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Appeal of Kelly

Supreme Court of New Hampshire

March 20, 2015

Appeal of Brandon Kelly (New Hampshire Compensation Appeals Board)

Argued: September 18, 2014.

Page 317

Compensation Appeals Board.

Nixon, Vogelman, Barry, Slawsky & Simoneau, P.A., of Manchester ( Leslie C. Nixon and David L. Nixon on the brief, and Ms. Nixon orally), for the petitioner.

Mullen & McGourty, of Salem ( Craig A. Russo on the brief and orally), for the respondent.

Douglas, Leonard & Garvey, P.C., of Concord ( Benjamin T. King on the brief), for New Hampshire Association for Justice, as amicus curiae.

BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

OPINION

Page 318

Bassett, J.

The petitioner, Brandon Kelly, appeals 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

Page 319

employment. The CAB ruled that the injuries did not arise out of his employment as required by RSA 281-A:2, XI (2010). We reverse and remand.

The CAB found, or the record supports, the following facts. The petitioner was an employee of Advanced Sheet Metal in Hudson. His job involved traveling to job sites in a company truck. On March 16, 2012, after working at a job site in Massachusetts, the petitioner departed 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.

The petitioner sought workers' compensation benefits. After the respondent, Arbella Insurance Company, denied his claim, a hearing was held before the New Hampshire Department of Labor, which awarded benefits. The 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," see Appeal of Margeson, 162 N.H. 273, 278, 27 A.3d 663 (2011), but that the petitioner failed to prove that " whatever ...


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