Kilburn v. Granite State Ins. Co.

• Decision Date: 10 April 2017
• Docket Number: No. M2015-01782-SC-R3-WC,M2015-01782-SC-R3-WC
• Citation: 522 S.W.3d 384
• Parties: Judy KILBURN v. GRANITE STATE INSURANCE COMPANY, et al.
• Court: Tennessee Supreme Court

522 S.W.3d 384

Judy KILBURN

v.GRANITE STATE INSURANCE COMPANY, et al.

No. M2015-01782-SC-R3-WC

Supreme Court of Tennessee, AT NASHVILLE.

November 2, 2016 Session, Heard at Jackson

Filed April 10, 2017

Thomas J. Dement, II, and Jordan T. Puryear, Nashville, Tennessee, for the appellants, Ryan T. Brown and Granite State Insurance Company.

Brian Dunigan, Goodlettsville, Tennessee, for the appellee, Judy Dianne Kilburn.

Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.

OPINION

Roger A. Page, J.

In this workers' compensation case, Charles Kilburn sustained several injuries from a motor vehicle accident. He underwent cervical spine surgery to resolve his neck injury complaints. His authorized physician also recommended lumbar spine surgery to combat his back pain, but that request was denied through the utilization review process. Mr. Kilburn took oxycodone

to alleviate his back pain, and his treating physician referred him to a pain management clinic. Six months after the cervical spine surgery, Mr. Kilburn died due to an overdose of oxycodone combined with alcohol. After a bench trial, the chancery court found that the death was compensable. Mr. Kilburn's employer appealed. The appeal was initially referred to a Special Workers' Compensation Appeals Panel, but we later transferred the case to the Supreme Court for review. After examining the record, the parties' arguments, and the applicable law, we reverse the judgment of the chancery court.

I. Facts and Procedural History

On November 6, 2008, Charles Kilburn, a trim carpenter, was severely injured in a motor vehicle accident during the course of his employment. His employer was Ryan Brown ("Employer"). Kilburn v. Granite State Ins. Co. , No. M2011-00011-WC-R3-WC, 2011 WL 10621663, at *1 (Tenn. Workers Comp. Panel Nov. 30, 2011).¹ As a result of the accident, Mr. Kilburn incurred fractures to the C3 and C4 vertebrae in his neck and disc herniations at the L4-5 and L5-S1 areas of his lower back. Dr. Jacob Schwarz, a neurosurgeon, performed an anterior cervical discectomy

and surgical fusion of the C3 and C4 vertebrae on July 29, 2009, which improved Mr. Kilburn's neck pain. After physical therapy and an epidural steroid injection, Mr. Kilburn still complained of severe back pain when bending forward or backward, pain that was more severe on his left side than on the right, and lower extremity pain. Mr. Kilburn also felt heaviness in his legs after walking for a short period of time such that he would have to sit down, which Dr. Schwarz opined was a symptom of neurogenic claudication

. As a result, Dr. Schwarz recommended surgery to the L4-5 and L5-S1 areas of Mr. Kilburn's lower back. However, Mr. Kilburn's insurance company denied coverage for the surgery due to a peer review by three physicians disagreeing with Dr. Schwarz's findings. The insurance company also denied Dr. Schwarz's recommendation for epidural steroid injections. Dr. Schwarz then referred Mr. Kilburn to a pain management clinic and wrote a letter to Mr. Kilburn's insurance adjustor asserting that Mr. Kilburn's pain was debilitating enough to prevent him from returning to work.

On January 4, 2010, Mr. Kilburn was evaluated by Dr. William Leone, a pain management specialist. Dr. Leone's notes reflect that he was concerned with Mr. Kilburn's consumption of alcohol while taking his medication. Mr. Kilburn also admitted that because he felt the medication was no longer effective, he was taking two opioid tablets at once even though he had only been prescribed one tablet at a time. The urinary drug screen conducted that day showed the presence of both alcohol and the opioid medication. As a result, Dr. Leone recommended weaning Mr. Kilburn off the opioid medication and trying other options. Dr. Leone prescribed 350 mg of Soma twice daily and 15 mg of oxycodone

four times daily. As part of his treatment, Mr. Kilburn initialed and 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 [my] pain level, [I] must call before adjusting dosage."

