We have been tracking the compelling issue of compensability in drug overdoses within the workers comp system. We have blogged drug-induced fatalities that are compensable (Tennessee) and non-compensable (Ohio and Connecticut). Given the prevalence - make that rampant over-use - of opioids in the workers comp system, prescription drug abuse is an issue with profound implications for injured workers, their employers and the insurers writing workers comp policies across the country.
Which brings us to the saga of Bruce Ferguson-Stewart. He was injured on May 25, 2004 while working for AltairStrickland, an industrial contracting firm in Texas. A bolt weighing several pounds fell from above, striking Ferguson-Stewart and injuring his shoulder and neck. The MRI showed "minor disc bulges" at three levels on his cervical vertebrae. His treating physician diagnosed him with a left shoulder contusion and prescribed hydrocodone as part of the treatment plan. The doctor also recommended surgery to repair the shoulder.
Denial and its Consequences
For reasons that are not clear from the trial documents, the claim was denied by Commerce & Industry Insurance, the employer's carrier. The carrier lost the initial appeal and then lost again. The insurer then sought judicial review of the Division-level finding of compensability.
Meanwhile, with his shoulder untreated and in extreme pain, Stewart continued to take his prescribed Hydrocodone, known locally as an "East Texas cocktail." At every level of appeal, the compensability of the claim was upheld, but the surgery was delayed - with apparently disastrous results. (The delaying tactics may have been related to Stewart's alleged history of abusing prescription drugs.)
On October 3, 2004, while his worker's compensation claim was still being contested, Ferguson-Stewart died from an overdose of hydrocodone. His blood contained a hydrocodone level of 0.38 mg/L, which is consistent with acute severe toxicity. The blood also contained carisoprodol, a prescription muscle relaxant, and marihuana.
Trial by Jury
Ferguson-Stewart's widow filed for death benefits under workers comp, but the case was denied. The widow appealed.
At trial, Ferguson-Stewart presented two theories as to how and why Stewart might have unintentionally or unknowingly ingested a lethal dose of hydrocodone. First, in what CIIC describes as the "accidental overdose" theory, Ferguson-Stewart alleged that the overdose must have been accidental because her husband did not intentionally or knowingly commit suicide.
Tommy J. Brown, a forensic pathologist who performed an autopsy on Stewart, concluded that the cause of death was hydrocodone toxicity and that the manner of death was "accidental." Brown's testimony is right out of central casting:
Well, I--I see it a lot. I do autopsies on people with chronic pain a lot and this--like before I see them, start out with their drugs and then they increase the drugs, and then to try the [sic] alleviate the pain more, and pretty soon they're taking more than prescribed, and pretty soon they will overdose theirselves [sic] or they will overdose theirselves [sic], some people do. And then they die and it's usually in a low lethal range [like that observed in Stewart]. So I consider that an accidental death because they were overdosing due to the chronic pain.
With its pathos and illuminating detail, the widow's testimony reads like a monologue from a Faulkner novel:
The day before or the day of--that he died. They say he actually died
early in the morning; so, I guess the day before. He was really disoriented. He was not acting normal or the way he had been acting since he was hurt. He wasn't acting normal at all. His speech was slurred. He was stumbling and falling all over things. I remember--I think I remember one time he actually falling [sic] out of a chair and--in the yard
because he was trying to get up and he tripped over a root and he fell on
the shoulder he had injured. And that made it even that much more
painful for him. He was--he was very--he was crying about it. He really
had hurt himself.
. . . .
He was--in the last couple of days before he died, he was getting really
bad about forgetting that he had already taken his medicine and taking it
again; and you know, sometimes I would have to tell him, "Hey, you
already took it. You can't take it again." And usually he would agree with me; but there were times when he would say, "No. No. No. I didn't take it. I'm sure I didn't take it. I'm still hurting too bad, and I don't remember taking it." So, he'd take it again.
But especially the day of [his death], he was entirely too confused. He
wasn't--like I said, he wasn't himself at all.
The jury charge instructed that "[a] claimant's death does not
result from medical treatment instituted to relieve the effects of his compensable injury if the death results solely from a claimant intentionally or knowingly failing to comply with his doctor's instructions[emphasis added]." The jury concluded that Ferguson-Stewart's death was unintentional, resulting from the treatment for his compensable injury. The widow was granted death benefits.
Intention, Confusion and Compensability
Under Texas law, compensability hinges on Ferguson-Stewart's intent: was the death an intentional suicide or was it an accident? He had no intention of killing himself, so the death was compensable. In a somewhat similar Connecticut case (see above), the overdose was the result of the deliberate (and illegal) act of using a needle to ingest drugs. That case was denied.
Behind every death due to prescription drugs lies a story worth telling. Powerful and effective pain killers are transformed into instruments of death. When it comes to the compensability of these cases, disorientation and confusion are not limited to injured workers experiencing pain. The medical and workers comp systems struggle with the ambiguous legacy of medications: while opioids offer immediate, short-term relief from pain, the relief is followed all-too-often by a downward spiral of addiction and dependency.
I truly wish the testimony of Ferguson-Stewart's widow could be played in the examination room of any doctor about to write a script for an "East Texas cocktail." The doctor just might consider a more benign and less toxic alternative.