NAWCJ

The Vanishing Presumption of Compensability in Death Cases



Frank R. McKay
Chairman and Chief Appellate Judge

Neil C. Thom
Administrative Attorney, Appellate Division

Georgia State Board of Workers’ Compensation

 

An employee dies at work.  What was the cause of death?  Is the death a compensable workers’ compensation claim?  If the “cause” of the death is unexplained, there is a presumption of compensability in Georgia.  But rarely is the law so straightforward.  A coroner’s report may state “the decedent died of a gunshot wound”; that may be obvious.  However, now the questions shift to why and under what circumstances was the employee shot?  Was it for reasons related to work or for some reason strictly personal to the decedent employee?  The higher courts have discussed what was the “precipitating” triggering event in such cases.  Often times what is an initially unexplained cause of death is subsequently explained by an autopsy or other medical evidence.  This routinely happens in fatal heart attack and stroke cases.

In 1932, citing cases from other states (including a general legal presumption against suicide), the Court of Appeals upheld an award of benefits to the widow of a night watchman who had been discovered dead from gunshot wounds, holding that “where a night-watchman is found dead in a place where he might reasonably be expected to be in the performance of his duties, the natural presumption arises that his death arose out of and in the course of his employment.”[1]  Presumably, had the evidence affirmatively shown that the gunshot wounds were self-inflicted or were otherwise the result of a purely personal cause, unrelated to the employment, then a claim for benefits arising from such an “explained” death would be denied.  The rationale of what has come to be called the “unexplained death presumption” is that, while surviving claimants might rather easily prove that their decedent’s death occurred “in the course of his employment,” it is likely to be a much more difficult—often impossible—task to prove that his death “arose out of” his employment, especially considering that the employee is no longer available to explain the cause of death.

In analyzing these cases, our higher courts have distinguished between the precipitating cause of death and the immediate cause.  In Zamora v. Coffee Gen. Hosp.,[2] for example, the body of a hospital’s maintenance engineer was discovered in the office where he normally performed his work duties.  He had been strangled, but the record on appeal contained no evidence that anyone had been charged with his murder.  The court observed that the immediate cause of death was clear: the employee was strangled.  The death was a homicide, but whether this was a homicide that did or did not arise out of the employment remained unknown.  Accordingly, for the purpose of determining the applicability of the unexplained death presumption, the court considered the cause of death unexplained so that the presumption applied.

Meanwhile, a different line of cases developed in connection with heart attack and stroke cases.  In 1962, the Supreme Court of Georgia held that the Board was authorized to make a reasonable inference from nonexpert evidence of facts and circumstances that an employee’s physical exertion in the course of his employment resulted in a fatal heart attack, even where medical experts provided evidence to the contrary.[3]  In response, the very next year the legislature amended the Workers’ Compensation Act to provide that a compensable injury does not include “heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis unless it is shown by a preponderance of competent and credible evidence that it was attributable to the performance of the usual work of employment.”[4]

This legislative response might not have affected the state of the law as much as intended.  Fifteen years later, in 1978, the Supreme Court, noting the difficulty faced by finders of fact in drawing a line between compensable and non-compensable heart injury cases, held that the evidence described in the statute, as amended, might include (1) medical opinion; (2) lay observation and opinion; and (3) the natural inference through human experience.[5]  The legislature stepped in again and amended the Act in 1996 to provide that the evidence described in the 1963 amendment “shall include medical evidence,” more effectively raising the bar for claimants seeking benefits for heart attacks and strokes.[6]  As the Court of Appeals has observed, “It is evident from this language that the legislature intended that the compensable heart injury be the exception rather than the rule.”[7]

There have, of course, been occasions when the courts have been asked to reconcile the “unexplained death” presumption of compensability, with its attendant focus on precipitating versus immediate cause, and the particular evidentiary requirements of heart attack and stroke cases (as they have changed over time), often with mixed results.  It is this intersection of “unexplained death” with “explained death” via a heart attack, heart disease, stroke, or thrombosis that is challenging for both the practitioner and the “fact finder” in applying existing case law and the 1996 statutory amendment and keeping track of what can be a shifting burden of proof between the parties, depending upon the type of evidence introduced at the hearing.

