STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-604
CHARLES MCKELVEY, JR.
VERSUS
CITY OF DEQUINCY
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APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 05-05612 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Billy Howard Ezell, Judges.
AFFIRMED.
Christopher Richard Philipp P. O. Box 2369 Lafayette, LA 70502-2369 Telephone: (337) 235-9478 COUNSEL FOR: Defendant/Appellant - City of DeQuincy
Thomas Allen Filo Cox, Cox, Filo & Camel, L.L.P. 723 Broad Street Lake Charles, LA 70601 Telephone: (337) 436-6611 COUNSEL FOR: Plaintiff/Appellee - Charles McKelvey, Jr. THIBODEAUX, Chief Judge.
Defendant, the city of DeQuincy, appeals the Office of Workers’
Compensation judgment awarding death benefits to the plaintiff, Tina McKelvey,
(Mrs. McKelvey) individually and on behalf of her minor daughter, Misty, as a result
of the death of her husband, Charles McKelvey, Jr., due to “probable mixed drug
intoxication.” The city of DeQuincy also appeals the Office of Workers’
Compensation judgment awarding $2,000 in penalties and $6,500 in attorney fees
against it and in favor of Mrs. McKelvey because the trial judge concluded that the
claim was “not reasonably controverted, nor suitably investigated.”
For the following reasons, we affirm the judgment of the Office of
Workers’ Compensation.
I.
ISSUES
We shall consider whether:
1. the trial court erred in determining that Mrs. McKelvey carried her burden of proof by a preponderance of the evidence in showing that Mr. McKelvey’s death was attributable to treatment for his work-related accident;
2. the trial court erred in allowing Mrs. McKelvey to establish Mr. McKelvey’s cause of death by using his death certificate; and,
3. the trial court erred in awarding penalties and attorney fees to Mrs. McKelvey.
II.
FACTS
Mr. McKelvey suffered an injury at work on September 25, 2000, while working as a heavy equipment operator for the city of DeQuincy. Thereafter, he
developed severe pain in his back and lower extremities. Mr. McKelvey consulted
Dr. Clark Gunderson, an orthopedic surgeon. After a complete diagnostic physical
examination, which included a lumbar myelogram, a computerized tomography of the
lumbar spine (CT), and an electromyogram (EMG), Dr. Gunderson determined that
Mr. McKelvey was not suitable for surgery and referred him to Dr. Frank Lopez, a
rehabilitation physician.
On July 30, 2001, Dr. Frank Lopez began treating Mr. McKelvey for
pain management. Dr. Lopez diagnosed Mr. McKelvey with lower back pain with
radiculopathy. To control Mr. McKelvey’s back aches, Dr. Lopez devised a treatment
plan consisting of prescribed medications such as Zanaflex, Neurotin, Soma,
Restorial, OxyContin, and Mepergan Fortis.
In 2004, Dr. Lopez referred Mr. McKelvey back to Dr. Gunderson.
Following a thorough physical examination, Dr. Gunderson determined that the x-
rays showed degenerative disc disease at every level. Thereupon, Dr. Gunderson
concluded that Mr. McKelvey was still not a suitable candidate for surgery.
Accordingly, Mr. McKelvey continued his pain management treatment with Dr.
Lopez.
On February 9, 2005, Mr. McKelvey was found dead. A toxicology
report was issued by the Southwest Institute of Forensic Science in Dallas, Texas.
The toxicology report tested negative for alcohol and controlled substances, but
indicated that Mr. McKelvey had high levels of ten prescription medications in his
system at the time of his death. Based upon the toxicological findings, Mr.
McKelvey’s death certificate stated his death as caused by “probable mixed drug
intoxication.”
2 The city’s third party administrator, Risk Management, Inc. (RMI), was
paying Mr. McKelvey’s workers’ compensation benefits continuously until his death.
