Drevecky by Drevecky v. Wolkerstorfer

LAVERN DREVECKY BY KENNETH DREVECKY, Employee/Petitioner, v. WOLKERSTORFER and STATE FUND MUTUAL INS. CO., Employer-Insurer/Appellants.

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 16, 2003

HEADNOTES

CAUSATION - SUICIDE. Substantial evidence, including expert medical testimony and the employee=s uncle=s testimony, supports the compensation judge=s finding that the employee=s suicide was causally related to his work injury.

ATTORNEY FEES - SUBD. 7 FEES. Where a claim is asserted on behalf of the employee=s estate pursuant to Minn. Stat. ' 176.111, subd. 22, and benefits are awarded, partial reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7 is appropriate.

Affirmed.

Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: Jennifer Patterson

OPINION

MIRIAM P. RYKKEN, Judge

The employer and insurer appeal the compensation judge=s finding that the employee=s suicide was causally related to his work injury and the compensation judge=s award of reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7. We affirm.

BACKGROUND

On May 9, 1991, and May 19, 1992, Lavern Drevecky, the employee, sustained work-related low back injuries while working for Wolkerstorfer Company, the employer, which was insured for workers= compensation liability by State Fund Mutual Insurance Company, the insurer. The employer and insurer admitted liability for these injuries and paid various workers= compensation benefits.

The employee was born on December 11, 1959, and was a high school graduate, but was enrolled in special education classes for most or all of his time in school and could not read past the third grade level. After high school, the employee worked sporadically for various employers, performing manual labor, unloading trucks, and working on a cousin=s farm. From 1984 through 1991, the employee was unemployed. In early 1991, the employee began working for the employer in a temporary position, and was hired as a permanent employee a few months later. As supported by the testimony of the employee=s uncle, the employee enjoyed his work for the employer, liked his co-workers and believed he had a future with the company.

On May 9, 1991, the employee injured his low back and was diagnosed with a low back strain. The employee returned to his regular job. On May 19, 1992, the employee developed severe back pain while bending over to pick up a hinge. The employee treated with Dr. Vijay Eyunni at United Hospital Occupational Health, and was initially diagnosed with acute lumbosacral strain with spasm. A June 22, 1992, MRI scan indicated a small focal central disc herniation at L3-4, a small cental disc herniation at L4-5 and a disc herniation at L5-S1. In June 1992, the employee attempted to return to work for the employer with restrictions, but was laid off after approximately one week.

The employee underwent various neurological and orthopedic evaluations which indicated that the employee was not a candidate for surgery, in part because of the employee=s large size; he weighed in excess of three hundred pounds. The employee attempted to return to work sporadically at places which hire people with disabilities but eventually could not report to work on a regular basis even for these jobs. Although the employee=s rehabilitation records were not put into evidence, information in the record indicates that the employee was not considered a candidate for retraining because of his difficulties with reading and writing. In 1994, the employee underwent a psychological evaluation with Robert Clift, Ph.D., who diagnosed chronic pain syndrome with complications of behavioral depression, anger and resentment, fear of the future, excessive dependency on others, physical deconditioning, weight gain, and loss of usual social, recreational, and vocational pursuits. However, the employee was not treated for any mental health condition.

In 1998, the parties stipulated that employee was permanently and totally disabled, and he was receiving permanent total disability benefits at the time of his death on February 11, 2001. At times the employee=s pain was so debilitating he was unable to move from a couch for weeks at a time. The employee continued to treat for pain symptoms, and was told over the years by physicians specializing in orthopedics, occupational health and rehabilitation that there was no other medical treatment available for him and that his only option was a pain clinic. Between August 20, 1999, and January 5, 2001, the employee underwent a series of facet and epidural injections at the United Pain Clinic. In January 2001, the employee was treated by Dr. Steven Wagner at the United Pain Clinic, and the records indicate that the employee was very frustrated and that overall, after his last lumbar epidural steroid injection on January 5, 2001, his symptoms were worse.

