It is axiomatic in workers’ compensation law that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury [see Larson’s Workers’ Compensation Law, § 10.01 et seq]. The most basic application of this principle is the rule that all the medical consequences and sequel that flow from the primary injury are compensable. The cases illustrating this rule fall into two groups.
Range of Compensable Consequences
The first group, about which there is little legal controversy, comprises the cases in which an initial medical condition itself progresses into complications more serious than the original injury; the added complications are almost always compensable [see Larson, § 10.02]. The second group of medical-causation cases comprises the cases in which the existence of the primary compensable injury in some way exacerbates the effects of an independent medical weakness or disease. The causal sequence in these cases may be more indirect or complex, but as long as the causal connection is in fact present the compensability of the subsequent condition is beyond question.
Intervening Causes, Such as Medication Overdose
In some circumstances, for example, when pain medication is prescribed for an employee’s work-related injury and that employee later dies from an overdose of that medicine, the issue arises as to whether the causal connection with the original injury is still present in any significant way. Indeed, has there been a sufficient break in the chain of causation such that the death is not compensable? A Texas appellate court dealt with just that issue recently in Commerce & Industry Ins. Co. v. Ferguson-Stewart, Case Number 13-10-00554-CV ((Tex. App.—Corpus Christi-Edenberg [13th Dist.] May 10, 2012) (Free Download). The appellate court, affirming a decision by a state trial court, held that under the facts of the particular case, because evidence showed the employee became disoriented, forgetful, and confused as a side effect of taking the medication, his death could indeed be compensable.
Stewart sustained an injury in 2004 at a work site when a bolt weighing several pounds fell from above, striking Stewart and injuring his shoulder and neck. An MRI showed “minor disc bulges” at three levels on his cervical vertebrae. Stewart’s treating physician diagnosed Stewart with a left shoulder contusion and prescribed hydrocodone, an analgesic, as part of Stewart’s treatment plan. The physician instructed Stewart to take one pill containing 7.5 milligrams of hydrocodone every eight hours.
Stewart’s workers’ compensation claim was initially denied by his employer’s workers’ compensation carrier. However, the Division overturned the carrier’s decision and it sought judicial review. The district court affirmed the Division’s determination that Stewart’s injury was compensable, and the First Court of Appeals affirmed the district court’s judgment [see Commerce & Indus. Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744, 746–47 (Tex. App.—Houston [1st Dist.] 2011), concluding in relevant part that the trial court did not err by excluding evidence of Stewart’s history of prescription drug use.].
Four months after the injury, while his workers’ compensation claim was still being contested, Stewart died from an overdose of hydrocodone. A toxicology report showed that Stewart’s blood contained a hydrocodone level of 0.38 mg/L, consistent with acute severe toxicity. The toxicology report also showed that Stewart’s blood contained carisoprodol, a prescription muscle relaxant, and marijuana.
When Stewart’s widow sought death benefits, the Division determined that Stewart failed to comply with the treating physician’s instructions and that this failure resulted in Stewart’s death. Accordingly, the Division concluded that Stewart’s death did not result from the compensable injury he sustained in 2004 and that his widow was not entitled to death benefits. Stewart’s widow sought review. After a trial, a jury concluded that Stewart’s death resulted from the treatment for his 2004 compensable injury and, therefore, Stewart’s widow was entitled to death benefits. The employer and carrier appealed.
Appellate Court’s Opinion
The appellate court first observed that when death benefits are sought, a causal connection must be established between the injury and the death. That is to say that the injury must be the producing cause of the death. The court indicated that “producing cause” had been defined as that cause which, in “a natural and continuous sequence, produces the death … in issue, and without which the death … would not have occurred” [quoting Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 222 (Tex. 2010)]. The court added that the law did not include every consequence that might arguably not have occurred but for the fact of an injury within the ambit of compensable injury. The court did indicate that ample precedent supported compensation for a condition brought about by reasonable or necessary medical treatment for a work related injury.
Two Theories Offered by Widow
At trial, Stewart’s widow offered two theories as to how and why Stewart might have unintentionally or unknowingly ingested a lethal dose of hydrocodone. First, in what the carrier described as the “accidental overdose” theory, Stewart’s widow alleged that the overdose must have been accidental because her husband did not intentionally or knowingly commit suicide.
