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Can widow get workers’ comp benefits after injured husband overdoses on opioids?

An injured worker died due to an overdose of oxycodone combined with alcohol. His widow sought workers’ compensation death benefits. Did she receive them? 

Charles Kilburn worked as a carpenter for his employer, Ryan Brown, in Tennessee. On Nov. 6, 2008, he suffered severe injuries to his neck and back in a work-related vehicle crash. Kilburn had neck surgery which relieved his pain there, but he still had severe back pain. A doctor recommended back surgery, but the insurance company denied coverage.

On Jan. 4, 2010, Kilburn was evaluated by a pain management specialist who was concerned with his consumption of alcohol while taking his pain medication. Kilburn admitted he was taking two opioid tablets at one time even though he’d only been prescribed half that dose. As part of his treatment, Kilburn signed an agreement stating, “I will control my usage of narcotic medications as directed by the attending physician. There are no exceptions. If medication is inadequate for pain level, I must call before adjusting dosage.”

A little over three weeks later, his wife found Kilburn unresponsive in bed. A medical examiner’s report said the cause of death was acute oxycodone toxicity with contributory cause of alcohol use. His death was deemed accidental. Kilburn was 40.

His wife filed for workers’ comp death benefits which Kilburn’s employer denied.

A trial court awarded the benefits to Kilburn’s widow. His employer appealed. The Tennessee Supreme Court recently ruled in the case.

Two doctors testified by deposition in the case. The first, a psychiatrist with a specialty in addictions stated:

  • It was “more likely than not” that Kilburn was suffering from severe pain or anxiety at the time of his death and that it was “certainly possible” that those conditions affected his judgment and contributed to his risk of overdose.
  • When someone takes medications like oxycodone, they can develop a psychological dependency. In situations like Kilburn’s where there was potential for an interruption in his treatment, it was “very possible” that the situation would cause anxiety.
  • It was possible that Kilburn was so anxious that he could have taken more medication than he intended to combined with alcohol.
  • Despite these possibilities, there was nothing in the record that a treating physician had diagnosed Kilburn with anxiety.

The second doctor, certified in rehabilitation and pain management, conducted a records review at the request of Kilburn’s employer. This doctor said:

  • Taking 60 milligrams of oxycodone a day along with alcohol was inadvisable.
  • Chronic pain such as Kilburn’s could cloud someone’s judgment.
  • There were warning signals that Kilburn may have been developing an addiction to opiates.
  • Nothing in the record showed Kilburn suffered from anxiety or withdrawal symptoms that could cloud his judgment.

It was after hearing this evidence that the trial court ruled Kilburn’s widow had met her burden of proof to show her husband’s death was a direct and natural consequence of his work injury.

In reviewing the case, the Tennessee Supreme Court noted:

  • “The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.”
  • “However, that rule has a limit that hinges on whether the subsequent injury is the result of independent intervening causes, such as the employee’s own conduct.”

In previous Tennessee cases, courts had decided that taking medication contrary to instructions given by a doctor was an intervening cause.

In this case, Kilburn’s widow argued her husband had suffered from severe pain and anxiety that diminished his reasoning to a point where he was at risk of overdosing on his pain medication.

While one doctor who examined Kilburn’s medical records said it was “possible” he suffered from anxiety, both doctors noted no physician had provided that diagnosis for Kilburn.

Based on that, the Tennessee Supreme Court concluded that the trial court had erred. Kilburn’s overdose was an independent intervening cause, therefore his death wasn’t related to his work injury. His widow would not receive workers’ comp death benefits.

The state’s highest court added a footnote to its opinion stating, “The analysis and holding are very fact specific to the case at bar. 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.”

The National Safety Council has noted that on average 45 people die a day in the U.S. from opioid prescription painkillers – more deaths than heroin and cocaine overdoses combined.

(Judy Kilburn v. Granite State Insurance Co. et al, Supreme Court of Tennessee, No. M2015-01782-SC-R3-WC, 4/10/17)

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