However, upon Mr. McKelvey’s death, all workers’ compensation benefits were
terminated based on RMI’s determination that since Mr. McKelvey “apparently
ingested excessive amounts of medications” the death was not caused by his work-
related injury. At trial, Sandy Arst, the claims adjuster for RMI, testified that once
RMI learned of Mr. McKelvey’s death, further investigations on the claim were
suspended.
On July 21, 2005, Mrs. McKelvey filed a death benefit claim.
Thereafter Mr. Arst asked Mrs. Carla LaFleur, a medical case manager, to reopen Mr.
McKelvey’s file and conduct research on the interaction between the drugs Mr.
McKelvey was taking at the time of his death. Mrs. LaFleur rendered a report which
stated the side effects of each medication taken individually; it did not indicate the
side effects of the medications taken collectively. No death benefits were ever paid
to Mrs. McKelvey.
III.
LAW AND DISCUSSION
Standard of Review
In civil cases, the appropriate standard for appellate review of factual
determinations is the manifest error-clearly wrong standard, which precludes the
setting aside of a trial court’s finding of fact unless that finding is clearly wrong in
light of the record reviewed in its entirety. Cencac v. Public Access Water Rights
Association, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023.
Nevertheless, the issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder’s conclusion was a reasonable one
3 . . . Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.
Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993).
Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be manifestly erroneous or clearly wrong. Prine v. St.
Paul Fire & Marine Ins. Co., 749 So.2d 831. The “manifest error” standard of review
applies to all factual findings, including sufficiency of the evidence challenges. Hall
v. Folger Coffee, Co., 03-1734 (La. 4/14/04), 874 So.2d 90, 99, citing Nabors
Drilling USA v. Davis, 03-0136 (La. 10/21/03), 857 So.2d 407, 416. Therefore, we
will review the record in its entirety to determine if the trial court’s findings are
reasonable in light of the evidence contained therein.
A.
Was the trial court’s determination that Mr. McKelvey’s death was attributable to treatment for his work-related accident reasonable in light of the record reviewed in its entirety?
We are posed with the factual question of whether Mrs. McKelvey
carried her burden of proof by a preponderance of the evidence in showing that Mr.
McKelvey’s death was directly attributable to the treatment he received for his work-
related injury.
The plaintiff in a death benefits case bears the burden of proving, by a
reasonable preponderance of the evidence, that a causal relationship exists between
the employment accident and death. Hammond v. Fidelity & Cas. Co. of New York,
419 So.2d 829, 831 (La.1982). It is not necessary for the plaintiff to establish the
exact cause of the disability or, in this case, the death, but it is necessary for the
plaintiff to “demonstrate by a preponderance of proof that the accident [that was]
4 sustained has [a] causal relationship with [the] disability.” Quinones v. U.S. Fidelity
and Guar. Co., 93-1648 (La. 1/14/94), 630 So.2d 1303, citing Russell v. Employer’s
Mutual Liability Insurance Co. of Wisconsin, 246 La. 1012, 169 So.2d 82, 88
(La.1964).
In this case, there is evidence establishing that Mr. McKelvey was a
relatively healthy and strong man with no reported injuries, aches or pains before his
work-related injury. Admittedly, there is also evidence showing that Mr. McKelvey
sustained three myocondrial infarctions (i.e., heart attacks) in the past, and suffered
polycystic kidney disease, an inherited progressive disease. Nevertheless, a
distinction between these conditions and his work-related injury can readily be made.
Both the polycystic kidney disease and heart diseases are pathological in nature,
whereas a back injury is mostly mechanical.
Likewise, there is subjective and objective evidence indicating that after
his work-related injury, Mr.McKelvey required permanent medical treatment. The
deteriorated physical condition of Mr. McKelvey was clearly evinced by Dr. Lopez’s
medical records. For instance, during the time Dr. Lopez treated Mr. McKelvey, his
pain averaged a visual scale of 6 to 7 on Dr. Lopez’s “0 to 10 Pain Intensity Scale.”
