NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The New Hampshire Supreme Court recently issued two decisions a day apart: Appeal of Pelmac, Docket No. 2019-0605 (Slip Op. issued 10/13/21) and Appeal of Dodier, Docket No. 2020-0185 (Slip Op. issued 10/14/21), setting forth a new “chain of causation” test for determining compensability of suicide following a work-related injury.
In the first case, Pelmac, the claimant was driving home from a jobsite, approximately 2 hours away from his home when he was involved in a single vehicle motor vehicle accident. It was unclear why the claimant went off the road. There was evidence that sleep apnea may have been the cause. The claimant’s injuries included lacerations to his head, fractured C5-6 vertebrae, a concussion, a rotator cuff tear and rib fractures.
Within three months of the accident, the claimant committed suicide. The carrier denied the claim on the basis that the injuries sustained in the motor vehicle accident did not arise out of and in the course of employment. The carrier also denied the claim that the suicide was a compensable consequence of injury, and as such, denied death benefits to the claimant’s dependents. After a first level hearing, the Department of Labor determined the claimant’s injuries from the accident arose out of and in the course of his employment. However, the claim for death benefits to the dependent widow was denied with a finding that the suicide was not compensable.
Both parties appealed the Department’s decision to the Compensation Appeals Board (“CAB”). On appeal, the CAB found that the injuries sustained in the accident were compensable. The Panel also determined that death benefits were payable to the widow as it also found the suicide compensable.
The record contained no medical evidence diagnosing depression. The CAB also found that the family did not know the extent of the claimant’s “depression like mental state.” Pelmac, at 3. Further, evidence showed that, on the day of his suicide, the claimant was acting “completely normal.” A suicide note was left. The note made no mention of the injury or the effects of the injury on the claimant. The claimant expressed love for his wife and hoped she would find happiness. The CAB reviewed the note and concluded that the claimant was “thanking his wife and expressing deep dissatisfaction with his present and future situation.” Pelmac, at 3.
The carrier appealed the decision to the NH Supreme Court.
In the Dodier case, the claimant was a branch manager of a logistics company. In 2016 the claimant began experiencing stress related to work and in his personal life. By February 2017, the claimant was hospitalized with “symptoms resembling a panic attack.” Dodier, at 2. He was discharged from the hospital “with a diagnosis of unspecified anxiety disorder.” Id. He was once again admitted to the hospital, “expressing worsening anxiety and suicidal thoughts.” Id.
From March 1 to March 9, 2017, the claimant expressed “significant stress related to his employment,” “feeling of inadequacy at work.” He was “looking for a new job,” felt “guilty about taking anxiety medications” and was “experiencing financial stress.” Id. The claimant committed suicide on Sunday, March 12, 2017. The claimant’s Estate requested a hearing on causation and sought death benefits. The Department of Labor denied the Estate’s claim. The Estate appealed to the CAB.
The CAB concluded that the Estate failed to meet its burden of proof on causation and found the claimant “experienced several sources of stress, and that ‘the largest number’ were personal stressors unrelated to his employment.” Dodier, pg. 3. The record contained competing medical evidence. Dr. Drukteinis, the Estate’s psychiatric expert, opined that work “substantially contributed” to cause the injury. Id. The insurance carrier’s expert, Dr. Bourne, concluded, “one cannot attribute [the claimant’s] depression to any one cause [and] one should not conclude that work stressors played a substantial contributor to the depression….” Id.
The CAB determined that Dr. Drukteinis’ opinion did not “meet the legal requirement that the injury would not have occurred ‘but for’ the work stress.” Id. at 6. The CAB denied that the claimant sustained a compensable work-related injury and, therefore, did not reach the decision as to whether the suicide was compensable. The CAB denied the Estate’s Motion for Reconsideration and “summarily maintained that it did not apply a ‘but for’ legal standard in regard to causation.” Id. at 4. The Estate appeal the decision to the NH Supreme Court.