According to the appellate court, the evidence relating to the “accidental overdose” theory was insufficient by itself to support the jury’s finding. A forensic pathologist, who performed Stewart’s autopsy concluded that the manner of Stewart’s death was “accidental” but, when asked to elaborate on his conclusion, he stated that such an “accident” typically occurred when a patient “increase[s] the drugs” and “tak[es] more than prescribed” in order to “alleviate the pain more … .” In the scenario suggested by the pathologist, the patient did not intend to take his own life, but the patient did intend to take more drugs than were prescribed in order to better alleviate the pain—i.e., he intended to disobey his doctor’s instructions—and death was an unintended consequence of that act.
The court noted that the doctor’s statement, along with the testimony of Stewart’s widow and others, was evidence that Stewart did not intentionally or knowingly commit suicide. But those statements did not constitute probative evidence that Stewart’s overdose was caused by something other than his “intentionally or knowingly fail[ing] to comply with his doctor’s instructions.” This evidence, therefore, could not support the jury’s verdict in the case.
Stewart’s widow’s second theory at trial was that Stewart had accidentally taken too many hydrocodone pills because of side effects brought about by the prescribed medication. The evidence supporting this theory consisted of lay testimony as to Stewart’s condition prior to his death and expert testimony regarding the side effects of hydrocodone and other medications.
Witnesses testified that on the day prior to his death, Stewart was confused and disoriented. He stumbled several times and had slurred speech. A forensic toxicologist stated that one of the side effects of drugs such as hydrocodone and carisprodol was “confusion,” that the class of drugs could make the patient “groggy” and that when a person was groggy, they were more susceptible to forgetfulness.
No Dispute as to Cause of Death
The court stressed that here there was no dispute as to the medical cause of Stewart’s death. Each of the experts agreed that he died from ingesting a lethal amount of hydrocodone. The jury had not been asked to determine what caused Stewart’s death; rather, it was asked to determine what caused Stewart to ingest a lethal amount of hydrocodone. The court indicated the former question presented an issue of medical causation that had to be supported by expert testimony. The latter question, however, was so “basic” that it could be answered merely with reference to “the general experience and common sense of laypersons.” The court added that it took no specialized knowledge for a juror to conclude, for example, that a patient exhibiting symptoms of disorientation and memory loss might unwittingly take an excessive amount of prescribed medication.
Jury Could Find Disorientation and Memory Loss Was Partly the Cause of Overdose
In as much as the court found that no expert testimony was required to establish the “side effects” theory of Stewart’s overdose, the court further concluded that the lay testimony adduced at trial was sufficient to support the jury’s verdict. Stewart’s widow testified that Stewart’s speech was slurred the day before his death and that he stumbled and fell “all over things.” She also testified that, “in the last couple of days before he died, he was getting really bad about forgetting that he had already taken his medicine” and would sometimes “take it again.” The appellate court said that considering that testimony in the light most favorable to the verdict, it found that it constituted probative circumstantial evidence that Stewart’s intentional or knowing failure to comply with doctor’s instructions was not the sole cause of his overdose. The court said the jury could have reasonably inferred from the widow’s testimony that Stewart’s disorientation and apparent memory loss was at least partly the cause of his overdose. The court concluded that the judgment was not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust.
Decision Could Be a Game Changer for Texas Overdose Claims
This is one of those decisions that upon first glance seems pretty straight forward, but upon the second, or even the third reading, begins to sing a different tune. As the court indicated, the Texas jury had not been asked to determine what caused Stewart’s death; rather, it was asked to determine what caused Stewart to ingest a lethal amount of the prescription medication. The court didn't indicate that his confusion, his fuzzy memory or other symptoms had to be the sole cause of his overdose. It was sufficient that those symptoms contributed to the overdose. I'm no medical expert, but isn't it true that prescription narcotics, by their very nature, tend to produce some side effects? If they didn't, their distribution would not be controlled. Other medications produce lethargy and listlessness. By tying the overdose to the side effects, rather than the decision of the injured worker to take "extra" amounts of the medication, the Texas court has raised the bar in defending these sorts of claims. The Texas procedure allowed Stewart's widow to present the evidence to a jury, which might have been more sympathetic than an administrative law judge or hearing officer who hears cases for a living. What sort of evidence will be necessary to defend the side effects theory of overdose cases in Texas? One would imagine the employer and carrier will need the medical opinion of a strong expert.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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