As explained by Dr. Lopez at his deposition, he gives patients this scale in order to
give him a rough estimate of what they perceive their level of pain is. The extent of
Mr. McKelvey’s injury as well as the intensity of the pain were also objectively
confirmed by Dr. Lopez’s office notes dated November 26, 2002, where Dr. Lopez
stated that Mr. McKelvey “will need back treatment for the rest of his life due to his
condition.”
5 Plaintiff’s Evidence Establishing Causation
Mrs. McKelvey introduced the toxicology report performed on Mr.
McKelvey, which stated that at the time of his death, he had not ingested either
alcohol or controlled substances, but rather high amounts of prescription medications.
In addition to the toxicological findings, Mrs. McKelvey introduced Mr. McKelvey’s
death certificate wherein his cause of death is stated as “probable mixed drug
intoxication.” Finally, Mrs. McKelvey introduced the pharmacy records of the
prescription medications Mr. McKelvey ingested during the year leading up to his
death. According to Mrs. McKelvey, these records were introduced into evidence to
confirm the repeated and continued use of the medications found in Mr. McKelvey’s
system at the time of his death. Thus, in light of the evidence taken collectively, it
persuasively indicates that there is a reasonable probability that the death of Mr.
McKelvey and his work-related injury were causally related.
Defendant’s Rebuttal Evidence and Allegations
DeQuincy contends that Mr. McKelvey’s continued misuse and abuse
of prescribed medications, as opposed to an adverse interaction between them, caused
his death, thus breaching, ipso facto, the chain of causation between his work-related
injury and subsequent death. This assertion, albeit ingenious, is weakly supported by
the evidence and is somewhat tenuous. Accordingly, we disagree.
First, in order to establish the misuse and abuse theory, DeQuincy
introduced into evidence records of prescription medications from different
pharmacies. It alleges that Mr. McKelvey routinely purchased prescription
medications from these pharmacies, thereby proving Mr. McKelvey’s misuse and
abuse of prescription medications. In addition, DeQuincy asserts Dr. Lopez’s
deposition testimony suggests that it was very possible that Mr. McKelvey was
6 diverting these drugs. This assertion is merely guesswork. Such speculation is
insufficient to rebut Mrs. McKelvey’s direct evidence.
Second, the fact that Mr. McKelvey may have possibly misused or
abused his prescription medications in the past is moot. The toxicology report makes
it evident that at the time of his death, Mr. McKelvey tested positive for six of the
medications Dr. Lopez was prescribing him for his pain management treatment.
Notwithstanding this finding of fact, DeQuincy contends that Dr. Lopez discharged
Mr. McKelvey as a patient after his last visit on February 1, 2005, allegedly because
Mr. McKelvey was misusing his medications, and that was a violation of his pain
management contract with Dr. Lopez. But the reality is that, on February 1, 2005, Dr.
Lopez wrote Mr. McKelvey his prescriptions for one more month. Then, eight days
later, on February 9, 2005, Mr. McKelvey was found dead. Moreover, the
toxicological findings revealed that Mr. McKelvey had not consumed drugs nor
alcohol, but rather that he had ingested ten prescription medications, six of which
were compatible with those prescribed for his work-related injury.
Finally, we reject the defendant’s allegation that Mr. McKelvey’s
“chronic” abuse of his prescribed medications, ipso facto, breached the chain of
causation between the on the job accident and his following death.
In Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 4 7/29/98), 720 So.2d
349, writ denied, 98-2314 (La. 11/13/98), 731 So.2d 265, the defendant advanced the
proposition that, “if the [deceased] died because he took more than the prescribed
amount of medication, as opposed to dying from a drug interaction, then that overuse
of medication would, ipso facto, break the chain of causation between the
[decedent’s] work related accident and his subsequent death.” Id. In rejecting this
assertion, the court explained:
7 We can see that there might be cases in which the abuse of prescription medication, particularly for blatantly recreational use, went so far that it could not be considered to have been caused by the work related injury that led to the prescription of the medication. But, we also can see that, in the context of long-term use of addictive prescriptive prescription medications for chronic pain, some use of the medications in excess of the prescribed amounts is fairly considered to have been caused by the work related injury which led to the prescription of the medication.
