Appeal of Griffin

• Decision Date: 12 February 1996
• Docket Number: No. 94-588,94-588
• Citation: 671 A.2d 541,140 N.H. 650
• Parties: Appeal of Mark S. GRIFFIN. (New Hampshire Compensation Appeals Board).
• Court: New Hampshire Supreme Court

Page 541

671 A.2d 541

140 N.H. 650

Appeal of Mark S. GRIFFIN.

(New Hampshire Compensation Appeals Board).

No. 94-588.

Supreme Court of New Hampshire.

Feb. 12, 1996.

Engel, Gearreald & Gardner, P.A., Exeter (Mark S. Gearreald, on the brief and orally), for petitioner.

Devine, Millimet & Branch, P.A., Manchester (Julie A. Quigley, on the brief, and Douglas N. Steere, orally), for respondent, Kidder Building & Wrecking, Inc.

BROCK, Chief Justice.

The petitioner, Mark S. Griffin, appeals a decision by the New Hampshire Compensation Appeals Board (the board) denying his claim for workers' compensation benefits. We reverse and remand.

The petitioner was employed as a laborer for the respondent, Kidder Building & Wrecking, Inc. (Kidder). His work entailed the duties associated with wrecking and demolition at various locations, including Maine, Massachusetts, and Rhode Island. On May 21, 1992, the petitioner had been on a demolition job for Kidder in Warwick, Rhode Island, for approximately two weeks. This job required that the petitioner and other Kidder employees remain overnight in Rhode Island. They received daily meal allowances and motel accommodations provided by Kidder and were permitted to use the company vehicle for transportation.

After dinner at a restaurant on May 21, the petitioner was driving the company truck. He had had four or five beers with dinner. His foreman, Ronald Davis, was in the front passenger seat, and co-workers Brian White and Bill Darling were seated in the back. At some point, for reasons the participants dispute, Davis and the petitioner argued, and Davis removed the keys from the vehicle while the petitioner was driving. An altercation between the two men ensued at the side of the road outside the vehicle. Punches were thrown, and White hit the petitioner on the head with a two-by-four piece of wood, causing injury.

The board, which included as a member Nicholas Georges, an adjuster employed by the New Hampshire Automobile Dealers Association, ruled that the petitioner's injury did not arise out of and in the course of employment, see RSA 281-A:2, XI (Supp.1995). On appeal the petitioner argues that: (1) Mr. Georges should have been removed from the board because of his business connection to Kidder's counsel, see Appeal of Hurst, 139 N.H. 702, 660 A.2d 1143 (1995); (2) the board improperly applied New Hampshire Administrative Rules, Lab 207.02 and 207.03 (Labor Rules) to deny the petitioner's request for a rehearing; and (3) the board erred as a matter of law in deciding that his injury did not arise out of and in the course of his employment. The employer notes that the petitioner did not request Mr. Georges' removal prior to or during the hearing, and contends that this issue is therefore not preserved for appeal. Because we reverse on the merits, we need not address the first issue. We first address the petitioner's procedural argument.

Labor Rules 207.02 and 207.03 correspond to RSA 541:3 (1974) (amended 1994) and :4 (1974). They deal with the time and specificity requirements, respectively, for a motion for rehearing of the board's decision. The petitioner had twenty days after the board's decision within which to "apply for a rehearing in respect to any matter determined in the ... proceeding ... specifying in the motion for rehearing the ground therefor." N.H.Admin.Rules, Lab 207.02; see RSA 541:3 (1974) (amended 1994). The motion was required to "set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable." N.H.Admin.Rules, Lab 207.03; see RSA 541:4.

