In re Death of Gray

2004 OK 63

100 P.3d 691

In the Matter of the Death of: JOE LUTHER GRAY, deceased,

CATHY L. GRAY, Petitioner, v. ULTRAMAR DIAMOND, SHAMROCK CORPORATION and THE WORKERS' COMPENSATION COURT, Respondents, AMERICAN HOME ASSURANCE COMPANY, Insurance Carrier.

No. 98237

Supreme Court of Oklahoma

July 6, 2004

G. Todd Ralstin, Oklahoma City, Oklahoma, for Petitioner,

John S. Oldfield, Jr., Oklahoma City, Oklahoma, for Respondents.

KAUGER, J:

¶1 The question presented is whether, pursuant to 85 O.S. 2001 §11,¹ the surviving spouse of an injured worker who dies during an operation which was necessitated because the employee sustained a work-related injury, is entitled to workers' compensation death benefits. We hold that the surviving spouse is entitled to death benefits because the unrefuted facts show the work-related back injury necessitated the pacemaker operation as a precursor to the back surgery.

FACTS

¶2 On May 15, 2000, Joe Gray (employee/injured worker) hurt his lower back while carrying insulation for his employer, Total Petroleum a/k/a the Ultramar Diamond Shamrock Corporation (employer) in Ardmore, Oklahoma.² The next day, he went to an occupational doctor in Ardmore. The occupational doctor diagnosed him with lumbosacral strain and prescribed an anti-inflammatory medication, a muscle relaxant, and restricted him from climbing or lifting anything over 25 pounds.

¶3 On May 23, 2000, after continuing to experience significant discomfort to his lower back, the occupational doctor ordered a scan of his lower spine. The scan revealed that the employee had a herniated disc. The occupational doctor continued the medications, modified his work duty, and recommended that the employee see a neurosurgeon to treat the disc. On July 13, 2000, the employee saw a neurosurgeon in Oklahoma City, Oklahoma, who recommended that a spinal diagnostic procedure be performed if his symptoms continued to worsen. The procedure was performed on July 26, 2000, and it confirmed a bulging disc with restrictions of the spine. On December 11, 2000, the neurosurgeon recommended surgery.³

¶4 On January 29, 2001, the neurosurgeon, apparently concerned that the injured worker had a twenty-year-old pacemaker and that, consequently, he might not be able to handle an extensive and lengthy back surgery, sent the injured worker to another doctor for consultation and pre-surgery screening.⁴ Although the employee expressed no symptoms which would suggest a heart problem or a problem with the pacemaker, the doctor recommended a more thorough screening of the pacemaker because of the required, extensive and lengthy back surgery.⁵

¶5 On February 6, 2001, the employee went back to the doctor for a screening of the pacemaker. The screening showed that, although the pacemaker appeared in good shape, it was capable of pacing at times when it should not, thus raising the possibility of triggering an abnormal heart rhythm. Ultimately, the doctor recommended that the pulse generator of the pacemaker be removed and replaced in order to perform the back surgery.⁶

¶6 On February 21, 2001, the employee died while undergoing the procedure to replace the pulse generator of his pacemaker. On August 3, 2001, the petitioner, Cathy Gray (wife/surviving spouse), filed a notice of death and claim for compensation in the Workers' Compensation Court, seeking surviving spouse death benefits.

¶7 A hearing was held on April 3, 2002, at which the employer denied that the death arose out of and in the course of employment. The wife was the only witness present at the hearing. She testified that: 1) prior to the accident, the employee had not experienced any problems with his pacemaker; 2) he routinely had the pacemaker checked; and 3) it was recommended that the battery in the pacemaker be changed prior to the back surgery.⁷ In addition to the wife's testimony, the deposition of an expert witness was presented. The physician, after reviewing all of the injured worker's medical records, determined that the worker's death was a result of the injury that he sustained to his back while working for the employer; and that had he not sustained the back injury, the pacemaker surgery would have been unnecessary.⁸

¶8 The wife also included in her exhibits, letters and medical records which tracked the injured workers' medical treatments back and forth between the various doctors, documenting concerns about the pacemaker and its effect on the back surgery. Among the exhibits was a letter from the injured worker's doctor who did the pre-surgery screening in which he stated that the direct cause of death was an event which occurred during the pulse generator replacement. The doctor also recognized that "the only relationship that I can see is the fact that his referral risk assessment was made because of his back surgery" and that the employee may well have gone on for a period of time before any investigation was made into the functioning of the pacemaker.⁹

