the Southeast Quarter (EfcSEft of Section Twenty-two (22), Township Ninety-eight (98) North, Range Twenty-nine (29), West of the 5th P.M., Kossuth County, Iowa.

The contract was recorded on August 5, 1994. Qn the same day, a statement of escrow agent was recorded. The statement was dated July 27, 1994 and stated that an instrument of conveyance (concerning the real estate described above) had been deposited with the escrow agent. The escrow statement provided that the deed was to be delivered to Harold upon full payment of the contract price.

Upon payment of the purchase price, the deed that had been placed in escrow was delivered to Harold. Thereafter he added to the deed after his name as grantee the following: “and Thomas Kahler as joint tenants and not as tenants in common with full rights of survivorship.” Harold then recorded the deed and later passed away.

III.Proceedings.

The executor filed a petition for declaratory judgment in which he alleged all of the' above facts. Kahler filed an answer admitting those facts.

In his motion for summary judgment, the executor asked, among other things, that the court declare void the deed naming Kahler as a joint tenant. In the meantime, the district court granted a motion to intervene filed by Charles McNertney, a beneficiary of Harold’s estate.

Before the district court ruled on the motion for summary judgment, the inter-venor filed an affidavit of attorney Martin W. Peterson. In his affidavit, Peterson stated that in his search of the records of the Kossuth County Recorder’s office he located the real estate contract, statement of escrow agent, and warranty deed mentioned in the executor’s petition. Peterson attached copies of these documents to his affidavit.

The district court granted the executor’s motion for summary judgment. The court ruled that there were no facts in issue and that the only dispute concerned the law. The court concluded that Harold’s addition of Kahler’s name as a grantee on the deed was a nullity because (1) Harold did not sign the altered deed and (2) Harold made the alteration without the original grant- or’s knowledge.

Kahler appealed.

IV. Issues.

Kahler raises two issues. First, he contends the district court erred in granting the motion for summary judgment because it was not supported as required by Iowa Rule of Civil Procedure 1.981. Second, he contends the district court should have denied the motion for summary judgment because the admitted allegations of the petition show that Harold, as grantee, added Kahler as a joint tenant before the deed was recorded.

V. Analysis.

A. Support for summary judgment motion. The executor filed a statement of material facts in support of his motion for summary judgment. In that statement, the executor states that the material facts are not in dispute and relies on written findings of fact prepared by attorney Robert A. Dotson, who was appointed by the court to investigate facts pertaining to title to the real estate that is the subject of this proceeding.

In his resistance to the motion for summary judgment, Kahler stated that this statement by Dotson was not in the form of an affidavit and was not made on personal knowledge as required by Iowa Rule of Civil Procedure 1.981(5). On appeal, Kahler again contends that Dotson’s statement was not in the form of an affidavit as required by rule 1.981(5). For this reason, Kahler argues, the district court could only look to the admitted allegations in the pleadings, implying that those allegations were not sufficient to allow the district court to rule on the legal issue.

Contrary to Kahler’s belief, we think the admitted allegations of the petition, which included the deed in question, were sufficient for the district court to rule on the legal issue. Moreover, Peterson’s affidavit provided competent documentary evidence to support those allegations. The district court properly considered those documents. See Neoco, Inc. v. Christenson, 312 N.W.2d 559, 560 (Iowa 1981) (noting that the trial court has.discretion to .allow late filings on motions for summary judgment).

We conclude the motion for summary judgment was adequately supported. We further conclude the admitted allegations of the petition provided the district court with a record of undisputed facts sufficient to raise the legal question the court decided. We next consider whether the district court correctly decided the legal issue.

B. Addition of Kahler as a grantee. Kahler contends that Iowa law permits the alteration of the grantee provision of a deed after delivery so long as either the grantor or original grantee knew of the change. For reasons that follow we disagree.

A deed to be operative as a transfer of real estate must be delivered. 23 Am.Jur.2d Deeds § 102, at 141 (2002). “[Recording of a deed create[s] a presumption of sufficient delivery and fix[es] the time when the deed became effective.” Schenck v. Dibel, 242 Iowa 1289, 1292, 50 N.W.2d 33, 35 (1951).

When Harold received the deed from Menke out of escrow and recorded it, we can presume there was sufficient delivery and therefore an effective transfer of Menke’s interest to' Harold. See Iowa Code § 557.3 (2003) (“Every conveyance of real estate passes' all the interest- of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.”). Therefore, once title passed to Harold, Ménke could no longer transfer any interest in the property to Kahler because he had no such interest to convey. The only way that Harold could convey his interest to Kahler would be by a conveyance recognized by the law. - .Therefore the addition of Kahler’s name to the grantee portion of the. deed was a nullity.

