Lee Ann Prather v. Sun Life and Health Insurance Company (u.s.)

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1861
LEE A NN PRATHER ,
Plaintiff-Appellant,
v.
S UN LIFE AND HEALTH INSURANCE C OMPANY (U.S.),
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:14-cv-03273 — Richard Mills, Judge.
____________________
A RGUED NOVEMBER 2, 2016 — D ECIDED D ECEMBER 13, 2016
____________________
Before WOOD, Chief Judge, and P OSNER and WILLIAMS,
Circuit Judges.
P OSNER , Circuit Judge. The plaintiff’s decedent, Jeremy
Prather, was employed by a company that had obtained a
Group Insurance Policy from Sun Life which provided acci-
dental death and dismemberment coverage for the compa-
ny’s employees, in the amount of $92,000 for Prather. The
policy limited coverage to “bodily injuries ... that result di-
rectly from an accident and independently of all other causes.”

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2 No. 16-1861
The clause we’ve italicized is the focus of this appeal from
the district court, which granted summary judgment for Sun
Life, which had invoked the clause to deny the payment of
death and dismemberment coverage to Prather’s survivor on
the ground that his death had not been the exclusive result
of an accident—it had also been the result of “complications
from surgical treatment.” Prather’s widow brought this suit
“to recover benefits due to [her]” under the plan. 29 U.S.C. §
1132(a)(1).
On July 16, 2013, Prather, age 31, had torn his left Achil-
les tendon playing basketball. Three days later he met with
an orthopedic surgeon to discuss treatment, and of the op-
tions offered he chose surgery. He was scheduled to be op-
erated on three days later, July 22. On July 21 he called the
surgeon’s office complaining of a swelling in the lower part
of his left leg, and that an area of the left calf was both sensi-
tive and warm to the touch. The surgeon told him to elevate
the leg. The surgery next day to repair his torn Achilles ten-
don was uneventful and he was discharged from the hospi-
tal the same day. He returned to work and was reported as
doing well in a follow-up visit to his surgeon on August 2.
But four days later he collapsed at work, went into cardio-
pulmonary arrest, and died the same day as a result of a
deep vein thrombosis (blood clot) in the injured leg that had
broken loose and traveled through the bloodstream to a
lung, thus becoming a blood clot in the lung—that is, a pul-
monary embolism—which caused cardiac arrest and sudden
death.
Sun Life’s position is that the pulmonary embolism and
ensuing death were consequences not of—at least not entire-
ly of—the accident to Prather’s Achilles tendon, but of the

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No. 16-1861 3
surgery. Of course that means it was also a consequence of
the accident, for without the accident there would have been
no surgery. But it may have been a consequence of the sur-
gery as well. Indeed it is even possible that had it not been
for the surgery, Prather would not have died.
A physician’s assistant employed by Sun Life opined in a
“Death Review Claim,” prepared by her as part of Sun Life’s
review of Prather’s claim, that deep vein thrombosis and
pulmonary embolism are risks of surgery, but that even with
conservative treatment, such as immobilization of the affect-
ed limb, the insured had an enhanced risk of a blood clot.
That was Sun Life’s only medical evidence, however, and it
was inconclusive. It was evidence not that Prather’s death
was a result not just of the accident but also of independent
events—namely the surgery but maybe also or instead the
immobilization of his leg before surgery—but that it might
have been a partial result of such events—partial because the
accident had to have played a role; no accident, no surgery or
immobilization, hence no deep vein thrombosis or pulmo-
nary embolism.
Although the insurance contract purports to place the en-
tire burden of proof on the insurance beneficiary—it says the
death must have occurred “independently of all other caus-
es,” which Sun Life interprets to require the beneficiary to
disprove any possible alternative cause of death—that can‘t
be right because it would give the insurer carte blanche to
reject coverage in a case in which an accident is a conceded
cause of death (there is no suggestion that Prather, a young
man, would be dead had he not torn his Achilles tendon),
merely because there is some speculative possibility that
something else may also have played a role. That would

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4 No. 16-1861
make many accident insurance contracts vacuous, illusory,
because often there is an interval between the accident and a
resulting injury, and a possibility that something in that in-
terval caused or aggravated the insured’s injury. Since the
accident alone—the rupturing of the tendon—may well have
caused the blood clot that killed Prather, the insurance com-
pany had to present some evidence that the surgery had been
a cause of Prather’s death—and it presented none. All it
“proved” through the physician’s assistant was that the sur-
gery might have been a cause of Prather’s death; no effort
was made to quantify the added risk created by the surgery.
The forensic pathologist who conducted a post-mortem
examination of Prather did not attribute his death to the sur-
gery, and the relevant medical literature indicates that there
is a significant incidence of deep vein thrombosis (the final
trigger of the pulmonary embolism) following the rupture of
an Achilles tendon even if the tendon is not operated on.
Deep venous [vein] thrombosis (DVT) is a signifi-
cant source of morbidity and mortality and is asso-
ciated with many orthopedic procedures. Previous
studies have reported highly variable DVT rates in
patients with Achilles tendon rupture undergoing
operative and nonoperative treatment. We performed
a retrospective chart review for all patients who
underwent Achilles tendon repair at our institution
from January 2006 to February 2012. Patient data
were collected from the electronic medical record
system. A total of 115 patients were eligible for the
present study. Of these patients, 27 (23.47%) with a
surgically treated Achilles tendon rupture devel-
oped a symptomatic DVT either while waiting for, or
after, surgical intervention, with approximately one
third of these diagnosed before surgical intervention. ...

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No. 16-1861 5
We have shown a high incidence of DVT after
Achilles tendon rupture. We recommend a high
level of suspicion for the signs and symptoms of
DVT during the follow-up period.
Makhdom AM (Asim M.) et al., “Incidence of Symptomatic
Deep Venous Thrombosis After Achilles Tendon Rupture,”
52 Journal of Foot & Ankle Surgery 584 (2013) (emphases add-
ed).
Sun Life argues unpersuasively that its insurance con-
tract with Prather’s employer gave Sun Life “discretion to
decide what evidence was sufficient to demonstrate a disa-
bility.” But that would amount to the insurer’s having carte
blanche to decide whether or not to honor its contract. The
company also argues, again unpersuasively, that “the evi-
dence in this matter makes clear that Mr. Prather’s surgical
treatment contributed to his death[,] … indeed, caused the
forming of a blood clot in Mr. Prather’s deep veins.” No, the
evidence does not make that clear. All the evidence shows is
that his death followed both the surgery and the accident
that preceded the surgery. Post hoc is not propter hoc. And we
know from the medical literature that an accident alone can
create a fatal blood clot and so far as appears could have
done so in this case.
Indeed, Prather’s complaint the day before the surgery of
a swelling in the lower part of his left leg and that an area of
the left calf was sensitive and warm to the touch suggests
that the deep vein thrombosis might have formed by then,
because swelling, pain, and warmth in the affected limb
were all symptoms of DVT. Because Sun Life failed to make
any plausible showing that the surgery on Prather’s ankle,
rather than the accident that necessitated the surgery, caused

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his death, the judgment in favor of the defendant is reversed
and the district court is instructed to enter judgment in favor
of the plaintiff. See Senkier v. Hartford Life & Accident Ins. Co.,
948 F.2d 1050, 1052 (7th Cir. 1991).

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