Court Denies Benefits to Daughter of Worker Who Died From Drug Overdose

Thursday, February 9, 2017 | 0

The Nebraska Court of Appeals this week upheld the denial of benefits to the daughter of an injured worker who died from a drug overdose.

While the court decision referred to the worker as "Kena B.," an online obituary indicates her name was Kena Buckridge.

Buckridge injured her back in 2009 while working as a certified nursing assistant for the Northfield Retirement Communities. She then began treating with Dr. Michelle Cheloha, who issued her prescriptions for methadone, oxycodone and Xanax.

Buckridge filled a prescription for 90 methadone pills, 60 oxycodone pills, and 40 Xanax pills on April 9, 2014.

Six days later, she received a visit from a police officer and a social worker who came to tell her she was being evicted, and that she was losing custody of her teenage daughter. Buckridge repeatedly said she was "at her end," and she did not know what she was going to do. But when the social worker asked her if she intended to harm herself, Buckridge said no.

The police officer would later testify that he did not have the impression Buckridge was going to attempt suicide, either.

Less than an hour after he left Buckridge's home, the police officer returned in response to a 911 call. He found Buckridge unconscious, with paramedics attempting CPR.

Buckridge was later transported to the hospital, where she died at the age of 37.

Meanwhile, the police officer collected the pill bottles he saw in Buckridge's bedroom and counted how many pills they contained. Only six days after she filled her prescription, 27 methadone pills, 29 oxycodone pills and 36 Xanax pills were missing.

Based on the number of pills recovered, Dr. Cheloha opined that Buckridge had overdosed on all three medications. A coroner would eventually determined Buckridge had died from multiple drug toxicity.

While the coroner deemed Buckridge's death to have been an accident, Workers' Compensation Court Judge Daniel R. Fridrich found Buckridge had committed suicide. He denied a petition for death benefits filed on behalf of Buckridge's daughter.

The Court of Appeals upheld the decision on Tuesday.

Although Nebraska has a "negative presumption" against suicide, the court said the evidence in the record was sufficient to rebut it. The court noted Buckridge had a history of depression and suicidal ideation, and that she had overdosed not long after learning of the impending removal of her daughter and her eviction.

Given her "fragile emotional state," the court reasoned Buckridge's statement that she was "at her end" conveyed "a sense of hope­lessness and emotional instability" that supported a finding of suicide.

The court explained that under Nebraska law, suicide generally constitutes an act of "willful negligence," and such acts are not compensable.

"Nebraska law has recognized an exception to the rule that suicide constitutes willful negligence when the evidence shows that suicide was nonvoluntary," the court said, but only in situations where "there are factors which can override a person’s freewill."

In this case, the court said, there was no evidence that extreme pain caused Buckfield to "involuntarily end her life."

There was evidence that her pain from her back injury may have exacerbated her pre-existing anxiety and depression, but these conditions were not included as compensable components of Buckridge's comp claim, so the court concluded there was no basis to find Buckridge's injury had contributed to her decision to end her life.

Scottsbluff-based attorney Michael W. Meister represented Buckridge's daughter before the WCC and the Court of Appeals.

He said Thursday that he was "toying with" the possibility of seeking review by the Nebraska Supreme Court and presenting an argument based on the proper application of the presumption against suicide.

Meister said the burden is supposed to be on the defendant to prove there was a suicide, not for him to prove there wasn't. If the Court of Appeals decision stands, he said, it leaves the families of workers in the difficult position of "trying to prove a negative."

He also said he didn't think Buckridge's "throwaway statement" about being "at her end" should have been enough to rebut the presumption against suicide, especially since there were witnesses who said she didn't seem suicidal and she hadn't taken all of the pills in her possession.

Meister said he thought the decision established precedent for the idea that a finding of suicide will be treated as an issue of fact, which makes such a finding nearly impossible to challenge on appeal.

He also said the lesson for claimants' attorneys is that they need to "argue both sides of the coin" when they have fatal overdose claims, presenting evidence to show that the worker's death was an accident as well as evidence that the worker intentionally committed suicide because of a prior industrial injury.

Lincoln-based claimants' attorney Elaine Waggoner of the Waggoner Law Office on Thursday said she wasn't surprised by the court's ruling. She said claims involving a suspected suicide are often difficult to prove, since they require proof of intent, which normally is not a consideration in comp cases.

Waggoner also said the court's ruling was consistent with "a long line of case law" on the compensability of psyche claims. In Nebraska, she said, a worker needs to prove a physical injury led to depression for the depression to be compensable, and for a suicide prompted by the depression to be compensable.

Injured workers often struggle with depression. According to a 2012 article in the Journal of Occupational and Environmental Medicine on the "Incidence and Cost of Depression After Occupational Injury," an injured worker is 45% more likely to need treatment for depression than a non-injured worker.

The Centers for Disease Control and Prevention also reported that the number of people who die from drug overdoses has continued to rise year-over-year at an alarming rate. Since 1999, the CDC said, the number of overdose deaths involving opioids has quadrupled. There are now 91 Americans who die every day from an opioid overdose.

The compensability of a worker's self-inflicted death is largely fact specific, with cases going both ways.

In June 2015, for instance, a unanimous California Supreme Court found the family of an injured worker was entitled to benefits for his death from an overdose on prescription medications, even through drugs prescribed by his primary physician likely played a more significant role in his death than the medications he was taking to treat an industrial injury.

By contrast, the Connecticut Supreme Court in 2012 decided that the widow of a state corrections officer who died after taking excessive quantities of prescription medication was not entitled to workers' compensation death benefits.

The Nevada Supreme Court in 2008 found that a widow was entitled to benefits after her husband committed suicide because he was unable to deal with his unrelenting pain from a work-related back injury.

But last August, the West Virginia Supreme Court ruled that a permanently and totally disabled worker's suicide was not compensable, as there was no evidence tying his death to his occupational injuries.

The 9th U.S. Circuit Court of Appeals also put out a decision in 2013 finding that a worker was entitled to additional benefits after a failed suicide attempt because there was a "direct and unbroken chain of causation" between his injury and his attempt to kill himself.

To read the Nebraska court's decision, click here.