S. Coast Framing, Inc. v. Workers' Comp. Appeals Bd.

• Decision Date: 28 May 2015
• Docket Number: No. S215637.,S215637.
• Citation: 188 Cal.Rptr.3d 46,61 Cal.4th 291,349 P.3d 141
• Court: California Supreme Court
• Parties: SOUTH COAST FRAMING, INC. et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD, Jovelyn Clark et al., Respondents.

61 Cal.4th 291

349 P.3d 141

188 Cal.Rptr.3d 46

SOUTH COAST FRAMING, INC. et al., Petitioners

v.WORKERS' COMPENSATION APPEALS BOARD, Jovelyn Clark et al., Respondents.

No. S215637.

Supreme Court of California

May 28, 2015.

Bradford & Barthel and Louis A. Larres, Fresno, for Petitioners.

Law Offices of Allweiss & McMurty and Michael A. Marks, San Francisco, for California Workers' Compensation Institute as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent Workers' Compensation Appeals Board.

Law Offices of O'Mara & Hampton and Daniel J. Palasciano, San Diego, for Respondent Jovelyn Clark.

Smith & Baltaxe, Bernhard D. Baltaxe, San Francisco; Law Offices of Robert E. Willyard and Robert E. Willyard, Santa Ana, for California Applicants' Attorneys Association as Amicus Curiae on behalf of Respondent Jovelyn Clark.

Opinion

CORRIGAN, J.

The family of Brandon Clark was awarded workers' compensation death benefits after Clark died from the combination of drugs prescribed following a fall at work. The Court of Appeal overturned the award, reasoning there was insufficient evidence that the drugs prescribed for the work injury contributed to the death. We reverse the Court of Appeal's judgment.

I. Background

In September 2008, the 36–year–old Clark fell eight to 10 feet while working as a carpenter for South Coast Framing, Inc. (hereafter “the employer”). He suffered neck and back injuries as well as a concussion. Clark's workers' compensation doctor prescribed various drugs to treat these injuries, including Elavil

(an antidepressant), Neurontin (a neuronal pain reliever), and Vicodin (a codeine-based pain reliever). In January 2009, Clark's personal doctor additionally prescribed Xanax (an anti-anxiety medicine) and Ambien (a sleep aid).

On the morning of July 20, 2009, Clark's wife was unable to rouse him and he was pronounced dead at the scene. At the time of his death, Clark had Elavil

, Neurontin, Xanax, and Ambien in his blood. Vicodin was detected in his urine.¹ The autopsy surgeon concluded the death was accidental and “is best attributed to the combined toxic effects of the four sedating drugs detected in his blood with associated early pneumonia.” The first two medications were prescribed by the workers' compensation physician. There was no dispute that Clark died as a result of the combined effects of some of the drugs he took. The dispute centered around which drugs played a role, how big that role was, and why the drugs were prescribed.

Clark's wife, Jovelyn, and their three minor children (hereafter “the family”) sought death benefits, arguing medications prescribed for Clark's industrial injury caused his death. Jovelyn stated at her deposition that Clark's personal doctor had prescribed Ambien

because Clark was having trouble sleeping. Before the accident, Clark had sometimes taken Tylenol PM to help him sleep. Clark's physician prescribed Xanax for an anxiety attack suffered just before an unrelated surgical procedure. Clark also received epidural shots from his workers' compensation doctor to alleviate continuing neck and back pain. Shortly after the second epidural injection, Clark complained to his wife and brother that he would experience “blackout” episodes. Clark continued to suffer from pain, which had gotten progressively worse and was not relieved by the injections.

Dr. Daniel J. Bressler concluded Clark died of an accidental drug overdose. His supplemental report stated that “[t]he specific combination of medicines he was on, which included Xanax

, Ambien, Flexeril, Neurontin, [Elavil ], and [Vicodin ], all separately and in combination had the capacity to induce respiratory depression, and even respiratory arrest.” Bressler also found that Clark's reports to his wife and brother of “altered states of consciousness” were “probably ... warning episodes of untoward synergistic respiratory depression and/or central nervous system depression prior to the date of death.”

The parties agreed upon Dr. Thomas C. Bruff as a qualified medical examiner. Bruff reported that Neurontin

“did not have a role in this particular case” and Elavil “was prescribed in such low dose, and blood levels show that the medication was likely taken as prescribed.” Bruff concluded: “However, [Ambien ] and [Xanax ] [prescribed by Clark's personal physician] [were] 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 ... that it is just this additive effect of [Ambien

] and [Xanax ] that caused sedation significant enough to result in the events leading to [Clark's] death.” Thus, Bruff's report concluded that Clark's overdose was caused solely by medications prescribed by his personal doctor and not his workers' compensation physician.