Our analysis is supported by this passage in Ransier v. Vanorsdol:

For if the grantee of land alter or destroy his title deed, yet his title to the land is not gone. It passed to him by the deed. The deed has performed its office as an instrument of conveyance, and its continued existence is not necessary to the continuance of title in the grantee, but the estate remains in him until it has passed to another by some mode of conveyance recognized by the law.

50 Iowa 130, 134 (1878). To the same effect is the following opinion found in Marshall’s Iowa Title Opinions and Standards:

It would seem that the act of a grantee in striking out his name and substituting that of another before recording a deed is a material alteration and would void the instrument. It would have been a simple matter for the original purchaser to record the deed and execute another instrument to the intended substitute.

George F. Madsen, Marshall’s Iowa Title Opinions and Standards § 4.2(C), at 97 (2d ed. 1978).

VI. Disposition.

In sum, based on the undisputed facts in this record,- we conclude the addition of Kahler’s name as a grantee' in the deed was not effective to transfer Harold’s interest in the property to Kahler. The district court was therefore correct in not only considering the motion for summary judgment, ■ which we conclude was adequately supported, but also in granting it. We therefore affirm the court’s ruling.

We have considered all of the contentions and arguments of the parties. Those we have not addressed we find lack merit or were not properly preserved.

AFFIRMED.


author: CADY, Justice.

text:
    Jerry MEYER, Appellee, v. IBP, INC., Appellant.
    No. 04-1911.
    Supreme Court of Iowa.
    Feb. 17, 2006.

      James Drury II, Dakota Dunes, South Dakota, for appellant.
    Robert Rush of Rush & Nicholson, P.L.C., Cedar Rapids, for appellee.
   CADY, Justice.

In this appeal from a decision by the workers’ compensation commissioner denying benefits to the claimant, the parties dispute whether the injury arose out of and in the course of employment. The district court reversed the commissioner’s decision, and the court of appeals reversed the district court. We vacate the decision of the court of appeals, reverse the district court judgment, and remand to the commissioner for further proceedings.

I. Background Facts and Proceedings

Jerry Meyer obtained employment at an IBP plant in Waterloo through a staffing agency called Advance Services, Inc. (ASI). ASI placed Meyer at IBP on October 10, 2000. Meyer was assigned a job that required him to cut the tongues from hog heads delivered on a conveyor belt and to place the tongues on another conveyor belt. This job is known as “popping tongues.” Meyer remained an employee of ASI until he completed a sixty-day probationary period.

Meyer first experienced pain in his hand at work during this probationary period, when he was still employed by ASI. He experienced swelling in his fingers and soreness in his wrist. He notified IBP, visited the health department at IBP, and was told it was '“break-in pain.” Meyer continued working with no restrictions or other actions taken. His employment with ASI concluded on Friday, December 15, 2000.

On Monday, December 18, 2000, IBP hired Meyer as a regular employee to perform the same job he performed during his probationary period. Meyer worked a full shift on December 18, was off work on December 19 and 20, and worked a full shift on December 21. On December 22, while cutting tongues, he felt a popping or snapping sensation and “a shot of pain go right straight up [his] middle finger.” His left hand then went numb. Meyer stopped working and went to the health department at IBP. The IBP nurse applied ice to Meyer’s hand and kept him in the health center for the remaining forty-five minutes of his shift. Meyer returned to work December 26 and continued to experience swelling in his hand and arm. He notified the health department and was told to go to the hospital.

James Haag, a physician’s assistant at the hospital, noted a flexor strain .in Meyer’s left middle finger and a median nerve injury in his left wrist. Haag restricted Meyer from use of his left hand, fitted him with a brace, and prescribed physical therapy and pain medication. Meyer returned to work, and IBP placed him on light-duty work to accommodate his restriction. Meyer’s pain persisted, and he returned to Haag two days later on December 28. Haag adjusted Meyer’s medication but did not modify his'restriction. On January 25, 2001, Meyer underwent an electromyo-gram (EMG) test by Dr. Brian Sires. The test revealed a diagnosis of carpal tunnel syndrome of the left wrist and left ulnar neuropathy at the elbow. Haag referred Meyer to Dr. Thomas Gorsche, an orthopedic surgeon. Dr. Gorsche suggested eubi-tal-tunnel-release and nerve-transposition surgery as a treatment option for Meyer, but Meyer wanted to take some time to consider the surgery.

Meanwhile, Meyer quit his job at IBP in March 2001. In addition, on April 13, a workers’ compensation examiner for IBP wrote a letter to Dr. Gorsche. In the letter, the examiner asked Dr. Gorsche for his opinion on whether Meyer’s condition could be attributed to “2 days of work activities for IBP.” Dr. Gorsche responded in the negative.

