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Workers' Compensation

California Supreme Court Rules “Some Contribution” to Causation in Death Case Sufficient for Liability

The California Supreme Court has reversed a Court of Appeal decision which had in turn reversed a W.C.A.B. award of dependency benefits in South Coast Framing v. W.C.A.B. (Clark).The Supreme Court decision reinstates the W.C.A.B. award of dependency benefits and explicitly rejected the Court of Appeals rationale for reversing the award finding that the lower court impermissibly ignored findings of fact made by the WCJ and W.C.A.B. and further erred in imposing a higher threshold for causation than was required in a workers’ compensation proceeding.

The injured employee, Brandon Clark, died from a combination of medications that included prescriptions for his work injury and medications prescribed by his primary care doctor presumably for non-work related conditions. A qualified medical examiner initially opined that the work related medications (Vicodin and Elavil) were not contributing causes to the employee’s death from overdose, thereby implicating his use of Ambien and Xanax which were prescribed on a non-industrial basis. The QME noted that blood level testing showed the dosages for Elavil and Vicodin were well within the acceptable dosage while the Ambien and Xanax were well above the recommended levels (15X) suggested that the latter two medications were responsible for the overdose.

At deposition the QME modified his opinion somewhat, concluding that the combined drug cocktail of the 4 medications likely played a role in the demise of the applicant but that the Ambien and Xanax were overwhelmingly to blame and the other two medications were contributing but to a much lesser degree.  The Court summarized his testimony as follows:

“…When asked if Elavil, in combination with Ambien and Xanax, could have “contributed” to Clark’s death, Bruff answered, “it’s possible” and that Elavil “could be an incremental contributor,” although “the [Xanax] and [Ambien] being in the same class and at a much higher dose . . . kind of carried the day.”  Bruff reiterated that Elavil was “way down there” as a cause of death and it would be “really speculative” to place a percentage on it.  When asked if Elavil “might have been what just put it over the edge” to cause Clark’s death, Bruff agreed it was possible but “[t]he exact amount is way down there” and “we literally are dancing about the minimum level of causation . . . .”  Bruff acknowledged Elavil was “additive” and part of the causation “pie,” but he could not assign a number reflecting the percentage of causation attributable to it, suggesting “it would be closing your eyes and throwing a dart at a dartboard kind of stuff” or “just pulling numbers out of the sky.”  When asked again to assign a number, Bruff responded “[w]e’re looking at one percent causation and we’re dangling right down there,” but it would be “medically improper to sit here and say that I can pull a percentage out.”  He acknowledged, “It’s not zero, but it’s certainly not twenty percent either, where it’s a no brainer.””

Based on the QME’s testimony the WCJ awarded death benefits, concluding that the combination of medications played a role in the worker’s death which included a finding that the Ambien was taken in part for work related symptoms. That finding was based on testimony that the employee was having sleep difficulties from his pain. The W.C.A.B. rejected the Petition for Reconsideration; however, the Court of Appeal granted review and reversed.

The Supreme Court provided an extensive discussion on the difference in causation thresholds between civil actions and workers’ compensations proceedings:

The question here is the required nature and strength of the causal link between the industrial injury and death.  Tort law and the workers’ compensation system are significantly different.  One result of the difference is the role and application of causation principles.  “[A]lthough Labor Code section 3600 refers to ‘proximate cause,’ its definition in workers’ compensation cases is not identical to that found in the common law of torts.  [Citation.]  ‘In fact, the proximate cause requirement of Labor Code section 3600 has been interpreted as merely elaborating on the general requirement that the injury arise out of the employment.’  [Citation.]  The danger from which the employee’s injury results must be one to which he was exposed in his employment.  [Citation.]  ‘ “All that is required is that the employment be one of the contributing causes without which the injury would not have occurred.” 

…Accordingly, “[t]he statutory proximate cause language [of section 3600] has been held to be less restrictive than that used in tort law, because of the statutory policy set forth in the Labor Code favoring awards of employee benefits.  In general, for the purposes of the causation requirement in workers’ compensation, it is sufficient if the connection between work and the injury be a contributing cause of the injury . . . .””

