WCAB
Filed 12/9/13 South Coast Framing v. WCAB CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
SOUTH COAST FRAMING, INC. et
al.,
Petitioners,
v.
WORKERS' COMPENSATION APPEALS
BOARD et al.,
Respondents.
D063945
(WCAB No. ADJ7324566)
Petition
for writ of review from an order of the Workers' Compensation Appeals
Board. Order annulled and the matter
remanded.
Bradford
& Barthel and Louis A. Larres for Petitioners.
Law Offices
of O'Mara & Hampton and Daniel J. Palasciano for Respondents.
A workers'
compensation judge (WCJ) concluded that Brandon Clark, an employee of South Coast
Framing, Inc. (South Coast),
died as a result of medications he took after suffering an
injury. South Coast and its
insurance carrier, Redwood Fire and Casualty Company administered by Berkshire
Hathaway Homestate Companies (together with South Coast, petitioners), petitioned
for writ of review after the Workers' Compensation Appeals Board (the Board)
denied reconsideration of the WCJ's decision in favor of Brandon's wife and
children. We conclude the Board erred in
denying reconsideration because the WCJ's decision was not supported by
substantial evidence. Accordingly, the order
denying reconsideration is annulled and the matter is remanded to the Board
with directions to enter a new order denying the claim.
FACTUAL
AND PROCEDURAL BACKGROUND
In 2008, Brandon
suffered back, head, neck and
chest injuries when he fell from a roof while working for South
Coast. Brandon's
workers' compensation physician prescribed amitriptyline, gabapentin
(Neurontin) and hyrdrocodone (Vicodin) for his injuries. Brandon
was also taking Xanax and Ambien, which were prescribed by his personal
physician in January 2009. Xanax was
prescribed for "ongoing anxiety," and Ambien was prescribed for
sleeping difficulties. Brandon's
personal physician noted that Brandon
was "having problems sleeping. This
[was] occurring at least 3 or 4 times a week . . . . During these times, [Brandon
was] not aware of anxiety or . . . pain."
In July 2009, Brandon
died from the combined effects of amitriptyline, gabapentin, Xanax and Ambien,
and associated early pneumonia. Brandon's
wife, Jovelyn Clark, and their three minor children filed a claim for death
benefits alleging the death was the result of the injury and industrially
prescribed medications.
Petitioners
requested an opinion from Dr. Daniel Bressler regarding the cause of Brandon's
death. After reviewing various medical
records, Dr. Bressler concluded that "[Brandon's]
death was secondary to an accidental overdose." In reaching this conclusion, Dr. Bressler
stated, "[t]he specific combination of medicines [Brandon] was on, which
included Xanax, Ambien, Flexeril, Neurontin, amitriptyline, and hydrocodone,
all separately and in combination had the capacity to induce respiratory
depression, and even respiratory arrest."
Dr. Thomas
C. Bruff, an agreed medical examiner, reviewed Brandon's
medical file, including autopsy and toxicology reports. Based on the records, Dr. Bruff issued his
report, stating:
"While there is some
difference of opinion on therapeutic and toxic levels of the medications in
this particular case, several conclusions can be made. While [Brandon]
was prescribed a number of medications only amitriptyline, zolpidem,
alprazolam, gabapentin, and acetaminophen were found in peripheral blood
specimen. Gastric specimens showed both
alprazolam and zolpidem. It is my
opinion that gabapentin did not have a role in this particular case. Amitriptyline was prescribed in such low
dose, and bloods levels show that the medication was likely taken as
prescribed. However, zolpidem [(Ambien)]
and alprazolam [(Xanax)] was found in excess of what would be normally
considered peripheral blood concentrations.
Both these medications work in a similar fashion and would be considered
at least additive in their effects. It
is my opinion in the case of [Brandon]
that it is just this additive effect of zolpidem and alprazolam that caused
sedation significant enough to result in the events leading to his death.
"For clarity, it is my
opinion that [Brandon] passed away
as a result of the additive drug interaction between zolpidem and
alprazolam. The two additional
medications present in the bloodstream, gabapentin and amitriptyline, were not
high enough to result in any coincident drug interaction."
