Gray v. Ultramar Diamond, Shamrock Corp.

2004 OK 63, 100 P.3d 691, 75 O.B.A.J. 1924, 2004 Okla. LEXIS 72

• Court: Supreme Court of Oklahoma
• Decided: July 6, 2004
• Docket: No. 98,237
• Status: Published

Opinions

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 Ard-more, Oklahoma.² The next day, he went to an occupational doctor in Ardmore. The occupational doctor diagnosed him with lumbo-sacral 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 direc.tly 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 certiora-ri 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 operation would not be an intervening cause of death and the chain of causation would not be broken in cases where the incontrovertible evidence reflects that, but for the injury, the worker would not have had to have the operation.

¶ 17 An example of this rationale under even more tenuous facts than the present cause, is illustrated in Randall v. Mihm, 84 Ohio App.3d 402, 616 N.E.2d 1171. In Randall, an injured worker suffered a back injury while working. After two back surgeries failed to alleviate all of the pain and other symptoms associated with the injury, the worker’s doctor ordered a CAT scan to detect any remaining pathology associated with the back injury. However, because the worker weighed in excess of three hundred pounds, the radiologist could not perform the scan because the worker was too heavy for the machine.

¶ 18 After many attempts to lose weight through various means failed, the worker decided to undergo gastric plication surgery or “stomach stapling”. The surgery was successful in allowing the worker to lose the weight for the CAT scan, but resulted in numerous medical complications which eventually led to his death. Ultimately, the question regarding causation of the worker’s death and the claim for benefits hinged on whether the evidence established with a reasonable degree of medical probability that “but for” the decedent’s industrial back injury he would not have had the gastric plication which caused him to aspirate and die. The Randall court determined that the chain of events beginning with the back injury led to the order for a CAT scan and the gastric plication surgery, which led to the worker’s death.

¶ 19 When reviewing resolutions of fact on non-jurisdictional issues from the three-judge panel of the Workers’ Compensation Court, we do not re-weigh the evidence, but instead look for any competent evidence to support the trial court’s findings.¹⁵ Competent evidence is that which is relevant and material to the issue to be determined.¹⁶ In the absence of competent evidence, the tribunal’s decision may be viewed as legally erroneous and subject to appellate vacation.¹⁷

¶ 20 We find that the order of the Workers’ Compensation Court trial court and Court en banc sustaining the trial court’s denial of death benefits is unsupported by any competent evidence. The incontrovertible evidence and undisputed facts reflect that; prior to the back injury, the employee had never suffered any significant problems with his pacemaker; the need to check the pacemaker and remove and replace it appeared only after the disabling back injury and because of the back injury; and the replacement of the pacemaker was a necessary precursor to the operation for the back injury and would not have occurred but for the injury.

¶ 21 The question at issue is not whether the back injury somehow caused the pacemaker to malfunction or whether the pacemaker was old and would have needed replacing anyway. Nor is our decision based on whether the weight of the evidence reflects those issues. Rather, the determinative issues here are: 1) whether the surgery for the work related injury caused the need for the pacemaker surgery which ultimately led to the employee’s death; and 2) whether any competent evidence exists to support a finding that the back injury was not causally connected to the death.

¶ 22 Dr. Young’s statement offers nothing more than an opinion that the employee died while on the operating table for the pacemaker surgery and that the pacemaker was old. Dr. Young’s opinion provides at page 72 of the record that:

“... In my opinion, this person’s death was unrelated to his injury of May 15, 2000, as this person’s pacemaker had gone past the normal life expectancy of a pacemaker and it had been (5) years since it had last been checked ...”

Nevertheless, it speaks nothing to the decisive issue in this cause — whether the pacemaker surgery would have occurred “but for” the back injury, i.e., whether the pacemaker surgery was made necessary at that time because of the back injury. The employee’s cardiologist, Dr. Hauser recognized that the employee had the pacemaker surgery because of the back injury and that he may have gone on for a long period of time with the same pacemaker. His report at p. 66 of the record provides:

“... The only relationship that I can see is the fact that his referral for perioperative risk assessment was made because of his back surgery. Without this referral, and based on his past habits, it may well be that a period of time would have gone by before any formal interrogation was done....”

The employee’s expert witness recognized, and the medical records reflect, that the pacemaker procedure was brought about as a means of covering the back surgeon’s exposure to liability if he died during the back surgery.¹⁸

¶ 23 The dissent’s objection to the application of the “but for” analysis to acts which are not a superceding cause of death, but which are part of the unbroken chain of causation to a work related injury is nothing new. The author was in the minority when the Court decided In the Matter of Death of Stroer, 1983 OK 94, 672 P.2d 1158, and remains in the minority today.¹⁹ Under these facts, a finding that death benefits are not allowable pursuant to 85 O.S.2001 § 11²⁰ would result in a misapplication of the law, and ignore that the evidence reflected in the record leads to only one possible conclusion — that the employee’s death was causally connected to the back injury.

