LAWRENCE GROSS, Applicant
ROEHL TRANSPORT INC, Employer
LIBERTY MUTUAL FIRE INS CO, Insurer
The applicant filed an application for hearing in January 2001, seeking compensation for a back injury from an October 8, 2000 work-related motor vehicle accident. Now at issue is whether the applicant's spouse, June Gross, is entitled to death benefits under Wis. Stat., ch. 102.
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on December 11, 2007, with a close of record on September 5, 2008. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, the occurrence of a compensable injury on October 8, 2000, an average weekly wage at the time of injury of $497.62, temporary disability from November 27, 2000 to January 21, 2001, and permanent partial disability on a functional basis at 3 percent.
The respondent has paid compensation for temporary disability, but apparently withheld payment of permanent partial disability compensation to recover amounts of temporary disability that it overpaid. The disability compensation payment was also affected by a third party settlement subject to distribution under Wis. Stat. § 102.29, from which the parties stipulate there remains a "cushion" of $5,937.80. The parties also stipulate that the death benefits now in dispute, prior to the application of the "cushion," are $99,524. In addition, the State of Wisconsin Work Injury Supplemental Benefit Fund has an interest in a potential payment of $5,000 under Wis. Stat. § 102.49.
On October 14, 2008, the ALJ issued his decision dismissing the application for death benefits. Mrs. Gross filed a timely petition for review.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
The applicant was born in 1951. He was in a prior work-related motor vehicle accident in 1980, which caused neck and back pain which went away after chiropractic treatment in 1983. The applicant had also been hospitalized for stress in 1989 and 1991, and had treated for depression as recently as 1999.
The applicant began working for the employer in April or May of 2000, shortly after finishing a truck drivers' training course. He was a national truck driver.
On October 8, 2000, the applicant was in a motor vehicle accident while working for the employer. His truck was rear-ended when stopped at a traffic light. In a deposition he gave as a part of a third-party claim arising from the accident, the applicant described the force of the impact as very heavy. He estimated his truck was pushed forward two feet, and the load was shifted forward as well. The applicant's truck was damaged: the hinges on the trailer door were bent, the framing underneath the trailer floor was broken, and the seat in the cab was also broken.
Immediately after the accident, the applicant did not feel pain, though he did have a bruise on his shoulder. The applicant drove five miles back to a truck stop, and called the employer. The employer instructed the applicant to go to an emergency room and get checked out. The applicant called a cab, and lay down for about an hour in his truck while waiting for its arrival. While he was waiting for the cab, the applicant started having aches and pains.
When the applicant got to the emergency room, he told the doctor that he had an achy back and sore shoulder. A CT scan and x-rays were done, but no significant findings were noted. The applicant was instructed to see his personal doctor if he got worse. The emergency room note also states that the applicant was taking Prozac. Exhibits E and 4.
The next day the applicant was very sore. He called his dispatcher, who told him the employer would put him up in a hotel in Fort Wayne, which was about 100 miles away. The applicant drove to Fort Wayne, apparently stayed there for a day, then finished his delivery and drove the truck back to Gary, where the employer's terminal was.
The applicant then resumed his normal duties with the employer for about a month, during which time he did not see a doctor or miss any time from work. During the course of the month, however, he began having increasing pain in his back and left leg. He quit the employer in November 2000.
The applicant then got a job with USF Glenmore as a dedicated driver--meaning he did a fixed run for a particular customer--for a fixed annual salary. Shortly after beginning this job, the applicant saw an orthopedic surgeon, Myron Collins, M.D., who diagnosed a bulging disc at L4-5 and a soft tissue shoulder injury. Dr. Collins also took the applicant off work for his continuing back pain, while he underwent physical therapy. The applicant subsequently returned to work with USF Glenmore on light or restricted duty in a dispatcher position
When the applicant began treating with Dr. Collins in November 2000, he had pain in his neck and interscapular areas, as well as pain in his low back radiating down his spine. After prescribing an anti-inflammatory and muscle relaxer, the doctor ordered an MRI that showed disc protrusions at L3-4 and L4-5 which were thought not to interfere with the nerve roots. When the applicant began to experience numbness in his left thigh in March 2001, Dr. Collins referred him to a neurologist, Dr. Barzinski, who thought he had a nerve compression condition he termed meralgia paresthetica. Dr. Barzinski prescribed Neurontin, and in November 2001 consideration was given to epidural injections. In a report dated May 13, 2003, Dr. Collins diagnosed a cervical and lumbar strain, estimating permanent partial disability at 5 percent compared to disability to the body as a whole. Exhibit R.
