JOHNSON CONTROLS, INC. v. STEVEN E. RUSSELL, DECEASED; LARRY W. RUSSELL, ADMINISTRATOR; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 30, 2002; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002770-WC
JOHNSON CONTROLS, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-70378
v.
STEVEN E. RUSSELL, DECEASED;
LARRY W. RUSSELL, ADMINISTRATOR;
HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND JOHNSON, JUDGES.
BARBER, JUDGE:
The Appellant, Johnson Controls, Inc. (“the
employer”), seeks review of an Opinion of the Workers’
Compensation Board, affirming the ALJ’s determination that Steven
E. Russell’s (“Russell”) death was work-related and awarding
benefits to his estate under KRS 342.730(6).
Finding no error,
we affirm.
The events leading up to Russell’s death are as
follows:
On May 1, 1999, Russell pulled and strained his left
arm at work.
The parties stipulated that he sustained a work-
related “incident” on that date and that the employer had due and
timely notice of the plaintiff’s injuries.1
On May 5, 1999, Russell saw Dr. Campbell, upon referral
by Dr. Pavon.
He related having injured his left arm while
lifting with the left hand only, with a tremendous amount of
swelling and pain the next day.
Dr. Campbell noted a massive
hematoma formation in the distal half of the arm, especially on
the medial aspect; further there appeared to be a muscle mass
present distally.
Dr. Campbell believed that Russell had a
complete rupture of the long head of the biceps and kept him off
work “for the time being,” noting that Russell had been doing
limited work with his right hand.
week and continue wearing a sling.
Russell was to return in one
Dr. Campbell anticipated that
it would be 8-10 weeks before the biceps rupture would
sufficiently heal enough “for him to use that left arm within
ease at all.”
On May 10, 1999, Russell was brought to Trigg County
Hospital via ambulance, after his family found him that morning,
passed out on the floor — “he said he did not know how he got on
the floor.”
Russell said he hurt his arm about one week ago, was
seen by Dr. Campbell, had been on medicine, and off work since.
He was confused, WCB was 45,000; glucose was 520, sodium and
chloride were dangerously low.
Arrangements were made to
transfer Russell to Jennie Stuart Hospital.
1
According to the parties’ stipulation contained in the 4-24-01
Benefit Review Conference Order and Memorandum.
-2-
Russell was admitted to the Jennie Stuart Hospital ICU
on May 10, 1999.
Discharge summary by Dr. Shah reflects that
Russell had severe hyponatremia, sudden change in mental status,
was severely hyperglycemic, and severely confused.
All liver
function tests were abnormal.
Blood cultures came back Gram
positive cocci, streptococcal.
Blood pressure was very low,
“probably due to septic shock.”
On May 11, 1999, Russell was transferred to St. Thomas
Hospital for further treatment and care.
Discharge summary by
Dr. Hyatt Sutton reflects that:
Mr. Steven Russell is a 46 year old gentleman
who is admitted on 5/11/99 . . . in
critically ill condition. He had multisystem
organ failure which was related to sepsis due
to recently ruptured biceps tendon which
became secondarily infected. Patient
arrested shortly after arriving to our
hospital . . . and was resuscitated for 20-30
minutes. Dr. Bill Shell saw the patient in
consultation and took him to the OR for
exploration of the left arm with I D of
abscess and debridement. He found a large
abscess which was cleaned out thoroughly.2
Dr. Vito Rocco saw the patient in
consultation and he was placed on continuous
24 hour dialysis. Patient improved with
regards to his liver and kidney failure but
his platelet count dropped because of the
sepsis and he required multiple transfusions
of platelets and packed cells. His blood
sugars initially were over 1000 at the
outside hospital. The patient remained on an
insulin drip in our facility.
The patient continued to improve from a
metabolic standpoint, however, neurologically
the patient was unable to wake up. We held
all sedatives for more than four to five days
and the patient did not wake up . . . .
2
The May 11, 1999 operative report reflects a diagnosis of
abscess, left arm.
-3-
On May 24, 1999, Russell died.
The death certificate
prepared by Dr. Sutton, dated May 25, 1999, reflects that the
immediate cause of death was sepsis, due to (or as a consequence
of) left arm abscess, due to (or as a consequence of) ruptured
biceps tendon.3
The manner of death is listed as “accident,” at
work, described as “Employ [sic] picked up a tub of parts while
stocking up and tub of parts slipped.”
