Injury at Work, NH Workers Compensation Coverage

March 24, 2015

Injury at work – covered by workers compensation insurance if risks from work are “substantial contributing factor to injury”

Injury at work, is it covered by workers compensation insurance when several different causes?  This is the question that the New Hampshire Supreme Court recently answered in Appeal of Brandon Kelly.

The plaintiff, an employee of Advanced Sheet Metal in Hudson, New Hampshire, worked in a position that required him to travel to different job sites in a company truck.  After working at one site, he departed in the Company truck back to the shop to unload the truck.  While driving, he fell asleep and hit a utility pole.  He suffered serious personal injury including the amputation of his lower leg.

Compensation Appeals Board (CAB)

The workers compensation insurer for the Company denied the claim.  On appeal to the Compensation Appeals Board (“CAB”), the CAB denied it as well.  The CAB found that it was undisputed that the Claimant was acting in the course of his employment at the time of the accident, and that the accident occurred because he fell asleep while driving.  However, the CAB ruled that injury was caused by the “mixed risk” associated with his employment and that the Claimant failed to prove that whatever abnormal weariness, if any, that he had on the day of the accident was “caused by his employment.”

Standard for Comp: Did the injury arise out of and in the course of employment?

The New Hampshire Supreme Court, considering the facts, made it clear that this case was not governed by the “traveling employee rule.”  Instead, it hinged on the application of the concept of “mixed risk”.  In New Hampshire, there are four types of injury-causing risks.

(1) Employment-related risk?

The first includes employment-related risks, which include the risk of injuries general recognized as industrial injuries, such as fingers being caught in gears.  This always “arises out of employment.”

(2) Personal risk?

The second is personal risks that are so clearly personal that they could not possibly be attributed to employment.  A fall caused solely by an employee’s personal condition, such a bad knee, is a good example.

(3) Mixed Risk?

The third is “mixed risk” which involves a employment related risk and a personal risk combining to produce injury.  A common example is when a person with heart disease dies because of employment-related strain on his heart.  Although not all injuries resulting from mixed risks are compensable, the concurrence of a personal risk and an employment risk does not necessarily defeat compensability if the employment was also a substantial contributing factor to the injury.

The Court applies the Steinberg I test to assess whether legal and medical causation exists. Legal causation requires a showing that “the claimant’s injury is in some way work-related, while medical causation requires a showing that the injury was actually caused by the work- related event.”  The test to be used for legal causation depends upon the previous health of the employee.  “If the employee suffers from a prior weakness, the employment-connected stress or strain must be greater than that encountered in normal non-employment life. If there is no prior weakness, any work-related stress or strain connected with the injury as a matter of medical fact satisfies the legal causation test.”

(4) Neutral Risk?

The fourth category is risk that is neither distinctly employment, nor distinctly personal in character.  These are risks such as those the involve causes that are simply unknown.

Ruling: “Substantial Contributing Factor to Injury”

Applying the facts to this law, the Court then held that the petitioner’s job required him to drive to various job sites in a company truck. On the day of the accident, he was driving a company truck from a job site in Massachusetts to the company shop in Hudson in order to unload the truck. There can be no question that the injurious effects of falling asleep were increased by the environment in which the petitioner found himself at the time he fell asleep — behind the wheel of a moving truck.  The Court ruled, therefore, that it has “no difficulty concluding on this record, as a matter of law, that the petitioner’s employment was “a substantial contributing factor to the injury.”

Key Point:

If you’re injured at work, even if you think it may not be work-related, consult an attorney.  The circumstances, when handled correctly, may lead to the conclusion that employment, and the risks it created, were a substantial contributing factor to the injury and you might be covered.

SourceAppeal of Brandon Kelly, Dkt. No. 2013-867, (March 20, 2015).