Presumption of Compensability in the Instance of Death
It is axiomatic in most settings of litigation that the party making the claim has the burden of proving all elements of his claim in order to establish the compensability of his injuries. So what do you do when the only witness to an event or to circumstances is dead? It should not surprise most readers, with at least some exposure to the various workers' compensation systems that most systems are retiscent to penalize the injured worker who cannot after all testify on his own behalf.
That principal was well established in Georgia by the time that the Court was called upon to decide the 1982 case of Zamora v. Coffee Regional Hospital (162 Ga App 82, 290 SE 2d 192 (1982). The presumption as originally phrased held that "when an employee is found dead in a place where he might reasonably be expected to be in the performance of his duties, it is presumed that the death arose out of his employment." The presumption once applied can only be overcome by showing what ACTUALLY happened, not what MIGHT have happened. In many respects, the lack of witnesses after the application of the presumption means that the employer is left without any meaningful defense. The Zamora Court noted that "in light of modern forensic medicine...it is rarely the case that the decedents immediate cause of death is unexplained." If the medical causation was the only question that needed to be answered then there would be no viable presumption left but unexplained circumstances could still prevent an otherwise deserving and surviving dependent from making the case that the death of the employee was related to the job dutiesduties Zamora court, therefore, adopted an additional gloss on the unexplained death presumption holding that "the presumption is viable only where, under the evidence, the precipitating rather than the immediate causative factor in the death is unexplained." If the discussion thus far leaves one confused, rest assured that the confusion places one in good company. The answer though lies in precisely WHAT is unexplained. For example, when you find a ball that has rolled into a ditch, the proximate cause of the ball rolling into the ditch is found in the simple fact that the ball is round. If you want to discover WHY the ball rolled into the ditch, to discover the precipitating cause, you look for the incident that put the ball into motion in the first place.
Evidence derived from a death certificate, an autopsy or even from the employee's medical history can generally explain the medical facts - the cause of death. What the Zamora court wanted to know is what triggered the medical cause that led to the employee's death. For instance, "where the precipitating causative factor of a stroke is known and explained as hypertension, the claimant is not entitled to 'rely upon the presumption that the stroke arose out of the deceased's employment but must submit probative evidence on the issue of the causal connection between the stroke and the employment."
But what happens when the employee is not "found dead" but instead dies later at the hospital? That is the question that the Georgia Court of Appeals answered in its September 6, 2012 decision in the case of Wilkinson County Board of Education et al v. Johnson. While this question had actually been addressed as far back as the 1983, the Courts have struggled with the correct application of the original presumption as well as the extensions of that standard to a death that occurred later at the hospital.
Mr. Johnson was the Principal and Athletic Director of Wilkinson County High School. On December 16, 2008, Mr. Johnson travelled to the VA Hospital in Dublin to pick up some donated computers. Upon arriving, Mr. Johnson walked between 300 - 400 yards to the warehouse where the computers were stored. Having determined that there were more computers than he could transport at the time, he walked back to his vehicle and left. Before returning to the High School, Mr. Johnson and the volunteer who had accompanied him to the VA Hospital, went for lunch and ate while they drove. About 10 minutes after finishing lunch, the volunteer noticed that Johnson was driving erratically, fidgeting and sweating profusely. Johnson loosened his tie and unbuttoned his shirt as if to get air. Wisely, Johnson allowed the volunteer to take over the driving responsibility and the two made it safely back to the school. Johnson went to the restroom and then to his office. His secretary observed that Johnson was sweating profusely, helped him remove his shirt and called the school nurse. The nurse found Johnson's blood pressure to be elevated and confirmed that Johnson has not been taking his blood pressure medication. At the hospital, Johnson's blood pressure was found to be 196/60, a significantly elevated reading. A CT scan was obtained and showed revealed that Johnson had experienced an acute aortic dissection and he underwent emergency surgery to repair the artery. Complications from that surgery led to kidney damage and, unfortunately to Johnson's death 5 days later on December 21, 2008. The autopsy placed the cause of death as complications of the aortic dissection, specifically an ischemic bowel. From these facts, the medical causation, the immediate or proximate cause of Mr. Johnson's death was clearly known.
The State Board of Workers' Compensation found that since Mr. Johnson died at the hospital and was not "found dead", the circumstances of his death were not unexplained and that, therefore, the presumption of compensabiltity was not applicable and denied the claim. The Appellate Division of the State Board of Workers' Compensation agreed and Mrs. Johnson appealed to the Superior Court. The Superior Court found the State Board had erred in ruling that because Mr. Johnson was not found dead the presumption was inapplicable. The Superior Court found that the incident that resulted in Johnson's death did, in fact, occur at a time and place when he was performing his job duties and that as a result Mrs. Johnson was entitled to the presumption. Mr. Johnson's blood pressure issues obviously were preexisting and so the Superior Court remanded the case to the State Board for application of the presumption in Mrs. Johnson's favor and whether the preexisting condition had been aggravated by his job duties. It would seem that with the application the presumption, there would be little reason to determine the question of aggravation as this factual determination would not be sufficient to overcome the presumption but the ruling of the Superior Court itself contained compound errors as well as a misapprehension of the correct standard. First and foremost, the Superior Court violated the any evidence standard when it substituted its finding of fact that the incident which led to the death occurred in the course of Mr. Johnson's job duties. Second, the Superior Court was wrong when it made a specific finding that the precipitating cause of death was unexplained. This was the role of the trier of fact, which the Superior Court as an appellate court was not. The role of the Superior Court was solely to determine if 1)
The next stop on the litigation tour brought the parties to the Georgia Court of Appeals. Wilkinson County contended that the Superior Court improperly found the presumption compensable and in remanding the case to the State Board. The. Court of Appeals agreed with that contention but surprised both sides by finding that the State Board had improperly denied a presumption in the first place by limiting its inquiry to the fact that Mr. Johnson had not been "found dead." In playground terminology, the Court was imposing a "do-over" and sent the case back to the State Board to apply the proper test as to whether a presumption is applicable to Mr. Johnson's death. In short, the Court has asked the State Board, as the trier of fact, to make a determination as to whether the PRECIPITATING cause is unexplained and, if so, to apply the presumption. Specifically, the immediate or proximate cause of Mr. Johnson's death was the complications from the surgery to repair the acute aortic dissection. The Court is asking the parties to produce evidence, including medical evidence as to what led to the acute aortic dissection. If the condition is explained by the apparantly uncontrolled diabetes, the precipitating cause is not unexplained and no presumption applies. If the presumption is not applicable, if the precipitating cause of the stroke is explained, Mrs. Johnson might be able to prevail if she can show for example that the job duties aggravated Mr. Johnson's pre-existing high blood pressure. For now, there is no final answer.
The Court of Appeals confronted two different Courts that each applied the wrong standard and not surprisingly came to different conclusions. What is not clear is whether Mrs. Johnson relied exclusively on the presumption and thus presented no evidence, no medical evidence, to support a factual finding in her favor without the presumption. Stay tuned...
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