On February 14, 2000, Larry Russell, appellee herein
(“Appellee”), filed an application for resolution of injury
claim, form 101, as Administrator of the Estate of Steven E.
Russell.
The April 24, 2001 benefit review conference order
reflects that the only contested issue was whether Russell’s
death was work-related, pursuant to KRS 342.750.
The version of
KRS 342.750(6),4 in effect on the date of Russell’s injury (and
death), provided that:
In addition to other benefits as provided by
this chapter, if death occurs within four (4)
years of the date of injury as a direct
result of a work-related injury, a lump sum
payment of twenty-five thousand dollars
($25,000) shall be made to the deceased’s
estate, from which the cost of burial and
cost of transportation of the body to the
employee’s place of residence shall be paid.
The evidence on causation was in conflict.
The April
24, 2001 hearing order reflects that the following medical proof
was filed: Dr. Sokolov, Dr. Shell, New England Journal of
According
defined as
in death,”
4
Effective
$50,000.00
3
to the death certificate, the underlying cause,
the “disease or injury that initiated events resulting
is to be entered last.
7/14/2000, the statute was amended to provide for a
lump sum.
-4-
Medicine, Dr. Sutton, Dr. Campbell, (Jennie) Stuart Medical
Center, Dr. Julio Melo, Dr. Hyatt Sutton, and Dr. Eduardo Pavon.
We shall refer to the evidence only as necessary for a resolution
of the issues before us.
On June 22, 2001, the ALJ rendered an opinion and
award, finding that:
The logical sequence of events appears to
have started with the relatively minor injury
which Plaintiff/Decedent sustained to his
left arm when lifting a tub of parts at work
. . . . It appears that he either ruptured a
muscle or injured a tendon, from which he
developed a hematoma and which subsequently
became infected, leading to sepsis . . . .
There does not appear to be any reports of
cuts and bruises . . . which could have
served as the portal entry of the
subsequently identified streptococcus B
bacteria. Although the reports attached to
Dr. Sokolov’s letter primarily describe a
Group A streptococcus necrotizing fascitis,
the same mechanism would appear to apply to
the streptococcus B group . . . .
The ALJ awarded benefits to Russell’s estate in the
amount of $25,000.00 pursuant to KRS 342.750.
The employer’s
petition for reconsideration was denied by order of July 26,
2001, and by amended order of August 3, 2001.
The employer appealed to the Board.
The employer
argued that the ALJ had relied upon speculative evidence and that
Russell’s death was not the direct result of a work-related
injury, as required for an award of benefits under KRS
342.750(6).
The Board noted the recent decision in Coleman v.
Emily Enterprises,5 in which the Supreme Court construed the
5
Ky., 58 S.W.3d 459 (2001).
-5-
statutory language, “direct result,”6 to be synonymous with
“proximate cause.”
The Board “recognized” that under KRS
342.750(6) death must result within four years of the injury and
concluded that it was “reasonable to interpret the intent of the
Legislature that the closer in time the death is to the injury
the less stringent the standard of proof that is necessary to
establish the causal connection.”
The Board concluded that the
appropriate construction of the words “direct result” contained
in KRS 342.750(6) was “proximate result or proximate causation.”
The Board then examined the evidence to determine if Russell’s
injury to his arm at work was the proximate cause of his death.
The Board concluded that “after reviewing the evidence in its
totality,” the ALJ’s decision was based upon substantial evidence
of probative value, noting that Russell’s underlying diabetes
would not prohibit a finding in his favor.7
On appeal to this Court, the employer raises two
issues: (1) that the evidence failed to establish Russell’s death
was a direct result of the alleged injury; and (2) that the Board
erred in determining that KRS 342.750 created a “less stringent”
proof standard.
In essence, the employer argues that the ALJ’s
award lacks a sufficient evidentiary foundation because the
evidence only established an indirect link between the workinjury and Russell’s death.
In Emily Enterprises, the Court construed KRS 342.0011(1). The
statute defines injury, and provides that “Injury . . . shall not
include a psychological, psychiatric, or stress-related change in
the human organism, unless it is a direct result of a physical
injury.” (Emphasis added.)
