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Appeal of McLean

Supreme Court of New Hampshire

September 12, 2011

Appeal of David McLean,

UNPUBLISHED OPINION

The petitioner, David McLean, appeals an order of the compensation appeals board (board) denying his claim for workers' compensation benefits because his injury did not arise out of his employment. We affirm.

We will affirm the board'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 (2009). The board's factual findings are prima facie lawful and reasonable. RSA 541:13 (2007). In reviewing the board's findings "our task is not to determine whether we would have found differently than did the board, or to reweigh the evidence, but rather to determine whether the findings are supported by competent evidence in the record." Appeal of Dean Foods, 158 N.H. 467, 474 (2009) (quotation omitted). The appealing party has the burden of demonstrating that the board's decision was erroneous. Appeal of Belair, 158 N.H. at 276.

The sole issue on appeal is whether the board erred in concluding that the petitioner's injury did not arise out of his employment. See RSA 281-A:2, XI (2010). 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." Murphy v. Town of Atkinson, 128 N.H. 641, 645 (1986). As such, to show that his injuries arose out of employment, the petitioner had to "prove by a preponderance of the evidence that [his] work-related activities probably caused or contributed to [his] disability." Appeal of Kehoe, 141 N.H. 412, 416 (1996) (quotation omitted).

As we recently explained in Appeal of Margeson, 162 N.H. (decided July 21, 2011), the test to be used for determining whether an injury arose out of employment depends upon the type of risk that caused the injury. Here, the board relied upon, in part, evidence that the petitioner previously sustained a TIA, or mini-stroke, and that he also suffered from diabetes. However, the petitioner testified that he fell off his work truck on a rainy day and sustained "gashes" to the back of his head. This combination of personal risks, i.e., pre-existing medical conditions, and an employment risk, i.e., falling from a truck while at work, coming together to cause an injury means that the injury resulted from a mixed risk. See Margeson, 162 N.H. at (explaining that a mixed risk involves a personal risk and employment risk combining to produce injury).

Thus, because the injury was not caused by a neutral risk, see id., the petitioner had the burden of proving both medical and legal causation; the test to be used for legal causation depends upon the previous health of the employee. Id.

The petitioner first assigns error to the board's reliance upon his prior mini-stroke. He asserts that the board erred in concluding that because he suffered from a TIA, or mini-stroke, six months prior to his injury, the injury was not related to his employment. He argues that the board ignored the fact that there was no evidence that his injury resulted from a non-work related stroke. We disagree.

Contrary to the petitioner's argument, the board did not rely solely upon evidence of the petitioner's earlier mini-stroke to conclude that he again suffered some sort of stroke. Instead, it used this earlier incident as one piece of evidence to conclude that he suffered from a "fainting spell." Other evidence before the board supported this determination. The board found that "he passed out in his truck, " and the petitioner testified that "I didn't know where I was, didn't have a clue." Additionally, the petitioner's physician in the emergency room noted in his records that the petitioner "has uncontrolled diabetes and has had a couple of strokes in the past. This may very well be another stroke as she [sic] did not have any warning signs prior to the occurrence of this loss of consciousness." The emergency room records also provided that the petitioner "does not know how he lost consciousness. . . . He said it was a sudden loss of consciousness, without any pre-warning symptoms."

Thus, competent evidence in the record supports the board's reliance upon his earlier mini-stroke. See Dean Foods, 158 N.H. at 474. As such, because the petitioner suffered from a prior weakness, he had to prove that his employment "contributed something substantial" to his injury, Appeal of Stetson, 138 N.H. 293, 296 (1994) (quotation and brackets omitted), by demonstrating that the employment-connected stress or strain was greater than that encountered in his normal nonemployment life, Margeson, 162 N.H. at . The petitioner asserts that he met this burden because the evidence established that he was dispatched to Hooksett alone to work on a large truck in rainy conditions, that he slipped off the truck, and that he sustained an injury to the back of his head.

The petitioner testified that at the end of his work day he was "soaking wet, " and he climbed up the ladder of the truck he was working on to ensure he turned the ignition off. He then testified that as he climbed up the ladder, the next thing he remembered was "[f]alling off the truck." He also testified that he landed on his shoulders and the back of his head and received a "couple of gashes" on his head. However, when presented with a written statement of a witness who said he fell while descending the ladder, he acknowledged, "I don't know, descending or – all I know is I just slipped off the truck." The board found that "[r]eferences to a slip and fall [were] absent from the contemporaneous medical records, " and there was no evidence that the petitioner attempted to break his fall.

In ruling on the petitioner's motion for reconsideration, the board concluded that "[i]n essence, the panel did not accept as credible the testimony of the claimant concerning the events that occurred on the date of injury." Even if we might have concluded differently than did the board, our task is only to determine whether the board's findings are supported by competent evidence in the record. Dean Foods, 158 N.H. at 474. While the petitioner presented some evidence that he simply slipped and fell from a truck on a rainy day, the record also contains considerable evidence indicating that, as the board found, the petitioner "fainted and fell." Accordingly, the petitioner has not met his burden of proving that his employment "contributed something substantial" to his injury or that the board's decision was erroneous. RSA 541:13; Appeal of Belair, 158 N.H. at 276.

Affirmed.

DUGGAN, HICKS and LYNN, JJ., ...


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