The applicant was also seen by Richard Eisenberg, M.D. Exhibits K, L, and M. On June 11, 2001, Dr. Eisenberg opined that the applicant suffered a lumbar strain injury as a result of the work injury, and subsequently developed some lumbar radicular-type symptoms. He felt the symptoms were related to the October 8, 2000 accident, that the applicant had reached a healing plateau as of the June 11, 2001 report date, but that he might need surgery in the future. The doctor also set a 25-pound lifting limit, and thought a functional capacity evaluation could better determine his functional capacity.
In a letter to the worker's compensation insurer's attorney on October 10, 2002, Dr. Eisenberg rated the applicant's permanent partial disability at 5 percent for an intervertebral disc lesion, not operated upon, with continued pain associated with some degenerative changes shown on MRI. He added that the rating was based on the Worker's Compensation Division's guidelines for rating permanent disability, as well as the AMA Guide to the Evaluation of Permanent Impairment. Based on the Worker's Compensation Division's guidelines alone, Dr. Eisenberg revised his rating to 3 percent to the whole body for an intervertebral disc lesion, not operated upon, with continued pain.
The applicant continued to work at USF Glenmore until June 2002. He left his job at USF Glenmore at least in part due to personal reasons. After leaving USF Glenmore, the applicant worked for about 6 weeks as a realtor. He had been working for 6 weeks as a residential loan officer for a mortgage company when he was deposed in the third-party personal injury action against the other driver on May 19, 2003.
On deposition, the applicant testified that his injuries from the October 8, 2000 accident prevented him from working as a truck driver. He added that he was limited to work that did not require a lot of sitting, a lot of standing, or any lifting. He testified that he could not bend, squat, or get down on his knees. He could no longer garden or mow the lawn. He could not vacuum, do laundry, or wash dishes. On deposition, the applicant also testified that he was taking Percocet, Xanax, and an anti-depressant, Effexor. He believed he suffered depression from work injury as a result of his constant pain, inability to perform activities as he had in the past, and inability to support his family with an adequate income.
During the deposition, the applicant also testified specifically about his prior treatment for depression. Exhibit U, page 74 et seq. He testified he had been off and on anti-depressants (a few months on, a couple of years off) since 1991. He described his depression as something that "comes and goes." He testified that when depressed he experienced a sense of hopelessness, lost self-esteem, and an inability to cope with severe situations. He would cry and become more of a loner. He testified that "major life situations," such as the death of his father and brother, divorce, and household moves, would trigger his depression.
The applicant had, indeed, treated for depression before the 2003 accident. As stated above, he had been hospitalized for stress in 1989 and 1991. Exhibit 5, "Patient Information Questionnaire." On deposition, the applicant testified that in 1999, he saw a Dr. Alley in Florida who prescribed Prozac for five or six months. However, he testified that at the time of the accident on October 8, 2000, he was not on any medication nor, he testified, did he have symptoms of depression. Still, the October 8, 2000 treatment note lists Prozac as a medication the applicant was taking.
The applicant's post-injury treatment for his mental state appears to have been provided primarily by the applicant's family doctor, Roger J. Venable, M.D. According to Dr. Venable's notes at exhibit I:
On April 16, 2003, the applicant was admitted to Central State Hospital. Notes from this admission (exhibit C) include an "assessment and history" noting admission on a certificate "which stated that he was very depressed because of family problems and had expressed suicidal ideations." He stated, too, that he was in the hospital because he was "very depressed over family conflicts in my household." A long history of major depression was noted, as well as a brother's death from cancer, and family arguments. The doctor's assessment was major depression, recurrent. A discharge summary included much of the history recited above, and indicates that medication abated the signs and symptoms of suicidal ideation.
