Bar News - August 19, 2015
Workers’ Compensation & Personal Injury: Decision in Appeal of Kelly Raises More Questions about Mixed Risk
By: Joshua S. Hilliard
Brandon Kelly was driving a company truck from a job site to the company shop when he fell asleep, resulting in an accident that led to the amputation of his lower leg.
The workers’ compensation carrier denied the claim and argued that, although the injury had taken place in the course of employment, it had not arisen out of employment as required by RSA 281-A:2, XI (2010).
A hearings officer at the NH Department of Labor awarded benefits; the Compensation Appeals Board (CAB) later denied the claim after a de novo appeal hearing. The claimant appealed to the NH Supreme Court, which reversed and remanded.
Before diving into the holding of the Supreme Court, it’s important to understand the basis for determining whether an injury is compensable under New Hampshire’s workers’ compensation statute. An employer/carrier is liable for any employee injury that “arises out of” and “in the course of” employment.
“Arising out of” refers to “the causal connection between the injury and the risks of employment, and requires proof that the injury resulted from a risk created by employment.” “In the course of” refers to “whether the injury occurred within the boundaries of time and space created by the terms of employment and occurred in the performance of an activity related to employment.” Appeal of Margeson (2011) (internal citations omitted).
The NH Supreme Court has identified four types of risks to determine if a workplace injury arises out of employment: (1) risks directly associated with employment; (2) risks personal to the claimant; (3) mixed risks; and (4) neutral risks. Risks directly related to employment are those such as falling objects, explosives, or industrial accidents involving manufacturing machines, and are nearly always compensable. Personal risks are just that – personal to the claimant – and even if they take effect while an employee is on the job, the resulting claims are not compensable. An example the Court provided is an injury caused by an accident resulting from an employee’s pre-existing bad knee.
Mixed risks involve both personal and employment risks which combine to cause an injury. An example is a worker involved in a highly stressful trade who suffers a heart attack on the job. The personal risk of a heart attack – perhaps the worker’s history of smoking and high blood pressure – combine with the stress of the job to cause the injury. Determining the compensability resulting from a mixed risk injury is often the most difficult of the four risk categories and tends to rest on the specific facts of each individual incident.
Neutral risks are neither directly associated with employment nor personal in nature, and include being “hit by a stray bullet, being struck by lightning, or being bitten by a poisonous insect” or cases in which “the cause itself, or the character of the cause, is simply unknown.” (Margeson). Determining the compensability of an injury caused by a neutral risk is, like a mixed risk case, very fact-specific.
In Appeal of Kelly, NH (March 20, 2015), the Court noted that neither party challenged the CAB’s determination that the case involved a mixed risk.
Because this was a mixed risk, the Court had to determine if the claimant had proven both medical and legal causation under the Steinberg I test, or, in other words, had proven the injury was the result of a workplace incident and provided sufficient medical evidence that the workplace incident caused or contributed to the cause of the injury.
The NH Supreme Court noted that the CAB had erroneously considered whether Kelly’s employment was a substantial contributing factor to the accident, instead of considering whether Kelly’s employment was a substantial contributing factor to his injury. The Court stated that the effect of Kelly’s employment on the injury – not the circumstances that led to the accident – was the important factor. The Court stated that just as “the effects of an idiopathic fall can be made attributable to the employment when the employment supplied a hazard that contributed to the ultimate injury, here, the effects of the petitioner’s tiredness and falling asleep can be attributed to the employment, provided that conditions of the job gave rise to a hazard that contributed to ultimate injury.”
The Court’s repeated assumption that this matter involved a mixed risk indicates that the analysis and result might have been different had counsel argued that Kelly’s injury was caused by a personal or neutral risk. Because driving may place a claimant in a position of increased risk, the Court’s holding suggests that many injuries resulting from a motor vehicle accident triggered by a claimant’s personal condition may be compensable.
The holding also suggests that positional risk – a risk analysis previously rejected by the Court – may have played a role in the current Court’s analysis, as the claimant’s driving responsibilities placed him in a position to receive the injuries he sustained. Yet the carrier made no argument regarding whether the claimant suffered from a disease or internal weakness that caused him to fall asleep, and the Court avoided the question of whether “being tired and then falling asleep on the job constitutes a mixed risk” and stated it “is an issue that we leave for another day.”
Those representing claimants or carriers in workers’ compensation claims should recognize that injuries sustained as a result of a motor vehicle accident and other comparable situations that increase the risk of an injury may well be compensable. Practitioners should be mindful of the type of risks that cause an injury, noting that the Court’s analysis was predicated on the assumption that Kelly’s injury was the result of a mixed risk. It remains to be seen how the Court would decide if the accident was the result of a personal or neutral risk, though we may find out when and if “another day” arrives.
RELATED: Morning Mail: More Insight on Appeal of Kelly from Injured Worker’s Attorney
Joshua S. Hilliard practices at Bernard & Merrill in Manchester, NH, where he focuses on defense of employers and insurers in workers’ compensation claims.