Spouse can get workers' compensation when employee dies during operation required before surgery for work-related injury

Law Reporter, Nov 2004

Gray v. Ultramar Diamond, __ P.3d __, No. 98,237, 2004 WL 1506009 (OkIa. July 6, 2004).

The Oklahoma Supreme Court held a surviving spouse is entitled to workers' compensation benefits where an employee died during an operation to replace a pacemaker, which was required before he could have back surgery to repair a work-related injury.

Here, Gray's back was injured while he was working. His doctor decided Gray needed surgery to repair a herniated disk. Before that surgery could be performed, doctors evaluated his pacemaker and determined the pulse generator should be replaced so that Gray could withstand the lengthy back surgery. During the pacemaker operation, Gray died. His wife filed a claim for workers' compensation, and the workers' compensation court denied the claim, holding the death did not arise out of and in the course of employment. A three-judge panel and an appellate court both affirmed.

Reversing, the state high court noted the sole issue here is whether the employee's death was causally connected to the back injury. In previous cases, the court has applied a chain of causation test, holding that the chain of causation is not broken where incontrovertible evidence reflects that, but for the injury, the worker would not have had to have the operation.

The court dismissed defendants' arguments that the back injury did not cause the pacemaker malfunction and that the pacemaker was old and would have malfunctioned anyway. The only determinative issues, the court said, are whether the pacemaker surgery would have occurred "but for" the back injury and whether any evidence shows that the back injury was not causally connected to the death. Defendants presented no evidence to contradict plaintiffs claim that the pacemaker surgery was only necessary because of the back injury. Thus, the court concluded the only possible explanation is that Gray's death was causally connected to the back injury.

Accordingly, the court remanded for determination of benefits.

Plaintiffs Counsel

*G. Todd Ralstin, Oklahoma City, Okla.