Supreme Court Rulings
In the Pelmac and Dodier opinions, the Court set forth a new standard for determining the compensability of suicides following work injuries. The Court stated, “We have not had occasion to consider whether and under what circumstances suicides can be deemed to result from a prior, work-related injury and deemed not to be the product of the employee’s ‘willful’ intent or conduct, as relevant to awards of death benefits.” Pelmac, Slip Op. pg. 10. The Court went on to announce a “newly articulated chain-of-causation test applies to determine the compensability of an employee’s death by suicide that follows the employee’s work-related injury….” Id. at 16, 17.
The Court’s chain-of-causation test “addresses the requisite causal connection between the prior work-related injury and the employee’s subsequent death by suicide to permit an award of workers’ compensation benefits, even when there are statutory limitations on injuries caused by an employee’s willful act….” Pelmac, pg. 11. In New Hampshire, the statute provides, “No compensation shall be allowed to an employee for injury proximately caused by the employee's willful intention to injure himself or injure another” (emphasis added). The Court, citing to a Florida case, said, “in those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgement and dominated by a disturbance of mind directly caused by his injury and its consequences, his suicide cannot be considered ‘willful’ within the meaning and intent of the Act.” Pelmac, at 11. In light of this decision, if a claimant commits suicide, it is now very unlikely to be considered a “willful” act precluding compensation.
The chain-of-causation test is satisfied when the “work-related injury has produced a disturbance of the mind such that at the time of the suicide the employee does not have conscious or rational control over his actions, his realization that his action is self-destructive is not an independent, intervening cause of his death.” Pelmac, at 11. The Court explained that this test “places the burden on the claimant to prove by a preponderance of the evidence that there was an unbroken chain of causation between the work-related injury, the disturbance of the mind, and the ultimate suicide.” This appears to be a low threshold where in Pelmac the claimant was not diagnosed with a “disturbance of the mind” rendering him unable to maintain “rational control over his actions.” The testimony was that the claimant was acting “completely normal” prior to his suicide. The Court, however, agreed with a majority of the jurisdictions that “the physical consequences of the act of suicide wrongly ignores the role that severe or extreme pain, anxiety, despair, or depression may play in the deterioration of a person’s rational mental process.” Pelmac, at 12.
On review, the Court does “not reweigh the evidence” but determines “whether the CAB’s findings are supported by competent evidence in the record.” Pelmac, at 9 (citing to Appeal of Dean Foods, 158 N.H. 467, 474 (2009)). The Court further noted that “all findings of the CAB upon questions of fact properly before it are deemed to be prima facie lawful and reasonable.” Pelmac, at 5 (citation omitted). Despite these principles, the Court in Dodier did, in fact, reweigh the evidence and failed to accept the CAB findings lawful and reasonable.
In Dodier, the Court noted the CAB “did not make the factual findings necessary to support a proper causation analysis” but, instead of a remand, the Court remarked that “when a lower tribunal has not addressed a factual issue, but the record reveals that a reasonable fact finder necessarily would reach a certain conclusion, we may decide that issue as a matter of law.” Dodier, at 7. The Court determined and found that the depression and anxiety was a work-related injury. Since the CAB did not address the suicide, the Court remanded the case to apply the chain-of-causation test.
The Court in Pelmac also provided a new framework for determining whether an employee is a “Traveling Employee.” This is significant since injuries sustained traveling to and from work are not typically found to be in the course of employment under the “coming and going” rule. An exception to this rule is a “traveling employee.” Injuries sustained by a traveling employee, coming and going to work, will likely be compensable.
The Court stated, “Traveling employees are employees for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace.” Pelmac at 7. The Court noted that the claimant’s “employment with Pelmac involved extensive travel throughout New Hampshire, and he usually traveled directly between the remote work sites and his home in a company van…and [such travel] was integral to his role…” in performing his job duties. Pelmac, at 8.