The board rendered its decision on February 28, 1994. On March 18, 1994, the petitioner filed a letter with the department of labor, stating: "I would like to file an appeal for reconsideration on the decision rendered on the Appeals hearing which was held on February 28, 1994 based on the discrepancies found between this Appeals hearing and the hearing held on March 25, 1993." The letter indicated that the attorney who had represented the petitioner at the hearing had informed him on March 16, with four days remaining in the period for filing a request for rehearing, that he would no longer represent him. In addition, according to the letter, it was only on March 17, when the attorney's paralegal called the petitioner to explain the procedure, that the petitioner learned of the twenty-day window for filing a motion for rehearing. After retaining new counsel, the petitioner filed a motion to amend motion for rehearing on April 18, 1994, alleging the specific grounds now before this court.

On August 1, 1994, the board denied the request for rehearing. Relying on Labor Rules 207.02 and 207.03, the board held that the petitioner's initial pro se letter did not meet the specificity requirement and that the subsequent motion was untimely. The board further stated that it "has carefully reviewed its decision dated February 28, 1994 and believes that a rehearing would be a re-hashing of evidence already presented and decided on."

RSA 541:4 provides:

Such motion [for rehearing] shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable. No appeal from any order or decision of the commission shall be taken unless the appellant shall have made application for rehearing as herein provided, and when such application shall have been made, no ground not set forth therein shall be urged, relied on, or given any consideration by the court, unless the court for good cause shown shall allow the appellant to specify additional grounds.

(Emphasis added.) We find "good cause" to allow the petitioner to pursue the specific argument he makes on appeal in the following particular facts of his case: the late withdrawal of his first attorney without apprising him of the procedures for rehearing; his timely pro se motion for rehearing; and a motion to amend the motion for rehearing, containing the specific ground here raised, that was filed over three months prior to the board's rendering a decision on the motion for rehearing. In these circumstances the petitioner's argument that the board erred in ruling his injury did not arise out of and in the course of employment is properly before us.

To be compensable under the Workers' Compensation Law, the petitioner's injury must have "aris[en] out of and in the course of employment." RSA 281-A:2, XI. We construe the statute liberally, resolving all reasonable doubts in statutory construction in favor of the injured employee in order to give the broadest reasonable effect to the remedial purpose of workers' compensation laws. Petition of Abbott, 139 N.H. 412, 416, 653 A.2d 1113, 1115 (1995); Whittemore v. Sullivan Cty. Homemaker's Aid Serv., 129 N.H. 432, 435, 529 A.2d 919, 920-21 (1987). "Accordingly, the employee can expect a liberal interpretation of when the employment begins or ends." Heinz v. Concord Union School Dist., 117 N.H. 214, 220, 371 A.2d 1161, 1165 (1977) (quotation, brackets, and ellipses omitted).

To meet this scope-of-employment test, the petitioner must prove:

(1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment; and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment; and (B) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, or an activity of mutual benefit to employer and employee.

Murphy v. Town of Atkinson, 128 N.H. 641, 645-46, 517 A.2d 1170, 1172-73 (1986) (citations omitted).

The petitioner's situation, that of the so-called "traveling employee" whose business requires that he be away from home, presents us with a case of first impression. We do not, however, write on a clean slate: "With respect to perils of travel, ... th[is] court has held that special travel risks imposed by special duties are properly considered hazards of the employment," R. Galway, New Hampshire Workers' Compensation Manual § 2.04, at 2-8 (1993), and thus arise out of employment, id.; see Heinz, 117 N.H. 214, 371 A.2d 1161 (teacher's death on roadway while traveling home before returning to work for extra duty held to have arisen out of and in the course of employment); Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 201 A.2d 891 (1964) (waitress's roadway death while returning home from extra duty held to have arisen out of and in the course of employment). The question here is whether by virtue of being a traveling employee the petitioner was subject to special travel risks as a result of his employment such that his injury is compensable. Cf. Henderson, 105 N.H. at 445, 201 A.2d at 894.

The traveling employee is generally considered to be within the scope of his employment throughout his sojourn:

Employees whose work entails travel away from the employer's premises are held in the majority of jurisdiction[s] to be within the course of their employment continuously during the trip,...