Dr. Bruff's subsequent deposition testimony retreated somewhat from his report. Bruff maintained that Neurontin

played no role in Clark's death. However, he testified that Elavil “may have had a small role at the levels found.” Although he believed Ambien and Xanax had “more weight,” he could not “absolutely slam the door and say [Elavil ] had no effect.” Clark's Elavil level was elevated for his prescription level but insufficient to be fatal as the sole or predominant cause of death. When asked if Elavil, in combination with Ambien

and Xanax, could have “contributed” to Clark's death, Bruff answered, “it's possible” and that Elavil “could be an incremental contributor,” although “the [Xanax ] and [Ambien ] being in the same class and at a much higher dose ... kind of carried the day.” Bruff reiterated that Elavil was “way down there” as a cause of death and it would be “really speculative” to place a percentage on it. When asked if Elavil “might have been what just put it over the edge” to cause Clark's death, Bruff agreed it was possible but “[t]he exact amount is way down there” and “we literally are dancing about the minimum level of causation....” Bruff acknowledged Elavil was “additive” and part of the causation “pie,” but he could not assign a number reflecting the percentage of causation attributable to it, suggesting “it would be closing your eyes and throwing a dart at a dartboard kind of stuff” or “just pulling numbers out of the sky.” When asked again to assign a number, Bruff responded “[w]e're looking at one percent causation and we're dangling right down there,” but it would be “medically improper to sit here and say that I can pull a percentage out.” He acknowledged, “It's not zero, but it's certainly not twenty percent either, where it's a no brainer.” Bruff noted Vicodin was detected in Clark's urine, but not blood. Asked if Vicodin could have contributed to the death, Bruff stated “it's potentially a cause, but it's so miniscule, it's like you have a big twelve inch pie and a couple little crumbs off the crust are due to the Vicodin. You wouldn't even notice it if you served up the pie, having two little flakes gone.”

There was conflicting evidence as to why Clark's physician prescribed Ambien

. His wife testified he had taken Tylenol PM before the accident to help him sleep, but after the fall the Tylenol PM was not working. The physician noted, however, that Clark was not in pain when he had trouble sleeping.

The workers' compensation judge (WCJ) awarded death benefits to the family, finding Clark's death resulted “due to the medications he was taking for his industrial admitted injury....” The WCJ explained, “it is clear that the [Elavil

] prescribed by the doctors for the industrial injury as well as the [Vicodin

] acted as concurring causes such that, even without the liberal construction of Labor Code § 3202, the death of BRANDON CLARK was a result of the original industrial injury....” The WCJ further found “that the applicant was suffering from continued or chronic pain from his industrial neck, back and head injury and that he was having difficulty sleeping because of that pain,” and that “the doctors prescribed him both the Ambien... and the [Xanax ] for the inability to sleep.”

The employer petitioned the Workers' Compensation Appeals Board (Board) for reconsideration, arguing no substantial evidence supported the WCJ's causation finding. The WCJ issued a report recommending the petition be denied. The Board adopted the WCJ's report and denied reconsideration. The Court of Appeal granted the employer's petition for writ of review and reversed. We granted the family's petition for review.

II. Discussion

Labor Code² section 3600, subdivision (a) provides that workers' compensation liability “shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death.” “ ‘The requirement of Labor Code section 3600 is twofold. On the one hand, the injury must occur “in the course of the employment.” This concept “ordinarily refers to the time, place, and circumstances under which the injury occurs.” [Citation.] ... [¶] On the other hand, the statute requires that an injury “arise out of” the employment.... It has long been settled that for an injury to “arise out of the employment” it must “occur by reason of a condition or incident of [the] employment....” [Citation.] That is, the employment and the injury must be linked in some causal fashion.’ ” (LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 651, 72 Cal.Rptr.2d 217, 951 P.2d 1184, fn. omitted (LaTourette ), quoting Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 733–734, 190 Cal.Rptr. 904, 661 P.2d 1058 (Maher ).) “The applicant for workers' compensation benefits has the burden of establishing the ‘reasonable probability of industrial causation.’ ” (LaTourette, at p. 650, 72 Cal.Rptr.2d 217, 951 P.2d 1184, quoting McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 413, ...