However, during his hospitalization, low back problems were noted in a "review of symptoms." A nursing assessment also noted back pain, and that the applicant had stopped taking medication because he could not afford it. According to an April 24, 2002, final summary and discharge plan he was
Started on medication [to] abate the signs and symptoms of pain. He had individual counseling regarding techniques that might help in the relief of pain.
See Exhibits 16 and R .
In a note from Dr. Venable dated May 19, 2003 (Exhibit R), the doctor reports that he first saw the applicant on August 20, 2001, with a complaint of recurrent depression due to stressful recent events in his life, mentioning specifically "chronic back pain stemming from a previous motor vehicle accident." The doctor "prescribed Prozac and Valium for his depression and anxiety, and at follow-up it was clear he had a fair to good response to these medicines." He thought the applicant would continue to have fluctuating back and leg pain which might continue for years or might slowly diminish with time. He did not think the applicant would ever be a surgical candidate but added that "[t]he pain will have a significant effect on his career, his home life and marriage, and his recurrent depression."
The applicant's wife, June Gross, testified at the hearing that the applicant had chronic ongoing back pain--it was she who encouraged him to start treatment for it. Near the end of his life, he could not work a full day. He could not do household chores, and he was troubled by his inability to support her financially and perform sexually. The couple was experiencing financial problems requiring them to borrow money and obtain food from their church. They were behind in their mortgage and car payments. Her testimony also brings out other stressors in the applicant's life near in time to his suicide, including his relationship with his mother and with his son who left the applicant's home after a dispute about the son's marijuana use.
The applicant committed suicide by drowning on July 3, 2003, leaving behind notes for his wife and his mother. Exhibit X. In the note to his wife, he wrote:
All of my dreams have been shattered and I feel like I have nothing to live for. I have no[] plan for what we will do when we lose the house and that upsets me no end.
In the note to his mother, he wrote:
This whole thing is my fault because I am not strong enough to deal with the failures of my life. I have failed in everything I have set out to do and now I am facing the worst yet. Foreclosure, credit card suits, and loss of every thing I hold dear to me.
Neither note mentions back pain or the work accident specifically. The note to his mother mentions family tensions, but does not cite them as a cause of the suicide.
Both sides offer expert medical opinion on the dispositive question of the relationship between the applicant's work injury of October 8, 2000 and his death.
The applicant's family doctor, Dr. Venable, writes in a February 23, 2004 letter at exhibit Q:
...I consider his suicide to be solely due to his depression.
Second, I consider his depression to be 50% due to his genetic predisposition to it, which is manifested by his long history of recurrent bouts of depression; and 50% due to life stresses.
Of his life stresses, the largest was his inability to make a living. The sequence of events that led to his inability was precipitated by the change of occupation that the 2000 motor vehicle accident forced him to make. The consequences of his poverty included many stressful circumstances. Another great stress was the daily back and leg pain that he suffered as a result of the work accident. I think it fair to assign an 80% likelihood that these stresses were due solely to the accident, and a 95% likelihood that these are the stressors that caused his depression or caused it be so severe that it killed him.
Multiplying these estimates of probability together, that is 50% times 80% times 95%, I conclude that his motor vehicle accident of the year 2000 was 38% responsible for his death.
The applicant's attorney also arranged for a report from a psychiatrist, Kenneth Robbins, M.D., who reviewed the medical records and interviewed one of the applicant's friends, Bruce Wittcomb, and his widow, June Gross.
Mr. Wittcomb told Dr. Robbins he had not had much contact with the applicant in the last two years of his life, but that the applicant had had a lot of stressors and always dealt with them in the past. Mrs. Gross told the doctor she and the decedent had a wonderful relationship, and that he had become increasingly despondent as it became clear his back problems were not going to resolve. She thought he committed suicide because of the couple's financial problems, and his worry about losing the house. He also had difficulty performing sexually because of his back pain, and that coupled with his inability to earn money, made him feel like less than a man.
