In re Pelmac Indus., Inc.
| Decision Date | 13 October 2021 |
| Docket Number | No. 2019-0605,2019-0605 |
| Parties | APPEAL OF PELMAC INDUSTRIES, INC. (New Hampshire Compensation Appeals Board) |
| Court | New Hampshire Supreme Court |
Bernard & Merrill, PLLC, of Manchester (Gary S. Harding on the brief and orally), for the petitioner.
Moquin & Daley, P.A., of Manchester (Terrence J. Daley on the brief and orally), for the respondent.
The petitioner, AmGUARD Insurance Group (Carrier), insurer of Pelmac Industries, Inc. (Pelmac), appeals a decision of the New Hampshire Compensation Appeals Board (CAB) awarding workers’ compensation death benefits to the respondent, the decedent-employee's estate. See RSA 281-A:26 (2010); see also RSA 281-A:2, XI (Supp. 2020). The Carrier argues that the decedent's original June 5, 2018 injury was not a work-related injury, and, in the alternative, that his subsequent death by suicide did not result from the original injury. The Carrier also argues that the CAB violated its due process rights. We affirm.
The following facts were found by the CAB or are supported by the record before it. The decedent lived with his wife in Manchester and worked as an alarm installer and technician for Pelmac, an alarm system company. Pelmac's office is located in Manchester, but the decedent did not usually commute to and from the office location. Instead, the decedent traveled to various work sites throughout New Hampshire and Massachusetts using a company van, which he usually drove directly between his home and work sites. Although he worked a regular schedule of four, 10-hour days, he was also always on call and would be sent to problem situations before or after hours.
On June 4 and 5, 2018, the decedent had an assignment at a work site in the Berlin area, about a two-and-a-half-hour drive from Manchester. After the first day of work in Berlin, he drove the company van to his home as usual and he drove back to Berlin the next morning for the second day of the assignment. While driving home on June 5, at approximately 4:45 p.m., the decedent was involved in a single-vehicle accident when the company van crossed the road, went into the median, and flipped over.1 According to the CAB, "[t]here was no explanation of why the van left the road, although there was a thought that perhaps [the decedent] fell asleep." As a result of the accident, the decedent sustained serious injuries, including multiple lacerations to his head, a fractured neck, a concussion, a serious tear to his left rotator cuff, and multiple fractured ribs
. He was taken to the hospital for emergency care, where he remained for five days. One of the decedent's physicians, a neurologist, noted that the "accident might have been related to" the decedent's sleep apnea, which was being managed and treated with a "CPAP" machine. The neurologist reported that the decedent had not used his CPAP machine on the two nights before the accident because it was due for a cleaning, but that he "obtained about five to seven hours of sleep for the two days prior to the accident" and "did not note drowsiness" the day of the accident.
The decedent's rotator cuff injury required surgery on his shoulder that could not be performed until his neck fracture healed and his neck brace, which he needed to wear at virtually all times, could be safely removed. The CAB found that the decedent "desperately wanted the rotator cuff surgery" and the decedent's widow testified that he was "very anxious and worried" about the fact that "the longer it takes to do the surgery ..., the less likely [it was that he would be] able to get full range of motion back." According to the CAB, the evidence established that the decedent could not "drive a car or fully care for himself," nor could he "get back to work and be the person he once was," while he waited for his neck fracture to heal. Usually a "cheerful, busy and active person," he became "increasingly inactive," "emotional, often crying, and morose."
His wife observed her husband's increasing anxiety about his injuries, explaining that "[h]e wasn't used to being sedentary" and he was concerned that "if this didn't get fixed like [the doctors] said in a timely fashion that he wasn't going to have his quality of life that he knew prior to the accident." He had begun keeping a diary after the accident in which he documented his dissatisfaction with his doctors, his efforts to expedite and understand his recovery, his panic about his injuries not healing, and his acute fear of not being able to regain his pre-accident quality of life. The CAB found that the decedent's family "knew that things were getting worse over the course of the summer," but they did not fully recognize "[t]he extent of his depression-like mental state."