On February 11, 2001, the employee committed suicide. The employee was found in an automobile parked outside of his cabin with a gunshot wound to his head. The cabin was on fire at the time the employee was found, and there was some indication of arson. The employee=s brother-in-law spoke to the police officers at the scene and indicated that the employee had discussed burning down his cabin and taking his own life. The brother-in-law indicated that there was family dissension over the employee=s use of the cabin. The employee=s uncle, however, testified that the employee had a good relationship with his father at the time of the employee=s death and that the employee=s back pain was the only stressful problem in his life. According to testimony by the employee=s uncle and brother, the cabin belonged to the employee=s father but he had transferred a life estate to the employee at the time the father moved from Minnesota to Idaho. The employee=s uncle also testified that the employee=s siblings had declined keeping the cabin due to cost for upkeep and taxes, and that the employee paid the cabin=s taxes and took care of cleaning and maintenance with the assistance of family members.

In August 2001, Dr. Mark Agre, one of the employee=s treating physicians at United Hospital Rehabilitation Clinic, opined that the employee=s work-related injuries and consequences were a direct cause of his suicide. In a report dated August 20, 2001, Dr. Agre stated that he had spoken with the employee perhaps within the month of his suicide, at which time the employee was having difficulty functioning and spent his time laying on a couch. Dr. Agre had scheduled the employee for a follow-up appointment in mid-February 2001. Dr. Agre stated that

He was having trouble coping because he no longer could do his previous job and his prospects for retraining as stated above were very limited. I feel, within a reasonable degree of medical certainty, that I think Mr. Drevecky=s work-related injury and its consequences were a direct cause for his, in essence, mental breakdown and eventual suicide. He had few other stressors in his life that I am aware of besides this and therefore I am very confident is his change in lifestyle, loss of his position and job with he thoroughly enjoyed, uncontrollable pain with no option for cure and no surgical approach that could be reasonably entertained, all of these lead to, I feel, his demise.

At the time of his death, the employee had no statutory dependents. On October 16, 2001, the employee=s uncle, Kenneth Drevecky, filed a claim petition on behalf of the employee=s estate. The employer and insurer objected, and requested a record review by Dr. Thomas Gratzer, a psychiatrist. Dr. Gratzer diagnosed pain disorder, alcohol abuse/dependence, mixed personality disorder and developmental reading disorder. Dr. Gratzer stated that the employee=s records do not provide clear evidence of his motivation at the time of his suicide. He concluded that the employee=s burning of the cabin could be for revenge in a family conflict, and that the employee=s suicide was proximally related to family discord and personality dynamics such as anger issues and dependency needs. Dr. Gratzer opined that the employee=s records did not document signs and symptoms of a major depressive order, anti-depressive treatment, or any mental health treatment, and that those records did not support a conclusion that the employee=s work injuries and their consequences Acaused a mental derangement of such severity that [they] overrode normal, rational thinking and judgment.@

A hearing was held on December 12, 2002. The compensation judge found that the employee=s suicide was causally related to his work injuries, awarded the employee=s estate $60,000 pursuant to Minn. Stat. ' 176.111, subd. 22, withheld attorney fees, and ordered partial reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7. The employer and insurer appeal.

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

Causation

At the time of the employee=s death, he was not married and had no dependents. Minn. Stat. ' 176.111, subd. 22 provides that,

In every case of death of an employee resulting from personal injury arising out of and in the course of employment where there are no persons entitled to monetary benefits of dependency compensation, the employer shall pay to the estate of the deceased the sum of $60,000.

Generally, intentionally self-inflected injuries are not compensable. Minn. Stat. ' 176.021, subd. 1. Death by suicide, however, is compensable if a work-related injury and its consequences, such as extreme pain and despair, directly cause a mental derangement of such severity that it overrides normal or rational judgment. Meils v. Northwestern Bell, 355 N.W.2d 710, 37 W.C.D. 164 (Minn. 1984). The causal chain between the work-related injury and the suicide is unbroken if, but for the injury, the suicide would not have occurred; the suicide is an intervening act rather than a superseding or independent intervening cause of death. Id. (citing Brenne v. Department of Industry, Labor & Human Relations, 38 Wis.2d 84, 156 N.W.2d 497 (1968)).

The burden of proof is on the claimant to establish by substantial evidence that the employee's work-related injury and its consequences directly caused a mental derangement of such severity that it overrode normal, rational thinking and judgment. The claimant must prove by substantial evidence an unbroken chain of causation between the work-related injury, the mental derangement, and the suicide. As in other subsequent injury situations, the work-related injury need not be the sole cause of the suicide, but it must be a substantial cause.