The Traveling Employee test has four elements. The employee must (1) travel extensively between home to remote work sites; (2) travel as an integral part of employment; (3) be using a company vehicle (or be reimbursed by employer for the use of a personal vehicle), see, Whittemore v. Sullivan County Homemaker's Aid Service, 129 N.H. 432, 433 (N.H. 1987) ("she used her own personal vehicle and was reimbursed for mileage expenses incurred in traveling to clients' homes..."); and (4) be on call before and after hours.
Appellate review of workers’ compensation cases by the NH Supreme Court are discretionary. However, in recent years, the Court appears to be accepting more cases as evidenced by these two decisions.
Gary S. Harding, Esq.
Margaret P. Sack, Esq.
Bernard & Merrill, PLLC
814 Elm Street, Suite 407
Manchester, NH 03101
Each year thousands of Granite State workers are injured on the job. Many of these injuries are minor and the worker loses no time from work and requires little to no medical attention. A small portion of the reported injuries are more severe, and workers miss time from work and require extensive medical treatment to return to their pre-injury status. The New Hampshire Department of Labor releases a biennial report that contains information regarding the number and types of injuries, the industries in which the injuries occur, and the number of cases litigated before the Department every year.
The most recently published biennial report found that the majority of injured workers sustain minor ailments that do not result in lost time from work. In fiscal year 2013, there were 38,998 reported workplace injuries and 644,000 non-agricultural employees in New Hampshire, resulting in an incident rate of 6.1%. Lost time from injuries occurred in 3,530 cases: less than 10% of all injuries.
The causes of injuries in New Hampshire are diverse. Greater than 10 percent of the injuries in fiscal year 2013 were the result of an object hitting an employee (4,101), while nearly 19 percent were the result of an employee lifting an object (7,359). The most common injury type involved a muscle pull or strain which accounted for 13,926 of the 38,998 injuries, or approximately 36% of all injuries. Bruises, cuts, or puncture wounds accounted for another 37% of the reported injuries (14,591).
The biennial report also provides a breakdown of the industries that account for the majority of workplace injuries. While nearly a third of reported injuries (13,156) were not classified by industry, the remaining two thirds (25,842) were. Health Care and Social Assistance resulted in the most reported injuries, tallying 5,013 out of 25,842, or approximately 19% of classified injuries. Motor Vehicle and Parts Dealers came next with approximately 12% (3,086) of all reported injuries. Accommodation and Food Services, Educational Services, and Metal Manufacturing separately accounted for approximately 7% of all reported injuries, with 1,893, 1,755, and 2,022 injuries reported respectively. These five industries account for more than half of all classified injuries in the state.
Looking at these numbers, it is clear that New Hampshire is a safe state in which to work, with only slightly more than 6% of employees injured each year and less than 10% of all injuries resulting in lost time from work. It should come as no surprise that a large percentage of all injuries result from employment in Health Care and Social Assistance or Motor Vehicle and Parts Dealers since these industries employ thousands of people in New Hampshire and require substantial amounts of physical work.
Of the thousands of incidents that result in injuries to Granite State workers, only approximately 5% result in litigation before the New Hampshire Department of Labor. When litigating a case, injured employees and insurance carriers or employers are usually represented by counsel.
Earlier this year the New Hampshire Supreme Court published its decision in the matter of Appeal of Raymond Cover. The result of the decision is that part-time employees injured at work have a right to reinstatement under New Hampshire law (RSA 281-A:25-a).
The Court dealt with the validity of New Hampshire Administrative Rule, Lab 504.05 (b) (3) and whether part-time employees are entitled to reinstatement under the Workers’ Compensation Act. The statute, RSA 281-A:25-a, states “[a]n employee of an employer who employs 5 or more employees, who has sustained an injury, shall be reinstated by the employer to the employee’s former position of employment upon request for such reinstatement… .” At the time of this litigation, Lab 504.05 (b) (3) stated, “[a]n employer shall not be obligated to provide the former position to… a part time employee as defined by the employer’s personnel policy.” The Court found that “the rule impermissibly modifies the statute and is therefore invalid.” The Court reiterated its longstanding edict that the Workers’ Compensation Law should be read “liberally to give the broadest reasonable effect to its remedial purpose and resolve all reasonable doubts in favor of the injured worker.” Since RSA 281-A:25-a does not specifically exclude part-time employees from the right to reinstatement, while Lab 504.05 (b) (3) does, the Court stated that “the rule cannot be characterized as a rule that merely fills in the details to effectuate the purpose of the statute.”