For more than two months the decedent lived with and tried to manage his injuries, including wearing his neck brace almost "24/7." On August 29, he met with a neurosurgeon, expecting to hear that the neck brace could be removed and to have his shoulder surgery scheduled. However, the decedent was informed that his neck fracture required at least another month to properly heal and at that time the neurosurgeon would re-evaluate whether the decedent's shoulder surgery could be scheduled. The CAB further found: "This news was devastating to [the decedent] and apparently was the last straw."
Four days after meeting with the neurosurgeon, on September 2, the decedent died by suicide at his home. When his family discovered him, they found a suicide note in a plastic bag in his pocket, "thanking his wife and expressing deep dissatisfaction with his present and future situation."
The Carrier had initially accepted and paid the decedent's workers’ compensation claim that he filed as a result of the motor-vehicle accident. After his suicide, however, the Carrier terminated payment of the claim, explaining that the decedent's death was "not causally related to the work injury and did not arise out of or in the course of employment." Consequently, the respondent sought review by the New Hampshire Department of Labor (DOL) to obtain workers’ compensation death benefits. See RSA 281-A:26. Following a hearing, the DOL hearing officer found that the decedent's June 5 injury arose out of and in the course of employment but that the suicide was not causally related to the June 5 work injury which foreclosed death benefits under RSA 281-A:26. See RSA 281-A:43, I(a) (2010). Both parties appealed the hearing officer's decision to the CAB. See RSA 281-A:43, I(b) (2010).2
The evidence before the CAB included the decedent's medical records, the accident report, and testimony of the decedent's widow, his two children, and a friend. Also, as specifically pertaining to the issue of the decedent's death by suicide, the CAB had before it the medical reports and opinions of two doctors — Dr. William J. Jamieson, a licensed psychologist and expert for the respondent, and Dr. Albert M. Drukteinis, a licensed psychiatrist and expert for the Carrier.
On the issue of whether the decedent's injuries suffered as a result of the June 5 single-vehicle accident constituted a work-related injury, the CAB determined that the respondent met its burden of proving "the causal relationship of the injury to employment." It reasoned that the decedent traveled extensively for his job, which involved "traveling long distances, working on site, and returning to Manchester," including "in the instant case." The CAB found, "[a]s far as the ‘going and coming rule,’ ... his daily work started when he left his house in the company van." Additionally, it found that, "[p]ursuant to Appeal of Margeson," 162 N.H. 273, 27 A.3d 663 (2011), "the risk involved [in the June 5 accident] is directly associated with employment," and the decedent's travel "would be an included risk of his employment."
With regard to the death by suicide, the CAB determined that "there was an obvious cause and effect between the [June 5] work accident and injuries ... and the suicide," and that the decedent's widow was entitled to death benefits. In arriving at this conclusion, the CAB noted an obvious difference between the medical opinions of Jamieson and Drukteinis. Jamieson's opinion, as evidenced in two reports submitted to the CAB, was based upon his interview with the decedent's widow and his review of the decedent's medical records, the suicide note, and the accident report. He explained that "[t]here is nothing in [the decedent's] past history to suggest previous vulnerability to depression, despair, or suicidal ideation
, or, in fact, to suggest any significant prior psychiatric issues." However, from the available medical records, he concluded that the decedent "did sustain a traumatic brain injury in brain areas involved with emotion control, reasoning, and judgment, as well as other physical injuries significantly affecting his functional capacity," and noted the "significant body of literature indicating a notably increased risk of suicidal ideation after traumatic brain injury." In Jamieson's opinion, "the combination of injuries from [the decedent's June 5 accident] comprise the precipitating cause of his suicide."
Drukteinis's opinion was based upon his review of the decedent's medical records, his diary and suicide note, the accident report, and Jamieson's prior report. The CAB noted that Drukteinis found that the records "do not fully explain why" the decedent committed suicide. He opined that "[t]he motivation to commit suicide may have stemmed from injuries sustained in the motor-vehicle accident [on June 5], but [the decedent] was not compelled because of those injuries to do so and nothing in the records establishes that it was not his willful choice." In response to Drukteinis's report, Jamieson agreed that the records did not "fully explain the suicide"; nevertheless, he opined that, "[i]f not for the [June 5] accident and its documented consequences, ... it is extremely...
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