Nebraska Claimant Fails to Connect Sinus Cavity Clot to Earlier DVT

In an unpublished opinion that illustrates the difficulty in establishing medical causation in many aggravation cases, a Nebraska appellate court affirmed a decision by the state’s Workers’ Compensation Court denying benefits to a claimant who contended that a blood clot in his sinus cavity was causally connected to an earlier injury to his knees [Homstad v. Block 21, LLC, 2019 Neb. App. LEXIS 329 (Oct. 29, 2019)]. Acknowledging that the claimant suffered admitted aggravations following knee surgery, in the form of a deep venous thrombosis (DVT) in his left leg, and a pulmonary embolism, but quoting Larson’s Workers’ Compensation Law, the appellate court stressed that the burden was still upon the claimant to show the sinus cavity clot was causally connected to his earlier injury or condition and, due to the cautious testimony of his medical experts, he failed to meet his burden of proof.

Background

Claimant sustained an admitted injury that required surgery on both knees. The surgery on his left knee resulted in claimant developing DVT in his left leg and a pulmonary embolism. The surgery on his right knee resulted in a subsequent addition DVT diagnosis. Claimant continued to have difficulties with shortness of breath thereafter.

Later, claimant experienced seizure activity and went to the hospital. He was ultimately diagnosed with superior sagittal sinus thrombosis (SSST), a type of blood clot in his sinus cavity. Upon his release from the hospital, claimant had four additional seizures related to his SSST. He was readmitted to the hospital for a short period and, following his discharge, claimant continued to experience seizures. The issue tried to the court was whether claimant’s SSST condition and resulting seizures and treatment iwere causally linked to his compensable injures.

Cautious Medical Opinions

At trial, opinions were offered from three doctors: Dr. Eric Avery, Dr. Cythia Lewis, and Dr. Peter Silberstein. Dr. Avery indicated claimant’s previous blood clots could be a factor in his SSST.

Dr. Lewis indicated that the etiology of claimant’s thrombosis was very difficult to determine. For example, high levels of testosterone in a patient could be one cause. Dr. Lewis concluded that it would be very difficult for her to find an association with claimant’s initial injury at work to him having seizures and developing a thrombosis in his sagittal sinus.

Dr. Silberstein’s opinion was the most positive for claimant. Silberstein opined that the work-related injury was the major contributing factor for claimant’s initial development of blood clotting in the form of a DVT and a pulmonary embolus and that it was the most significant cause of the development of the recent superior sagittal sinus thrombosis and associated seizure activity.

Trial Decision

Following the trial, the Workers’ Compensation Court found that the work accident caused or contributed to claimant’s DVTs in both legs which resulted in his pulmonary embolus and permanent anticoagulation therapy. However, the court held that claimant’s SSST and resulting seizure activity were not causally linked by the compensable injuries.

The judge acknowledged Dr. Silberstein’s opinion, but said that in light of the contrary opinion of Dr. Clark and the lack of a clear opinion from Dr. Avery, there was insufficient evidence to find that the SSST was caused by or contributed to be caused by the accident.

Reliance on Larson Treatise

On appeal, claimant pointed to Larson’s Workers’ Compensation Law, current § 10.02, which sets out the dominant rule: that when the primary injury is shown to have arisen out of and in the course of employment, “every natural consequence that flows from the injury likewise arises out of the employment,” unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. Claimant argued that there was no evidence of an independent intervening cause which led to his sinus condition and, consequently, there was an insufficient factual record to support the court’s decision.

The appellate court explained, however, that Larson went on to say that even when ascertaining the compensability of natural consequences that follow from an injury, the claimant remains obligated to establish the causal connection of the subsequent condition. As such, in order to recover for claimant’s sinus condition, as a “natural consequence that follows from injury,” it remained claimant’s burden to show that the causal connection was present. Here, however, there was conflicting evidence as to whether that condition was, in fact, a natural consequence of claimant’s original injury. The Compensation Court’s finding that claimant’s sinus condition was not a natural consequence that followed from his initial injury was adequately supported by the record. As such, claimant’s assignment of error failed.