Toshi v. WCAB

Filed 4/3/07 Toshi v. WCAB CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

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Nazmi Toshi, an Albanian immigrant, hung himself from a tree one-half mile south of the Freeport Bridge in Sacramento. Workers compensation benefits for his four children and their mother depend on whether at the time of the hanging he was acting under an irresistible impulse caused by his industrial back injury.^[1] One expert opined he was, but the other expert concluded that his recent incarcerations for domestic violence, the deteriorating relationship with his wife, his brothers illness, his problems with a daughter he had fathered in Germany, his alcoholism, and his inability to be with his children, rather than an irresistible impulse caused by the industrial accident, resulted in the suicide. Because there is substantial evidence to support the finding by the Workers Compensation Appeals Board (Board) that the decedents suicide was not the result of an irresistible impulse caused by an industrial injury, we affirm.

FACTS

By the time 28-year-old Toshi met 14-year-old Samira Pervan in Bosnia, he had had a child with a woman in Germany. When the relationship failed, he left her and his daughter and returned to Bosnia. According to his brother, Toshi had fallen off a donkey and injured his back many years before. The same brother reported Toshi abused alcohol. Toshi and Pervan moved to Kosovo, Macedonia, and eventually to the United States. According to Pervan, Toshi regularly beat her before moving to the United States in 1998.

Western Contract Furnishers hired Toshi in July 2000 to move furniture. He sustained an industrial injury to his back on October 29, 2000. There is conflicting evidence about his demeanor and behavior both before and after the accident. Pervan and family friends painted a picture of a man who had been a loving husband and father before the injury, but who became abusive, jealous, delusional, and depressed after his back pain became chronic. But as defendants qualified medical examiner, Dr. Ethan Harris, points out, there were many inconsistencies in Pervans reports of Toshis behavior.

In August 2002 Pervan went to work. Toshi became possessive and jealous. He accused her of dressing provocatively and of having an affair with her boss. By spring 2003 their relationship had deteriorated and the violence escalated. In seeking a restraining order in March 2003 Pervan stated: He grabbed a knife and held it up to my throat. He beat me -- punched me, kicked me, called me names. He also grabbed me by the throat, strangling me with his hands. Pervan later told the police, Nazmi and I have had a history of violence and I am tired of him hitting me. He recently went to jail for hitting me, and yesterday I was at the court house getting a restraining order against him.

In the three months before his death, Toshi was incarcerated twice and attempted suicide twice. He drank heavily. He complained to a neighbor about his chronic back pain, but he was too afraid to have surgery. He developed a close relationship with a woman who was an Albanian interpreter. He resented the limitations on when he could see his children following his separation from their mother.

On June 9, 2003, Toshi hung himself.

DISCUSSION

Labor Code section 3600, subdivision (a)(6) prohibits recovery of workers compensation benefits if the employee willfully and deliberately caused his own death. Because the decedents mental state determines eligibility, it is subjected to intense legal and medical scrutiny. An employee need not be criminally insane or in a delusional frenzy. (Donovan v. Workers Comp. Appeals Bd. (1982) 138 Cal.App.3d 323, 327-328 (Donovan).) The suicidal act can be one of conscious volition; the person can indeed understand the nature and consequences of what he is doing. (Burnight v. Industrial Acc. Com. (1960) 181 Cal.App.2d 816, 826 (Burnight).) Where the suicide of an employee is directly caused by his injuries and their consequences, his death is not intentionally self-inflicted or willful so as to bar compensation, where he kills himself under compulsion of an irresistible or uncontrollable impulse, or while in a delirium or frenzy or where the injuries suffered by the deceased result in his becoming devoid of normal judgment and dominated by a disturbance of mind. [Citation.] (Id. at p. 822.)

Dr. Clifford Straehley evaluated the cause of the suicide. He wrote: Toward the end of his life, he really was an isolated, usually intoxicated street person. In my opinion, that chain of events followed directly from the precipitating cause, namely his industrial injury. As a direct result of his injury, he had to live with chronic pain and he become [sic] unable to support his family. He lost the gratifying roles of lover and father. . . . [] [I]n my opinion, without the industrial injury, there would have been no suicide, and therefore Mr. Toshis injury was the proximate cause of his death. In my opinion, his death by suicide is also compensable, because the pain resulting from his industrial injury caused him to feel that death would afford the only relief. I do not believe he could have resisted the impulse to act.