During his deposition, Dr. Bruff clearly
stated that gabapentin did not play a role in Brandon's
death. In regard to amitriptyline, Dr.
Bruff stated that while this drug was found in Brandon's
bloodstream, it was not enough by itself to be toxic. However,
Dr. Bruff noted that mixtures of drugs are difficult to
quantify.
When questioned regarding whether
amitriptyline could have contributed
to Brandon's death, Dr. Bruff
stated that "it's possible."
He testified that amitriptyline "is additive" and "could
be an incremental contributor," but alprazolam and zolpidem "carried
the day." Dr. Bruff stressed that
he could not precisely calculate the percentage of amitriptyline's contribution
because "honestly, no medical person—it would be closing your eyes and
throwing a dart at a dartboard kind of stuff.
Maybe you get a bull's eye. You
are just pulling numbers out of the sky."
When further pressed for a percentage,
Dr. Bruff stated that amitriptyline was part of the
causation "pie," but he could not
" 'tell . . . whether it's 1.5
percent or .5 percent.' . . . [W]e're way down at that end." Additionally,
Dr. Bruff testified that hydrocodone, which was detected in Brandon's urine,
could be "a couple crumbs" of the causation "pie." He clarified that while amitriptyline had a
small role in Brandon's death, he stood by his initial report.
Dr. Bruff also commented on records
relating to Brandon's sleeping problems.
Dr. Bruff noted that the records did not reveal why Brandon
was having trouble sleeping but stated that "[i]t could be because of back
pain, could be, you know, stress at home.
[The records] didn't seem to be detailed for me, so I don't know. I deal with a lot of cases of chronic back
pain and what not and sleeping can be an issue." Jovelyn also testified regarding Brandon's sleeping
difficulties. She stated that before
Brandon's injury in 2008, he took Tylenol PM "off and on" to help him
sleep.
The WCJ found that Brandon's death
resulted from medications he was taking as a result of his industrial
injury. Specifically, she found that
amitriptyline and hydrocodone contributed to Brandon's death. In reaching this conclusion, the WCJ relied
heavily on Dr. Bruff's testimony that amitriptyline was part of the causation "pie"
and hydrocodone represented additional "crumbs" of that pie. The WCJ also noted that Brandon was having
difficulty sleeping as a result of pain from his industrial injury and was
prescribed Ambien and amitriptyline to help him sleep. She concluded that "[Brandon] took both
the amitriptyline as well as the zolpidem (Ambien) as prescribed, in addition
to the Xanax, Gabapentin and Vicodin.
These drugs were all interactive and contributed to his death."
Petitioners sought reconsideration,
contending that the WCJ's opinion was not supported by substantial evidence
because Brandon's industrially prescribed medications did not materially
contribute to his death. The WCJ issued
a report and recommendation to the Board, explaining that the causal connection
between employment and the injury is sufficient if the employment is a
contributing cause of the injury; it need not be the sole cause. The WCJ confirmed her finding that Brandon's
death was related to his industrial injury.
The WCJ also stated that she recommended denying petitioners' request
for reconsideration because they attempted to parse the evidence and only cited
to evidence that was favorable to their position.
The Board adopted the WCJ's report
and denied reconsideration.
DISCUSSION
To be compensable under the workers'
compensation system, a worker must show that his injury arose out of and in the
course of employment and "[was] proximately caused by the employment . . .
." (Lab. Code, § 3600, subd. (a)(2)
& (3), all undesignated statutory references are to this code.) "The tort concept of proximate causation
requiring a sole cause is not followed in workers' compensation. [Citation.]
Instead, the causal connection between employment and the injury is
sufficient if the employment is a contributing cause of the injury." (Guerra
v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 195, 199 (
industrial injury and employment generally constituted material factors in
contributing to the employee's death, the proximate cause test of . . . §
3600 is met." (1 St. Clair, Cal.
Workers' Compensation Law and Practice (5th Ed. 1996) § 11.1.4, p. 755.)
Although workers' compensation law
must be "liberally construed" in favor of the injured worker (§
3202), an applicant has the burden of establishing a "reasonable
probability of industrial causation" (McAllister
v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413 (
"Whether an employee's injury is proximately caused by his
employment is a question of fact. [Citation.] Judicial review of the Board's decision on
factual matters is limited to determining whether the decision, based on the
entire record, is supported by substantial evidence. [Citations.]
