In a case that echoes the plight of all too many injured workers in the U.S., the Supreme Court of Tennessee has overturned a decision of a state chancery court and found that the death of an injured worker due to an overdose of oxycodone and an imprudent intake of alcohol was not causally connected to the worker’s original injury [see Kilburn v. Granite State Ins. Co., 2017 Tenn. LEXIS 198 (Apr. 10, 2017)]. Noting that a distinction must be drawn between an aggravation of an original injury, on the one hand, and a new and distinct injury, on the other, the Court observed 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” [quoting Larson’s Workers’ Compensation Law, § 10.01]. The court indicated, however, that it was uncontroverted that the decedent took greater doses of oxycodone than prescribed and, against his doctor’s orders, combined the opioid with alcohol.
Kilburn, a trim carpenter, was severely injured in a motor vehicle accident during the course of his employment. His injuries included fractures to the C3 and C4 vertebrae in his neck and disc herniations at the L4–5 and L5-S1 areas of his lower back. He underwent a cervical discectomy and surgical fusion of the C3 and C4 vertebrae, which helped his neck pain. After physical therapy and an epidural steroid injection, his lower back pain persisted.
Utilization Review Nixed Additional Surgery
Following utilization review by a panel of three physicians, the carrier denied Kilburn’s request for additional surgery on the low back. The carrier also denied a request for additional steroid injections.
Pain Management Expert
A pain management specialist who saw Kilburn indicated concern with Mr. Kilburn’s consumption of alcohol while taking his medication. Kilburn admitted that because he felt the medication was no longer effective, he was taking two opioid tablets at once even though he had only been prescribed one tablet at a time. The urinary drug screen conducted that day showed the presence of both alcohol and the opioid medication.
Death by Overdose and Alcohol
One morning, Kilburn’s wife found him unresponsive in bed. The medical examiner’s report specifically stated that the cause of death was acute oxycodone toxicity with contributory causes of hypertension, tobacco use, and alcohol use. The medical experts indicated, however, that Kilburn’s tobacco use and hypertension were not specifically associated with the death. Kilburn’s death was deemed an accident. The court found that Ms. Kilburn had sustained her burden of proof to show that her husband’s death was a direct and natural consequence of his work injury. It awarded workers’ compensation death benefits to Ms. Kilburn and the employer/carrier appealed.
Pointing to cases that had quoted Larson, the Supreme Court reiterated that “all the medical consequences and sequelae that flow from the primary injury are compensable,” but that the causal connection with the original injury could be interrupted by an independent intervening action on the part of the injured worker [Larson, § 10.01]. The Court also cited its decision in Simpson v. H.D. Lee Co., 793 S.W.2d 929, 931–32 (Tenn. 1990), in which it had concluded that medication taken contrary to instructions constituted an intervening cause. The Court specifically rejected the widow’s argument that only reckless or intentional misconduct could constitute an intervening cause. It added that negligence was the appropriate standard for determining whether an independent intervening cause relieved an employer of liability for a subsequent injury purportedly flowing from a prior work-related injury.
Concluding that Kilburn’s failure to consume his medication in accordance with his doctor’s instructions was an independent intervening cause, the Court reversed the judgment of the trial court.
The Opioid Epidemic
I need hardly to add my comment to the well-known issues flowing from America’s opioid epidemic. According to data maintained by the U.S. Department of Health and Human Services, the situation is frightening:
- More than 650,000 opioid prescriptions are dispensed each day
- 78 persons die each day from an opioid-related overdose
- In 2014, more than 240 million prescriptions were written for prescription opioids
- Four out of five new heroin users started out by misusing prescription opioids
- 3,900 persons initiate non-medical use of prescription opioids each day
- Each year, our nation endures $55 billion in health and social costs related to prescription opioid abuse
- Each year, we spend $20 billion in emergency department and inpatient care for opioid poisonings
While several recent studies indicate the number of opioid prescriptions provided to injured workers may be declining, and while a number of states (e.g., Pennsylvania, New Jersey, Massachusetts, New York) have begun to set limits on the number and duration of opioid prescriptions for most non-surgical or terminal conditions, more needs to be done.