The Board sustained the finding by the workers compensation judge that Dr. Straehleys opinion satisfied petitioners burden of proving a prima facie case that the work-related injury contributed to his death. Respondents do not challenge this finding on appeal. The burden thus shifted to respondents to prove the decedent willfully committed suicide and could have resisted the impulse to do so. (Donovan, supra, 138 Cal.App.3d at p. 327.) The Board concluded respondents sustained their burden of proof based on the expert testimony of Dr. Harris. Dr. Harris makes the case that Mr. Toshis suicide was related mostly to non-industrial factors and was not an impulsive act, although he does not use that precise language.

In resolving the petition for writ of review, we must determine whether the evidence, when reviewed in the light of the entire record, supports the Boards decision; and in doing so, we must consider the weight or persuasiveness of all the evidence, not just whether there is substantial evidence in favor of respondents employer and insurer. (Rubalcava v. Workers Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 908.) The relevant and considered opinion of one physician may constitute substantial evidence, even though inconsistent with other medical reports in the record. (Chu v. Workers Comp. Appeals Bd. (1996) 49 Cal.App.4th 1176, 1182 (Chu).) Thus, we must carefully consider whether Dr. Harriss opinion constitutes substantial evidence in light of the entire record to support the Boards finding that the decedents suicide is not compensable.

Dr. Harris explained at length: Regarding the determination of suicide in workers compensation cases, the issues discussed by Dr. Straehley can be addressed. It is controversial whether Mr. Toshis suicide would have occurred in the absence of the industrial injury. As noted, the injury was one cause of depression, worry, and changes in his life circumstances, which exacerbated preexisting tendencies in this case. It is not seen that that pain was so severe as to lead to a desperate search for relief through suicide. Dr. Straehley states the law says that if injuries resulted in loss of normal judgment and disturbance of mind, directly due to the injury, the suicide would not be considered willful. This provision likely does not apply with Nazmi Toshi; the patients severe acute depression and loss of judgment in February 2003 was not related to his second back injury, or one of many periods of unemployment, but rather by disruption in his marriage due to largely non-industrial factors. It is likely that the industrial depression did aggravate mental derangement, but in my opinion did not precipitate it, nor predominantly cause it. It is also not the case that the sole motivation for Nazmis suicide is pain and despair caused by injury, or a disorder in the will from the consequences from the injury. Non-industrial factors, rather than a three-year-old stable industrial back injury precipitated and predominantly caused the major and rapid decompensation in February through June of 2003. I do not believe that insanity such as to cause the employee to take his own life without conscious volition was chiefly caused by this industrial injury, nor its direct consequences.

The Board noted that the decedents mental health and jail records supported Dr. Harriss report. At the time of his admission to a county hospital following an unsuccessful suicide attempt in April 2003, he stated he was angry with his wife for telling him he could no longer see his children and his wife was upset after seeing a picture of his daughter from a prior marriage. When incarcerated that same month, he expressed his desire to commit suicide if he could not be with his children, and he was saddened by his inability to work and his brothers illness. Pervan reported a history of domestic violence at the time she obtained a restraining order but tempered her complaints during the workers compensation hearing.

Thus, unlike the facts presented in Chu, supra, 49 Cal.App.4th 1176 and Burnight, supra, 181 Cal.App.2d 816, there is substantial evidence Toshis death is not compensable. Unlike the facts before us, in both Chu and Burnight the employees had prospered at their jobs, in their families, and within their communities until they assumed new responsibilities, failed, and suffered stress, humiliation, and depression. It was the job-related stress alone that eventually led to their suicidal acts, whereas Dr. Harris believed that the many circumstances in Toshis life, entirely unrelated to his back injury, primarily led to his death.

In Chu, a Korean police officer received unsatisfactory job performance reviews during a probationary period as a sergeant. Demotion appeared imminent. Chu feared he would lose face with his wife and the Korean community if he were demoted. (Chu, supra, 49 Cal.App.4th at pp. 1179-1180.) In granting a writ of review, the court concluded, The overwhelming evidence was that Chu became depressed at not being able to perform as a sergeant, which depression, according to all medical testimony, either contributed to or caused his suicide. After years of excellent performance he was confronted with repeated criticism of his abilities. He thought nothing he could do would satisfy his supervisor. He felt he would be demoted. . . . There is no evidence that Chu would have committed suicide absent the depression he suffered as a result of the stress and frustration he experienced as a probationary sergeant. (Id. at p. 1183.)