Dr. Robbins concluded while the emergency room note states the applicant was taking Prozac on the date of the motor vehicle accident, October 8, 2000, other records suggest he was not. The doctor concluded there was other medical evidence that the applicant was depressed at the time of the accident. He felt the applicant was suffering from a major depressive episode which began sometime after his motor vehicle accident. The doctor noted that there were other stressors in the applicant's life after his accident, including family conflicts, but:
...it is clear in the medical records that the consistent cause for his depression following the motor vehicle accident was a combination of his chronic pain and occupational limitations he struggled with as a result of the chronic pain, which led to the marked financial problems that ultimately, he felt, would lead to him losing his home.
It is, therefore, my conclusion, to a reasonable degree of psychiatric certainty, that the most significant stressor leading to his depressive episode that began following the motor vehicle accident of 10/8/00 was his chronic pain and occupational difficulties which ensued. It is my opinion that the most significant stressors that led to his suicide were a combination of the financial problems he struggled with and his chronic pain.
After reviewing the records from the applicant's April 2003 admission to Central State Hospital, Dr. Robbins stated that the records made it clear the applicant was having family problems that were significant contributing factors to his suicide, but that "Mr. Gross was suffering from a major depressive episode, in which his chronic pain was also a very significant contributing factor, as was the financial problems he had struggled with because of his difficulty in maintaining successful employment."
The respondent's expert is Donald Feinsilver, M.D. His reports following a review the records of the applicant's treatment, are at exhibits 5, 12, and 13. In his first report, Dr. Feinsilver suggested the records from Central State Hospital would be helpful. In his second report (exhibit 13), he found the applicant's history to be consistent with recurrent major depressions. However, he noted that the records from the applicant's admission to Central State Hospital, only a few weeks before his death, do not mention the October 8, 2000 accident or his back pain as stressors, but rather listed family issues.
Dr. Feinsilver did observe that a lower back injury with chronic pain does not do any one any good. He noted, however, that the orthopedic diagnoses did not suggest severe objective findings (he never had surgery), making one wonder whether the depression was primary rather than secondary--that is whether the pain complaints were an expression of the underlying depression, rather than the depression being exacerbated by the pain.
Dr. Feinsilver thought that older records from before the accident (a reference back, presumably to the hospitalizations for stress in 1989 and 1991) might be revealing. Given what records he had, however, the doctor believed "it has not been established that from a psychiatric perspective he was necessarily doing worse, other than the suicide, in the years subsequent to, compared to the years prior to, the accident."
Dr. Feinsilver's third report (exhibit 6) considered some additional records from after the work injury, including Dr. Robbins' report. Dr. Feinsilver suggested that Mr. Wittcomb's observation that the applicant had always dealt with the stresses in life previously was undercut by Mr. Wittcomb's admission he had not seen the applicant in a couple of years. He also disagreed with Dr. Robbins' suggestion that the applicant was not taking Prozac at the time of the October 2000 motor vehicle accident. He also felt the impact of the sexual issues was unclear, noting that the sexual dysfunction could have been related to other factors than the back injury, such as aging and antidepressant medication. He adhered to his prior opinion that "there is not a demonstration of probable linkage of causation between the accident of 2000 and the suicide of 2003."
Mrs. Gross now seeks death benefits under Wis. Stat. § § 102.46 et seq. based on the contention that her husband's death proximately resulted from his October 8, 2000 work injury. Suicide is by definition a self-inflicted act, and the worker's compensation law by statute does not compensate intentionally self-inflicted injuries. Wis. Stat. § 102.03(1)(d). However, in Brenne v. ILHR Department, 38 Wis. 2d 84, 92-93 (1968), the supreme court held that a suicide may be compensable if a claimant proves that a chain of causation exists; that is, that the work injury caused the suicide.
