Pub. 1 2019 Issue 2

shall not include a mental injury if it results from any disciplinary action, work evaluation, job transfer, lay- off, demotion, termination, or any similar action, taken in good faith by an employer… No compensation shall be allowed to an employee for injury proximately caused by the employee’s willful intention to injure himself or injure another… Notwith- standing any law to the contrary, “injury” or “personal injury” shall not mean accidental injury, disease, or death resulting from participation in athletic/recreational activities, on or off premises, unless the employee reasonably expected based on the employer’s instruction or policy, that such participation was a condition of employment or was required for promotion, increased compensation, or continued employment.” The threshold issue for all work- ers’ compensation claims, after it is determined that the injured party is an employee, is whether the injury occurred during the space and time boundaries of the employment. Did the injury occur while the employee was at work? The NH Supreme Court has decided that commuting to and from work is not considered to be in the course of the employment. However, they have also decided that injuries sustained after the employee parked their vehicle in the designated parking area are considered in the course of their employment. The NH Supreme Court broadened the “in the course of employment” test further in other cases when they found that, if the injury occurred in the performance of an activity, which may include personal activity, if reasonably expected and not forbidden, or an activity of mutual benefit to employer and employee, it is considered in the course of the employment. Once it is determined that the employee is in the course of their employment the next issue is whether the injury was caused by a risk created by the employment. Risk of employment has been the subject of several NH Supreme Court cases. The most recent of which, the Appeal of James Margeson 162 N.H. 273 (2011), more clearly defined what risks are employment related. The Supreme Court broke the types of risk into four categories: 1. Employment: related risks which they described as “all of the obvi- ous kinds of injuries that one thinks of at once as industrial injuries.” The Court went on to say that “Typ- ically a slip and fall is only attribut- able 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.” 2. Personal Risks: are those risks, “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.” Such risks would include a fall while walking, caused by a seizure or a bad knee. 3. Mixed Risks: which “involve a personal risk and an employment risk combining to produce injury.”… The Court stated that, “while not all injuries resulting from mixed risks are compensable, the concurrence of a personal risk does not neces- sarily defeat compensability if the employee’s employment was also a substantial contributing factor to the injury.” 4. Neutral Risks: are, “of neither distinctly employment nor dis- tinctly personal character.” These are the claims that are the most controversial of modern Workers’ Compensation law according to the NH Supreme Court and these cases must be decided based on the facts of the individual case. In determining whether a case involving a neutral risk should be paid or denied, the Court recommends applying one of three tests: 1. The increased risk test: was the workplace risk greater than that to which the general public is exposed. This test is the most widely utilized test in evaluating a claim. 2. The actual risk test: The claim would be paid as long as work exposes the employee to risk. 3. The positional risk test: the injury would not have occurred, but for, the conditions and obligations of the employment placed the employee in the position where he was injured. Under the positional risk test, an injury arises out of the employment so long as the obligations of employment place the employee in the particular place at the particular time that he suffers an injury. In the conclusion of the Appeal of Margeson decision, the NH Supreme Court stated that, “If the Compen- sation Appeals Board finds that the injury was caused by a neutral risk the increased-risk test would apply. However, should the CAB find that the injury was caused by a non-neu- tral risk, the claimant must prove both legal and medical causation and the test to be used for legal causation depends on the previous health of the employee.” The Court also quoted the NH Supreme Court’s decision on the Heinz case, 117 N.H. (1977), “In other words, the injury must actually result from the hazards of employment and ‘not merely from the bare existence of employment’.” As you can see, a great deal goes into the determination of whether a workers’ compensation claim should be paid or denied. The investigations into the facts of the case are critical in determining whether the injury is work related as defined by the workers’ compensation statute and the pertinent case law. Something as simple as whether the employee slipped on an oily surface in the ser- vice area injuring a knee, or her/his knee just gave out while walking in the service area is pivotal to the com- pensability determination. Whether the employee had complained to co-employees of back pain prior to the alleged lifting event could make the difference between payment and denial. The NHADA WCT claims department’s goal is to pay all claims that should be covered by workers’ compensation and deny those that should not be covered; based on a thorough investigation and appropri- ate application of the NH Workers’ Compensation Statute and case law. Our investigation is only as good as the information we obtain from our members. Members’ assistance in the claims process is critical in ascer- taining the information necessary to evaluate claims properly. If members have any questions regarding the payment of a claim, please contact Pete Sheffer at 800-852-3372 or PSheffer@NHADA.com. N E W H A M P S H I R E 9