Meyer was then referred to Dr. Gary Knudson, another orthopedic surgeon. Dr. Knudson also diagnosed Meyer with ulnar neuropathy of the left elbow and probable carpal tunnel syndrome of the left wrist. Dr. Knudson opined:

I believe he is suffering from an overuse injury to his left upper extremity precipitated by his work at IBP this past fall and early winter....
Certainly he was only on the job a few months before beginning significant symptomatology, but he may have had a predisposition to develop this symptoma-tology which became manifested after significant repetitive use of his arms at IBP.

Dr. Knudson agreed with Dr. Gorsche that surgery was appropriate.

Following the surgery, Meyer was off work until September 4, 2001. On September 10, 2001, Dr. Knudson performed en-doseopic-carpal-tunnel-release surgery on Meyer. Dr. Knudson released Meyer to regular duty on October 15, 2001.

IBP’s workers’ compensation claims examiner wrote Dr. Knudson a letter on January 14, 2002, asking for his opinion as to whether Meyer’s condition was “causally related to 2 days of work activities for IBP.” Dr. Knudson replied in the negative.

On - May 6, 2002, Meyer saw Dr. Farid Manshadi, a physiatrist, for an independent medical examination, at the request of his attorney. Dr. Manshadi opined that Meyer suffered “cumulative work injury that arose out of and during the course of his work at IBP which resulted in left ulnar nerve neuropathy at the cubital tunnel as well as left carpal tunnel syndrome.” Further, Dr. Manshadi opined that Meyer suffered “a permanent partial impairment of his left upper extremity as a result of the cumulative work injury” of ten percent, which translated to a six-percent whole-body impairment.

Meyer sought workers’ compensation benefits from IBP under Iowa Code chapter 85 (2001), and penalty benefits under section 86.13, by filing a petition for arbitration in June 2001. A hearing was eventually held. In the written decision, the deputy commissioner described the five issues presented for resolution. The first was “whether claimant received an injury that arose out of [and] in the course of his employment with IBP, Inc.”

In resolving this issue, the deputy commissioner relied exclusively on the uncon-tradicted medical testimony “that the two days claimant performed work as an IBP employee prior to December 22, 2000 would not, of itself, have produced his left upper extremity hand and elbow conditions.” The deputy commissioner" also found there was no medical testimony showing that “claimant’s work incident of December 22, 2000 could, of itself, have either caused or materially aggravated claimant’s carpal and cubital tunnel syndromes.” Based solely on this evidence, the deputy commissioner concluded Meyer failed to establish “an injury on December 22, 2000, that arose out of and in the course of his employment with IBP, Inc.” Therefore, the deputy decided the other issues in the claim did not need to be addressed. The commissioner affirmed and adopted the deputy commissioner’s decision.

Meyer sought judicial review. He claimed all the evidence in the record supported a finding that his injury manifested itself on December 22, 2002 and arose out of and in the course of employment, and the commissioner erred by relying on the medical testimony that utilized an improper causation standard.

The district court reversed the decision of the commissioner. It found the conclusion reached by the commissioner that Meyer failed to establish “a compensable injury on December 22, 2000” was not supported by substantial evidence. Instead, the district court determined substantial evidence supported a conclusion that Meyer established an'injury that occurred on December 22, 2000, and that it arose out of and in the course of his employment with IBP. The court was persuaded that the circumstances on December 22, 2000, and those that both preceded and followed- the event; could only mean the injury occurred on December 22, 2000.

IBP filed a notice of appeal and raised a single issue — whether the district court erred in reversing the commissioner’s decision “that Meyer failed to establish that he sustained an injury that arose out of and in the course of his employment” with IBP, Inc. IBP claimed substantial evidence supported the commissioner’s ruling. In the section of its appellate brief addressing the scope of appellate review, IBP stated:

The issue in this appeal has been properly preserved for review as the issue of whether this injury arose out of and in the course of Meyer’s employment with IBP, [I]nc. has been the central issue both in the Workers’ Compensation Commissioner’s decision and the Ruling on Judicial Review.

We transferred the case to the court of appeals. It determined substantial evidence supported the decision of the commissioner. It found the medical testimony presented at the hearing constituted substantial evidence to support the agency’s conclusion that Meyer’s injury was not causally related to his two days of employment with IBP. In addition, the court of appeals stated that Meyer had “pointed to no evidence, medical or otherwise,” that the incident on December 22, 2000 was a manifestation of Meyer’s injury.

Meyer sought further review, claiming the court of appeals “ignored established Supreme Court standards as to when a cumulative injury ‘manifests.’ ” IBP responded that any reliance by Meyer on the cumulative-injury rule was misplaced in this case because the issue on appeal was whether substantial evidence supported the agency’s decision that Meyer’s injury did not arise out of and in the course of employment. IBP further argued that even assuming the cumulative-injury rule was applicable, the rule would support a finding that the injury manifested itself prior to the time Meyer commenced his employment with IBP. We granted further review.