Acknowledging the likelihood of the Court deciding in this fashion, the Department of Labor had already began the process of altering Lab 504.05 (b) (3) earlier this year. The rule now omits the language quoted above and provides for reinstatement to any full time or part time employee (though temporary employees are still exempt and some other qualifications apply).
The Court also went into some detail in dismissing a jurisdictional argument. The employer argued that the only way to challenge the validity of the Department of Labor rule was through a Declaratory Judgment action brought in Superior Court with the Department of Labor as an opposing party.
Raymond Cover had challenged the validity of Lab 504.05(6)(3) before the Department of Labor Hearing Officer initially and the Compensation Appeals Board on appeal. RSA 541-A:24 provides that parties “may” challenge a Department of Labor administrative rule at the Superior Court via a Declaratory Judgment action, including the Department of Labor as a party. The employer argued “that the word ‘may’… is meant to express a right … to challenge a rule’s validity [and] if that right is exercised, then the action must be filed” in Superior Court and include as a party the agency that adopted the rule. The Court disagreed. The Court focused on the definition of the word “may” to mean “permissive, not mandatory” and cited three prior cases in which the Court had reviewed the validity of agency rules under similar circumstances. The Court found that it could exercise subject matter jurisdiction over Mr. Cover’s appeal.
Employers should know that all full-time and part-time employees are likely eligible for reinstatement to their job within 18 months of a compensable workplace injury. Some qualifications still apply, and your labor and employment or workers’ compensation attorney can likely provide helpful counsel on this issue.
In Appeal of Northridge Environmental, LLC, the New Hampshire Supreme Court held that home care services provided to the injured worker by his non-medically trained spouse qualify as a compensable medical expense under New Hampshire’s workers’ compensation law.
In Northridge, the claimant sustained serious injuries at work. After his release from the hospital he required constant care that included cleaning of his wounds and assistance with moving, bathing, and dressing, all of which was provided by his spouse. The claimant sought payment for his spouse’s services from his workers’ compensation carrier, under the theory that but for his spouse’s care he would have needed to hire a medical professional to perform the home care.
The New Hampshire Department of Labor initially denied reimbursement for the spouse’s home care services and the Compensation Appeals Board (CAB) upheld the decision. After an initial appeal to the New Hampshire Supreme Court, the case was remanded to the CAB with instructions to revisit the issue and determine whether, and to what extent, the services provided by the claimant’s wife were reimbursable. On remand, the CAB determined that the claimant was entitled to reimbursement for the services his spouse provided, noting that RSA 281-A:2, XII-b of the workers’ compensation statute “does not exclude a spouse as a home health care provider and should include a spouse as a home health care provider because the workers[‘] compensation statute is a remedial statute and a spouse is not excluded as a provider.” Appeal of Northridge, Case No.: 2014-0776, March 22, 2016, 2. The Court affirmed the decision of the CAB and stated that “the CAB did not err when it decided that the petitioner was entitled to reimbursement for his wife’s services.” Id., 5.
The workers’ compensation carrier also had objected to the CAB’s finding concerning the amount of reimbursement to be provided to the claimant for the services rendered by his wife. After the initial appeal and remand to the CAB, the CAB determined that the claimant should be reimbursed at the rate of $15 an hour, 12 hours a day for the care provided by his wife. The carrier argued there were no time cards or other records available, and that the CAB should not have determined that “twelve hours per day, every day” is “an appropriate reimbursement rate in this instance.” Id., 6. The Court held that it could not “conclude that the CAB erred when it determined that reimbursement for 12 hours per day was reasonable.” Id., 6.
