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Bar News - September 16, 2015


Morning Mail: More Insight on Appeal of Kelly from Injured Worker’s Attorney

I read with interest Joshua Hilliard’s article, “Decision in Appeal of Kelly raises more questions about mixed risk” in the Aug. 19 issue of Bar News. I briefed and argued the NH Supreme Court case on behalf of Brandon Kelly, having tried it with my father and former law partner David L. Nixon. I would like to bring to your readers’ attention some of the case law supporting the claimant’s position in that case that is not discussed in the article.

It became very clear to me, in researching both New Hampshire precedent and workers’ compensation precedent in other states, that the type of work Kelly was doing at the time of his injury, as a traveling employee, is always considered a “risk directly associated with employment,” and therefore I would argue under the analysis in Appeal of Margeson (2011), this type of employment would fall within the first type of risk, not a “risk personal to the claimant,” a “mixed risk,” or a “neutral risk.” While it is correct that the Supreme Court analyzed the case as a mixed risk case, as Hilliard noted, that is because neither party had challenged the Compensation Appeals Board’s determination.

On behalf of Kelly we did not challenge that determination because we believed compensability was so clear that the Margeson analysis was not required. In fact, the essential finding of the CAB that led it to rule against our client was that Kelly was not a “traveling employee” because his job did not require him to sleep away from home.

In our brief and argument we pointed out that the definition of “traveling employee” as originally established in New Hampshire in Whittemore v. Sullivan County Homemaker’s Aid Service (1987) did not require an overnight stay. Rather, the operative principle is that “where the employment requires travel, the employee is consequently exposed to hazards he would otherwise have the option of avoiding. Thus, the hazards of the route become the hazards of the employment.” Whittemore was a home health aide who traveled to visit clients in their homes throughout the day, but did not stay overnight away from home.

As this quote illustrates, the distinction between a non-work-related motor vehicle accident and one which occurs in the course of employment is that the driver’s travel in the non-work-related situation is at the time and place of his or her choosing, whereas in employment-related travel the time and place of travel are chosen and required by the employer. Thus, as it applies to Kelly, someone who is overtired and at risk of falling asleep while driving has the choice of staying home, while an employee who is similarly overtired does not.

This point was made very clear by the Maine Supreme Court in Boyce v. Potter (1994), upon which our Supreme Court relied in deciding Appeal of Griffin (1996). In Boyce the court held “Traveling employees are employees for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace. Traveling employees’ travel is deemed a work-related risk” [cite omitted; emphasis supplied]. The decision later states that it is “the job’s requirement of travel and the employer’s authority and control in assigning its employees to different work sites that increase the normal risk and render compensable any injury suffered during such travel.”

Although the court in Appeal of Kelly did not use this analysis, it is presumably because the parties had not challenged the “mixed risk” categorization of the CAB. In my experience, having practiced workers’ compensation law for 34 years, the Boyce analysis is a good explanation for why, until the insurance carrier chose to challenge compensability in Kelly’s case, there has never been a challenge of the compensability of a car accident-related injury to a traveling employee. To bring the point home, as lawyers who frequently travel for our job, visiting clients or going to court, we certainly hope and expect to be covered should we be injured in a car accident on such a trip.

Almost every case where an injury occurs on the job the employee is at the place of the employer’s choosing at the time of the employer’s choosing, thus exposing him or her to a risk which he or she might otherwise choose to avoid in a non-work situation. I believe it is this which makes most workplace injuries compensable.

I have been concerned for some time about the extent of additional litigation that has resulted from the Margeson decision, and I would hate to think that, as the carrier suggested in Appeal of Kelly, we should scrutinize every injury to a traveling employee to determine whether the employee had some personal condition or illness that made him or her more likely to become involved in a motor vehicle accident.

I am grateful to the Court for clarifying this area of the law in Appeal of Kelly, and hope that the decision will reduce the amount of litigation in workers’ compensation cases.

Leslie Nixon
Manchester, NH

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