New Hampshire Bar Journal
2011 Fall, Pg. 46.
WORKERS' COMPENSATION: Appeal of Margeson and Expansion of the Substantial Contribution Test
New Hampshire State Bar JournalVolume 52, No. 3Fall 2011WORKERS' COMPENSATION: Appeal of Margeson and Expansion of the Substantial Contribution TestBy Daniel R. Lawson(fn1)New Hampshire's workers' compensation law, like all others, is simple in principle: it gives workers a simple and effcient means of recovering for work-related injuries, that is, injuries arising "out of and in the course of employment."(fn2) But this facially simple principle has spawned some serious complexities. Among them is the diffculty of determining whether an injury "arises out of and in the course of employment" when an injury involves both personal and work-related causes or when an injury arises spontaneously in the workplace without clear cause. 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?(fn3) Is a strangulated hernia that was waiting to happen work-related because it occurred in the work-place?(fn4) What about injuries caused by hazards that are either unexplained or unrelated to either the worker or the workplace? Is an injury caused by a freak lightning strike, a stray bullet, or a poisonous animal bite compensable? Can a worker recover compensation for a knee injury that was sustained while walking down a workplace staircase that presented no extraordinary hazard?(fn5)
Examples such as these have presented courts with an obvious hazard: if the scope of work-relatedness is defned too broadly workers who are susceptible to heart failure, serious back injury, or other internal failure could take advantage of the workers' compensation law by seeking compensation for inevitable injuries that happened to arise in the workplace.(fn6) The workers' compensation law would thus require employers to shoulder the burden of injuries that were only coincidentally-rather than causally-related to the employment.
Thirty years ago, the New Hampshire Supreme Court adopted a rule to address this hazard: the "substantial contribution test."(fn7) Though the Court's expression of this test has been somewhat misleading, a close look at its opinions reveal that the substantial contribution test is merely an application of the "increased-risk test" put forth inLarson 's Workers' Compensation Law which, like the substantial contribution test, requires workers under certain conditions to satisfy a heightened burden of legal causation. Until recently the increased-risk test had been confned to a narrow class of cases. But inAppeal of Margeson, decided in July 2011, the New Hampshire Supreme Court altered the landscape of workers' compensation law. The Court expanded the application of the increased-risk test and essentially eliminated an entire class of injuries from compensability. This article will take a close look at the substantial contribution test before and after Margeson and explore the impact of that recent case.
I. STEINBERG AND THE BIRTH OF THE SUBSTANTIAL CONTRIBUTION TEST
The New Hampshire Supreme Court resisted the trend towards limiting the compensability for injuries suffered by workers with preexisting conditions, but fnally relented in a 1979 case, New Hampshire Supply Company v. Steinberg.(fn8) Steinberg presented the court with a man seeking compensation for a heart attack that had occurred away from work but was allegedly caused by the psychological stresses of his job.(fn9) Though the court held that such a heart attack could be compensable, it balked at Steinberg's claim because he had exhibited several personal risk factors before the heart attack occurred, including a family history of heart disease, high blood pressure, high cholesterol, a smoking habit, and excess weight.(fn10) The court borrowed a theory from Arthur Larson's highly authoritative workers' compensation treatise and introduced its "substantial contribution test."(fn11)
The substantial contribution test takes a worker's previous health into consideration and requires claimants with preexisting conditions to satisfy a special test of legal causation.(fn12) According to the Court, the test defnes the "degree of exertion" that is necessary for an injury to be work-related. (fn13) Whereas healthy claimants needed only prove a but-for causal...