Similarly, in Burnight the court found there was no evidence the employee would have taken his life were it not for the mental condition which the commission found was due to the industrial injury. (Burnight, supra, 181 Cal.App.2d at p. 827.) The employee had worked for his employer for almost 20 years before he was assigned to supervise the conversion of a recently acquired paint plant in Mexico. He did not speak Spanish, was working against a deadline, and met with many difficulties and frustrations. (Id. at pp. 817-818.) He suffered an acute anxiety reaction with depressive and schizoid features. (Id. at p. 818.) He slit his wrist and was found dead in a bathtub. (Id. at pp. 818-819.)

The Court of Appeal rejected the notion that benefits were unavailable because the employee knew what he was doing when he committed suicide. We think that the test is and should be, not did the employee know what he was doing, but was the compulsion or the impulse to commit suicide one which he could not resist. (Burnight, supra, 181 Cal.App.2d at p. 822.) The court concluded, There can be no intention to commit an act in the sense of the Labor Code section if the mind of the actor is such that it is not sound and that because of compulsion due to that condition he is unable to exercise a sound discretion. (Burnight, at p. 827.)

In both Chu and Burnight the work-related injuries caused an irresistible impulse toward self-destruction. Petitioners in this case tried mightily to fit the Chu/Burnight template. But Toshi suffered a back injury in 2000 and did not end his life until three years later, following the unraveling of his relationship with his wife, his brothers cancer, his alienation from his children, and his problems with his daughter in Germany. That is not to say that an industrial injury might not lead to the disintegration of ones life, ultimately culminating in suicide. But there is substantial evidence in this record that the seeds of Toshis demise preceded his injury, including a long history of domestic violence, conflict surrounding his German relationship and child, protracted periods of unemployment, and alcoholism. It is not for us to judge the man either before or after he injured his back. But we are constrained by the record before us and that record contains ample evidence to support the Boards finding that Toshi was not operating under an irresistible impulse caused by the back injury at the time he hung himself.

Petitioners would have us dismiss the substantiality of Dr. Harriss August report because, in a letter dated November 5, 2005, Dr. Harris stated that a full report would follow. According to petitioners, that report never materialized. We are not persuaded.

Dr. Harris submitted an in-depth report in August and provided a supplemental one-page letter only to augment his original report following an interview with Toshis friend and interpreter, Maria Staka. He wrote, Ms. Staka provided considerable further information regarding Mr. Toshi and his relationship. It seems that the marriage was by far the greatest source of Mr. Toshis distress, as there are very credible reports of conflict, infidelity, and even assault by Ms. Pervan and her family, extending back at least a year before his suicide. Based on the additional information, Dr. Harris revised his conclusions regarding causation and opined: Family problems were clearly predominant in causing Mr. Toshis depression, as now documented by several witnesses. I had previously ascribed 30% causation to industrial issues, but the new data does not likely even support that level of contribution; rather my new approximations are 15% industrial causation, 15% causation from pre-existing disorders, and fully 70% causation to relationship distress. He indicated that a full report will follow.

We reject petitioners argument that the absence of this report blemishes the record and makes his specific medical opinions on the issues of proximate cause and irresistible impulse fatally deficient. We must review the substantiality of the evidence in the record before us. What is before us is ample evidence to support the Boards finding. Petitioners do not suggest how a full report might have contradicted or undermined either of Dr. Harriss reports or how yet another full report would render insubstantial the substantial evidence now before us.

That is not to say that Dr. Harriss reports were flawless, or even that they clearly measured Toshis mental state and his capacity to resist the impulse to commit suicide. Petitioners correctly point out that there is a distinction between causation and the employees mental state when he committed suicide. And the Board acknowledged that Dr. Harris did not use the specific language irresistible impulse in describing Toshis frame of mind. Nevertheless, the thrust of Dr. Harriss opinion was that the pain derived from the back injury did not result in an overwhelming desire to end his life, but the problems with his relationship with Pervan did. Thus, there was competent evidence, as the Board characterized it, that Mr. Toshis suicide was not the consequence of an irresistible impulse, caused by that nexus between injury and suicide, which by statute would exclude applicants claim from industrial causation.

The decision of the Workers Compensation Appeals Board is affirmed. Respondents shall recover their costs in this writ proceeding.

RAYE , J.

We concur:

NICHOLSON , Acting P.J.

HULL, J.

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^[1] Although the decedent never married the mother of his children, they lived together as husband and wife. We will refer to her as his wife in this opinion.