On January 11, 2010, Dr. Tarek Elalayli performed an independent medical evaluation of Mr. Kilburn. Dr. Elalayli gave Mr. Kilburn a four percent whole body impairment rating for the remaining cervical spine issues and a two percent whole body impairment rating for the lower back pain. Dr. Elalayli also voiced concerns that Mr. Kilburn was magnifying his symptoms because Dr. Elalayli felt that Mr. Kilburn's subjective symptoms outweighed the objective results of his physical examination and the MRI. Dr. Elalayli recommended reducing the oxycodone

dose and suggested that Mr. Kilburn return to work.²

During the trial, Phillip Manning, Mr. Kilburn's brother-in-law, and Judy Kilburn, Mr. Kilburn's wife, explained that prior to the 2008 motor vehicle accident, Mr. Kilburn was friendly and outgoing and was very active. However, after the injury and neck surgery, Mr. Kilburn's lower back pain seemed to Mr. Manning to be "[p]retty bad" and uncomfortable, and Mr. Kilburn was "upset" about not being able to have the lower back surgery. Mr. Manning opined that Mr. Kilburn "had anxiety about not having medication and not having the surgery" but that Mr. Kilburn never appeared hopeless, just ready to be back to full capacity. Mr. Manning stated that Mr. Kilburn started skipping doses of his medication because he was scared that he was going to run out of the medication and would be unable to obtain more.

Mr. Manning and Ms. Kilburn both explained that after the injury, Mr. Kilburn still cared for the children, got them up and ready for school in the mornings, and helped them with their homework while Ms. Kilburn was working in the evenings. Mr. Kilburn also cooked meals, performed various household duties, and ensured that the children performed their "chores," which Ms. Kilburn explained were often the tasks that Mr. Kilburn could not accomplish. In addition, Mr. Kilburn often drove to his parents' house and helped care for his mother who was ailing from cancer

. Mr. Manning estimated that in the six months prior to Mr. Kilburn's death, he saw Mr. Kilburn ten to fifteen times at family gatherings, when they ate at restaurants together, and "around town."

However, Ms. Kilburn stated that after the accident, Mr. Kilburn "felt worthless because he couldn't get out and earn a living and take care of his family." Ms. Kilburn asserted that Mr. Kilburn was "still in a lot of pain," "seemed somewhat depressed," and could only achieve intermittent sleep at night. Ms. Kilburn elaborated that she believed Mr. Kilburn supplemented his medication with alcohol because it helped with his pain when he was skipping doses of his medication in an attempt to make the medicine last longer. However, Ms. Kilburn conceded that to her knowledge, Mr. Kilburn had never been without medication. Ms. Kilburn stated that before the accident, Mr. Kilburn would sometimes drink during the week but drank more on the weekends when he was not working. Ms. Kilburn explained that after the accident, Mr. Kilburn did not drink as much but that "he would drink a beer here or there, a couple, maybe. He drank maybe a six pack sometimes on weekends." She also asserted that she had directed Mr. Kilburn not to drink alcohol while on his medication. While Ms. Kilburn agreed that Mr. Kilburn had never been treated for anxiety or depression, she opined that he suffered from those ailments.

Ms. Kilburn found Mr. Kilburn unresponsive in bed on the morning of January 28, 2010. The medical examiner's report specifically stated that the cause of death was acute oxycodone

toxicity with contributory causes of hypertension, tobacco use, and alcohol use. His death was deemed an accident. Mr. Kilburn was forty years old at the time of his death.

At trial, Dr. Alistair Finlayson and Dr. Jeffrey Hazlewood testified by deposition about their review of Mr. Kilburn's medical records. Dr. Finlayson was a psychiatrist with a subspecialty in addictions and a clinical associate professor in psychiatry at Vanderbilt University Medical Center. He was also the medical director of the Comprehensive Assessment Program at Vanderbilt, which evaluates professionals to determine if they are "fit for duty." He performed a records review at the request of Ms. Kilburn. Dr. Finlayson stated that it was "more likely than not" that Mr. Kilburn was suffering from severe pain or anxiety at the time of his death and that it was "certainly possible" that those conditions diminished Mr. Kilburn's faculties and contributed to his risk of overdose. He further asserted that "it's probably the most likely explanation." Dr. Finlayson explained that when a person takes medications like oxycodone

, they can develop a psychological dependency on the medication and that if a person develops this dependency and does not have enough medication, it can result in increased pain. Dr. Finlayson differentiated between a dependency on opiates and an addiction. He opined that Mr. Kilburn was not suffering from true addiction but rather a dependency on the medication. He also opined that in a situation like Mr. Kilburn's where there was potential for an interruption in his treatment, it was "very possible" that the situation would cause a person anxiety.

Dr. Finlayson stated that when a person is used to taking an opioid but then takes less or stops taking the medication, "the pain is intensified and anxiety is intensified as a ... withdrawal." Dr. Finlayson stated that drugs like OxyContin

, Soma, and Valium³ all contribute to feelings of depression and hopelessness, which could potentially influence a person's judgment. He further opined that he did not believe that Mr. Kilburn was addicted to his medication but rather that "it [was] possible that ... he was so discouraged,...