By Jared O’Connor
One of the (thankfully) lesser-seen aspects of workers’ compensation law is the provision of benefits in RSA 281-A:26 for dependents of an injured worker who dies from a work-related injury. When there is an obvious and uncontested connection between the employment risk and the resulting death (e.g., a construction worker is killed falling from a great height, a traveling employee is involved in a deadly automobile accident, or a coal miner perishes from black lung disease), the benefits paid are straightforwardly. Up to $10,000 is payable by the workers’ compensation carrier for burial expenses and if the deceased worker was married, the decedent’s spouse receives a weekly death benefit that is equivalent to the weekly indemnity benefit the worker received (or would have received) while totally disabled.
In the case of a widow or widower, dependency is presumed and the weekly death benefit is payable for the remainder of that person’s life or until remarriage. If the worker was unmarried, other persons claiming dependency may receive weekly benefits in proportion to their actual dependency on the worker’s earnings until such time as they become self-sufficient.
But what if the pain or disabling effects of a work injury become so acute that a claimant tragically takes their own life? Are their dependents or spouse entitled to anything? The question of whether a claimant’s suicide served to disqualify dependents from receiving death benefits was a doubtful question under New Hampshire law until the court decided Appeal of Pelmac, 174 N.H. 528 (2021).
Pelmac involved a claimant who was involved in a rollover auto accident while driving a company van, resulting in serious injuries, which included a fractured neck, torn rotator cuff, and concussion. Delays in his treatment, intense fear about his future ability to function, and the resulting depression became intolerable; he committed suicide less than three months after the accident.
The nature of a compensable “injury” is limited by definition: “No compensation shall be allowed to an employee for injury proximately caused by the employee’s willful intention to injure himself[.]” RSA 281-A:2, XI. The carrier in Pelmac therefore argued that the claimant’s death was not an “injury” cognizable by New Hampshire law, as the act of suicide was a willful, intervening act, which cut off liability.
The court disagreed, or at least rejected a per se rule that would have held suicide never compensable. Instead, to determine whether dependency benefits can follow an employee’s death by suicide – if the “death results from an injury” within the meaning of RSA 281-A:26, the court followed the majority of jurisdictions in adopting a “chain of causation” test. In particular, the court agreed with the leading case to espouse the test, the 1949 Florida case of Whitehead v. Keene Roofing, 43 So.2d 464 (Fla. 1949). The Whitehead court reasoned that “in those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgment 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.”
The question of compensability of a claimant’s suicide does not turn on subjective intention, or the claimant’s knowledge of the consequences of the act. The court reasoned (as have other courts in adopting the chain of causation test) that focusing too narrowly in this regard “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.” In other words, suicide itself – the determination to willfully end one’s life – is deemed to be an irrational act. The question is rather whether the events which led the claimant to that point of irrational desperation followed in an unbroken causal chain from the work injury.
In describing how the “chain of causation” test is applied, the Pelmac court repeatedly cited its own decision in Appeal of Bergeron for the proposition, well-familiar to NH workers’ compensation practitioners, that “an employer remains liable for subsequent injuries that are the “direct and natural result” of a prior, work-related injury. For example, if knee osteoarthritis has been accepted or deemed work-related, the total knee replacement that follows a decade later remains the responsibility of the carrier in the absence of an independent, intervening cause.
Crucially, Pelmac observed that, “As in other subsequent-injury situations, the prior work-related injury need not be the sole cause of the subsequent death by suicide, but the death by suicide must be the direct and natural result of the prior work-related injury – a determination now established by satisfying the chain-of-causation test.”
In extending to suicide the same chain of causation test long accepted for assessing liability for subsequent physical injuries, the analogy in Appeal of Bergeron provides useful guidance:
“[O]nce the work-connected character of any injury … has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. This may sound self-evident, but in close cases it is sometimes easy to overlook this essentially simple principle. In a Utah case, claimant had suffered a compensable accident in 1966, injuring his back. Several years later, this condition was triggered by a sneeze into a disc herniation, for which claimant required surgery. … The presence of the sneezing incident should not obscure the true nature of the case, which is nothing more than that of a further medical complication flowing from a compensable injury.” Hudson v. Wynott, 128 N.H. 478, 481- 82 (1986)
Importantly, the companion case of Appeal of Estate of Dodier, 174 N.H. 548 (2021), decided immediately following Appeal of Pelmac, directed that the same test applies to a purely mental injury involving the same tragic result.
Thus, regardless of whether the precipitating work injury is PTSD or a cervical fracture, a claimant’s subsequent suicide may be held compensable and death benefits paid to dependents under New Hampshire law if the after-effects of injury can be shown to lead directly to the claimant’s irrational act of suicide. The irrational act itself is viewed as an extreme and terrible manifestation of the same work-related accident, not a new and independent act.
Jared P. O’Connor is a shareholder at Shaheen & Gordon, P.A. in Nashua. For nearly 20 years, he has exclusively represented injured workers at the NH Department of Labor and is the NHAJ representative on both the Workers’ Compensation Appeals Advisory Board and the Governor’s Commission to Study the Incidence of PTSD in First Responders.