Id. at 353.
Similarly, in this case, Mr. McKelvey needed permanent medical
treatment. However, because Mr. McKelvey was not suitable for surgery, his
permanent medical treatment consisted of the long-term use of highly addictive
prescription medications. Thus, it was foreseeable that a dependence upon these
medications may develop. In fact, Mr. McKelvey was prescribed methadone
precisely to try to get him off the Lorcets, a highly addictive medication, as he had
developed a reliance on it. This dependence as well as the possible use of
medications in excess “is fairly considered to have been caused by the work related
injury which led to the prescription of the medications [in the first place].” Dean, 720
So.2d 349, 353.
B.
Did the trial court err in allowing the plaintiff to establish the decedent’s cause of death by use of the decedent’s death certificate?
It is settled law that “a death certificate is proof only of the death itself,
not proof of the cause of death, and it is inadmissible for the purpose of showing
cause of death.” Walton v. Normandy Villege Homes Association, Inc., 475 So.2d
320 (La.1985); Alexander v. State of Louisiana, Department of Health & Hospitals,
94-714, 648 So.2d 11, (La.App. 3 Cir. 12/7/94), citing Bailey v. State of Louisiana,
8 623 So.2d 704, 706 (La.App. 4 Cir. 1993); Prine v. St. Paul Fire and Marine
Insurance Co., 32-559, 749 So.2d 831, (La.App. 2 Cir. 12/8/99), writ denied, 00-0032
(La. 2/18/00), 754 So.2d 975.
The Defendant argues that Mrs. McKelvey unsuccessfully established
Mr. McKelvey’s cause of death by failing to perform an autopsy report, and by
relying solely on the his death certificate. We disagree. “Although La. C.Cr.P. art.
105 provides that an autopsy report is competent evidence to establish the fact of and
cause of death, it was never intended to preclude other competent evidence.” See,
State v. Winzer, 354 So.2d 533 (La.1978); State v. Trahan, 543 So.2d 984 (La.App.
3 Cir. 1989), rev’d on other grounds, 551 So.2d 1303 (La.1989); State v. Outley, 629
So.2d 1243 (La.App. 2 Cir. 1993), writ denied, 94-410 (La. 5/20/94). By analogy, we
can extrapolate this principle of law into civil matters. Indeed, the adoption of this
rule will allow individuals who lack the financial means to afford an autopsy report
to, nonetheless, establish the cause of death through the use of competent evidence
such as a toxicological report. Accordingly, as long as the cause of death is proven
by any competent evidence, the cause of death will be deemed established.
In this case, Mrs. McKelvey did not exclusively rely on Mr. McKelvey’s
death certificate to establish the cause of his death. She presented the toxicology
report into evidence precisely to establish Mr. McKelvey’s cause of death. We agree
with Mrs. McKelvey’s assertion that the death certificate was introduced into the
record to support the toxicology report, namely that Mr. McKelvey’s death was
caused by “probable mixed drug intoxication.”
Moreover, it is noteworthy to mention the fact that DeQuincy neither
objected to the introduction of the toxicology report into evidence, nor controverted
plaintiff’s allegation by rebutting the report with its own toxicological findings. It
9 argues that since Mrs. McKelvey did not perform an autopsy on Mr. McKelvey, nor
hire a toxicology expert, DeQuincy did not have to rebut any such evidence Mrs.
McKelvey may have introduced at trial. We disagree. A party denying the existence
of a causal relationship between the work injury and the employee’s disability or
death assumes both the burden of producing the evidence and the burden of
persuasion on the issue once the disabled employee establishes the presumption of
causal relationship.