CONCLUSION

¶ 24 When reviewing resolutions of fact on non-jurisdictional issues from the Workers’ Compensation Court, we do not re-weigh the evidence, but instead look for any competent evidence to support the trial court’s findings.²¹ In the absence of competent evidence, the tribunal’s decision may be viewed as legally erroneous and subject to appellate vacation.²² Here, no competent evidence supports a finding that the wife was not entitled to workers’ compensation death benefits. 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.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE THREE-JUDGE PANEL OVERRULED; TRIAL COURT OVERRULED; CAUSE REMANDED.

WATT, C.J., HODGES, HARGRAVE, KAUGER, BOUDREAU, EDMONDSON, JJ., concur. • OPALA, LAVENDER, WINCHESTER, dissent.

1 . Title 85 O.S.2001 § 11 provides in pertinent part:

"A. Every employer subject to the provisions of the Workers' Compensation Act shall pay, or provide as required by the Workers' Compensation Act, compensation according to the schedules of the Workers' Compensation Act for the disability or 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 as a cause of such injury, ...”

2 . The first notice of death claim for compensation filed in the Workers' Compensation Court on August 3, 2001, lists the dates of injury as 9/14/99 and 5/16/00 and describes the injury as a strain to left knee and herniated disk in lower back. According to the shift supervisor's incident notification worksheet dated 9/15/99, the claimant sustained an injury on 9/14/99 to his knee while getting up. In another worksheet, dated 5/16/00, it was reported that the claimant hurt his back picking up a box of insulation. As a result of this injury, he was sent to the doctor. Apparently, it was the back injury that precipitated this cause. The employee described tire injury as an initial tightening in his back followed by a hot pain shooting down his right leg later that evening after he sneezed.

3 .The neurosurgeon who recommended surgery on December 11, 2000, was another neurosurgeon who was affiliated with the neurosurgeon who initially saw the injured worker in July of 2000.

4 . The record also includes a referral dated October 26, 2000, from an Ardmore doctor asking for a determination of whether the pacemaker needed to be removed and replaced.

5 . Dr. Timothy Hauser’s report at p. 37 provides in pertinent:

"... While he clinically has no symptoms suggesting coronary insufficiency or heart failure, he also has quite limited physical activity for several months, some risk factors for coronary insufficiency, and what sounds like a very extensive and lengthy surgery requiring general anesthesia. Towards that end, I think noninvasive screening of coronary artery integrity and left ventricular function with Adenosine thallium imaging would be warranted....”

6 . Dr. Hauser's report at p. 39 provides in pertinent part:

"... As you also know, I have visited with Dr. Mark Harvey, the electrophysiologist in our group, who felt just as strongly as I did that based on what we know about your current situation regarding your pacemaker, that probably the most conservative and straightforward approach would be to replace your current pulse generator.

As you also know, you can elect to do nothing and it may well be that you would do fine. However, the pacemaker interrogation did suggest that your pacemaker is very capable of pacing at times when it shouldn't and that raises the possibility of an abnormal heart rhythm being triggered....”

7 .The trial transcript provides in pertinent part at:

p. 6

"... Q. How long had that pacemaker been in place in his body?

A. Approximately 20 years.

Q. Did he routinely have that pacemaker checked?

A. Yes.

Q. And prior to his death had he experienced any malfunctions or any problems with that pacemaker?

A. No.

Q. To your knowledge had anyone recommended that it be removed prior to his injury with the back problems?

A. No....”

pp. 13-14

"Q. Your husband referred back to Dr. Hau-ser, his cardiologist, to check the pacemaker and in fact it had not been checked for more than five years at that point, is that correct, or do you know?

A. I don't think it had been five years.

Q. It was not responding, according to the medical records the way it should have, are you aware of that?

A. No....”

8 .Dr. Brant’s medical report admitted as claimant's exhibit # 1 provides in pertinent part:

"... After reviewing medical records from Dr. Remondio, Mercy Health Center, Dr. Michael Hahn, and Dr. Hauser and the history given by Mrs. Gray, it is my medical opinion that Mr. Gray’s death is a direct result of the injury that he sustained to his lumbar spine while working for Ultramar Diamond Shamrock, as he would not have had to undergo replacement of his pacemaker if the injury to his back had not occurred.”

Dr. Brant's deposition provides in pertinent part atpp. 18-19:

"Q. And in this particular case, to your knowledge, if you can answer, would you agree that the fact that the reason why he needed a new pacemaker or battery, that part was not in a way associated with any type of injury or Workers' Comp claim?

