Appeal of James Margeson (n.H. Comp. Appeals Bd.).

• Decision Date: 21 July 2011
• Docket Number: No. 2010–633.,2010–633.
• Citation: 27 A.3d 663,162 N.H. 273
• Parties: Appeal of James MARGESON (New Hampshire Compensation Appeals Board).
• Court: New Hampshire Supreme Court

162 N.H. 273

27 A.3d 663

Appeal of James MARGESON (New Hampshire Compensation Appeals Board).

No. 2010–633.

Supreme Court of New Hampshire.

Argued: May 5, 2011.Opinion Issued: July 21, 2011.

Kristin H. Sheppe and Michael C. Reynolds, of Concord, on the brief, and Mr. Reynolds orally, for the petitioner.Sulloway & Hollis, P.L.L.C., of Concord (James E. Owers and Stacey P. Coughlin on the brief, and Mr. Owers orally), for the respondent.DUGGAN, J.

The petitioner, James Margeson (employee), appeals a decision of the New Hampshire Compensation Appeals Board (CAB) denying him reimbursement for medical treatment and workers' compensation benefits. The parties dispute whether his injury arose out of his employment as required by RSA 281–A:2, XI (2010). We vacate and remand.

The CAB found or the record supports the following facts. The employee injured his right knee on April 18, 2009, while working for the respondent, the New Hampshire Department of Health and Human Services (employer), as a youth counselor at the John Sununu Youth Center (Youth Center). The employee was working the third shift and performing a routine bed check to ensure the residents were in bed at the required time. While conducting this bed check, he descended the stairs in one of the Youth Center's buildings, and his left foot landed awkwardly, causing him to lose his balance and twist his right knee. The stairs were in new condition and were not defective. Additionally, they were not wet or otherwise hazardous. While the employer alleged that the injury was precipitated by a pre-existing war wound to the employee's foot, the CAB rejected this as a cause of his injury. As a result of the knee injury, the employee sought treatment and incurred medical bills at four different medical centers and hospitals and missed work from April 19 to June 5.

The employee subsequently sought reimbursement for his medical expenses and disability and indemnity benefits. The employer denied his claim because it determined that his injury did not arise out of his employment. A department of labor hearings officer upheld the employer's denial of benefits and the employee appealed to the CAB. The CAB upheld the decision because the employee “did not encounter any greater risk of his employment than in his everyday life and the stairs were merely an incident or an occasion that accompanied the injury and the employment was not a contributory or additional risk in bringing his injury about.” The CAB denied the employee's motion for reconsideration. This appeal followed.

We will not disturb the CAB's decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. Appeal of Belair, 158 N.H. 273, 276, 965 A.2d 1006 (2009); RSA 541:13 (2007). The appealing party has the burden of demonstrating that the CAB's decision was erroneous. Appeal of Belair, 158 N.H. at 276, 965 A.2d 1006.

To make out a claim for workers' compensation, the employee had to show that his injuries arose “out of and in the course of his employment.” RSA 281–A:2, XI. The phrase “in the course of” employment 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.” Murphy v. Town of Atkinson, 128 N.H. 641, 645, 517 A.2d 1170 (1986). The phrase “arising out of” employment refers to the causal connection between the injury and risks of employment, and requires proof that the injury “resulted from a risk created by the employment.” Id.; see also Rio All Suite Hotel and Casino v. Phillips, 240 P.3d 2, 4–5 (Nev.2010); Odyssey/Americare of Oklahoma v. Worden, 948 P.2d 309, 311 (Okla.1997); 1 A. Larson, Larson's Workers' Compensation Law § 3.01, at 3–4 (Matthew Bender ed. rev. 2011).

The parties agree that the employee was injured while at work, i.e., “in the course of” employment. Instead, they dispute whether he suffered an injury “arising out of” his employment. Courts throughout the country have utilized three different tests, the increased-risk test, actual-risk test, and positional-risk test, to determine whether a claimant has met this requirement. We have yet to adopt any one of these tests, and the parties disagree regarding which standard should govern our inquiry. Accordingly, to provide guidance and clarity to the department of labor, the bench and the bar, we adopt a single test to determine whether the type of injury that occurred here arises out of employment.

To aid us in characterizing how the injury in this case should be analyzed, we begin by outlining four types of injury-causing risks commonly faced by an employee at work. These categories of injury-causing risks include: (1) risks directly associated with employment; (2) risks personal to the claimant; (3) mixed risks; and (4) neutral risks. 1 Larson, supra §§ 4.01–4.03, at 4–2 to 4–3.

