ISSUE: Survivor’s Benefits in the Case of an Injured Worker’s Suicide

Jack_crop 72dpiThe 1984 amendments to the Longshore Act changed the provision for survivors’ benefits. Following the 1972 amendments and up to the date of the 1984 amendments, survivors of workers who were entitled to permanent total disability benefits at the time of death were automatically entitled to benefits regardless of the cause of death, the so-called unrelated death benefit. This was changed. The 1984 amendments require that the death of the injured worker must be caused by a work-related injury (caused, contributed to, hastened, or accelerated, at least in part) in order for survivors to be eligible for benefits.

Currently, section 9 of the Longshore Act (33 U.S.C. 909) states, “If the injury causes death, the compensation therefore shall be known as a death benefit ….” The section goes on to list the various classes of survivors and the amount of survivor’s benefits that each class may qualify for. So, following the 1984 amendments, survivor’s benefits are based on “related death” rather than on “unrelated death”.

If the death of the injured worker is the result of suicide, then the difficult circumstances lead to challenging issues of causation.

First, there are presumptions available to the claimant, and there is a defense available for the employer.

Section 20(a) states, “In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary –

(a)    That the claim comes within the provisions of this Act.

This section 20(a) presumption applies to the issue of whether an injury is causally related to employment, including whether death arises out of employment, once the prima facie case is established, i.e., that the claimant suffered harm, and that working conditions existed or an accident occurred which could have caused the harm.

The employer can rebut the presumption by producing substantial evidence that the deceased’s death was not caused by his employment. If the employer rebuts the presumption, the presumption drops out of the case and the issue of causation must be resolved on the evidence of record as a whole, by a preponderance of the evidence.

Section 20(d) provides a presumption that the injury was not occasioned by the willful intent of the employee to injure or kill himself or another. This presumption may also be rebutted by producing substantial evidence to the contrary, and you’re back to proving causation on the record as a whole by a preponderance of the evidence, including the section 3(c) defense.

Section 3(c) states, “No compensation shall be payable if the injury was occasioned … by the willful intention of the employee to injure or kill himself or another.” If the employer rebuts the section 20(d) presumption and prove willful intent then there is no entitlement to survivor’s benefits.

So, in simple terms, the survivor who files a claim for benefits under the Longshore Act and can establish a prima facie case has two presumptions in his/her favor: 1) that the injury/death is related to work, and 2) that the injury/death was not the result of willful intent on the part of the injured worker to injure or kill himself or another.

The employer may rebut either of the section 20 presumptions by producing substantial evidence to the contrary. If the presumptions are rebutted, they drop out of the case, and the issue is then decided on the record as a whole by a preponderance of the evidence. The employer may then successfully defend the claim under section 3(c), by establishing that, in the event of suicide, that the suicide was the result of willful intent on the part of the worker.

Thus, in cases where the facts establish that the employee committed suicide, the primary issue is the part that the employment related condition played in causing the death and specifically whether the employee had the willful intent to commit suicide.

The first question that may arise is, can suicide not be the result of willful intent, especially where there is a “suicide note” left behind, or there are other indications of pre-planning? The mere fact of suicide, however, does not establish willful intent.

One concept that has evolved in cases of suicide is that of “irresistible suicidal impulse”. If the decedent’s suicide was caused by an “irresistible suicidal impulse” resulting from an employment related condition then this overcomes willful intent and the survivors are entitled to related death benefits.

Interestingly, the federal Ninth Circuit Court of Appeals has issued two recent decisions which change the focus of the causation analysis away from the question of “irresistible impulse” resulting from employment related conditions, into an analysis more in terms of a chain of causation based on whether the work injury and its effects precluded the formation of a rational and willful intent to commit suicide.

The Ninth Circuit states that a survivor’s claim in the case of suicide is compensable where there is, “a direct and unbroken chain of causation” between a compensable work related injury and the suicide where the injury and its consequences directly result in the claimant’s loss of normal judgment, observing that this test better comports with modern psychiatry and the no-fault aspect of the Longshore Act (Kealoha v. Director, Office of Workers’ Compensation Programs, 713 F.3d 521 (2013)).

In my opinion, this “psychiatric” test for causation to be applied to cases involving suicide arising in the Ninth Circuit may have the effect of weakening the section 3(c) defense, because it lends itself to such a potentially broad inquiry. In a broad sense, suicide is often the result of “loss of normal judgment”.   It may also lead to more emphasis on an analysis based on whether there was an intervening cause, that is, a “new and independent agency” or set of circumstances that are not related to the employment and that break the chain of causation and causes the suicide. In other words, was the suicide due to a non work related supervening set of circumstances and not the natural or unavoidable result of the decedent’s original work injury.

As you can see, claims involving suicide can be quite complex.

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