The Court then addressed the Court of Appeals’ analysis of the causation threshold, finding it to be materially flawed:

“The Court of Appeal thus concluded that, although Elavil “played a role” in Clark’s death, it was insufficient to prove proximate causation because it was not sufficiently “significant” or a “material factor.”  This analysis fails to honor the difference between tort law principles and the application of the workers’ compensation scheme.  Tort liability only attaches if the defendant’s negligence was a significant or substantial factor in causing injury.  In the workers’ compensation system, the industrial injury need only be a contributing cause to the disability….”

The Supreme Court also took the lower court to task for rejecting the Findings of Fact of the W.C.A.B., noting that where there is substantial evidence to support a finding, the appellate court may not reweigh the evidence to come to a different finding:

The WCJ’s findings of fact, and the Board’s adoption of them, “are final and conclusive and not subject to appellate review if supported by substantial evidence in light of the entire record.

Substantial evidence supported the WCJ’s finding that Elavil and Vicodin, prescribed for Clark’s industrial injury, contributed to his death.  While the level of Elavil could not have been independently fatal, Dr. Bruff testified that it had a contributory effect.  As noted, Bruff testified Elavil “may have had a small role at the levels found,” “could be an incremental contributor,” and was “additive.”  Although he could not assign an exact percentage of contribution, Bruff affirmed “[i]t’s not zero . . . .”  He further agreed with plaintiffs’ counsel’s statement that “[w]e can’t rule out that the [Elavil] might have been what just put it over the edge to cause this poor man’s death at thirty-[six] years old.”  Even if it was possible that Clark might have died from an overdose of Xanax and Ambien alone, there also existed a reasonable probability that the Elavil made Clark’s death more likely. 

The Court went on further to explain that there was no legal basis for concluding the legal standard for causation required a material contribution, noting that even cases which utilized such language did not turn on the materiality of the work injury contributing to an injury. The Court therefore concluded the record in the case supported the W.C.A.B.’s finding that the combination of industrial and non-industrial medications separately and in combination contributed to the employee’s death and that even minimizing the level of contribution of the industrially prescribed medications did not eliminate those as contributing to causation. The Court further noted that there was no dispute that the Ambien, prescribed by the employee’s personal physician, was a contributing factor and that substantial evidence supported the WCJ/W.C.A.B. findings that this medication was prescribed at least, in part, for the employee’s work injury related symptoms.

Comments & Conclusions:

I doubt many of us are surprised by the Supreme Court’s decision in this case. While there was undoubtedly some widespread hope that the Court would apply the higher threshold that the Court of Appeal appears to have adopted, the Supreme Court could have achieved that purpose by denying the request for hearing and ordering the appellate decision published.

The weight of legal authority for this appears to be well settled in favor of the higher Court’s interpretation and it would definitely have been a change in the case law if the lower court’s opinion had been upheld.

One scenario that might play out in future cases however is the role of the medication prescribed by the employee’s personal physician. The WCJ, W.C.A.B. and Supreme Court all adopted the position that even though the medication was not prescribed for the work injury, it was used for treatment of the work injury. However, since the scripts never went to the WC carrier, they were never subjected to UR/IMR to determine if they met the criterion for treatment to cure or relieve from the work injury. It is certainly predictable that in the future there may be similar cases (without the work related medications component) with prescriptions for medications rejected by UR/IMR as inappropriate which are then filled on a non-industrial basis leading to injury or death. Would an employer be insulated from the causation link where the medications were denied and provided on a non-industrial basis? What about medications provided by a physician directly but later rejected by UR/IMR as being medically unnecessary? Does liability flow from such treatment where the request has been denied and the denial has been upheld?

For treatment by the applicant’s personal physician one has to wonder if the provisions of Labor Code § 4605 affect the admissibility of such reports and the viability of such treatment as being related to the work injury?

© Copyright 2015 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.