W.C. No. 4-279-291Industrial Claim Appeals Office.
March 26, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), denying her claim for death benefits. We affirm.
It is undisputed that the claimant is the dependent wife of the deceased, Dennis Hines (Hines). The ALJ found that Hines sustained admitted injuries to his head and neck in November 1995. Although initially treated by Timberline Clinic, Hines later sought approval for treatment by Dr. Bainbridge.
In March 1996, Dr. Bainbridge developed a treatment plan designed to locate the source of Hines’s neck and upper extremity pain. The plan, which the ALJ found was designed to de-emphasize the use of narcotic medications prescribed for pain, included a cervical MRI, referral for physical therapy, and trigger point injections. The ALJ found that the trigger point injections were performed on June 10, 1996, and provided substantial pain relief for up to three weeks.
Hines also received physical therapy from Mr. Johnson. The ALJ found that Johnson, although authorized himself, made an unauthorized referral for Hines to see Dr. McCaulley. In June of 1996, Hines obtained Tylox, a narcotic medication, from Dr. McCaulley. On June 28, Hines obtained another narcotic medication, Vicodin, from an unauthorized physician in Greeley.
In August 1996, Hines was hospitalized with pneumonia. He was treated by Dr. McCaulley who prescribed MS Contin tablets, a form of time-release morphine. Dr. McCaulley prescribed sixty tablets of MS Contin when Hines was released from the hospital, and an additional ninety tablets on September 3, 1996.
On September 6, 1996, Hines was found dead in his bed at home. The cause of death was “acute morphine toxicity.”
The claimant sought death benefits on the theory that Hines’ death was caused by the use of morphine, in the form of MS Contin, prescribed for treatment of the industrial injury. Alternatively, the claimant theorized that narcotic medication prescribed for treatment of the industrial injury “aggravated” Hines’s preexisting “drug-seeking behavior,” and ultimately caused his death by an overdose of morphine.
However, the ALJ rejected the claimant’s theories. The ALJ found that the medical records establish that Hines engaged in “severe narcotic-seeking behavior which pre-dated the underlying admitted injury, and which continued to exist separate and apart from” the industrial injury. In support of this conclusion the ALJ relied on medical records showing that as early as February 1991 physicians began noting Hines’ use, and possible abuse, of narcotic pain medication. The ALJ also observed that, despite receiving significant relief of pain from the June 1996 injections, Hines continued to seek narcotic pain medication from unauthorized physicians during the same period of time. Consequently, the ALJ concluded that the claimant failed to establish that Hines’ death was causally related to the compensable industrial injury. Rather, the ALJ determined that the death was caused by Hines’ preexisting propensity to abuse narcotic medication.
I.
On review, the claimant contends that the ALJ erred as a matter of law in finding that the claim for death benefits is not compensable. The claimant argues that the death was a “direct and natural consequence” of the narcotic medications prescribed to treat Hines’ industrial injury. The claimant further asserts that, even if Hines exhibited preexisting narcotic-seeking behavior, this tendency was “aggravated” by the prescription of narcotic medications for the industrial injury. We find no error.
As a general matter, we do not dispute that injuries or deaths resulting from the use of medications prescribed to treat an industrial injury are compensable under the quasi-course of employment doctrine. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993). Neither do we dispute that injuries or deaths caused by prescribed narcotic medications are compensable if the use of such drugs aggravates an underlying propensity to abuse them. See Larson’s Workers’ Compensation Law, § 13.21(e) (1997). However, under either of these theories, a claimant must prove that the injury or death was the “direct and natural” consequence of the original injury which was itself compensable. Travelers Insurance Co. v. Savio, 706 P.2d 1258
(Colo. 1985); Hembry v. Industrial Claim Appeals Office, 878 P.2d 114 (Colo.App. 1994).
The question of whether there is a causal connection between an industrial injury and a subsequent injury is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Hembry v. Industrial Claim Appeals Office supra. Consequently, we must uphold the ALJ’s determination of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ determined that Hines’ death was not a direct and natural consequence of the narcotics prescribed to treat the industrial injury. While it cannot be denied that narcotic drugs were prescribed to treat the injury, the ALJ determined that the death was not caused by the prescription of these drugs, but by the claimant’s preexisting and well-established pattern of seeking out and abusing such drugs regardless of need.
The claimant’s arguments notwithstanding, the ALJ’s conclusion is amply supported by the evidence. A February 1991 note by Dr. Vaughan states that Hines had a history of “considerable narcotics use,” and Vaughan advised Hines that “further pain management treatment is dependent on narcotic withdrawal.” A July 1994 note from Dr. Gillman states that Hines was “very abusive and demanding of pain medication,” and that he “has abused narcotics for headaches in the past.” In May 1995, Dr. Crosby discharged Hines from care because Crosby discovered Hines was obtaining narcotic medications prescribed by several physicians at once.
Under these circumstances, the ALJ was not required to find that Hines’ death was the result of drugs prescribed for treatment of the industrial injury, or from an aggravation of some underlying propensity to abuse narcotic medication. To the contrary, the ALJ plausibly found that Hines’ patter of abusing narcotics was well established prior to the industrial injury, and that the injury merely afforded him an opportunity to continue that behavior. While it is true the claimant presented some evidence that Hines was not using drugs at the time of the industrial injury, the weight of that evidence was a factual matter for the ALJ.
II.
The claimant argues, as a separate matter, that the evidence does not support the ALJ’s finding that the claimant exhibited preexisting “narcotic-seeking behavior.” As is apparent from our remarks, we believe the record contains sufficient evidence to support the ALJ’s finding.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 3, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ David Cain __________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 26, 1998 to the following parties:
Susan Gabbard-Hines, 360 W. 78th Pl., Denver, CO 80221
American Parts System, Inc., 500 W. 53rd Pl., Denver, CO 80216-1614
Lucy Arguello, Adjuster, Alexsis Risk Management Services, Inc., One Park Central, #410, 1515 Arapahoe St., Denver, CO 80202-2117
Ronald C. Jaynes, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Claimant)
Joel S. Babcock, Esq., 400 S. Colorado Blvd., #700, Denver, CO 80222 (For Respondents)
By: ________________________________