Appeal of Brandon Kelly
Annotate this CasePetitioner Brandon Kelly challenged a decision of the New Hampshire Compensation Appeals Board (CAB) denying his claim for workers' compensation benefits for severe injuries he sustained while driving between a job site and his place of employment. The CAB ruled that the injuries did not arise out of his employment as required by RSA 281-A:2, XI (2010). Petitioner was an employee of Advanced Sheet Metal in Hudson. His job involved traveling to job sites in a company truck. After working at a job site in Massachusetts, petitioner left for the company shop in Hudson where he intended to unload the truck. While driving, he fell asleep and hit a utility pole. As a result of the accident, his lower leg was amputated. Petitioner sought workers' compensation benefits. After respondent Arbella Insurance Company denied his claim, a hearing was held before the New Hampshire Department of Labor, which awarded benefits. Respondent appealed to the CAB, which, in a 2-1 decision, denied the petitioner's claim. The CAB found that it was undisputed that the petitioner was acting in the course of his employment at the time of the accident, and that the accident occurred because he fell asleep while driving. However, the CAB ruled that the injuries did not arise out of his employment. The CAB found that the injury was caused by a "mixed risk," and that petitioner failed to prove that "whatever abnormal weariness, if any, [he] might have been suffering that day was caused by his employment." Petitioner unsuccessfully moved for reconsideration, then appealed the CAB's decision. In "Margeson," the New Hampshire Supreme Court instructed the CAB that, in all future cases, it should make a finding regarding the cause of the claimant's injury: if the cause is a neutral risk, the increased-risk test applied; if the cause was a non-neutral risk, the claimant must prove legal and medical causation under the "Steinberg I" test. In this case, after concluding that the injury-causing risk was a mixed risk, the CAB ruled that, to be compensated, petitioner had to prove that his weariness was work-induced, and that petitioner failed to do so. The Supreme Court did not agree with the CAB that petitioner had to prove work-induced weariness as a prerequisite to receiving compensation in this case. "There can be no question that the injurious effects of falling asleep were increased by the environment in which the petitioner found himself at the time he fell asleep behind the wheel of a moving truck. We have no difficulty concluding on this record, as a matter of law, that the petitioner's employment was 'a substantial contributing factor to the injury.'"
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