Nebraska Worker’s Death From Apparent Suicide is Not Compensable
In a case that is heartbreaking from multiple points of view, the family of an injured Nebraska employee was denied workers’ compensation death benefits on the basis that the employee’s death, due to a fatal cocktail of oxycodone, methadone, and Xanax was the result of her own willful negligence (i.e., suicide) and not causally connected to her original work-related injury [Michael B. v. Northfield Retirement Communities, 24 Neb. App. 504, 2017 Neb. App. LEXIS 32 (Feb. 7, 2017)]. While the case was correctly decided—as far as the legal issues are concerned—the entire scenario illustrates the fragility of many “injured veteran[s] of industry,” a term often used by my mentor, Dr. Arthur Larson (see Larson’s Workers’ Compensation Law, § 1.03). Fraught with pain, no longer able to work, existing on the economic fringes of society, they are all too often susceptible to deep depression. Many live within a slow, but constant downward spiral. In this case, an eviction from her home, and the potential loss of custody regarding her daughter, apparently drove her the injured employee to take her own life.
The employee sustained a work-related injury in 2009 and received a stipulated award. She underwent surgery, but continued to have pain. Her primary care physician prescribed various painkillers over the years. At the time of her death in 2014, the employee had prescriptions for methadone and oxycodone. The employee’s physician also testified that the employee had a history of anxiety and depression that predated her work injury, and that she had been on medications, such as Xanax, for more than ten years.
Prior to her death, the employee and her teenage daughter were residing at a friend’s house. A few hours before the employee’s death, a social worker, accompanied by a detective from the police department, came to the residence to speak with the employee regarding her alleged illicit drug use and living situation, as well as to investigate a complaint regarding physical abuse of the daughter. At the friend’s request, the detective also told the employee that she was no longer welcome at the residence. The social worker further indicated the employee was likely to lose custody of her daughter. Several times, the employee repeated that she was “at her end.” She refused to elaborate and actually told the social worker that she did not intend to harm herself. The social worker and detective left after telling the employee to begin packing her things.
Less than an hour later, the detective responded to a distress call from the address. When he arrived, he found that emergency personnel were administering CPR to the unconscious employee. The employee later died at a local hospital.
Pill Inventory Showed Fatal Dosage Was Taken
Based on prescription dates and remaining tablets in the pill containers, the employee’s physician opined that the employee had overdosed on all three medications and that the amount of medication unaccounted for would have been sufficient to send her into respiratory arrest and cause her death. An autopsy confirmed substantial amounts of all three drugs were in the employee’s system at the time of her death.
Compensation Court Denied Death Benefits
The compensation court found that the employee’s death was the result of suicide, that the suicide constituted willful negligence, and that there could be no recovery of benefits. On appeal, the employee’s representative argued, in relevant part, that the trial court erred in failing to apply the presumption against suicide and also erred in finding sufficient competent evidence in the record to support a determination of suicide.
Presumption Against Suicide
The appellate court acknowledged that in Nebraska, where a cause of death is in issue and there is nothing to show how death was caused, there is a negative presumption against suicide, that the presumption can be overcome and rebutted by the introduction of evidence tending to show how the death occurred, and that once overcome, the burden shifts to the party asserting the death was accidental to adduce evidence of such.
The court acknowledged further that in the instant case, there was conflicting evidence as to whether the employee’s overdose was accidental or intentional. For example, the employee’s representative argued that there were pills left that the employee had not taken. That, he contended, was at least some evidence that the overdose had been accidental.
Hopelessness and Emotional Instability
The appellate court noted, however, that the trial court found the employee to be in a “fragile emotional state” immediately prior to her death, that the fragility was not related to her injury or the pain she lived with, but rather associated with the eviction and probable loss of custody. She had repeatedly indicated that she was “at her end,” and in another statement, indicated that she should “just as well end it all.” Stressing the short lapse of time between the moment the employee found out about her eviction and daughter’s removal and when she overdosed, the appellate court agreed that the employee’s statements indicated a sense of hopelessness and emotional instability. All that, said the court, supported a finding of suicide.
The appellate court also indicated the employee’s prior history of depression, “as well as suicidal ideations and attempts, including a hospitalization for such less than a year prior to her death” could not be ignored. Taking all this into consideration, the appellate court found no error.
Compensability of Suicide
As noted in Larson’s Workers’ Compensation Law, § 38.01, et seq., suicide may be the basis of a defense against a workers’ compensation claim in several ways. Quite a few states and the Longshore Act have specific prohibitions against recovery related to suicide or self-injury. As noted in this case, Nebraska—which has no specific suicide statute—disallows recovery for willful negligence. It may be possible in some states to argue that suicide does not arise out of the employment; the source of the harm is a personal, intervening act. No matter how the situation is cast, the usual issue is one of proximate cause versus independent intervening cause.
At one time, the issue was dominated by the “voluntary wilful choice” test, sometimes called the rule in Sponatski’s Case, 220 Mass. 526 (1915), under which compensation in suicide cases was not payable unless there followed as the direct result of a physical injury an insanity of such violence as to cause the victim to take his or her own life through an uncontrollable impulse or in a delirium of frenzy without conscious volition to produce death.
The voluntary wilful choice test was gradually displaced as majority rule by the “chain-of-causation” test, which found compensability if the injury caused the deranged mental condition which in turn caused the suicide. Under the chain-of-causation test there remains, however, some room for uncertainty on precisely how deranged the decedent’s mind must have been. For example, New York and other jurisdictions hold that “severe melancholy” is insufficient to link the suicide with the original injury.
If the sole motivation controlling the will of the employee who knowingly decides to commit suicide is the pain and despair caused by the injury, and if the will itself is deranged and disordered by these consequences of the injury, then it seems wrong to say that this exercise of will is “independent,” or that it breaks the chain of causation. Rather, it seems to be in the direct line of causation.
The Opioid Epidemic
Admittedly, in this Nebraska case, the employee’s death was more directly tied to her Xanax prescription than to the painkillers she also took. Nevertheless, as many recent reports have warned, any opioid, mixed with any benzodiazepine, alcohol, or barbituate, can be deadly. And yet, this “cocktail” is often prescribed. Employers and insurers spent more than $1.5 billion on opioids in 2015—13 percent of total U.S. spending on opioids, according to a report prepared by CompPharma LLC. The heavy reliance on opioids (and benzodiazepines) kills the pain. Unfortunately, all too often, it also kills the patient.