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Kilburn v. Granite State Insurance Co.

Supreme Court of Tennessee, Nashville

April 10, 2017

JUDY KILBURN
v.
GRANITE STATE INSURANCE COMPANY, ET AL.

          Session November 2, 2016, Heard at Jackson

         Appeal from the Chancery Court for Williamson County No. 37184 Michael Binkley, Judge.

         In this 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.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Chancery Court Reversed.

          Thomas J. Dement, II, and Jordan T. Puryear, Nashville, Tennessee, for the appellants, Ryan T. Brown and Granite State Insurance Company.

          Brian Dunigan, Goodlettsville, Tennessee, for the appellee, Judy Dianne Kilburn.

          Roger 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.

          OPINION

          ROGER A. PAGE, JUSTICE.

         I. Facts and Procedural History

         On 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).[1] 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.

         On 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."

         On 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 work.[2]

         During 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.

         Mr. 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 ...


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