The recent California Supreme Court case, South Coast Framing Inc. V. WCAB (Jovelyn Clark) clarifies the standard of causation in a workers’ comp death case.
In day to day workers’ comp practice the decision will probably be helpful to workers’ comp claimants who are litigating to establish that an injury or death is work related. But the decision may be helpful to defendants who are seeking to establish apportionment.
In its ruling the Supreme Court expressly rejects the “significant factor” and “material factor” test that had been posited by the California Court of Appeal.
The Supreme Court notes that although the workers’ comp death statute (Labor Code 3600) refers to “proximate cause”, there are different causation standards in workers’ comp than in tort law. The workers’ comp statute and cases require merely that “the employment be one of the contributing causes without which the injury would not have occurred.”
Before further analysis, a brief summary of key basics of the case is in order:
Mr. Clark, a carpenter, sustained a concussion and spinal injuries on a construction project. Three medicines (Elavil, Neurontin and Vicodin) were being prescribed by the workers’ comp treating doctor. Two other meds (Xanax for anxiety and Ambien for sleep) were prescribed by his personal doctor.
Clark eventually fatally overdosed. In the death claim, the Supreme Court frames the dispute as centering around “which drugs played a role, how big that role was, and why the drugs were prescribed.”
Medical reports and testimony from the agreed upon QME focused on the additive effect of Ambien and Xanax and thus concluded that “overdose was caused solely by the medications prescribed by his personal doctor and not his workers’ compensation physician.” However, in depo testimony the examiner conceded that Elavil could have been an “incremental contributor” in the realm of one percent causation, noting in a response to a question that “it’s not zero“. As to Ambien, he noted that any potential causation was minuscule, giving an analogy to a couple of little crumbs off the crust of a pie.
At trial the WCJ ruled that the injury had caused sleep problems, causing the personal doctor to prescribe Ambien and Xanax. The judge found that the overdose death was industrial and the WCAB denied reconsideration.
But the Court of Appeal reversed, concluding that there was a lack of substantial evidence to support the finding. According to the Court of Appeal, the medical opinion “was largely based on surmise, speculation, conjecture and guess“. The Supreme Court summarizes the Court of Appeal ruling as follows:
“The Court of Appeals thus concluded that, although Elavil “played a role” in Clark’s death, it was insufficient to prove proximate causation because it was not a sufficiently “significant” or “material factor“.
According to the Supreme Court, tort law requires two elements: cause in fact and proximate cause. Cause in fact is generally expressed as the “but for” test. The Supreme Court notes that :
“California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations. Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury.”[citing cases] The ‘substantial factor’ test subsumes the “but for” test [citing cases]. The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. Thus, ‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor”[citation], but a very minor force that does cause harm is a substantial factor [citation]….”
But the Supreme Court notes that for various policy reasons the statutory proximate cause language in workers comp is less restrictive.
For workers comp it is sufficient if the connection between work and the injury is a contributing cause.
In making this distinction the Court cites and relies in part upon a number of cases dating back to 1916 (Kimbol) and 1935 (Tanenbaum) as well as later cases such as Ballard and McAllister.
Applying this to the case at hand, the Supreme Court finds that “Substantial evidence supported the WCJ’s finding that Elavil and Vicodin, prescribed for Clark’s industrial injury, contributed to his death.”
Furthermore, the Supreme Court holds that on the record “the WCJ could have reasonably concluded” that Clark’s sleep difficulty was due to physical discomfort from the injury and that his Ambien prescription (provided by his family doctor) and later drug overdose was casually related to his work injury.
The extent of legislative “plenary power…to create, and enforce a compete system of workers’ compensation” is cited by the Supreme Court as a basis for the different causation standard. “Plenary power” is a big issue in the high-profile attack on the constitutionality of IMR, Frances Stevens v. Outspoken Enterprises.
As I noted at the outset, South Coast Framing (Clark) will probably prove helpful to injured workers trying to establish that their injury or occupational disease should be covered under workers’ comp.
But it strikes me that the Supreme Court’s decision may work against some arguments advanced by applicants who seek to defeat attempted apportionment of permanent disability.
Under Labor Code 4663 physicians must address the causation of permanent disability. 4663 contains no reference to proximate cause but does refer to what “approximate percentage of the permanent disability was caused by the direct result of the injury” and “what approximate percentage of the injury was caused by other factors…” Presumably “direct result'” incorporates “contributing cause”. However, to the extent that the but/for concept does not apply in workers’ comp, it may be more difficult to defeat some apportionment determinations based on an “approximate percentage” allocated to other factors.
“Contributing cause” is a standard much more conducive to apportionment than a “but/for” standard.
On the other hand, apportionment under Labor Code 4663 has been with us for over a decade now, and it’s unlikely that South Coast Framing (Clark) is going to have a major impact on that.
But at the very least this is a case which will be cited in workers’ comp briefs for years to come.
Here is a pdf of South Coast Framing: