### IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE November 2, 2016 Session , Heard at Jackson

JUDY KILBURN v. GRANITE STATE INSURANCE COMPANY, ET AL.

Appeal from the Chancery Court for Williamson County

No. 37184 Michael Binkley, Judge

___________________________________

No. M2015

- 01782

- SC

- R3

- WC

– Filed April 10, 2017

___________________________________

In this workers‟ compensation case, Ch arles Kilburn sustained several injuries from a

m otor vehicle accident. He underwent cervical spine surgery to resolve his neck injury complaints. His authorized physician also recommended lumbar spine surgery to combat his back pain, but that request was denied through the utili zation review process. Mr.

Kilburn took oxycodone to alleviate his back pain, and his treating physician referred him

to a pain management clinic . Six months after the cervical spine surgery, Mr. Kilburn died due to an overdose of oxycodone c ombined with alcohol. After a bench trial, t he chancery court found that the death was compen sable. Mr. Kilburn‟s employer appealed. The appeal was initially referred to a Special Workers‟ Compensation Appeals Panel, but

we later tr ansferred the case to the Supreme Court for review. After examining the record, the parties‟ arguments, and the ap plicable law, w e reverse the judgment of the chancery court.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the C hancery Court

Reversed.

R OGER A. P AGE

, J., delivered the opinion of the court, in which J EFFREY S. B IVINS

, C.J.,

and C ORNELIA A. C LARK

, S HARON G. L EE

, and H OLLY K IRBY

, JJ., joined.

Thomas J. Dement, II, and Jordan T. Puryear, Nashville, Tennessee, fo r the appellants, Ryan T. Brown and Granite State Insurance Company

.

Brian Dunigan, Goodlettsville, Tennessee, for the ap pellee, Judy Dianne Kilburn

.

OPINION

I. Facts and Procedural History- 2

-

On November 6, 2008, Charles Kilburn , a trim carpenter, was severely injured in a

motor vehicle accident during the course of his employment. His employer was Ryan Brown (“Employer”). Kilburn v. Granite State Ins. Co. , No. M2011

- 00011

- WC

- R3

- WC, 2011 WL 10621663, at *1 (Tenn. Workers Comp. Panel Nov. 30, 2011). 1 As a result of the accident, Mr. Kilburn incurred fractures to the C3 and C4 vertebrae in his neck and

disc herniations at the L4

- 5 and L5

- S1 areas of his lower back. Dr. Jacob Schwarz, a neurosurgeon, performed a n anterior cervical discectomy and surgical fusion of the C3

and C4 ve rtebrae on July 29, 2009, which improved Mr. Kilburn ‟s neck pain. After physical therapy and an epidural st eroid injection, Mr. Kilburn still complained of severe back pain when bending forward or backward, pain that was more severe on his left side

than on the right, and lower extremity pain. Mr. Kilburn also felt heaviness in his legs after walking for a short period of time such that he would have to sit down, which Dr. Schwarz opined was a symptom of neurogenic claudication. As a result, Dr. Schwarz recommended surgery to the L4

- 5 and L5

- S1 areas of Mr. Kilburn ‟s lower back.
However, Mr. Kilburn ‟s insurance company denied coverage for the surgery due to a peer review by three physicians disagreeing with Dr. Schw arz‟s findings. The insurance

company also denied Dr. Schwarz‟s recommendation for e pidural steroid injections. Dr.

Schwarz then referred Mr. Kilburn to a pain management clinic and wrote a letter to Mr.

Kilburn ‟s insurance adjustor asserting that Mr. Kilburn ‟s pain was debilitating enough to

prev ent him from returning to work.

On January 4 , 2010, Mr. Kilburn was evaluated by Dr. William Leone, a pain management specialist. Dr. Leone‟s notes reflect that he was concerned with Mr.

Kilburn ‟s consumption of alcohol while taking his medication. Mr. Kilburn also

admitted that because he felt the medication was no longer effective, he was taking two opioid tablets at once even though he had only been prescribed one tablet at a time . The

urina ry drug screen conducted that day showed the presence of both alcohol and the opioid med ication. As a result, Dr. Leone recommended weaning Mr. Kilburn off the opioid medication and trying other options. Dr. Leone prescribed 350 mg o f Soma twice daily an d 15 mg of o xycodone four times daily. As part of his treatment, Mr. Kilburn

initialed and signed an agreement stating, “I will control my usage of narcotic

medication s as directed by the attending physician. There are no exceptions . If

m edication is in adequate for [my] pain level, [I] must call before adjusting dosage.”

O n January 11, 2010, Dr. Tarek Elalayli performed an independent medical

evaluat ion of Mr. Kilburn

. Dr. Elalayli gave Mr. Kilburn a four percent whole body

1 This is the second appeal in this case. The first appeal concerned the trial court‟s denial of Ms. Kilburn‟s motion to amend the complaint to assert that Mr. Kilburn‟s death was compensable because it was related to his work injury. Kilburn , 2011 WL 106 21663, at *1. The Special Workers‟ Compensation Appeals Panel to which the prior appeal was referred reversed the denial of the motion to amend and

remanded the case to the lower court for further consideration. Id.- 3

-

impairment rating for the remaining cervical spine issues and a two percent whole body impairment rating for the lower back pain. Dr. Elalayli also voiced concerns that Mr.

Kilburn was magnifying his symptoms because Dr. Elalayli felt that Mr. Kilburn ‟s subjective symptom s outweighed the objective results of his physical examinat io n and

the MRI. Dr. Ela layli recommended reducing the o xycodone dose and suggested that Mr.

Kilburn return to work. 2

During the trial, Phillip Manning, Mr. Kilburn ‟s brother

- in

- law, and Judy K ilburn,

Mr. Kilburn ‟s wife, explained that prior to the 2008 motor vehicle accident, Mr. Kilburn

was friendly and outgoing and was very active. However, after the injury and neck

surgery, Mr. Kilburn ‟s lower back pain seemed to Mr. Manning to be “[p]retty bad ” and uncomfortable, and Mr. Kilburn was “upset” about not being able t o have the lower back

surgery. Mr. Manning opined that Mr. Kilburn “had anxiety about not having medica tion and not having the surgery ” but that Mr. Kilburn never appeared hopeless , just ready to be back to full capacity. Mr. Manning stated that Mr. Kilburn started skipping doses of his medication because he was scared that he was goin g to run out of the medication and

would be unable to obtain more.

Mr. Manning and M s. Kilburn both explained that after the injury, Mr. Kilburn

still cared for the children , got them up and ready for school in the mornings, and helped

them with their homework while M s. Kilburn was working in the evenings

. Mr. Kilburn

also c ooked meals, performed vari ous household duties, and ensured that the children performed their “chores,” which Ms. Kilburn explained were often the tasks that Mr.

Kilburn could not accomplish. In addition, Mr. Kilburn often drove to his parents‟ house

and helped care for his m other w ho was ailing from cancer. Mr. Manning estimated that in the six months prior to Mr. Kilburn ‟s death, he saw Mr. Kilburn ten to fifteen times at family gatherings, when they ate at restaurants together, and “around town.”

However, M s. Kilburn stated that after the accident, Mr. Kilburn “felt worthless because he couldn‟t get out and earn a living and take c are of his family.” M s. Kilburn

asserted that Mr. Kilburn was “still in a lot of pain

, ” “seemed somewhat depressed, ” and could only achieve intermittent sleep at night. M s. Kilburn elaborated that she believed

Mr. Kilburn supplemented his medication with alcohol because it helped with his pain

when he was skipping doses of his medication in an attempt to make the medic ine last longer

. However, Ms. Kilburn conceded that to her knowledge, Mr. Kilburn had never been without medication. Ms. Kilburn stated that before the accident, Mr. Kilburn would

2 We note, and the parties indicate, that Dr. Elalayli‟s records show that Mr. Kilburn was receiving a 50 mg dose of oxycodone four times a day when, in fact, he was prescribed 15 mg of oxycodone four times a day. It is unclear if this was merely a clerical error or if this was the reasoning behind Dr. Elalayli‟s recommendation to reduce the amount of oxycodone prescribed to Mr. Kilburn.- 4

-

sometimes drink during the week but drank more on the weekends when he was not working. Ms. Kilburn explained that after the accident, Mr. Kilburn did not drink as
much but that “ he would drink a beer here or there, a couple, maybe. He drank maybe a six pac k sometimes on weekends.” She also asserted that she had directed Mr. Kilburn

not to drink alcohol while on his medication. While Ms. Kilburn agreed that Mr. Kilburn had never been treated for anxiety or depress ion, she opined that he suffered from those

ailments.

Ms. Kilburn found Mr. Kilburn unresponsiv e in bed on the morning of January 28,

2010

. The medical examiner‟s report specifically stated that the cause of death was acute oxycodone toxicity with contributory causes of hypertension, tobacco use, and alcoho l

use. His death was deemed an accident. Mr. Kilburn was forty years old at the time of

his death.

At trial, Dr. Alistair Finlayson and Dr. Jeffrey Hazlewood testified by deposition

about their review of Mr. Kilburn ‟s medical records. Dr. Finlayson was a psychiatrist with a subspecialty in addictions and a clinical associate professor in psychiatry at Vanderbilt University Medical Center. He was also the medical director of the Comprehensive Assessment Program at Vanderbilt, which evaluates professionals to

determi ne if they are “fit for duty.” He perfo rmed a rec ords review at the request of M s. Kilburn. Dr. Finlayson stated that it was “ more likely than not ” that Mr. Kilburn was suffering from severe pain or anxiety at the time of his death and that it was “certainly possible” that those conditions dim inished Mr. Kilburn ‟s faculties and contribu ted to his

risk of overdose. H e further asserted that “it‟s probably t he most likely explanation.” Dr. Finlayson explained that when a person takes medications like oxycodone, they can develop a psychological dependency on the medication and that if a person develops this dependency and does not have enough medication, it can result in increased pain. Dr. Finlayson differentiated between a dependency on opiates and an addiction. He opined

that Mr. Kilburn was not suffering from true addiction but rather a depe ndency on the

medication. He also opined that in a situation like Mr. Kilburn ‟s w h ere there was potential for a n interruption in his treatment, it was “very possible” that the situation

wo uld cause a per son anxiety.

Dr. Finlayson stated that when a person is used to taking an opioid but then takes less or stops taking the medication, “the pain is intensified and anxiety is inten si fied as a .
. . withdrawal.” Dr. Finlayson stated that drugs like OxyCont in, Soma, and Valium 3 all

3 While we note that Dr. Finlayson discusses Mr. Kilburn‟s consumption of Valium several times during his testimony, in our review of the record, we find onl y limited information about Mr. Kilburn‟s taking Valium (also known as diazepam). The Fred‟s Pharmacy records show that on November 7, 2008, the day after Mr. Kilburn‟s motor vehicle accident, Dr. Schwarz prescribed Mr. Kilburn ninety tablets of

Valium to be taken in thirty days. Also, in his medical records review report, Dr. Hazlewood states that- 5

-

contribute to feelings of depression and hopelessness, which could potentially influence a person‟s judgment. He further opined that he did not believe that Mr. Kilburn was addicted to his medication but rather that “it [ was ] pos sible that . . . he was so discouraged, depressed, anxious about what was going to happen and experiencing some

wi thdrawal symptoms that he . . . took maybe more medication than he intended to,

combined with more a lcohol than he intended to.” However, Dr. Finlayson agreed that there was nothing in the record indicating that a treating physician had diagnosed Mr.

Kilburn with anxiety

. When asked what proof or evidence there was that Mr. Kilburn suffered from anxiety, Dr. Finlayson responded, “I t is a guess, an educated guess from dealing with similar patients, dealing with people who receive similar prognoses and people who are withdrawing from alcohol, Valium, Soma and OxyContin. It‟s conjecture [,] but . . . it wouldn‟t be uncommon.”

Dr. H azle wood was a board

- certified physician in physical medicine, rehabilitation, and pain management and had been practicing in pain management for nineteen years . He conducted a records review at the request of Employer. Dr. Hazlewood agreed with Dr. Leon e‟s recommendation to slowly decrease Mr. Kilburn ‟s

intake of narcotics

, rather than increasing the dosage

, because of Mr. Kilburn ‟s building

tolerance to the medication and because of Mr. Kilburn ‟s use of alcohol. He opined that taking 60 m g of oxycodone daily along with co nsuming alcohol was inadvisable. When discussing the effect of Mr. Kilburn ‟s pain and anxiety on his judgment, Dr. Hazlewood stated that while acute pain such as breaking several bones at one time can cloud a person‟s judgment, he did not think that c hronic pain such as Mr. Kilburn ‟s coul d cloud a person‟s judgment. Dr. Hazlewood agreed that anxiety, depression, and suicidal ideations could cloud a person‟s judgment but stated that he was not qualified to state whether pain can cause an anxiety disorder. Dr. Haz l e wood stated that there were warning signals that Mr. K ilburn may have been developing an addiction to opiates and that some “true addict[s]” can “lose perception” or control over the amount of medication they consume. However, he explained that an addictionologist or psychiatrist would be

better able to make that determination. H e further opined that there was nothing in the

record to show that Mr. Kilburn suffered from anxiety or withdrawal symptoms that could cloud his judgment, especially giv en that Mr. Kilburn would refrain from takin g his medication per iodically. Dr. Hazlewood asserted that there was no objective evidence of anxiety, an inability to make sound decisions, severe or debilitating pain, or altered judgment.

during an emergency room visit on July 29, 2009, Mr. Kilburn reported taking Valium. However, Dr. Hazlewood also stated in his report that he did not “see any indication that [Valium] was being used at the time of death” on January 28, 2010.- 6

-

Both doctors agreed that while tobacco use and hypertension were tangentially

re lated to Mr. Kilburn ‟s health and ability to withstand th e acute oxycodone toxicity, Mr.

Kilburn ‟s use of alcohol was the primary contributing factor.

After hearin g the evidence, the trial court issued its decision as a written

memorand um. The trial court accredited the opinion of Dr. Finlayson over that of Dr.

Hazlewood. The court found that Ms. Kilburn had sustained her burden of proof to show

that Mr. Kilburn ‟s death was a direct and natural consequenc e of his work injury. It

awarded wo rkers‟ compensation death ben efits to Ms. Kilburn. Employer has timely appealed, asserting that the evidence preponderates against the trial court‟s finding of compensability and that Mr. Kilburn ‟s conduct constituted an independent intervening

cause of h is death.

II. Standard of Review

The standard of review of issues of fact in a workers‟ compensation case is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of evidence i s otherwise. Tenn. C ode Ann. § 50

- 6

- 225(a)(2) (2014)

. When the trial judge has had the opportunity to observe a witness‟s

demeanor and to hear in

- court testimony, w e give considerable deference to factual determinations made by the trial court

. Madden v . Holland Gr p

. of Tenn. , Inc. , 277 S.W.3d 896, 898 (Tenn. 2009) (citing Tryon v. Saturn Corp. , 254 S.W.3d 321, 327 (Tenn. 2008) ) . When the issues involve expert medical testimony given by deposition,

the w eight and credibility must be drawn from the contents of the depositions; therefore, as a reviewing court, we may draw our own conclusions with regard to those issues. Foreman v. Automatic Sys., Inc. , 272 S.W.3d 560, 571 (Tenn. 2008) (citing Orrick v. Bestway Trucking, Inc.

, 184 S.W.3d 211, 216 (Tenn. 2006)) . A trial court‟s conclusions

of law are revi ewed de novo with no presumption of correctness. Seiber v. Reeves Logging , 284 S.W.3d 294, 298 (Tenn. 2009) (citing Goodman v. HBD Indus., Inc.

, 208 S.W.3d 373, 376 (Tenn. 2006); Layman v. Vanguar d Contractors, Inc.

, 183 S.W.3d 310, 314 (Tenn. 2006)).

III. Analysis

“It is well settled in Tennessee that a plaintiff in a worker‟s compensation suit has the burden of proving every element of the case by a preponderance of the evidence.”

Elmore v. T

ravelers Ins. Co. , 824 S.W.2d 541, 543 (Tenn. 1992) (citing Talley v. Va. Ins. Reciprocal, 775 S.W.2d 587, 591 (Tenn. 1989)). “In order to meet this burden, „[t]his Court has consistently held that causation and permanency of a work

- related injury must be shown in most cases by expert medical evidence.‟” Id. at 543

- 44 (quoting Tindall v. Waring Park Ass’n, 725 S.W.2d 93 5, 937 (Tenn. 1987)).- 7

-

“The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is comp ensable if it is the direct and natural result of a compensable primary injury.” Rogers v. Shaw , 813 S.W.2d 397, 399

- 400 (Tenn. 1991) (citation omitted)

. Therefore, “„all the medical consequences and sequelae that flow from the primary injury are compensable.‟” Anderson v. Westfield Grp. , 259 S.W.3d 690 , 696 (Tenn. 2008) (quoting 1 Larson’s Workers’ Com pensation Law § 10.01 (2004)). However, that rule has a limit that “ hinges on whether the subsequent injury is the result of independent interveni ng causes, such as the employee‟ s own conduct.” Id. at 696. Stated another way , “„the progressive worsening or complication of a work

- connected injury remains compensable so long as the worsening is not shown to have been produced by an intervening nonindustrial cause .‟” Id. at 697 (quoting 1 Larson’s Workers’ Compensation Law § 10.01 (2004)). The Anderson co urt provided several examples of cases in which the injured employee‟s conduct constituted an independent intervening cause that rendered the subsequent injury to be non

- compensable: Simpson v.

H.D. Lee Co. , 793 S.W.2d 929, 931

- 32 (Tenn. 1990) ( concluding that medication taken contrary to instructions constituted an intervening cause); Guill v. Aetna Life & Cas. Co.

, 660 S.W.2d 42, 43

- 44 (Tenn. 1983) ( determining that injecting medication contrary to medical instructions was an intervening cause) ; and Jones v. Huey

, 357 S.W.2d 47, 49

- 50 ( Tenn. 1962) ( deciding that the negligent operation of a tractor after a work

- related back injury was not compensable). The Anderson Court adopted the reasoning of Jones v. Huey and stated:

[W]e reject the empl oyee‟s argument that only reckless or intentional misconduct can constitute an intervening cause. Instead, we find, as we did

in Jones, that negligence is the appropriate standard for determining whether an independent intervening cause relieves an employ er of liability for a subsequent injury purportedly flowing from a prior work

- related injury.

Anderson , 259 S.W.3 d at 6 98

- 99

. Application of the intervening cause principle is not an affirmative defense but, rather, is a “way of assessing the scope of a n employer‟s liability for injuries occurring after a compensable injury. ” Id. at 697; see Shelton v. Cent. Mut.

Ins. Co. , No. E2008

- 00553

- WC

- R3

- WC, 2009 WL 1110476, at * 3 (Tenn. Workers Comp. Panel Apr. 24, 2009).

Applying these principles, we now address the present case. Based on the testimony at trial, it appears uncontroverted that Mr. Kilburn died from acute oxycodone toxicity with contributory causes of hypertension, tobacco use, and alcohol use and that at

t imes, Mr. Kilburn took more of his opio i d medication than prescribed and consumed alcohol while taking the pain medication. It also appears that no one contests that Mr.- 8

-

Kilburn took his medication in contravention of his prescription and his physician‟s

instructions. Therefore, the question at issu e is whether this behavior terminated the

causal link between Mr. Kilburn ‟s work

- related injury and his death.

In Simpson , this C ourt concluded that when Mr. Simpson failed to take his pain

medication in a ccordance with the physician‟s instructions

, which caused his demise, his death was no longer causally related to his employment. Simpson , 7 93 S.W.2d at 931

- 32

. Similarly, in the current case, Mr. Kilburn failed to take his opio i d pain medication in accordance with the instructions given to him by his treating physician.

Ms. Kilburn argues that Mr. Kilburn ‟s death was still a direct and natural result of

his work

- related injury, in spite of his overconsumption of his pain medication and his drinking alcohol while taking his medication

, because Mr. Kilburn had suffered from severe pain and anxiety that diminished his faculties to the extent that he was at risk to inadvertently overdose on his pain medication. In support of this contention, Ms. Kilbur n cites Shelton v. Central Mutual Insurance Co. , E2008

- 00553

- WC

- R3

- WC, 2009 WL 1110476 (Tenn. Workers Comp. Panel Apr. 24, 2009), and Wheeler v. Glen Falls

Insurance , 513 S.W.2d 179 (Tenn. 1974)

.

I n Shelton , a workers‟ compensation panel reversed a tria l court‟s grant of summary judgment to the employer where the injured employee‟s death was caused by

an accidental overdose of pres cription medication because the deceased ‟s widow produced sufficient evidence to establish, “barely,” the existence of a genu ine issue of

material fact. Shelton , 2009 WL 1110476, at *6. As in the first appeal in this case,

Shelton was decided according to the standard of review applicable to summary judgm ents. While at first blush these facts seem applicable to the case at hand, the

current case comes to us after a full trial on the merit s. Therefore, the difference in appellate review between Shelton , where the court had to determine if there was a genuine issue as to any material fact, and this case, where the Court must analyze if Ms. Kilburn proved that Mr. Kilburn ‟s death was a direct and natural result of his work

related injury by a preponderance of the evidence, makes Shelton inap plicable to the case

at bar.

Ms. Kilburn also cites Wheeler v. Glen F alls Insurance , 5 13 S.W.2d 179 (Tenn. 1974)

, in support of her position. In that case, an employee suffered a compensable injury to his back as a result of a fall. Id. at 180. Employee was an alcoholic, and after his injury, he increased his alco hol consumption , which u ltimately caused his death. Id

. The trial court awarded benefits. Id. Applying the material evidence standard of review in effect at that time, the Supreme Court affirmed, holding that there was material evidence to support the trial court‟s finding th at pain from the work injury had aggravated the pre

- existing alcoholism. Id. at 184. It is noteworthy that the standard applicable to- 9

-

subsequent injuries at that time was that a claim was only considered an independent intervening cause if the subsequent injury was the result of willful or deliberate conduct.

Id. at 183. Anderson specifically modified that standard to include an employee‟s negligence as a bar to recovery. Anderson , 259 S.W.3d at 698

- 99. Finally, we note that

the Court in Wheeler relied heavily on the exacerbation of a prior illness, alcoholism, going so far as to compare the employee‟s increase in alcohol consumption to the

acceleration of cancer. Wheeler , 513 S.W.2d at 184 (citing Boyd v. Young , 246 S.W.2d 10 (Tenn. 1951) (conc luding that the death of an employee was compensable when the primary injury accelerated the growth of the pre

- existing disease)). Mr. Kilburn in the present case did n ot suffer from a prior illness that was then exacerbated by his work

related injury; ra ther, after the accident, it appears that his drinking continued in a similar manner as prior to the acci dent, but he was then consuming his pain medication in addition to the alcohol. For the reasons listed above, we conclude that Wheeler is not

co ntroll ing in the case at hand.

Finally, in support of her assertion that Mr. Kilburn ‟s death was a direct and

natural result of his work

- related injury , Ms. Kilburn presented the deposition testimony of Dr. Finlayson. Because both Dr. Finlayson and Dr. Haz lewood testified by deposition

, we may draw our own conclus ions regarding the weight and credibility of their testimony

. See Foreman , 272 S.W.3d at 571 (citing Orrick

, 184 S.W.3d at 216 ). As set out above, D r. Finlayson testified about the likelihood tha t Mr. Kilburn suffered anxiety due to his use, and the possible interruption of his use, of opio i d medication that clouded his judgment. While we respect that Dr. Finlayson is a psychiatrist with a subspecialty in addictions, we also note that neither Dr. Finlayson nor Dr. Hazlewood had the

opp ortunity to examine Mr. Kilburn . When forming their expert opinions, b o th doctors

relied on Mr. Kilburn ‟s medical records. Likewise, both doctors had to rely on the testimony of Mr. Manning and Ms. Kilburn, each of whom presented internally contradictory testimony concerning Mr. Kilburn ‟s mental state. While Dr. Finlayson‟s specialty was more instructive o n the issue of Mr. Kilburn ‟s mental state at the time of his overdose, Dr. Finlayson‟s testimony was very equivocal. During his deposition Dr. Finlayson used phrases like: “it was possible,” “it is a guess, an educated guess,” “[i]t‟s conjecture[,] but . . . it wouldn‟t be uncommon.” Dr. Finlayson also agreed that there was nothing in the record showing where a treating physician had diagnosed or even

noted that Mr. Kilburn was suffering from anxiety.

Dr. Haz l e wood similarly noted that there was nothi ng in the medical records that

showed that Mr. Kilburn suffered from anxiety or withdrawal symptoms that clouded Mr.

Kilburn ‟s judgment. In fact, Dr. Haz l e wood asserted that there was no objective evidence of anxiety, an inability to make sound decisions, severe or debilitating pain, or

a ltered judgment. While Dr. Haz l e wood opined that Mr. Kilburn exhibited some warning signs of an addiction to opiates and explained that some “true addict[s]” can “lose- 10

-

perception” or control over the amount of medication they consume, he explained that an addictionologist or psychiatrist would be better able to make that determination. To that end, Dr. Finlayson, a psychiatrist, clarified that he did not believe that Mr. Kilburn was an addict.

Based on the above analy sis, we conclude that the evidence preponderate s against the trial court‟s findings. 4 W e conclude that, like the employee in Simpson

, Mr. Kilburn failed to take his pain medication in accordance with his physician‟s instructions, which ultimately caused his demise. See Simpson , 793 S.W.2d at 931

- 32. Therefore, his death

wa s no longer causally related to his work

- re lated injury, and his overdose w a s an inde pendent intervening cause

.

CONCLUSION

In summary, we conclude that Mr. Kilburn ‟s failure to consume his medication in
accordance with his doctor‟s instructions was an inde pendent intervening cause . As such, we reverse the judgment of the trial court. The costs of this appeal are taxed to the plaintiff, Judy Kilburn.

_________________________________ ROGER A. PAGE, JUSTICE

4 We emphasize the narrowness of the holding in this case. The analysis and holding are very fact specific to the case at bar. We do not conclude that an individual ca n never prove that an overdose is the direct and natural result of the original compensable injury when a dependency or addiction to narcotics develops. We merely conclude that based on the facts and testimony in this case, the evidence preponderates agai nst the trial court‟s finding that Mr. Kilburn‟s death was a direct and natural consequence of his original injury.