Murphy v. Town of Atkinson

• Decision Date: 03 October 1986
• Docket Number: No. 85-288,85-288
• Citation: 517 A.2d 1170,128 N.H. 641
• Parties: Donald MURPHY v. TOWN OF ATKINSON et al.
• Court: New Hampshire Supreme Court

Page 1170

517 A.2d 1170

128 N.H. 641

Donald MURPHY v. TOWN OF ATKINSON et al.

No. 85-288.

Supreme Court of New Hampshire.

Oct. 3, 1986.

Wiggin & Nourie, Manchester (L. Jonathan Ross, on brief, and Kelly M. Bird on brief and orally), for plaintiff.

Devine, Millimet, Stahl & Branch P.A., Manchester (Richard E. Galway on brief and orally, and Douglas N. Steere on the brief), for defendants.

SOUTER, Justice.

The plaintiff appeals an order of the Superior Court (Gray, J., acting on the recommendation of a Master, Mayland H. Morse, Esq.) upholding a decision of the department of labor to deny the plaintiff's claim for workers' compensation benefits. RSA 281:37. We affirm.

At all relevant times, the plaintiff was a member of the volunteer fire department in the Town of Atkinson. The defendants are the town and its workers' compensation insurance carrier. On the evidence presented, the master was entitled to find that the Atkinson Fire Department and a group known as the Atkinson Firefighter's Association have a common membership, although each organization has separate officers, funds and functions. The department is responsible for firefighting and training; the association sponsors fund raising and social events, sometimes donates equipment to the department and sometimes advances funds for equipment and training expenses. "By-laws" of the department, reflecting the relationship between the two organizations, provide that the president of the association will be a member of the department's membership committee and obligate department and association members to join in any fund raising efforts to the extent that they reasonably can.

It may be assumed that the camaraderie among members and their families at the association's social gatherings improves the morale of the department. One such gathering occurred on August 26, 1984, when the association sponsored and paid for a picnic at a private camp in Atkinson. About half of the association's members attended with their families, as did others who were neither members nor relations of members. The members brought firefighting equipment to the scene, in case a call came during the picnic. Although there was no firefighting instruction, some of the newer members of the department were taught to unroll hoses, which were then used to fill the camp's swimming pool.

The only planned activities were eating, swimming, water polo and a softball game, in which the plaintiff played. After jumping to make a high catch he injured his knee, for which injury he seeks workers' compensation benefits under RSA chapter 281. The question originally before the labor department, and subsequently before the superior court, was whether the injury arose "out of and in the course of employment," within the meaning of RSA 281:2, V (Supp.1985). Each tribunal answered no.

In this appeal, two preliminary matters demand attention. The first arises from disagreement about the application of the rule, reflected in Charles & Nancy, Inc. v. Zessin, 118 N.H. 556, 391 A.2d 880 (1978), that a workers' compensation appeal before the superior court must be confined to the issues raised before the labor department. Cf. Feuerstein v. Gilmore, 127 N.H. 715, 506 A.2d 327 (1986) (admissible evidence not so limited). Counsel for the plaintiff claims that because the parties stipulated at trial that the sole issue was whether the injury arose out of and in the course of employment under RSA 281:2, V (Supp.1985), it was error for the master to consider the provisions of RSA 281:2, IV (Supp.1985), which identify the employer of a public employee and confine the duration of public employment to the period in which "official duties" are performed. The short answer to this contention is that when the parties stipulated that the issue was whether the injury arose "out of and in the course of employment," they did not purport to limit the court's consideration to RSA 281:2, V (Supp.1985) in deciding how the quoted phrase should be applied. The court was at liberty to examine other provisions of the workers' compensation law in resolving the issue, and it was therefore entirely proper to consider subsection IV when defining the scope of "employment" under subsection V.

The second and closely related preliminary matter is disagreement over the identity of the plaintiff's employer, an issue of some significance in determining the scope of the official duties that, in turn, limit the scope of covered employment under subsection V. In order to identify the plaintiff's employer, the master applied the plain language of subsection IV, that "[e]mployee, with respect to public employment, means every person in the service of ... any political subdivision [of the State] while performing his official duties. Every person who is a ... volunteer ... member of a fire ... department ... shall be deemed, for the purpose of this chapter, to be in the employment of the political subdivision of the state where the department is organized." He thus found that the plaintiff, in his capacity as a firefighter, was an employee of the Town of Atkinson.

The plaintiff argues that the master took too narrow a view. His brief is replete with arguments that the fire department and the association are so far indistinguishable that the court should have regarded them as one entity, with the results that the plaintiff would be treated as an employee of the association as well as of the department and that the association's activity would be treated as a touchstone of the scope of the plaintiff's employment.

In pressing this point, the plaintiff places great stress on a document entitled "By Laws Governing the Operation of the ATKINSON FIRE DEPARTMENT," which recites that "the residents of the Town of Atkinson" have "ordained" its provisions. These "by-laws" provide for the organization, membership and some of the responsibilities of the department and the association, respectively, and we have referred to them above. The plaintiff failed to demonstrate, however, that the town actually had "ordained" the relationship between the department and the association. The plaintiff's counsel expressly disclaimed any representation that the by-laws had been "accepted by the town," and suggested only that the master might infer that the fire department had "adopted" them.

Consequently, the superior court could not infer from the "by-laws" that the town had recognized association activity as an element of employment. Moreover, the master had evidence from which he could find as he did, that the department and the association were separate functional entities, and that for purposes of RSA chapter 281 the plaintiff was an employee of the town, not an employee of the association. There is no apparent error in these findings.

We turn now from these threshold issues to the challenge to the trial court's conclusion that the injury did not arise out of and in the course of the plaintiff's employment by the town. While the town did not employ the plaintiff to go to picnics or play softball, under longstanding case law in this jurisdiction, a workers' compensation claimant will not be denied coverage merely because at the moment of injury he was not engaged in the duties he had been specifically hired to perform. See Maltais v. Assurance Society, 93 N.H. 237, 40 A.2d 837 (1944). To be sure, the requirement that a compensable injury arise out of and in the course of employment imposes an obligation to prove that the injury is related to employment in terms of time, space and subject matter. But this demand is construed liberally to give the broadest reasonable effect to the remedial purpose of the compensation legislation. Id. at 240, 40 A.2d at 839. The result has been a series of cases expressing expansive interpretations of the statutory criteria for coverage.

The body of law created by these cases is not as unruly as it seemed before the decision of New England Telephone Co. v. Ames, 124 N.H. 661, 474 A.2d 571 (1984), a case which synthesized the standards previously developed for determining whether peripheral or ancillary activities are within the scope of employment. Thus a claimant must prove (1)...