Consequently, we hold that the toxicological report constituted
competent evidence. Furthermore, in view of the fact that DeQuincy failed to
challenge any of the evidence introduced by Mrs. McKelvey at trial, the trial court did
not err in finding that the decedent’s cause of death was conclusively established by
the findings set forth in the toxicology report.
C.
Did the trial court err by awarding penalties and attorney fees to Mrs. McKelvey?
It is settled law that the standard of review by an appellate court of the
workers’ compensation judge’s imposition of penalties and attorney fees on an
employer is that of manifest error. Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App.
3 Cir. 6/21/06), 934 So.2d 239. “Whether an employer should be cast with penalties
and attorney’s fees is a finding of fact which will not be reversed in the absence of
manifest error.” Wiley v. Grand Casino Avoyelles, 98-1468 (La.App. 3 Cir. 4/21/99),
731 So.2d 518, 524, writ denied, 99-2032 (La. 11/5/99), 750 So.2d 180. In order to
avoid penalties and attorney’s fees for the nonpayment of benefits, the employer or
insurer is under a continuing duty to investigate, to assemble, and to assess factual
information before denying benefits. Brown v. City of Lake Charles, 05-443 (La.App.
10 3 Cir. 11/2/05), 916 So.2d 482 (citations omitted). With regards to the amount of the
attorney fees, some of the factors taken into account by the judge in fixing the amount
of the fee are the degree of skill and ability exercised by the attorney, the amount of
the claim, the amount recovered for the employee or beneficiaries, and the amount of
time the attorney devoted to the case. Ardoin v. Kipling Korner Grocery, 02-1372
(La.App. 3 Cir. 3/5/03), 839 So.2d 1167, 1168-69.
There is overwhelming evidence in the record supporting the trial court’s
conclusion that DeQuincy failed to properly investigate Mrs. McKelvey’s death
benefit claim. At trial, Mr. Arst, RMI’s claim adjuster, admitted that when RMI
learned of Mr. McKelvey’s death, workers’ compensation benefits ceased without
further investigating his cause of death. Apparently, RMI concluded that Mr.
McKelvey died as a result of an overdose. According to Mr. Arst, this conclusion
was drawn upon the fact that the death certificate indicated that Mr. McKelvey
“apparently ingested excessive amounts of medications.” The fact that RMI may
have thought that Mr. McKelvey’s death was caused by a presumed overdose does
not relieve it from its ongoing duty to properly and timely investigate any claim.
Upon RMI’s knowledge of Mr. McKelvey’s death, it had a duty to immediately
inquire further into the cause of Mr. McKelvey’s death to determine the actual cause
of death, instead of drawing conclusions based on bare assumptions. It took RMI six
months to reopen Mr. McKelvey’s file, and it did so only as a result of Mrs.
McKelvey’s death benefit claim.
Mrs. McKelvey has requested additional attorney fees for the work
incurred as a result of this appeal. An increase in attorney’s fees is awarded on appeal
when the defendant appeals, obtains no relief, and the appeal has necessitated more
work on the part of the plaintiff’s attorney, provided that the plaintiff requests such
11 an increase. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736 (La.App. 1 Cir.
1989), writ denied, 553 So.2d 466 (La.1989). A review of the additional work
needed by this appeal shows that an increase in the award of attorney fees is
reasonable and warranted. Accordingly, we award Mrs. McKelvey an additional
$3,000 for the expenses incurred as a result of this appeal. Poirrier v. Otis
Engineering Corp., 602 So.2d 207 (La.App. 3 Cir. 1992).
IV.
CONCLUSION
In view of the record in its entirety, Mrs. McKelvey carried her burden
of proof by a preponderance of the evidence, and successfully proved that the
deleterious effect of the combined ingestion of medications caused her husband’s
death. Accordingly, we hold that the trial court’s judgment was reasonable in light
of the evidence and was neither clearly wrong not manifestly erroneous.
All costs are assessed to the appellant, City of Dequincy.