II. Standards of Review

The Iowa Administrative Procedure Act, Iowa Code chapter 17A, governs the scope of our review in workers’ compensation cases. Iowa Code § 86.26. Under the Act, we may only interfere with the commissioner’s decision if it is erroneous under one of the grounds enumerated in the statute, and a party’s substantial rights have been prejudiced. Id. § 17A.19(10).

The issue on appeal has been framed in the context of whether substantial evidence supports the commissioner’s determination that Meyer’s injury did not arise out of and in the course of employment with IBP. However, in fully considering the parameters of our review, we observe that the issue whether an injury arose out of and in the course of employment presents a mixed question of law and fact. Hawk v. Jim Hawk Chevrolet-Buick, Inc., 282 N.W.2d 84, 87 (Iowa 1979). A question of fact is presented by the operative events that give rise to the injury. Id. Unless the events are undisputed, the commissioner must resolve the dispute and determine the facts leading to the injury. Id. A question of law is then presented because the commissioner must further determine whether the facts, as determined, support a conclusion that the injury “arose out of and in the course of employment,” under our workers’ compensation statute. Id. (citing Cedar Rapids Cmty. Sch. Dist. v. Cady, 278 N.W.2d 298, 298-99 (Iowa 1979); McClure v. Union et al., Counties, 188 N.W.2d 283, 284 (Iowa 1971)).

On judicial review, courts are bound by the commissioner’s resolution of the first question — finding the operative facts from the evidence presented — if supported by substantial evidence in the record as a whole. Excel Corp. v. Smithart, 654 N.W.2d 891, 896 (Iowa 2002) (citing IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001)); accord Iowa Code § 17A.19.10(/’). In other words, the question on appeal is not whether the evidence supports a different finding than the finding made by the commissioner, but whether the evidence “supports the findings actually made.” St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 649 (Iowa 2000) (citing Kiesecker v. Webster City Custom Meats, Inc., 528 N.W.2d 109, 110 (Iowa 1995)). On the other hand, the application of the law to the facts — the second question— takes a different approach and can be affected by other grounds of error such as erroneous interpretation of law; irrational reasoning; failure to consider relevant facts; or irrational, illogical, or wholly unjustifiable application of law to the facts. See Iowa Code § 17A.19(10)(c), (i), (j), (to). We allocate some degree of discretion in our review of this question, but not the breadth of discretion given to the findings of fact. See Arthur E. Bonfield, Amendments to Ioiva Administrative Procedure Act (1998) Chapter 17A, Code of Iowa (House File 667 As Adopted) 70 (1998) (“[W]hen an agency is delegated discretion in applying a provision of law to specified facts the scope of review appropriately applied by courts must be deferential because the legislature decided that the agency expertness justifies vesting primary jurisdiction over that matter in the discretion of the agency rather than in the courts.”); see also Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 604 (Iowa 2005) (“Because factual determinations are within the discretion of the agency, so is its application of law to the facts.”); Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004) (“[Gjiven that factual determinations in workers’ compensation cases are ‘clearly vested by a provision of law in the discretion of the agency,’ it follows that application of the law to those facts is likewise ‘vested by a provision of law in the discretion of the agency.’ ” (citing Iowa Code § 17A.19(10)(¡O)). When the agency exercises its discretion based on an erroneous interpretation of the law, we are not bound by those “legal conclusions but may correct misapplications of the law.” Stroup v. Reno, 530 N.W.2d 441, 443 (Iowa 1995).

These different approaches to our review of mixed questions of law and fact make it essential for counsel to search for and pinpoint the precise claim of error on appeal. If the claim of error lies with the agency’s findings of fact, the proper question on review is whether substantial evidence supports those findings of fact. If the findings of fact are not challenged, but the claim of error lies with the agency’s interpretation of the law, the question on review is whether the agency’s interpretation was erroneous, and we may substitute our interpretation for the agency’s. Clark, 696 N.W.2d at 604 (citing Iowa Code § 17A.19(10)(c), (H)(6); Mycogen Seeds, 686 N.W.2d at 464). ■ Still, if there is no challenge to the agency’s findings of fact or interpretation of the law, but the claim of error lies with the ultimate conclusion reached, then the challenge is to the agency’s application of the law to the facts, and the question on review is whether the agency abused its discretion by, for example, employing wholly irrational reasoning or ignoring important and relevant evidence. See Iowa Code § 17A.19(10)(i), (j). In sum, when an agency decision on appeal involves mixed questions of law and fact, care must be taken to articulate the proper inquiry for review instead of lumping the fact, law, and application questions together within the umbrella of a substantial-evidence issue.