Both the parties and the ALJ cite the Brenne decision, in which the commission refused to pay the death benefit to a worker who committed suicide. In reversing, the court explained:
...The exclusion is predicated on an "intentionally self-inflicted act." In a comparatively recent case of first impression the California Supreme Court considered the matter presently before us and therein stated:
"We believe that in those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequences, his suicide cannot be considered 'wilful' within the meaning and intent of the Act." [Citation omitted.]
While the act of suicide may be an independent intervening cause in some cases, it is certainly not so in those cases where the incontrovertible evidence shows that, without the injury, there would have been no suicide; that the suicide was merely an act, not a cause, intervening between the injury and the death, and that it was part of an unbroken chain of events from the injury to the death.
Id., at 38 Wis. 2d 93-94. The court explained further that:
... the chain-of-causation approach ... also encompasses the question of intentional self-infliction of injury since one of the elements is the establishment of a condition, resulting from the original injury, which so dominates the mind as to make it devoid of normal judgment and causes the act of suicide. The act of suicide cannot then be said to be wilful or intentional within the meaning of the statute since its causation ultimately relates back to the original injury, rather than existing as an independent and intervening cause.
Id., at 38 Wis. 2d 95. In essence, the court stated a death by suicide is compensable if the worker "would not have committed suicide had it not been for the conditions both mental and physical which resulted from the accident." Ibid.
Dr. Feinsilver's reports make two clear arguments in the respondent's favor. First, he suggests that the applicant may really not have had much back pain at all from the work injury, but that his continuing back problems and disability were really caused by his pre-existing depression. Second, the Central State Hospital records suggest that he was suffering from family stress--the applicant's problems with his son and his mother--shortly before his suicide. A third point made by ALJ Mitchell is that the applicant had substantial gainful employment between the time of his work injury and his suicide.
On the other hand, as Dr. Robbins' report points out, the applicant did suffer from chronic back pain following the October 2000 work injury, which was coupled in Dr. Venable's treatment notes with suicidal ideation, anxiety, or depression. The applicant had orthopedic ratings of disability for his back injury, despite the fact he had no surgery. He had work restrictions from his injury that negatively affected his ability to work, particularly as a truck driver. He sustained a decrease in income following the losses of his trucking industry jobs. The overwhelming financial stress he suffered as a result is evident in his deposition testimony, his conversations with his wife and Dr. Venable, and his suicide notes.
Further, in May 2003--two months before the suicide--treating family doctor Venable opined the applicant's chronic back pain from the work-related motor vehicle accident would have a significant effect on "his career, his home life and marriage, and his recurrent depression." The doctor opined in February 23, 2004 letter that of the applicant's life stresses, the largest was his inability to make a living. The record establishes that the applicant's back pain was causally related to his depression and the stressors in his personal life, and that relationship was noted by a treating doctor shortly before his death.
Thus, after carefully considering the record, the commission is persuaded that the applicant's pain and disability from his work injury--and the resulting effect it had on his financial situation--so dominated his mind as to make it devoid of normal judgment and caused the act of suicide. In other words, the commission concludes the applicant would not have committed suicide had it not been for the conditions both mental and physical which resulted from the accident.
The respondent is therefore liable to the applicant's spouse, June Gross, for death benefits under Wis. Stat., ch. 102 for the death of Mr. Gross, which proximately resulted from the October 8, 2000 work injury. As noted above, the parties stipulated that the amount of the death benefits in dispute is $99,524 (subject to the application of a "cushion of $5,937.80 under Wis. Stat. § 102.29), and that the Work Injury Supplemental Benefit Fund has an interest in a payment of $5,000 under Wis. Stat. § 102.49. In addition, Mrs. Gross agreed to an attorney fee of 20 percent, and her attorney has also documented costs of $3,019.60. Rather than calculating the award itself in light of these stipulations, the commission remands this case for further appropriate action, as necessary, to calculate the amount of the benefits payable as a result of the decedent's death.