Employment-related risks include “all the obvious kinds of injur [ies] that one thinks of at once as industrial injur[ies]” and are almost always compensable. Id. § 4.01, at 4–2. These risks include falling objects, explosives, and fingers being caught in gears. Id. Typically, a slip and fall is only attributable to an employment-related risk if it results from tripping on a defect or falling on an uneven or slippery surface on an employer's premises. Rio All Suite Hotel and Casino, 240 P.3d at 5. This category of risks always arises out of employment. 1 Larson, supra § 4.01, at 4–2.

The next category of risks, personal risks, are “so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment.” Id. § 4.02, at 4–2. A fall caused solely by an employee's personal condition, such as a bad knee, epilepsy, or multiple sclerosis, falls into this category. Rio All Suite Hotel and Casino, 240 P.3d at 5. Injuries falling squarely into this category are never compensable. Id.

The third category of risks, mixed risks, involve a personal risk and an employment risk combining to produce injury. 1 Larson, supra § 4.04, at 4–3. A common example of a mixed-risk injury is when a person with heart disease dies because of employment-related strain on his heart. Id. While not all injuries resulting from mixed risks are compensable, the concurrence of a personal risk does not necessarily defeat compensability if the claimant's employment was also a substantial contributing factor to the injury. Id.; see also New Hampshire Supply Co. v. Steinberg, 119 N.H. 223, 231, 400 A.2d 1163 (1979) ( Steinberg I ).

Finally, neutral risks are “of neither distinctly employment nor distinctly personal character.” 1 Larson, supra § 4.03, at 4–2. This middle-ground category is the most controversial in modern compensation law. Determining whether an injury resulting from a neutral risk arises out of employment is a question of fact to be decided in each case. See Odyssey/Americare of Oklahoma, 948 P.2d at 311. These risks include being hit by a stray bullet, being struck by lightning, or being bitten by a poisonous insect. 1 Larson, supra § 4.03, at 4–3. They also include cases in which “the cause itself, or the character of the cause, is simply unknown.” Id. An unexplained fall is considered a neutral risk. Mitchell v. Clark County Sch. Dist., 121 Nev. 179, 111 P.3d 1104, 1106 n. 7 (2005); cf. Odyssey/Americare of Oklahoma, 948 P.2d at 313 (explaining that wet and slippery grass because of rain is considered a neutral risk). Here, the employee slipped and was injured while descending a staircase that was free of defects, and the employer does not contend on appeal that a personal risk caused the employee's injury. Accordingly, we conclude that the employee's injury resulted from a neutral risk.

Injuries caused by neutral risks are by definition not clearly personal or employment-related in nature. Courts predominantly apply one of three tests to determine whether such an injury arises out of employment. 1 Larson, supra § 3.01, at 3–4; Rio All Suite Hotel and Casino, 240 P.3d at 6. The first is the increased-risk test, which is the most widely utilized of these tests. See 1 Larson, supra § 3.03, at 3–4.1. It “examines whether the employment exposed the claimant to a risk greater than that to which the general public was exposed.” Rio All Suite Hotel and Casino, 240 P.3d at 6 (quotation omitted). The second, the actual-risk test, ignores whether the risk faced by the employee was also common to the public. 1 Larson, supra § 3.04, at 3–5. A claimant may recover so long as the employment subjects him to the actual risk that causes the injury. Id. The final test is the positional-risk test. In jurisdictions that have adopted this test, an injury arises out of employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed [the] claimant in the position where he was injured.” Id. § 3.05, at 3–6. In other words, under the positional risk test, an injury arises out of employment so long as the obligations of employment place the employee in the particular place at the particular time that he suffers an injury. Id.

The employer, relying upon Dustin v. Lewis, 99 N.H. 404, 112 A.2d 54 (1955), and Appeal of Lockheed Martin, 147 N.H. 322, 786 A.2d 872 (2001), contends that New Hampshire has adopted the increased-risk test. The employee, however, points to our decisions in Appeal of Redimix Cos., 158 N.H. 494, 969 A.2d 474 (2009), and Appeal of Kehoe, 141 N.H. 412, 686 A.2d 749 (1996), and argues that New Hampshire has adopted either the positional risk or actual risk test. While we recognize some support in our case law for each party's position, we have never before addressed the compensability of an injury caused by a neutral risk.

Our most recent line of cases addressing the “arising out of” requirement explained that a claimant must prove by a...