In this case, the commissioner found from the evidence that Meyer had a cumulative-trauma injury, but concluded the injury did not arise out of and in the course of his employment with IBP because the limited time Meyer worked for IBP (two days) was not the cause, by itself, of the cumulative-trauma injury. Certainly, there was substantial evidence in the record to support the finding that the two days Meyer worked as a IBP employee did not, by itself, cause the injury. These facts are not in dispute. Instead, the actual issue is whether these facts support the commissioner’s conclusion that Meyer’s .injury did not arise out and in the course of employment under the applicable legal standards. Accordingly, our task on judicial review is to consider if the commissioner either made an erroneous interpretation of the law, or otherwise committed error in applying the law to the facts.

III. Governing Law

Our workers’ compensation statute provides coverage for “all personal injuries sustained by an employee arising out of and in the course of the employment.” Iowa Code § 85.3(1); accord Meade v. Ries, 642 N.W.2d 237, 243 (Iowa 2002) (citing Miedema v. Dial Corp., 551 N.W.2d 309, 311 (Iowa 1996)). This statutory coverage formula gives rise to four basic requirements: (1) the claimant suffered a “personal injury,” (2) the claimant and the respondent had an employer-employee relationship, (3) the injury arose out of the employment, and (4) the injury arose in the course of the employment. See Freeman v. Luppes Transp. Co., 227 N.W.2d 143, 148 (Iowa 1975). The failure of any, one requirement results in a denial of a claim for benefits. Yet, all four elements are woven together by the common threads of injury and employment. The first two elements establish the existence of the injury within the ambit of the workers’ compensation statute, and the third and fourth requirements work hand in hand to establish a connection between the injury and the work. See 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 3.01, at 3-3 (2005) [hereinafter Larson]. Nevertheless, each element has its own purpose in the resolution of a workers’ compensation claim, and the failure to follow a separate analysis of each element can lead to confusion and potential error.

With respect to the first requirement of an injury, it is sufficient in this case to recognize that carpal tunnel syndrome is an injury under the workers’ compensation statute. Noble v. Lamoni Prods., 512 N.W.2d 290, 294 (Iowa 1994). See generally Jay M. Zitter, Workers’ Compensation: Recovery for Carpal Tunnel Syndrome, 14 A.L.R.5th 1, 11-12 (1993) (“Carpal tunnel syndrome is a condition produced by compression of the median nerve as it travels through the carpal tunnel at the wrist, resulting in symptoms of tingling, pain, and weakness in the wrist and in the thumb and first three fingers of the hand.... [T]he cause which has been the focus of considerable recent attention is repetitive minor trauma in the modern workplace. Many assembly line tasks ... involve thousands of repetitive hand and wrist motions, such as slicing, pushing, or pressing, often without sufficient break or resting time.”). It is known as a repetitive-trauma injury, or cumulative injury, because it normally develops over time. Id.

The injury element also includes a component of “reasonable definiteness in time.” 3 Larson § 50.01, at 50-2. The reason for requiring a definite date of injury is that a number of important questions often cannot be answered without considering the date of injury, including “which employer and carrier is on the risk.” Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001) (quoting Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 618 (Iowa 1995)); accord 3 Larson § 50.01, at‘50-2. In other words, the time of injury must normally be known to properly consider the other elements of a claim for compensation. For example, the relevant time period to establish the second element — existence of an employer-employee relationship — is the time of injury. See Freeman, 227 N.W.2d at 148 (worker must establish “employer-employee relationship at the time of the injury” (citing Hassebroch v. Weaver Constr. Co., 246 Iowa 622, 67 N.W.2d 549 (1954))). Similarly, it would be difficult to properly analyze the third element — the injury arose in the course of employment — without first determining the time of the injury. Under either element, an employer is not “on the risk” for an injury' sustained prior to the time the employee commenced work for the employer. See, e.g., Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 752-53 (Iowa 2002) (no compensation from new employer for hearing loss that occurred before employment commenced).

We use the “cumulative-injury rule” to establish the date of injury in repetitive-trauma cases. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985); accord Herrera, 633 N.W.2d at 287; 3 Larson § 50.01, at 50-2. The date of the repetitive-trauma injury under the cumulative-injury .rule “is the date on which disability manifests itself.” 3 Larson § 50.05, at 50-11. “‘Manifestation’ is best characterized as ‘the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become pláinly apparent to a reasonable person.’ -” Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992) (quoting Peoria County Belwood Nursing Home v. Indus. Comm’n, 115 Ill.2d 524, 106 Ill.Dec. 235, 505 N.E.2d 1026, 1029 (1987)); accord Excel Corp., 654 N.W.2d at '896; Herrera, 633 N.W.2d at 288. It is a fact-based determination in which the commissioner is entitled to substantial latitude. Oscar Mayer Foods Corp., 483 N.W.2d at 829 (citation omitted). Factors to be considered in determining when an injury manifests itself include “absence from work because of inability to perform, the point at which medical care is received, or others, none of which is necessarily disposi-tive.” Id. at 830.