As noted above, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. The matter is remanded to the department for calculation of the amount of benefits due, after consideration of the stipulations of the parties and the distribution provisions of Wis. Stat. 102.29.
Jurisdiction is reserved only with respect to the issue of calculation.
Dated and mailed June 25, 2009
grossla . wrr : 101 : 9 ND ? 3.36
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
The commission consulted with the ALJ about the credibility and demeanor of Mrs. Gross, the sole witness who testified before him. Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 283-84 (1972); Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998). The ALJ noted that Mrs. Gross acknowledged, particularly on cross examination, the numerous psychological stressors in the applicant's personal life, including his relationship with other members of his family. The ALJ believed that while Mrs. Gross emphasized the applicant's pain and disability from the work injury--as one would reasonably expect from a surviving spouse bringing a death benefit claim--her claim remained speculative given these other stressors in the applicant's personal life.
The burden of proof is indeed on Mrs. Gross to establish by substantial evidence that the chain of causation exists. As the supreme court recognized, there are inherent difficulties in proving a person who commits suicide does so because of injuries sustained in an accident. Brenne, at 38 Wis. 2d 93. As set out in the body of this decision, however, Mrs. Gross's claim is supported not only by the deposition testimony of the applicant, the hearing testimony of Mrs. Gross, and the contents of the suicide notes, but also by the credible expert medical opinions of Dr. Venable (who treated him for his psychological condition) and Dr. Robbins. While the applicant had treated for psychological problems before his injury, the commission is persuaded that the applicant would not have committed suicide had it not been for the conditions resulting from the compensable motor vehicle accident of October 8, 2000.
In his decision, the ALJ noted that, as part of its remand order in Brenne, the supreme court required the commission to determine whether the applicant suffered a permanent partial psychiatric disability. However, the supreme court neither stated nor implied in Brenne that permanent partial psychiatric disability is a prerequisite to a finding that a decedent worker's death proximately resulted from the work injury. Accordingly, the commission declines to conclude that in addition to proving the "chain of causation" as specifically set forth by the court, Mrs. Gross must provide a rating of permanent psychological disability at her husband's death.(1) Because Mrs. Gross is seeking neither compensation for permanent partial disability, nor death benefits based on unaccrued permanent disability compensation under Wis. Stat. § 102.47, the commission does not reach the issue of permanent partial disability beyond that conceded.
cc:
Attorney Christine K. Nelson
Attorney Peggy Van Horn
Asst. Attorney General Corey Finkelmeyer
Abby Butler
ANN L. CRUMP, Commissioner, (dissenting):
I respectfully dissent from the majority.
The facts of this case do not support the position that Mr. Gross's suicide occurred and would not have otherwise occurred but for the injury sustained in the truck accident October 8, 2000.
(1) The applicant had been hospitalized for stress in 1989 and 1991. He had been treated for depression as late as 1999, prior to his truck accident with the employer.
(2) The applicant described his depression as something "that comes and goes," and that while depressed he experienced a sense of hopelessness, low self esteem and an inability to cope with severe personal situations like the death of his father and brother, divorce and household moves.
(3) In April 2003, the applicant was hospitalized in Central State Hospital for depression. At this time the applicant expressed suicidal ideation over family conflicts and a brother's death from cancer. A long history of current major depression was noted in the doctor's assessment.
(4) The records from Central State Hospital, recorded a few weeks before his death, do not mention his back pain or the accident, but listed family issues as the reason for the hospitalization.
(5) Finally, the applicant had a substantial period of gainful employment between his work injury and his suicide.
Worker's compensation law does not compensate "intentionally self-inflicted injuries" unless the applicant proves a chain of causation exists that the work injury is the cause of the suicide. In this case, it has not been shown by incontrovertible evidence that the applicant would not have committed suicide had it not been for the work accident. While this case is a tragic example of a person who struggled a long time with difficult and complex personal issues, unfortunately, the case as presented was not persuasive that a chain of causation existed.
/s/ Ann L. Crump, Commissioner
Appealed to Circuit Court. Affirmed February 19, 2010.
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