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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