The second requirement means that an employee-employer relationship must exist “at the time of the injury.” Freeman, 227 N.W.2d at 148. There can be myriad issues relating to the- requirement of an employee-employer relationship that may ultimately support a denial mf compensation, but none is relevant to this case. See Iowa Code § 85.61(2) (defining “employer” and • providing specific inclusions); id. § 85.61(11)-(13) (defining “employee” and providing specific inclusions and exclusions). See generally 3 Larson chs. 60-68, at 60-1 to 68-14 (devoted to employment status and the rules governing exceptions such as independent contractors). Instead, the relevant inquiry in this case is whether the employment relationship existed at the time of the injury.

Once a worker is found to have suffered an injury at the time of the employment relationship, the third and fourth requirements must be considered to decide if the injury “ar[ose] out of and in the course of the employment.” Iowa Code § 85.3(1). “Few groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation.” 1 Larson § 3.01, at 3-3. We have contributed to this cordillera of law by our own interpretation of this venerable language:

An injury “arises out of’ the employment if a causal connection exists between the employment and the injury. The injury arises “in the course of’ employment when the injury and the employment coincide as to time, place, and circumstances. Both tests must be satisfied for an injury to be deemed com-pensable.

Meade, 642 N.W.2d at 243-44 (citations omitted).

Thus, the “course of employment” element is satisfied when the injury “takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.” 1 Larson at 12.1. In other words, the injury

and the employment must “coincide as to time, place, and circumstances.” Thayer v. State, 653 N.W.2d 595, 600 (Iowa 2002) (citing Meade, 642 N.W.2d at 243-44). This element examines the work period on the date of the injury, the place of the injury, and the activities the worker was engaged in at the time of the injury. See generally 3 Larson chs. 12-17, at 12-1 to 17.41 (devoted to principles such as the “going and coming” rule, dual-purpose rule, and deviation rule).

On the other hand, the “arising out of’ employment element has a different focus. It means there must be a “casual relationship between the employment and the injury.” Koehler Elec. v. Wills, 608 N.W.2d 1, 3 (Iowa 2000). Although we have attached a causation label to this element from time to time, it has a special definition in workers’ compensation law. The element requires that the injury be a natural incident of the work, meaning the injury must be a “ ‘rational consequence of the hazard connected with the employment.’ ” Id. at 3-4 (quoting 2800 Corp. v. Fernandez, 528 N.W.2d 124, 128 (Iowa 1995)). “ ‘In other words, the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of ... employment.’ ” Id. at 3 (quoting Miedema, 551 N.W.2d at 311); see 1 Larson at 9-1 (“Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury.”).

In applying this arising-out-of element, it is important not to draw in the causation standards applicable to tort law. The concept of proximate or legal cause applicable to tort law is misplaced in determining work-connectedness -under workers’ compensation law. 1 Larson § 3.06, at 3-7.

Larson provides a lengthy explanation:

It is instantly apparent that “arising out of the employment” does not mean exactly the same thing as “legally caused by the employment.” It is true, as many courts and writers have said, that “arising” has something to do with causal connection; but there are many shades and degrees of -causal connection, of which “legal” or “proximate” cause is only one. Taking the words themselves, one is first struck by the fact that in the “arising” phrase the function of the employment is passive while in the “caused by” phrase it is active. When one speaks of an event “arising out of employment,” the initiative, the moving force, is something other than the employment; the employment is thought of more as a condition out of which the event arises than as the force producing the event in affirmative fashion. In tort law the beginning point is always a person’s act, and the act causes certain consequences. In worker’s compensation law the beginning point is not an act at all; it is a relation or condition or situation — namely, employment. No one would suggest that the employer’s only act, the act of hiring the employee, is the operative factor from which all consequences are to be traced. Thus, at the very outset, it. is plain that the attempt to make “arising” equivalent to “causation” is blocked by the words themselves.
One is- next entitled to ask, if the original draftsmen meant to say “caused by the employment,” why did they not do so? The phrase is not only shorter than the “arising” phrase, but much more familiar; it would have come naturally to any draftsman, unless he or she intended to say something different from “caused by.”
Finally, proximate cause or legal cause is out of place in compensation law because, as developed in tort law, it is a concept that is itself thoroughly suffused with the. idea of fault; that is, it is a theory of causation designed to bring about a just result when starting from an act containing some element of fault. The primary test of legal cause in the Ünites States is foreseeability, which is the “fundamental basis of the law of negligence.” Therefore, “if the harm which has actually occurred is one of the particular risks which made the actor’s conduct negligent, it is obviously a consequence for which the actor must be held' legally responsible.” In other words, the essence of the actor’s fault is that, although the consequences of his or her conduct were foreseeable, he or she nevertheless carried on that line of conduct. The foreseeability of the consequences is an inextricable part of the fault-character of the act.
But what relevance has foreseeability if -one is not interested in the culpability of the actor’s conduct? . There is nothing in the theory of compensation liability that cares whether the employer foresaw particular kinds of harm or not. The only criterion is connection in fact with, tjie employment, whether it is foreseeable in advance, or apparent only in retrospect. Thi§ criterion cannot in any logical sense be made to depend on foreseeability. ...