Id. at 715, 37 W.C.D. at (citing Roman v. Minneapolis Street Railway Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 572 (1964)). Causation is not established if the suicide is caused primarily by non-work-related issues, and the employer may attempt to show that the employee did not suffer from the claimed mental derangement or that other influences unrelated to the employment were the principal cause of the suicide. Where the employer presents sufficient evidence to rebut the claimed chain of causation, the statutory exclusion of self-inflicted injury is a complete defense. Minn. Stat. ' 176.021, subd. 1.

In this case, the compensation judge found that Athere is an unbroken chain of causation between the employee=s work injuries, his poorly controlled chronic pain, his progressive loss of the ability to function in the work place and in his personal life, the depression diagnosed in 1994 and never treated, the suicidal ideation he expressed to at least one sibling, and his actual suicide on February 11, 2001.@ The employer and insurer argue that the employee had not been diagnosed with chronic depression and had not been treated for any psychiatric condition, and that a diagnosis of a consequential emotional injury is required as a condition precedent to proving a chain of causation between a work injury and a suicide. The employer and insurer cite no authority for this assertion. In addition, Dr. Clift=s evaluation of the employee in 1994, indicated that the employee had chronic pain syndrome with complications including behavioral depression.

The employer and insurer also argue that the employee=s suicide may have been caused by stronger influences unrelated to the work injury, such as his obesity, sporadic employment, or family conflict. There was conflicting evidence regarding the employee=s state of mind and his personal relationships at the time of his death. The employee=s uncle indicated that there was no feud other than conflicts between the employee and his brother-in-law. The compensation judge specifically accepted the uncle=s testimony that there was no family feud. Assessment of witness credibility is the unique function of the factfinder. Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988). A finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary. See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).

The compensation judge concluded that the employee lived with unbearable pain, he had lost hope for the future, and despaired of his condition. The compensation noted that Dr. Agre opined that the employee=s work-related injuries and consequences were a direct cause of his suicide. The employer and insurer argue that Dr. Agre did not review all of the employee=s medical records, the police reports, deposition transcripts, or rehabilitation records as Dr. Gratzer had done for his review. Dr. Agre did have the opportunity, however, to review Dr. Gratzer=s report, and maintained his opinion that the employee=s work injuries were a substantial component in causing the employee=s suicide. The compensation judge could reasonably rely upon Dr. Agre=s opinion.

Substantial evidence, including expert medical testimony and the employee=s uncle=s testimony, supports the compensation judge=s finding that the employee=s suicide was causally related to his work injury, and we affirm.

Attorney fees

The employer and insurer also appeal the compensation judge=s award of partial reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7, arguing that the statute does not specify that such reimbursement is applicable to an employee=s estate. Minn. Stat. ' 176.081, subd. 7 provides in part:

If the employer or insurer files a denial of liability . . . and the injured person has employed an attorney at law, who successfully procures payment on behalf of the employee . . . the compensation judge . . . shall award to the employee . . . an amount equal to 30 percent of that portion of the attorney=s fees which has been awarded pursuant to this section that is in excess of $250.

A claim for reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7 by an intervenor was rejected in Mabee v. Tri-State Ins. Co,, slip op. (W.C.C.A. June 22, 1988) since the statute specified that the attorney must successfully procure payment Aon behalf of the employee@ for the statute to apply. Reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7 in cases involving dependency claims, however, have been approved even though such claims are not specifically indicated in the statute. Nord v. City of Cook, 37 W.C.D. 351, 359 (W.C.C.A. 1984) (citing Minogue v. City of St. Paul, 320 N.W.2d 90, 34 W.C.D. 698 (Minn. 1982); Saari v. McFarland, 319 N.W.2d 706, 34 W.C.D. 677 (Minn. 1982)), aff=d, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In this case, the employee=s uncle is asserting a claim on behalf of the employee=s estate pursuant to Minn. Stat. ' 176.111, subd. 22, similar to a claim by dependents of a deceased employee. We affirm the compensation judge=s award of reimbursement of attorney fees under Minn. Stat. ' 176.081, subd. 7.