In 1969, for example, the Court of Appeals held that even though an employee was found dead from an apparent heart attack in a place where he might reasonably be expected to be in the performance of his duties, any presumption that the death arose out of the employment was successfully rebutted by evidence that the heart attack could have occurred in the absence of any work-related cause.[8]  But four years later, in 1973, the Court of Appeals held that the widow of an employee, who “had a bad heart and was ripe for a heart attack” could successfully avail herself of the unexplained death presumption where circumstantial evidence only showed that the employee’s job duties were strenuous, even while two doctors testified there was no causal relationship between the employee’s work and his death.[9]  And in 1978, the Court of Appeals held that a claimant could not rely on the unexplained death presumption when the deceased employee’s cerebral vascular accident was due to hypertension.  Hypertension, it reasoned, was the precipitating cause of death, rendering the death “explained” and, therefore, not presumptively compensable.[10]

The court took a stronger stance against the application of the “unexplained death” presumption in heart attack and stroke cases when, in 1988, it stated that if the cause of a death is known to be a heart attack, it cannot be said that the death was unexplained, and the presumption of compensability could not apply regardless of what may have caused the heart attack.[11]  Additional evidence would need to be offered to prove a relationship between the work and the heart attack.  This was not the central issue being decided, however, because in that case, the Board had rejected as speculative the assertion that a heart attack was the cause of death.[12]

Still, and perhaps in light of the more stringent evidentiary requirements imposed by the above-described 1996 statutory amendment, the courts have declined to apply the “unexplained death” presumption where the cause of death is known to be one of those identified in the statute as amended (heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis).  Effectively, the presence of a heart injury or stroke cause removes a case from the “unexplained death” analysis due to the special treatment given to such cases by the 1996 amendment.

In the 2008 case of Keystone Auto. V. Hall,[13] a route salesman was found unconscious in a place where he might reasonably be expected to be in the performance of his duties and died after three weeks of hospitalization.  The medical evidence showed that the employee ultimately died in the hospital of cardiopulmonary arrest, but the evidence was inconclusive as to what caused him to collapse at work three weeks earlier from what ended up being a fatal condition: there was evidence of various possible causes, some of which were heart-related, but the Board ultimately found that no specific cause was proved.  Emphasizing the courts’ longstanding distinction between the immediate cause of death (cardiopulmonary arrest) and the precipitating cause of death (inconclusive), the Court of Appeals held that the “unexplained death” presumption applied and that the employer failed to rebut the presumption.[14]

In death cases, it often is an autopsy that gives the first indication of the cause of death.  It is rare with advances in forensic medicine, science, and technology that a cause of death will remain unexplained by the time a case reaches a hearing.  At the outset of a typical factual scenario, if an employee is found dead of no immediately obvious cause (such as externally inflicted trauma), in the absence of further evidence, the death is unexplained, prompting the application of the presumption of compensability.  Once such an employee’s death is determined to be caused by one of those conditions identified by statute, the death is no longer unexplained, and the presumption no longer applies—it effectively vanishes.  This does not mean that a claim arising from the death is not compensable, however.  The burden then falls on the claimant to show by a preponderance of competent and credible evidence, which must include medical evidence, that the fatal condition was attributable to the performance of the usual work of employment.[15]

This clearly places a heightened burden on claimants.  On the other hand, these claims are not without potential pitfalls for employers.  As shown in the Keystone Auto case, supra, employers and insurers must make sure the evidence establishes a clear cause of death.  If the Board finds the evidence inconclusive as to the cause, the “unexplained death” presumption would still apply.  Thus, for those fatal injuries arising from some internal cause, employers effectively carry an initial burden of proof as to the cause in order to escape the presumption of compensability.  Only then does the burden shift to the claimant to prove a causal relationship sufficient to show that the injury arose out of the employment.

[1] Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706, 165 S.E. 850, 851 (1932).
[2] 162 Ga. App. 82, 290 S.E.2d 192 (1982).
[3] Thomas v. United States Casualty Co., 218 Ga. 493, 128 S.E.2d 749 (1962).
[4] Ga. Laws 1963, p. 141, § 1.
[5] Guye v. Home Indem. Co., 241 Ga. 213, 244 S.E.2d 864 (1978).
[6] Ga. Laws 1996, p. 1291, § 1; O.C.G.A. § 34-9-1(4); see, e.g., Save-A-Lot Food Stores v. Amos, 331 Ga. App. 517, 771 S.E.2d 192 (2015); AFLAC v. Hardy, 250 Ga. App. 570, 552 S.E.2d 505 (2001).
[7] Phillips Corr. Inst. v. Yarbrough, 248 Ga. App. 693, 695, 548 S.E.2d 424, 426 (2001).
[8] Travelers Ins. Co. v. Davis, 120 Ga. App. 625, 171 S.E.2d 909 (1969).
[9] Brown Transp. Corp. v. Jenkins, 129 Ga. App. 457, 199 S.E.2d 910 (1973).
[10] Odom v. Transamerica Ins. Grp., 148 Ga. App. 156, 251 S.E.2d 48 (1978).
[11] Lavista Equip. Supply, Inc. v. Elliott, 186 Ga. App. 585, 367 S.E.2d 811 (1988).
[12] Lavista Equip. Supply v. Elliott, 186 Ga. App. 585, 367 S.E.2d 811 (1988).
[13] 292 Ga. App. 645, 665 S.E.2d 392 (2008).
[14] Id., at 653, 665 S.E.2d at 398.
[15] O.C.G.A. § 34-9-1(4).