Bar News - August 19, 2011
Worker’s Comp and Personal Injury:
A Better Understanding of the Substantial Contribution Test
By: Daniel R. Lawson
Like all other workers’ compensation laws in the United States, New Hampshire’s is fundamentally simple: it gives workers a simple and efficient means of recovering for work-related injuries, that is, injuries arising “out of and in the course of employment.”[i] But this facially simple principle has spawned some serious complexities. Among them is the difficulty of determining whether an injury “arises out of and in the course of employment” when both personal and work-related contributions are present. If a worker smokes, has high cholesterol, a family history of heart disease, and is overweight, then is a heart attack work-related simply because it was triggered by work-related emotional stress?[ii] Is a strangulated hernia that was simply waiting to happen work-related simply because it occurs in the workplace?[iii] Examples such as these illustrate a hazard that is inherent to the workers’ compensation scheme: adopting too broad a definition of work-relatedness could overburden employers with injuries that bear a coincidental—rather than causal—relationship to the workplace.
|Daniel R. Lawson
The New Hampshire Supreme Court adopted the “substantial contribution test” over three decades ago to address this hazard.[iv] Unfortunately, the court’s explanation of its own test can be misleading. Proper understanding of the substantial contribution test requires an understanding of the theory behind it: the “increased risk test” put forth by Larson’s Workers’ Compensation Law.[v] By properly viewing the substantial contribution test as a mere variation of an increased-risk test, workers’ compensation attorneys can better apply the substantial contribution test to the facts of their client’s case.
I. The Substantial Contribution Test as an Increased-risk Test
Proper understanding of the substantial contribution test begins with understanding the difference between an “increased-risk test” and a “positional-risk test.”[vi] Both of these tests provide a framework for determining what burden a workers bears in proving that his or her injury arose “out of and in the course of employment.”[vii] Under the positional-risk doctrine, a claimant only needs to prove a simple but-for causal relationship between his or her injury and an employment condition or obligation.[viii] In New Hampshire, such is the case whenever a worker without a preexisting condition seeks compensation: “any work-related activity connected with the injury as a matter of medical fact is sufficient to show legal causation.”[ix]
Increased-risk tests, on the other hand, impose a higher burden on claimants. When an increased-risk test is triggered, workers must show more than simple but-for causation; they must also show that the employment put them at a greater risk for the injury suffered.[x] Put simply, it is not enough for a worker to show that the injury occurred as a result of his or her presence at work, the worker must show that, with regard to the injury suffered, going to work was riskier than staying home.[xi]
When the New Hampshire Supreme Court’s more misleading language is disregarded, it is clear that its substantial contribution test is merely an application of the increased-risk test to workers with preexisting health conditions. Though workers generally operate under the burden of the positional-risk test and therefore need only show medical causation, the dynamic alters when a worker has a preexisting condition. In such a situation, the substantial contribution test requires proof of the legal causation standard that is common to all increased-risk tests: proof that “the employment . . . contribute[d] something substantial to increase the risk of injury.”[xii] True to increased-risk test form, the substantial contribution test requires employees with preexisting conditions to show that going to work was riskier than staying home.
II. It’s All About Risk:
A Better Understanding of the Substantial Contribution Test
One who can see that the substantial contribution test is simply a form of increased-risk test can also see that the Supreme Court’s explanation of the test obscures the fundamental theory of risk that underlies the rule. Firstly, the court describes the legal causation test as a definition for the “degree of exertion that is necessary to make the injury work-connected.”[xiii] Secondly, to illustrate the test, the Court uses the hypothetical of a worker lifting a twenty-pound weight.[xiv] As the Court puts it, if a worker with a preexisting condition lifted such a weight and suffered an injury as a result, such an injury would not be compensable because lifting twenty-pound objects presents no greater risk of injury than non-employment activities such as lifting bags of golf clubs and step ladders, and therefore the legal causation element of the substantial contribution test cannot be met.[xv]
Both the Court’s introduction and illustration of the test can be misleading. They give the false impression that workers with preexisting conditions must show that their injuries were caused by some sort of extraordinary trauma or occurred as a result of an extraordinary exertion. Of course, while such facts might be probative, neither an extraordinary trauma nor an extraordinary effort is required. The Court’s explanation loses sight of the fact that the substantial contribution test, consistent with all increased-risk tests, does not require the presence of an extraordinary exertion; it only requires that an employment condition presented an extraordinary level of risk.
The importance of the distinction between what the Supreme Court has said and what it probably means can be illustrated by using a hypothetical taken from a recent case. Imagine that a truck driver with a preexisting back condition hits a pothole while on duty and that the force of the impact causes two herniated discs in his back.[xvi] If the driver took the misleading language of the Supreme Court’s substantial contribution test too literally, he might attempt to satisfy his burden of legal causation by showing that the degree of force causing his injury was extraordinary. To do so he might introduce evidence showing that the pothole that he struck was exceptionally large, that he hit the pothole at an extraordinarily high speed, or that the truck he was driving was poorly suited to absorb the impact of an ordinary pothole.
But in so focusing his proof, the driver would miss an opportunity to argue that his burden of legal causation is met regardless of whether the injury-causing force was extraordinary. If the driver directed his proof towards the level of risk that the employment conditions presented, as he should, the driver could make a simpler and perhaps more compelling argument that his injury was work-related. The driver could argue that his injury is compensable because his duties as a professional driver increased his risk of injury by requiring him to take the ordinary risk of hitting a pothole in extraordinary doses. Thus, focusing on degree of risk instead of degree of exertion allows employees to show that what could arguably be an ordinary risk of everyday life—such as the risk of hitting a pothole on a New Hampshire road—satisfies the substantial contribution test because of the increased frequency with which the risk is encountered. Workers’ compensation attorneys and hearing officers alike should be aware that the substantial contribution test can and should accommodate such an argument.
[i] N.H. Rev. Stat. Ann. § 281-A:2, XI (2009); see also Tothill v. Estate of Warren Center, 877 A.2d 213, 218 (N.H. 2005) (“The workers’ compensation scheme is based upon this fundamental quid pro quo: tort immunity for the employer in exchange for no-fault workers’ compensation benefits.”).
[ii] See N.H. Supply Co. v. Steinberg, 400 A.2d 1163, 1168 (N.H. 1979).
[iii] See Rivard v. J.F. McElwain Co., 58 A.2d 501, 503 (N.H. 1948).
[iv] Steinberg, 400 A.2d at 1168.
[v] Larson’s Workers’ Compensation Law § 3.01 (2009).
[vi] Larson’s Workers’ Compensation Law § 3.01 (2009).
[vii] Larson’s Workers’ Compensation Law § 3.01 (2009).
[viii] Larson’s Workers’ Compensation Law § 3.05 (2009).
[ix] In re Redimix Cos., 969 A.2d 474, 477 (N.H. 2009).
[x] Larson’s Workers’ Compensation Law § 3.03 (2009).
[xi] See Redimix, 969 A.2d at 477.
. [xvi] Id. at 476.
Daniel R. Lawson is a 2011 graduate of the UNH School of Law and the school’s Daniel Webster Scholar Honors Program.