Session November 2, 2016, Heard at Jackson
from the Chancery Court for Williamson County No. 37184
Michael Binkley, Judge.
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.
R. App. P. 11 Appeal by Permission; Judgment of the Chancery
J. Dement, II, and Jordan T. Puryear, Nashville, Tennessee,
for the appellants, Ryan T. Brown and Granite State Insurance
Dunigan, Goodlettsville, Tennessee, for the appellee, Judy
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.
A. PAGE, JUSTICE.
Facts and Procedural History
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). 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.
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."
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
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.
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 ...