Id. at 3-7 to 3-8; accord State Farm Mut. Auto. Ins. Co. v. Rains, 715 S.W.2d 232, 236 (Ky.1986) (noting court’s rejection of “utilizing the concepts of ‘proximate cause, or foreseeability’ as tort law concepts not applicable to workers’ compensation cases” in determining whether an injury arose out of employment (citing Corken v. Corken Steel Prods., Inc., 385 S.W.2d 949, 950 (Ky.1964))); Gibberd ex rel. Gibberd v. Control Data Corp., 424 N.W.2d 776, 780 (Minn.1988) (“[A] causal connection — not necessarily in the proximate cause sense — must exist between the injury and the employment.” (Citations omitted; emphasis added.)); Steinberg v. S.D. Dep’t of Military & Veterans Affairs, 607 N.W.2d 596, 602 (S.D.2000) (“ ‘[Ajrising out of and in the course of employment’ does not require that the latter be the proximate cause of injury. If the legislature had meant that, it would have said so.” (quoting Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913, 916 (1945))).

IV. Analysis

With this governing law in mind, we return to the decision of the commissioner. The commissioner had four elements to consider in deciding the initial issue presented at the hearing: (1) Did Meyer sustain an injury (injury element)? (2) Did Meyer and IBP have an employer-employee relationship at the time his injury occurred (employment-status element)? (3) Was the injury related to the working environment or conditions of the job (arising-out-of-employment element)? and (4) Did the injury coincide with the time and place of employment (course-of-employment element)? Failure of proof of any one of these elements would have taken Meyer’s claim out of the statutory coverage formula for compensability. In considering the first element, the commissioner found from the evidence that Meyer sustained a cumulative-trauma injury. However, the commissioner skipped the second and fourth elements and proceeded directly to the third element. The commissioner did not apply the cumulative-injury rule to decide the date of the injury, or decide that Meyer’s injury manifested before his employment with IBP commenced. Instead, the commissioner only addressed the arising-out-of element and found that two days of work for IBP could not, by itself, have produced Meyer’s injury. The commissioner found a failure of proof on the arising-out-of element based solely upon the medical opinions by Drs. Gorsche and Knudson that Meyer’s two days of work for IBP was not, by itself, the cause of the injury.

The undisputed evidence in the case revealed that the particular job performed by Meyer during his two days of employment with IBP was the same job performed for his prior employer. It involved repetitive hand and arm motions, conditions that are known to lead to carpal tunnel syndrome or cumulative-trauma injury. It was undisputed that Meyer sufr fered this type of injury. Thus, although Meyer only worked a short time on the job, the type of injury he sustained was nevertheless a “rational consequence” of a hazard of the work he performed with IBP. Koehler Elec., 608 N.W.2d at 3. The type of work he performed placed him at a greater risk of carpal tunnel syndrome, which meets the arising-out-of employment standard regardless of the number of days worked. See McIlravy v. N. River Ins. Co., 653 N.W.2d 323, 332 (Iowa 2002) (knee injuries sustained by iron worker while walking was work-related based on evidence that the nature of the profession placed the worker at greater risk for knee injuries than other professions). Yet, the evidence the commissioner relied upon in the written decision reveals the commissioner utilized a tort-law causation standard that required Meyer to prove the two days of employment with IBP, by themselves, caused the injury.

Under the arising-out-of element decided by the commissioner, Meyer was only required to “prove that a condition of his employment increased the risk of injury.” Koehler Elec., 608 N.W.2d at 5; accord Miedema, 551 N.W.2d at 311 (“Miedema fails to establish that use of Dial’s restroom exposed him to any increased risk of injury. Rather, any risk of back injury associated with use of Dial’s toilet seems to have been singular to Miedema and is not causally connected to the conditions of the restroom facilities.”); 1 Larson § 3.03, at 3-4 (stating that under the increased-risk doctrine, a test for determining whether an injury arose out of the employment, “the distinctiveness of the employment risk can be contributed [to] by the increased quantity of the risk that is qualitatively not peculiar to the employment”). Thus, Meyer could have had a predisposition to develop carpal tunnel syndrome prior to beginning his employment with IBP. Yet, if the injury manifested during his first minute of popping tongues as an IBP employee, it still would have arisen out of his employment because his job duties with IBP, as shown by the record, increased the risk that carpal tunnel syndrome would manifest. See Koehler Elec., 608 N.W.2d at 5. Accordingly, properly applied to the facts, our law reveals Meyer satisfied the arising-out-of element as a matter of law. Contrary to the conclusion of the commissioner, this element does not support a denial of compensation.