The Court also considered whether the claimant’s attorney was entitled to attorney’s fees. The Court determined the claimant’s attorney had “prevailed” under the definition in RSA 281-A:44, I as the attorney had obtained a remand from the Supreme Court and obtained relief at the remand CAB hearing. Although it “did not award benefits to the petitioner in the earlier appeal, [its] prior decision was an essential step in the process that eventually led to the CAB awarding reimbursement.” Id., 9. As such, the Court determined that the petitioner was entitled to reasonable attorney’s fees and costs incurred in the earlier appeal to the Court.
This ruling potentially exposes employers, carriers, and third party administrators to liability for reimbursement for care provided by the spouses and other non-medically trained individuals who provide care to an injured worker. In Northridge, the carrier had offered to pay for a licensed healthcare provider to perform the in-home services which were prescribed. The claimant declined the offer. If the injured employee requires medically necessary homecare and foregoes a visiting nurse or other medical professional, this case supports the argument that the statute does not preclude reimbursement for a spouse or other non-medically trained individual who provides that care. Furthermore, nothing in the decision appears to limit this holding to a spouse.
The Court’s second consideration – that the claimant’s attorney was due reasonable fees and costs for an earlier appeal when prevailing at the remand hearing – also exposes employers, carriers, and third party administrators to potential liability for payment of attorney’s fees. Claimants’ attorneys will undoubtedly request their fees be paid by carriers for their time before the Supreme Court when they obtain a remand from the Supreme Court that results in a favorable decision before the CAB.
On July 6, 2015, Governor Hassan signed into law Senate Bill 133, which makes significant changes to RSA 281-A:24 (Payment for Reasonable Value of Services), the statute that governs the manner in which disputes over the reasonable value of medical services are decided in workers’ compensation claims.
Under the old version of RSA 281-A:24, an employer or carrier was required to “pay the full amount of the health care provider’s bill unless… [it] can show just cause as to why the total amount should not be paid.” This language provided employers, carriers, and their representatives little leverage in a dispute about the cost of medical procedures. “Just cause” was never defined, but suggested a heightened burden of proof the carrier had to reach to overcome the assumption that the full amount of the bill was to be paid.
Concerns over the rising cost of medical care – particularly medical care in workers’ compensation claims – have been present in New Hampshire for some time. In September of 2014, the Governor and New Hampshire Legislature created a commission to study the issue, noting that medical costs had grown to nearly 75% of total workers’ compensation dollars spent in New Hampshire (versus 60% nationwide) and that the average workers’ compensation surgical procedure in New Hampshire was 83% more expensive than similar procedures in the region and more than twice as expensive as they are nationally. The report produced by the commission, released in December of 2014, noted that medical costs for procedures performed for a workers’ compensation injury were 107% to 263% higher than identical treatments for similar injuries not caused at work.
With that in mind, the legislature crafted a change to RSA 281-A:24 to address the high cost of medical care in workers’ compensation claims. Effective September 4, 2015, RSA 281-A:24 is changed in relevant part below:
(a) The employer or the employer’s insurance carrier shall pay the reasonable value of medical services provided under this chapter.
(b) The health care provider shall have the burden of establishing that its bill for services is reasonable.
A carrier need no longer pay the “full amount” of the bill, and now need only pay the “reasonable value” for the services provided. More importantly, the carrier no longer has the burden of showing “just cause” as to why the total amount should not be paid; health care providers have the burden of showing a charge is reasonable when a carrier objects to the amount of a medical bill. This burden shifting levels the playing field by forcing providers to present evidence that charges are reasonable, rather than placing that onus on the carrier to show why a bill is unreasonable. This change will hopefully counteract the continued rise of medical costs in workers’ compensation claims as referenced above, and in turn lower the costs of workers’ compensation insurance across the state.
The full text of the bill can be found here.
Bernard & Merrill represents employers, insurance carriers, and third-party administrators in workers’ compensation cases, civil litigation, and insurance defense. The firm has offices in Manchester, NH, represents clients across the state of New Hampshire, and can be reached at 603.622.8454 or firstname.lastname@example.org.