This standard of review is not met by simply isolating evidence which
supports the Board and ignoring other relevant facts of record which rebut or
explain that evidence. [Citation.]"
(Guerra, supra, 168 Cal.App.3d at p. 199.)
"[I]n relying on the opinion
of a particular physician in making its determination, the Board may not
isolate a fragmentary portion of the physician's report or testimony and
disregard other portions that contradict or nullify the portion relied on; the
Board must give fair consideration to all of that physician's findings. [Citation.]
. . . [I]n evaluating the evidentiary value of medical evidence, a
physician's report and testimony must be considered as a whole rather than in
segregated parts; and, when so considered, the entire report and testimony must
demonstrate the physician's opinion is based upon reasonable medical
probability. [Citations.] Hence, the Board may not blindly accept a
medical opinion that lacks a solid underlying basis and must carefully judge
its weight and credibility. [Citation.]" (Bracken v. Workers' Comp. Appeals Bd.
(1989) 214 Cal.App.3d 246, 255 (Bracken).)
With these principles in mind, we
examine the record to determine whether the Board correctly decided that
Brandon's death resulted from medications he was taking as a result of an
admitted industrial injury.
Petitioners
argue: (1) Brandon's wife and their minor children did not meet their burden to
establish a causal connection between Brandon's death and the medication he was
taking as a result of his industrial injury; and (2) the WCJ's decision was not
supported by substantial evidence. We
agree.
The WCJ's
report, which was adopted by the Board, started with the premise that Dr. Bruff
changed his opinion from the time of his report to the time of his
deposition. This finding is not
supported when viewed in light of the entire record. Dr. Bruff testified that "it's possible"
that amitriptyline contributed to Brandon's death and it "could be an
incremental contributor." Although
Dr. Bruff went on to state that amitriptyline had a "small role" in Brandon's
death, he confirmed that he stood by his initial report, which concluded that
Brandon's death was the result of an additive drug interaction between zolpidem
and alprazolam. This evidence does not
establish a change of opinion.
However,
even if Dr. Bruff's deposition testimony was a change of opinion, the new
opinion was largely based on surmise, speculation, conjecture and guess. Dr. Bruff recognized the limitations of
toxicology by noting that mixtures of drugs are difficult to quantify. After repeatedly being pushed to calculate
the percentage of amitriptyline's contribution to Brandon's death, Dr. Bruff
stressed that no medical person could offer a precise percentage because "it
would be closing your eyes and throwing a dart at a dartboard." Although a precise percentage is not
required, a workers' compensation applicant must show a "reasonable
probability of industrial causation."
(McAllister,
demonstrate his opinion is based on "reasonable medical probability." (Bracken,
supra, 214 Cal.App.3d at p. 255.)
Here, Dr. Bruff admitted that it is
difficult to make a "reasonable medical analysis" regarding
amitriptyline's precise contribution to Brandon's death. He also stated that making that kind of
determination "really gets to be speculative." Liberally construing Dr. Bruff's testimony
and report in its totality, we conclude the evidence did not establish
industrial causation. Rather, the
evidence demonstrates that if amitriptyline played a role at all, it was not
significant such that it constituted a material factor contributing to Brandon's
death.
Lastly, we note that there is some
dispute regarding whether Brandon was taking Ambien due to his industrial
injury. Jovelyn testified that Brandon
had trouble sleeping before his industrial injury and used Tylenol PM to help
him sleep. However, the Tylenol PM was
not working. In January 2009, Brandon's
personal physician prescribed him Ambien for his sleeping difficulties. The physician noted that Brandon was not
experiencing pain during the times he had trouble sleeping. Brandon's medical record indicates that
around the same time, he used "pain
medication mostly at night to help him get comfortable for sleep." Based on our review of the record, the
evidence is insufficient to establish that Brandon used Ambien as a result of
pain from his industrial injury.
DISPOSITION
The order denying reconsideration is annulled. The matter is remanded to the Board with
directions to enter a new order denying the claim.
McINTYRE, J.
WE CONCUR:
HUFFMAN,
J.
BENKE,
Acting P. J.
