Employment Law

Ryan M. Borden
Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth,
NH with a focus on bankruptcy representation of
trustees, creditors and debtors, corporate law and commercial litigation.

No. 2019-0115
January 31, 2020
Vacated and remanded

  • Whether the Compensation Appeals Board erred in denying petitioner’s claim for indemnity benefits and payment of medical bills

The petitioner had been an employee of the Laconia School District as elementary school speech assistant. Part of her job required her to escort students and to supervise a locked side entrance door area at the start and end of the school day, which consisted of an interior door, door mat, corridor, exterior door and small outside, concrete area. In the winter, the outside area was treated with sand and ice melt.

On April 18, 2017, the petitioner fell twice at the same location  while  walking down the corridor to the side entrance, once at the start of the day and once at the end. The first fall did not cause injury, but the second fall resulted in a fractured right arm that required surgery. Petitioner’s doc- tors removed her from work on April 19 and released her to part-time duty with modifications on June 5. The district was unable to accommodate her disability and the petitioner did not return to work until school resumed in the fall. Despite surgery and physical therapy, the petitioner had limited mobility and still experienced pain.

The petition sought indemnity benefits and payment of medical bills, which the district’s insurance carrier denied. The insurance company determined her injury was not related to her employment. A department of labor hearing officer upheld that finding, as did the compensation appeal board. The CAB found that the petitioner failed to prove more probably than not that defects in the floor surface or the door mat posed an actual risk that caused her fall, or that her unexplained fall was a neutral risk that met the increased-risk test under Appeal of Margeson. After reconsideration was denied, the petitioner appealed to the Court.

On appeal, the petitioner argued that the CAB erred in finding that the injury was not a risk directly associated with her employment. The Court found that the evidence supported the CAB’s decision that the floor was not defective, uneven or slippery at the date of the fall. Despite conflicting evidence in the record, the Court found it was within the CAB’s authority to resolve evidentiary conflicts and would not make a factual determination itself. The Court also held that to the extent the petitioner challenged the test employed by CAB to determine whether the risk was directly related to employment, the evidence supported the CAB’s ruling.

The petitioner alternatively argued that the CAB erred in determining that she failed to meet the increased-risk test of Appeal of Margeson. Specifically, petitioner argued that her job required her to supervise the locked side entrance and therefore required her to walk the corridor where she fell. The CAB had ruled that the petitioner needed to prove her job required her to walk more at work than in her personal life or that the corridor was more slippery than flooring typically encountered by the general public.

The Court agreed that CAB erred in applying the increased-risk test. The appropriate test was whether the petitioner’s employment either qualitatively or quantitatively increased her risk of injury. The CAB had made no factual determination regarding whether the frequency in which petitioner walked the hallway (more than 20 times per day) increased her risk of injury, nor whether her job requirement to escort students and supervise the side entrance increased her risk of injury. Due to the CAB’s misapplication of the increased-risk test and its failure to determine relevant facts, the Court vacat- ed the CAB’s decision and remanded.


Anne M. Rice, Rice Law Office, Laconia, for the petition. Eric G. Falkenham, Devine, Millimet & Branch, Manchester, for the respondent.