7
Citing Hendricks v. Kentucky and Virginia Leaf Tobacco Co., 312
Ky. 849, 229 S.W.2d 953 (1950).
6
-6-
The employer asserts that Emily Enterprises, supra,
does not apply, because it deals with a different section of the
Workers’ Compensation Act.8
There, the Supreme Court held that
“[a]lthough the legislature has used [both] the terms
"proximately causes" and "direct result" in KRS 342.0011(1), we
are persuaded that those terms do not denote different types of
causal relationships because the terms "proximate cause" and
"direct cause" are synonymous.”
Id. at 462.
The employer fails
to convince us that the words “direct result” should be construed
differently, here.
We agree with the Board that “particularly
when viewing the overall intent of providing death related
benefits” a “proximate result” or “proximate causation” analysis
is appropriate.
This approach is consistent with the Supreme
Court’s construction in Emily Enterprises, supra, long-standing
Kentucky case law,9 and the Legislative mandate that “[a]ll
statutes of this state shall be liberally construed with a view
to promote their objects and carry out the intent of the
legislature . . . .”
KRS 446.080(1).
The employer also asserts that the ALJ and the Board
created “inference upon inference in finding this claim
Emily Enterprises deals with the December 12, 1996 version of
KRS 342.0011(1); the case sub judice deals with the December 12,
1996 version of KRS 342.750(6).
9
Ellis v. Litteral, 296 Ky. 287, 176 S.W.2d 883 (1944), speaks
in terms of proximate result where death follows a work-related
injury. The plaintiff’s burden of proof does not require that he
disprove every other suggested cause. Moreover, “where death
follows soon after the injury of an able-bodied man, a
presumption arises that the death was caused by the injury in the
absence of other than conjectural testimony to the contrary.”
Id. at 885-86.
8
-7-
compensable” and that the medical evidence did not support the
ALJ’s findings.
Our review is limited to determining whether the
decision is clearly erroneous, based upon the reliable,
probative, and material evidence contained in the whole record.
KRS 342.285(2)(d); KRS 342.290.
Here, the record includes the deposition of Dr. Hyatt
Sutton, who treated Russell at Jennie Stuart, and completed the
death certificate, which we have noted, above.
Dr. Sutton
explained that sepsis is the body’s response to infection,
characterized by high fevers and hypotension (low blood
pressure), which can result in death, as it did in this case.
Diabetics cannot fight infection, as non-diabetics can.
Russell’s diabetes was not known before he became critically ill.
The employer’s counsel questioned Dr. Sutton about
causation:
Q. In this case, is that what you believe
happened to Mr. Russell? He sustained this
muscular strain at work and had some sort of
bacterium to which he was exposed. His
autoimmune system couldn’t fight that off,
and the infection set up in the place where
this muscle strain had occurred?
A. Yeah, that’s likely what happened.
Dr. Sutton was also questioned in further detail by
Appellee’s counsel:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Now, had a hematoma developed in the left upper
arm?
Yes.
Okay. And can a hematoma become infected?
Yes.
And can an infection, if not aggressively treated,
lead to sepsis?
Yes.
And then sepsis, if not treated early on can lead
to death?
Right.
-8-
Q.
A.
And is that what happened in this case?
Yes.
In his deposition, Dr. Sutton agreed that the death certificate
he had prepared was still “his opinion” and was accurate.
Dr.
Sutton explained that although he had listed a ruptured biceps
tendon on the death certificate, after speaking with the surgeon
“it wasn’t clear that it was actually a ruptured biceps tendon as
much as it was a hematoma.”
Regardless, a hematoma can be
infected and lead to sepsis.
In a June 12, 2000 letter, made an exhibit to his
deposition testimony, Dr. Sutton explained that there was “no
evidence of external abrasion or other wound source which would
have led to this problem.
He did, however, have a black eschar
on his arm that was related from the infection making its way out
to his skin from the area of the biceps injury.”
Dr. Sutton’s opinion provides a substantial evidentiary
foundation for the ALJ’s decision.
reversal.
There is no ground for
We affirm the Workers’ Compensation Board’s November
21, 2001 opinion, affirming.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel J. Bach
John C. Morton
Morton & Bach
Henderson, Kentucky
John J. Chewning
Hopkinsville, Kentucky
-9-
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