Bar News - August 19, 2011
Worker’s Comp and Personal Injury:
Margeson Establishes Tests for Compensable Risks
By: Donna M. Daneke and Gary S. Harding
Imagine this: You’re a workers’ compensation practitioner. You get a phone call from an insurance client who asks what seems to be a simple question on the issue of causal relationship. An employee is walking down a set of stairs at work. The stairs are clean, without defect and not slippery. While descending the stairs, the employee’s knee gives out. Nothing on the stairs caused him to trip, slip or stumble. His knee simply gave out while on the staircase.
|Donna M. Daneke
|Gary S. Harding
The question posed to you by your client: Is this claim compensable?
This is the fact pattern and question brought to the New Hampshire Supreme Court in Appeal of James Margeson, Docket No. 2010-633 (July 21, 2011). The Margeson decision reins in what was slowly becoming "a significant expansion of our workers’ compensation law;" such that injuries were being found compensable simply because they occurred on an employer’s premises. The Margeson court provides a road map to assist practitioners, Department of Labor hearing officers, and Compensation Appeals Board members in analyzing different types of risk.
RSA 281-A:2 XI, provides that an injury must arise out of and in the course of employment. "In the course of employment" means the injury must arise within the boundaries of time and space created by the terms of employment and in the performance of an activity with a purpose related to employment. See Generally, Murphy v. Town of Atkinson, 128 N.H. 641, 645 (1986). The "arising out of" language requires a "risk" created by the employment. Both parts of the test must be met in order for a claim to be compensable. In Margeson, the parties stipulated that Mr. Margeson was in the course of his employment. The issue was whether walking down the stairs constituted a risk of his employment.
The Court delineates four categories of "injury causing risks commonly faced by an employee at work." The first category of risk, which is almost always compensable, is an "employment related" risk. This is a risk that is clearly and distinctly related to the employment or workplace. Examples include a tree falling on a logger, a machinist hurt by a faulty machine or a firefighter burned in a fire.
The second category is a "personal" risk. This is a risk so personal that even if it takes effect while an employee is at work, it can not be attributed to the employment. An example is an employee who dies from a longstanding fatal disease (like cancer) while at work. Prior case law has supported denying compensability in these types of cases. See Dustin v. Lewis, 99 N.H. 404 (1955) (denying claim when claimant faints for unknown reason, falls to floor striking head and dies); Ahern v. Eldredge Brewing, 88 N.H. 287 (1936) (denying a coronary thrombosis that occurred at work).
The third category are those classified as "mixed" risks. These are combination risks, in which a personal factor combines with a risk or condition of the employment and results in harm to the employee. Prior decisions have noted that work need not be the exclusive source of the disabling condition; however, the employment risk must be a "substantial contributing factor to the injury." New Hampshire Company v. Steinberg, 119 N.H. 223, 231 (1979) ("Steinberg I"). In discussing this type of risk, the Margeson court reflected on Steinberg I which has become the well-spring establishing the legal causation test in heart attack cases.
The fourth category are "neutral" risks. These are risks that are neither distinctly employment related, nor of a distinctly personal character. They include pure accidents. For example, a person who is struck by a stray bullet, someone stabbed by a lunatic run amok, or someone struck by lightning. Neutral risk cases include cases where it is not known how the injury is caused, like the factual scenario in Margeson. In fact, the Margeson court concluded that the circumstances surrounding Mr. Margeson’s injury fell into the neutral risk category. The court also noted that "determining whether an injury resulting from a neutral risk arises out of employment is a question of fact to be decided in each case."
The court then reviewed three tests commonly used in other jurisdictions to determine whether an injury arises out of employment. These are the increased-risk test (work exposes an employee to an increased risk beyond what is faced by the general public), the actual-risk test (employment subjects the employee to the risk that caused the injury, ignoring whether the risk is also common to the general public), and the positional-risk test (the employment obligations placed the employee in the particular place at the particular time of injury). Ultimately, the Court determined that the increased-risk test is the appropriate test to apply to the neutral risk category. This obligates the practitioner or adjudicating official to examine "whether the employment exposed the claimant to a risk greater than that to which the general public was exposed." In Margeson, the Court remanded the case for the Compensation Appeals Board to make "explicit findings regarding whether the employee used the stairs more frequently than a member of the general public." The Court held that the increased-risk test "applies only to those injuries attributable to neutral risks."
The Margeson Court expressed concern that the "arising out of" prong of the causal relationship test was being eviscerated. Margeson does not create any new burden for injured workers; it simply reestablishes the requirement to demonstrate there is a risk connected with employment in order to sustain a claim for benefits.
Additionally, the Margeson Court addressed how legal causation has been expanded over the years. The Margeson Court reviewed the original Steinberg I legal causation test which requires some type of stress or exertion in conjunction with the prior health of the claimant to allow recovery for a work-related injury. In those cases where an employee has a pre-existing condition, the legal analysis remains the same: "the employment-connected stress or strain must be greater than that encountered in normal, non-employment life." However, the analysis involving an employee without a pre-existing condition, appears to have narrowed. The Margeson Court commented that it had expanded the legal causation test in Appeal of Kehoe, 141 N.H. 412 (1996) such that "any work-related activity" (emphasis original) could constitute a compensable work injury without a pre-existing condition. The Margeson Court specifically rejected "further extension of the Steinberg I test" in favor of shifting the analysis back to the requirement that "any work-related stress or strain" (emphasis original) rather than any work-related "activity," cause injury. The Court distinguished "activity" from "stress or strain" and reminds us that some level of work stress or strain is required for an injury to be compensable.
Donna M. Daneke and Gary S. Harding share neighboring offices at Bernard & Merrill, PLLC, where they spend hours discussing work injuries through the thin office walls.
Questions? Please contact them at (603) 622-8454 or www.Bernard-Merrill.com.