Do you have employees/claimants treating in pain management or with narcotics?  Do you worry that overdose could result in fatal consequences, and whether that’s compensable?  With the pain pill epidemic and risk of dependence and abuse, these are timely questions to consider. 

In Tennessee, these issues are analyzed under the independent intervening injury standards, and the primary question is whether the overdose broke the causal chain of compensability from the initial work injury.  The Tennessee Supreme Court this week issued its opinion in Kilburn v. Granite State Insurance Company, providing an excellent rundown on the law in Tennessee on intervening injuries, what constitutes one, and when they can operate to break the causal chain from the initial compensable work injury.  More specifically, the Court carefully examined the facts at issue in the Kilburn case, where the employee died from an overdose of his pain medications, which he was prescribed for the pain resulting from his severe work injuries.

By way of brief summary, Mr. Kilburn was injured in a motor vehicle accident during the course of his employment.  He suffered fractures of the C3 and C4 vertebrae, and herniations at L4-5 and L5-S1.  He underwent ACDF for the neck injury, and the treating physician recommended surgery also to the lumbar spine.  However, the lumbar spine surgery was denied pursuant to Utilization Review.  Mr. Kilburn was then prescribed Oxycodone to cope with the low back pain, and he began pain management with Dr. Leone.  Dr. Leone determined that Mr. Kilburn had been drinking alcohol in conjunction with his Oxycodone usage in order to cope with the pain, and Dr. Leone recommended weaning off of the Oxycodone.  Three weeks later, Mr. Kilburn died from overdose due to acute oxycodone toxicity with contributory causes of hypertension, tobacco use, and alcohol use.  Mr. Kilburn’s widowed wife then sought a claim for death benefits.

At trial, the widow used the opinions of her expert psychiatrist, Dr. Alistair Finlayson, to argue that Mr. Kilburn’s pain and his anxiety due to the pain  contributed to his risk of inadvertent overdose by diminishing his judgment.  In essence, they argued, Mr. Kilburn developed a dependence to the medication and had severe anxiety due to the weaning of same and his fear of the pain, rendering him more prone to a resultant overdose.  The employer utilized expert pain management physician, Dr. Jeffrey Hazlewood, to argue that there was no evidence that Mr. Kilburn had ever been diagnosed with anxiety (a fact which appears uncontroverted) and that he did not believe chronic pain could cloud a person’s judgment in such a way that Dr. Finlayson opined.  The trial court ruled in favor of Mr. Kilburn’s widow, and awarded death benefits; and the employer appealed.

On appeal, the Tennessee Supreme Court noted that the pertinent question is whether the overdose constituted an independent intervening injury that broke the causal chain from the original work injury.  The Court provided an excellent refresher on the Tennessee law on intervening injuries.  The general rule is that a subsequent injury, whether an aggravation or a new and distinct injury, is compensable if it is the “direct and natural result” of the compensable work injury.  However, an exception to the direct and natural consequences rule is independent intervening injuries, when the subsequent injury is the result of an independent intervening cause, such as the employee’s own conduct.  In citing Larson’s Workers’ Compensation Law (2004) the Court noted that, “the progressive worsening or complication of a work-connected injury remains compensable so long as the worsening is not shown to have been produced by an intervening nonindustrial cause.”  However, for the employee’s own actions to constitute an independent intervening cause, the employee’s behavior must rise to the level of negligence, as clarified by the Supreme Court in Anderson v. Westfield, 259 S.W.3d 697 (Tenn. 2008).  The Kilburn Court noted prior cases that have addressed the issue of overdose and compensability:  Simpson v. H.D. Lee Co., 793 S.W.2d 929 (Tenn 1990), concluded that medication taken contrary to instructions constituted an intervening cause; Guill v. Aetna Life & Cas. Co., 660 S.W.2d 42 (Tenn. 1983), held that injecting medication contrary to medical instructions was an intervening cause.

The Supreme Court then turned to the facts at issue in Kilburn, and determined that the trial court erred in ruling the death causally related to the work injury.  The Court noted that it was undisputed that Mr. Kilburn had not been diagnosed with anxiety.  It also pointed to the somewhat equivocal testimony of the widow’s expert physician.  Ultimately, however, the Court held as it did in Simpson, that Mr. Kilburn failed to take his medication per the instructions of his treating physician, rising to the level of negligence and constituting an independent intervening event, such that the death was not compensable.

It would be easy to take from this case a straightforward holding that overdoses from pain medication are not compensable, wouldn’t it?  It would!  But, I would caution against that.  The Court was very careful to note that this ruling should be read in the narrow circumstances of this case.  In its final footnote the Court stated, “We do not conclude that an individual can never prove that an overdose is the direct and natural result of the original compensable injury when a dependency or addiction to narcotics develops.”  So where do we stand?  I think the Court with this footnote left open for debate the question of whether there could be additional facts that could continue the causal chain from work injury, to pain medication usage, to overdose and death.  Personally, a key takeaway from Kilburn is that if there had been evidence that the employee actually had been diagnosed with anxiety prior to his death, the Supreme Court may likely have ruled that there was a causal connection, and that the overdose and death was the “direct and natural consequence” of the work injury.  Or perhaps even if the widow’s expert psychiatrist had just provided unequivocal testimony, the Court could have gotten there.

In sum, the determination of whether an overdose constitutes a compensable direct and natural consequence or a non-compensable independent intervening injury is extremely fact-dependent.  Additionally, strong expert testimony in these situations is pivotal.

Please let me know if you have any questions related to this case or any other Tennessee related matters, as I would be happy to assist.  Have a great weekend!

Sincerely,
Allen Grant | Partner