The error committed by the commissioner also reveals the error committed by the district court. In our judicial review of workers’ compensation cases, we review the district court decision to decide if our legal conclusions mirror those reached by the district court. Cargill, Inc. v. Conley, 620 N.W.2d 496, 500 (Iowa 2000) (citations omitted). The district court not only found the legal conclusion reached by the commissioner that the injury did not arise out of and in the course of employment was not supported by the evidence, but went on to further find the evidence as a whole satisfied the arising-out-of-and-in-the-course-of-employment standard as a matter of law. This latter conclusion by the district court is where error ultimately occurred. In reaching this conclusion, the district court exceeded the scope of permissible judicial review of agency decisions by making findings on the eourse-of-em-ployment element that the commissioner never made, when the facts in the record necessary to make the finding supported two reasonable conclusions.

As revealed by our analysis in this case, the basic issue turns on whether Meyer’s injury manifested before or after he became an IBP employee. However, the commissioner never found any facts to support a conclusion that the injury manifested before or after Meyer became an IBP employee, and this question cannot be decided on judicial review as a matter of law because the evidence clearly could support two reasonable conclusions. We have said that the commissioner commits error by failing to weigh and consider all of the evidence, and the remedy on judicial review for this type of error is to remand the case for a decision by the commissioner on the existing record, not for the district court to find the facts and make the decision. Armstrong, 382 N.W.2d at 165. The reviewing court may determine facts as a matter of law only when there is no dispute in the relevant evidence and reasonable minds could not reach different inferences from the evidence. Id.

The record reveals a conflict in the evidence regarding the time when the injury-sustained by Meyer manifested. There is evidence that could support a finding that the injury occurred before Meyer commenced work for IBP and there is evidence to support a finding it occurred after he commenced work for IBP. Thus, remand is necessary for the commissioner to reevaluate the evidence and decide this question in light of the relevant law, as well as all other questions that may follow.

V. Conclusion

We vacate the decision of the court of appeals. We reverse the district court judgment and remand the case to the workers’ compensation commissioner for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

      . Although a claim of insubstantial evidence is usually used to challenge findings of fact, we understand how it can be implicated, as in this case, in a challenge to a legal conclusion. Error occurs when the commissioner makes a legal conclusion based on facts that are made-quate to satisfy the governing legal standards. Yet, a claim of insubstantial evidence to support a legal conclusion does not give rise to the standard of review applicable to the claim of substantial evidence to support the factual findings by the commissioner. When the commissioner takes a piece of evidence and uses it to draw a legal conclusion to improperly deny compensation, we do not review the conclusion by looking at the record as a whole to see if there was substantial evidence that could have supported the ultimate decision, as argued by IBP in this case. Instead, we review the decision made. If the commissioner fails to consider relevant evidence in making a conclusion, fails to make the essential findings to support the legal conclusion, or otherwise commits an error in applying the law to facts, we remand for a new decision unless it can be made as a matter of law. See Armstrong v. State of Iowa Bldgs. & Grounds, 382 N.W.2d 161, 165 (Iowa 1986).

      . In addition to the requirement of an injury, we have said that our workers' compensation act primarily requires the worker to establish: "(1) an employer-employee relationship at the time of the injury, (2) an injury arising out of and in the course of employment, and (3) the disability ... proximately caused by the injury.” Freeman, 227 N.W.2d at 148 (citations omitted). Thus, we recognize proximate cause between the disability and injury is another requirement of compensation, but it is not directly implicated by section 85.3(1) and is not an issue in this appeal.

      . We, of course, recognize certain rules that may impose responsibility on an employer for conditions that predated the employment or for the aggravation of prior injuries. See Excel Corp., 654 N.W.2d at 896-900.

      . We have on occasion injected the term “proximate cause” into workers’ compensation cases by stating that the employee must prove that "the injury is a proximate cause of the claimed disability.” Grundmeyer, 649 N.W.2d at 752 (citing Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998)); see, e.g., Musselman v. Cent. Tel. Co., 261 Iowa 352, 360, 154 N.W.2d 128, 132 (1967) (“proximate contributing cause”). It is accurate to say an injury must proximately cause the disability, but is not accurate to say the employment must proximately cause the injury. The injury need'only ‘arise out of” the employment— a less onerous standard' than the proximate-cause standard from tort law.