A. No, I'm not saying that. I'm not saying that his Workers' Comp injury caused his pacemaker problem. I'm saying that it’s a different — you've got two steps there. Workers’ Comp injury causes back problem. Back problem doctor said, 'Let's go look at the pacemaker before I do the surgery I want to do.' It's not a direct, it's an indirect. It's two steps away. You know, the pacemaker — ...

Q. Right. As far as the pacemaker needing to be replaced, in other words, malfunctioning, battery needing to be replaced or life expectancy of the pacemaker, tine fact that it needed to be taken out would have resulted even if the claimant was not injured on May 15th, 2000? A. Not necessarily.'

MR. RALSTIN: Hold on. Let me make an objection, Doctor. I’ll object as to assuming facts not into evidence and that is misstates the medical history of this witness. It’s an inaccurate account of the whole situation. There's no evidence of any malfunction of the pacemaker prior to him dying on the table.

THE WITNESS: And that’s — what I'm saying is — I think what you’re trying to say is the pacemaker was going to need this anyway. That's not — what I'm saying is that he was asymptomatic. He had no problem with his pacemaker. The only reason that they even decided to remove the pacemaker was because of the back injury ..."

9 . The letter provides in pertinent part:

"... Your specific question, as I understand it, is whether or not there is any relationship between Mr. Gray’s back injury and his death that occurred during pulse generator replacement. The only relationship that I can see is the fact that his referral for preoperative risk assessment was made because of his back surgery. Without this referral, and based on his past habits, it may well be that a period of time would have gone by before any formal interrogation was done.

While you may wish to consider an opinion from Dr. Harvey, who actually performed the procedure, other than what I have outlined above, I see no particular causal relationship between Mr. Gray's back injury and his untoward event that occurred during pulse generator replacement....”

10 . The letter states in pertinent part:

"... In my opinion, this person's death was unrelated to his injury of May 15, 2000 as this person’s pacemaker had gone past the normal life expectancy of a pacemaker and it had been five (5) years since it had last been checked....”

11 . Comments on the report at p. 162 provide:

"Mostly Normal Sinus Rythm [sic] with off & on Paced Rythm [sic]. No significant Arrhythmia. Rate Within Normal Range.”

12 . Title 85 O.S.2001 § 11, see note 1, supra.

13 . Id.

14 . See also, Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, ¶ 13, 70 P.3d 811[The applicable standard of care and deviations therefrom causing an injury are ordinarily established by expert testimony, unless the common knowledge of lay persons would enable a juiy to conclude the applicable standard of care and whether its breach caused the injury.].

15 . B.E. & K. Construction v. Abbott, 2002 OK 75, ¶ 1, n. 1, 59 P.3d 38; Hughes v. Cole Grain Co., 1998 OK 76, V 5, 964 P.2d 206; Garrison v. Bechtel Corp., 1995 OK 2, ¶ 8, 889 P.2d 273; Lacy v. Schlumberger Well Service, 1992 OK 54, ¶ 7, 839 P.2d 157; Parks v. Norman Municipal Hospital, 1984 OK 53, ¶¶ 12-13, 684 P.2d 548.

16 . OKC Refining Company, Inc. v. Gold, 1985 OK 42, ¶ 12, 701 P.2d 1034, City of Oklahoma v. Lindsey, 1976 OK 48, ¶ 14, 549 P.2d 81; Joseph A. Coy Co. v. Younger, 1943 OK 160, ¶ 5, 136 P.2d 890.

17 . Hughes v. Cole Grain Co., see note 15, supra; P.F.L. Life Ins. Co. v. Franklin, 1998 OK 32, ¶ 26, 958 P.2d 156; Parks v. Norman Municipal Hospital, see note 15, supra.

18 . Dr. Brant's deposition provides in pertinent part at p. 13:

"What we do is say, 'Let's send him to the cardiologist because I want to have it evaluated that is this pacemaker ready, are we ready to go to surgery.’ It's called CYA, covering your ass....”

19 . In the Matter of Stroer, 1983 OK 94, 672 P.2d 1158, Opala, J. joined the Simms, J., concurrence in part and dissent in part which provided in pertinent part:

"I concur in that part of the opinion which holds that suicide is compensable if it occurs as a direct and causal result of a work related injury.

I dissent, however, to the award under the facts of this case....”

²⁰

21 . B.E. & K. Construction v. Abbott, see note 15, supra; Hughes v. Cole Grain Co., see note 15, supra; Garrison v. Bechtel Corp., see note 15, supra; Lacy v. Schlumberger Well Service, see note 15, supra; Parks v. Norman Municipal Hospital, see note 15, supra.

22 . Hughes v. Cole Grain Co., see note 15, supra; P.F.L. Life Ins. Co. v. Franklin, see note 17, supra; Parks v. Norman Municipal Hospital, see note 15, supra.