A Slim Connection Can Still be a Proximate Cause in Washington
Yesterday, the Court of Appeals, Division 1, released its opinion in Dep’t of Labor and Indus. v. Shirley.
Claimant’s low back claim was closed in 2005 with no PPD award. At the time of claim closure he was only taking ibuprofen and no physician was prescribing opioid medications. He never filed an application to reopen his claim. In 2007 he died after ingesting multiple prescription medications with alcohol. Some of the prescription medications in his system were for low back pain although none were prescribed to him at the time of claim closure. After his death his wife filed for survivor benefits, which the Department denied, and she appealed.
On appeal, claimant’s doctor testified the medications were prescribed for low back pain causally related to the industrial injury. The Department argued claimant’s use of alcohol with his prescribed medications constituted an intervening activity, breaking the causal chain between his work injury and his death, thereby precluding survivor benefits. There was no indication claimant’s death was intentional, but the Department argued claimant’s actions were reckless and contrary to doctor warnings.
The Court applied the multiple proximate causation standard, and evaluated whether drugs prescribed due to low back painwere merely a cause of death, not the cause of death. The Court found that but for the prescription medications, prescribed specifically and directly for the effects of the industrial injury, claimant would not have died. Neither the drugs nor the alcohol alone would have caused his death, but each was a proximate cause. His decision to simultaneously consume alcohol with his medications did not amount to a supervening event and did not break the causal chain. Therefore his wife was entitled to survivor benefits.
There was a dissenting opinion arguing the Court only addressed the cause in fact element of proximate cause, and failed to address legal causation. The dissent concluded neither legal causation nor cause in fact was present in this case. Moreover, claimant’s combination of alcohol and several varieties medication was a superseding cause, as it was not reasonably foreseeable he would act contrary to medical advice and common sense.
This case further muddies the waters of proximate cause and is a good reminder that if you have a claim with a potential causation issue it is important to build a clear, strong record prior to litigation. In this case there was no evidence the Department ever told claimant the treatment he was receiving was not authorized or that it was unnecessary. The court indicated that had the Department taken such action, it may have been sufficient to break the causal chain between the industrial injury and claimant’s death. These issues need to be addressed from the outset in order to create a strong, supportive record for litigation. Also, it is a reminder to be sure your IME examiners and other examiners are directed to address the proper burden of proof.
If you have any questions about this decision or any other Washington issues, please contact me at 503-595-2138 or firstname.lastname@example.org.