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Family of opioid user who died cannot sue

Posted On: Sep. 16, 2021 2:08 PM CST


A federal court in Kansas on Tuesday ruled the parents of a worker who died of conditions related to his opioid use in connection with a workplace injury, chronic pain and subsequent depression can’t sue a workers compensation insurer or the third-party administrator over allegations that they were negligent in delaying approval for medical care.

The man in 2017 suffered multiple disc herniations in his neck, which led to radiating pain in his limbs in his work for pet food company Big Heart Pet Brands Inc., which provided nonsurgical “conservative treatment” for his injury under its workers comp insurance plan, according to documents in Civil Action No. 21-2047-KHV, filed in the United States District Court, District of Kansas, in Kansas City.

As part of treatment, one doctor issued an impairment rating, opining that further treatment was needed. Because of pain, the man suffered “mental problems,” of which both the employer and its comp insurer Indemnity Insurance Co. of North America were made aware of, documents state.

Following months of care, including a prescription for the opioid Oxycodone, work limitations that included light duty, and the eventual authorization for surgery, the man, who “had difficulty working due to severe pain” was found “unresponsive” in late December 2018, less than one month before his scheduled surgery. He was transported to a hospital where he died two days later. His death certificate listed “probable acute opiate intoxication as the cause of death and referenced positive test results for opiates, amphetamines and alcohol,” documents state.

His parents sued the employer, insurer and TPA Gallagher Bassett Services Inc. in 2020, alleging that after their son suffered a workplace injury, “defendants delayed or denied authorization for medical treatment, causing pain and suffering and eventually his death” and “assert claims of negligence, negligence per se and bad faith refusal to timely authorize medical treatment.”

A federal district judge granted the defendants motions to dismiss, writing in part that Kansas law doesn’t “recognize the tort of bad faith” and that “(e)ven if Kansas law permitted an injured employee to sue a worker’s compensation insurance carrier based on the implied covenant of good faith and fair dealing, plaintiffs have not stated a claim on which relief can be granted.”

The judge wrote that for the parents to “prevail on a claim for breach of the covenant of good faith and fair dealing, plaintiffs” they must “plead a cause of action for breach of contract, not a separate cause of action for breach of duty of good faith, and… point to a term of the contract which the defendant allegedly violated by failing to abide by the good faith spirit of that term,” of which the judge argued the plaintiffs failed to do.