NH Supreme Court Panel Reverses Board’s Denial in Unexplained Fall Case
A panel of the New Hampshire Supreme Court reversed a finding of the state’s Compensation Appeals Board (CAB) denying a claim by an elementary school speech assistant who sustained a fractured arm in an unexplained fall at her workplace [Appeal of Doody, No 2019-0115, 2020 N.H. LEXIS 12 (Jan. 31, 2020)]. Finding that the CAB had misapplied the increased-risk test [see Larson’s Workers’ Compensation Law, § 3.03], the panel stressed that in order to prevail under the test, the claimant was required to establish that her employment either quantitatively or qualitatively increased the risk of injury. The CAB had made inadequate fact findings, requiring a remand for further proceedings.
Background
Claimant had been employed by a New Hampshire school district since 1991. One of her daily duties was to supervise a locked side entrance at the beginning and end of the school day. On April 18, 2017, she fell twice while walking down a corridor toward that side entrance, first at 8:30 a.m., and again at approximately 3:00 p.m. Both falls occurred in the same location. She was not injured in the morning fall, but in the afternoon fall, she sustained a fracture to her right arm, which had to be repaired surgically.
The school district’s insurance carrier denied the claim, finding the injury had not been causally related to the employment. A hearing officer upheld the denial and the CAB affirmed, finding that the claimant failed to prove, more probably than not, either that a defect in the floor surface or door mat posed an actual risk that caused her fall, or that her unexplained fall was a neutral risk that met the increased risk test under Appeal of Margeson, 162 N.H. 273, 27 A.3d 663 (2011).
Supreme Court Panel
The panel found that the CAB, contrary to the claimant’s contentions, had applied the correct test to determine whether she had been injured as the result of a risk directly associated with the employment [my emphasis]. Here, the CAB analyzed the claimant’s assertion that the condition of the floor caused her fall; it found, however, that she had failed to prove that claim.
The panel said the CAB erred, however, in finding persuasive the employer’s argument that in order to meet her burden under the increased-risk test, the claimant had to demonstrate that she walked more at work than in her personal life or that the commercial flooring the claimant walked on at her workplace was more slippery than other types of flooring that she or the general public routinely encountered.
Increased Risk Test
This gets a bit confusing, but the panel went through the various categories of risk and explained that the category at work here was that of “neutral risks” — the sorts of risk that are neither distinctly employment-related nor distinctly personal in character [see Larson, § 4.03]. With neutral risks, one may recover for an injury if one can demonstrate that the injury resulted from a risk greater than that to which the general public is exposed.
For example, the panel cited Margeson, noting that there the neutral risk was being injured while descending a non-defective staircase. In Margeson, the court found that the act of descending a staircase at work did not, in an of itself, meet the increased risk test because it was an everyday, commonplace activity, which most people undertook on a daily basis. The court stressed in Margeson that the claimant could, however, recover if he had to use stairs more frequently than a member of the general public as part of the job, or that the stairs were an unusual height, etc.
CAB’s Findings Inadequate
The panel found that here, the CAB did not make express factual findings whether, because the claimant was required to walk the hallways more than 20 times per day (other duties unrelated to the locked door required that she do so), she walked more frequently than a member of the general public. Nor did the CAB make findings about whether the claimant was subject to an increased risk of injury because her job required her to accompany students to a special room and that she supervise the side entrance at the beginning and ending of the school day. Because the case required further fact-finding, and required the use of the appropriate increased-risk test, the panel vacated the CAB’s decision and remanded for further findings.