¶9 The employer did not call any witnesses, but offered a report of a doctor who had never seen the patient and who had formed his opinion based on medical records and who misstated the evidence. He thought that the employee's death had no connection to the back injury at all because the pacemaker was old and had not been checked in 5 years.¹⁰ He did not offer any medical opinion as to whether the pacemaker surgery was necessary because of the back injury and scheduled back surgery nor whether the pacemaker surgery would have occurred "but for" the back injury. The doctor's opinion was also directly contrary to medical records of the employee which included evidence of a pacemaker check that occurred on September 9, 1999, only eight months before the back injury, which showed that the pacemaker was operating within normal range.¹¹ The employer did not offer any other evidence to refute that the pacemaker operation was necessary as a precursor to the surgery for the back injury. According to the record, the only reason that the pacemaker operation was necessary was the need for the back surgery — which resulted from the work related injury.

¶10 The court, in an order filed April 12, 2002, denied the wife's claim for death benefits. It found that the husband's death did not result from an accidental personal injury arising out of and in the course of employment. On April 19, 2002, the wife appealed to a three-judge panel of the Workers' Compensation Court; and on August 27, 2002, the three-judge panel affirmed the trial court. On September 12, 2002, the wife appealed to the Court of Civil Appeals; and on December 5, 2003, the Court of Civil Appeals, in an unpublished opinion, sustained the order of the three-judge panel. We granted certiorari on February 17, 2004, to address whether the wife is entitled to death benefits.

¶11 THE SURVIVING SPOUSE IS ENTITLED TO WORKERS' COMPENSATION DEATH BENEFITS BECAUSE THE UNREFUTED FACTS SHOW THAT THE WORK-RELATED BACK INJURY NECESSITATED THE PACEMAKER OPERATION AS A PRECURSOR TO THE BACK SURGERY.

¶12 The wife argues that: 1) the death of the employee was a direct result of an admittedly compensable low back injury or, in the alternative, a consequential injury which directly flowed from the back injury; and 2) there is no competent evidence to support either the trial court's decision or the Court en banc's ruling. The employer concedes that the employee did indeed sustain a back injury arising out of and in the course of employment. However, it insists that: 1) the injured worker died as a result of a long standing cardiovascular condition and a pacemaker failure; and 2) the evidence produced at trial clearly established that the death of the injured worker had no connection to the back injury he sustained or the work he was required to perform.

¶13 Title 85 O.S. 2001 §11¹² provides that benefits are allowable for death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault.¹³ Accordingly, the question here becomes whether the employee's death was causally connected to the back injury. In the Matter of Death of Stroer, 1983 OK 94, 672 P.2d 1158, addresses the causation requirements of the statute.

¶14 Stroer involved the question of whether death benefits were available when an injured worker commits suicide after incurring a work-related injury. The Court adopted the chain of causation test as the criteria for determining if an employee's death by suicide is compensable if the original work-related injury resulted in the employee's becoming dominated by a disturbance of the mind directly caused by the injury and its consequences. The Court held that the act of suicide is not an intervening cause of death and the chain of causation is not broken in cases where the incontrovertible evidence reflects that, but for the injury, there would have been no suicide.

¶15 The Stroer Court recognized that the burden is on the claimant to prove by a preponderance of the evidence that there was an unbroken chain of causation between the compensable injury, the disturbance of the mind, and the ultimate suicide. It also determined that: 1) although compensation will be denied if the suicide was caused primarily by non-work connected problems, the work-connected injury does not have to be the sole cause of the suicide; and 2) expert testimony is not absolutely indispensable — if the facts and circumstances are sufficiently persuasive, they may carry the burden of establishing the requisite causal nexus.¹⁴ A successful rebuttal breaks the chain of causation.

¶16 Although Stroer involved suicide, it illustrates how a causal nexus can exist between an event that occurs after a work-related injury and a resulting death — without breaking the chain of causation. The same rationale is applicable here. When an injured worker dies during an operation made necessary by a work-related injury, the...