Filed 12/9/13 South Coast Framing v. WCAB CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SOUTH COAST FRAMING, INC. et al., D063945

Petitioners, (WCAB No. ADJ7324566)

v.

WORKERS' COMPENSATION APPEALS BOARD et al.,

Respondents.

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 industrial 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.

2 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."

3 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

4 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.

5

DISCUSSION

Legal Principles

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 (Guerra).) In a death case, "[s]o long as the 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 (McAllister)) by a preponderance of the evidence. (§ 3202.5.) "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

6 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.

Analysis

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.

7 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,

supra, 69 Cal.2d at pp. 413, 417–418.) Thus, a physician's report and testimony must

demonstrate his opinion is based on "reasonable medical probability." (Bracken, supra,

214 Cal.App.3d at p. 255.)

8 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.

9

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.

10