Appeal of Elba Hawes

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Compensation Appeals Board
No. 2021-0187
APPEAL OF ELBA HAWES
(New Hampshire Compensation Appeals Board)
Argued: February 10, 2022
Opinion Issued: June 3, 2022
Douglas, Leonard & Garvey, P.C., of Concord (Benjamin T. King on the
brief and orally), for the claimant.
Mullen & McGourty, P.C., of Salem (Craig A. Russo and Matthew
Solomon on the brief, and Craig A. Russo orally), for the employer.
HICKS, J. The claimant, Elba Hawes, appeals a decision of the New
Hampshire Compensation Appeals Board (CAB) determining that he is not
entitled to workers’ compensation benefits. We reverse and remand.
The following facts are undisputed for the purposes of this appeal. The
claimant was employed as a “ground man” for the employer, Asplundh Tree
Expert, LLC. In November 2019, the claimant and his fellow workers were
working at a job site that was approximately 10-15 minutes away from a
sandpit in Conway, where they punched in and punched out.
On the morning of November 1, 2019, the claimant reported to work for
his regular 7:00 a.m. to 4:00 p.m. shift, punched in, left his personal vehicle at
the sandpit, and traveled with his coworkers to the job site in company trucks.
Because of an impending storm, the employer told its workers to stop work at
noon, punch out, and go home and rest for the afternoon so they could return
to the sandpit at 8:00 p.m. for storm cleanup activities through the night. It
was not uncommon for the work schedule to change because of weather. As
instructed, the claimant left the job site with his coworkers, returned to the
sandpit, and punched out at noon. Soon after driving away from the sandpit in
his personal vehicle, the claimant was severely injured in a vehicular accident
that was not his fault. Because of his accident-related injuries, the claimant
was disabled from work from November 1, 2019, through February 9, 2020.
The employer’s insurance carrier denied benefits on the ground that the
claimant’s injuries were not causally related to his employment. At the
claimant’s request, the matter was heard by a New Hampshire Department of
Labor hearing officer, who ruled in the carrier’s favor. The claimant appealed
the hearing officer’s decision to the CAB, which reviewed the matter de novo.
The CAB ruled that the claimant’s workers’ compensation claim was barred by
the “coming and going rule.” The claimant unsuccessfully moved for rehearing,
and this appeal followed.
We will not disturb the CAB’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 Doody, 172 N.H. 802, 805 (2020); see RSA 541:13
(2021). When, as in this case, the CAB has decided the matter based upon
undisputed facts, we review its application of law to the undisputed facts de
novo. Cf. N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95,
103 (2016) (referring to our review of a trial court’s application of law to
undisputed facts). As the appealing party, the claimant has the burden of
demonstrating that the CAB’s decision is reversible. See Appeal of Doody, 172
N.H. at 806.
To obtain workers’ compensation benefits, a claimant must show that his
or her injuries arose “out of and in the course of employment.” RSA 281-A:2,
XI (Supp. 2021). The phrase “arising out of” employment, id., refers to the
causal connection between a claimant’s injury and the 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. at 641, 645 (1986). The
phrase “in the course of” employment, RSA 281-A:2, XI, refers to whether the
injury “occurred within the boundaries of time and space created by the terms
of employment” and “in the performance of an activity related to employment.”
Murphy, 128 N.H. at 645 (explaining that, to be compensable, an injury must
be “related to employment in terms of time, space and subject matter”). The
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test, thus, contains three elements, and the failure to prove any one of them is
fatal to a claimant’s workers’ compensation claim. Harrington v. Brooks
Drugs, 148 N.H. 101, 105 (2002).
We first consider the second and third elements, which are whether the
claimant’s injury “occurred within the boundaries of time and space created by
the terms of employment” and “in the performance of an activity related to
employment.” Murphy, 128 N.H. at 645. “We have repeatedly recognized that
the ordinary perils of travel between home and work are not considered
hazards of employment and, therefore, that injuries arising from such travel
are noncompensable under our Workers’ Compensation Law.” Harrington, 148
N.H. at 106. Thus, the general rule, sometimes referred to as the “coming and
going” or “going and coming” rule, is that injuries sustained while traveling to
and from work are not compensable for employees with fixed hours and a fixed
place of employment. See Cook v. Wickson Trucking Co., 135 N.H. 150, 154
(1991); Heinz v. Concord Union School Dist., 117 N.H. 214, 218 (1977);
Donnelly v. Kearsarge Tel. Co., 121 N.H. 237, 240-42 (1981).
We have noted that the going and coming rule is of “doubtful utility”
because it “is riddled with various exceptions.” Brousseau v. Blackstone Mills,
100 N.H. 493, 494 (1957). Nonetheless, we have declined to overrule it
because of our concern that doing so would lead to portal-to-portal
compensation, which is “a journey upon which we [have not been] prepared to
embark.” Harrington, 148 N.H. at 106 (quotation omitted).
The claimant argues that his injuries are compensable under the “special
errand” exception to the coming and going rule. Under the “special errand”
exception, “[w]hen an employee makes an off-premises journey which would
normally not be covered under the usual coming and going rule, the journey
may be brought within the course of employment by the fact that the trouble
and time of making the journey, or the special inconvenience, hazard, or
urgency of making it in the particular circumstances, is sufficiently substantial
to be viewed as an integral part of the service itself.” Heinz, 117 N.H. at 218-19
(quotation and ellipsis omitted); see Henderson v. Sherwood Motor Hotel, 105
N.H. 443, 445 (1964) (“Although the Workmen’s Compensation Law is not
intended to protect the employee from all of the perils of travel between home
and place of employment[,] it may properly be held to provide protection when
a peril which arises out of employment overtakes the employee when he is
returning home after employment beyond the usual working hours, as the
result of special duties which thus subject him to special travel risks.” (citation
omitted)).
We applied this exception in Donovan v. Mills, 90 N.H. 450, 452-53
(1940), Henderson, 105 N.H. at 445-46, Heinz, 117 N.H. at 218-21, and
Donnelly, 121 N.H. at 240-42. These cases remain good law despite decisional
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law and legislative developments. See, e.g., Appeal of Margeson, 162 N.H. 273,
279, 283 (2011) (setting forth different tests for causation depending upon
nature of the risk); RSA 281-A:14 (2010) (concerning workers’ compensation
liability when employee is intoxicated). We now discuss Donovan, Henderson,
Heinz, and Donnelly in turn.
The plaintiff in Donovan was an overseer in the defendant’s mill.
Donovan, 90 N.H. at 451. Part of his job was to ensure that the supplies and
parts needed to keep the looms in good working order were on hand and to
repair or supervise repairs to the looms. Id. He was hurt while driving his
son’s automobile en route to buy material needed to correct a defective process
in the manufacture of cloth at the mill. Id. We held that “[i]t was an act of
employment for the plaintiff to take the trip, and he was hurt in consequence of
the act” because he was “perform[ing] an errand for his employer.” Id. at 452-
53.
In Heinz, the decedent, a high school teacher, had volunteered to
chaperone a school dance on the night in question and was killed while driving
home from a private party to change his clothes and pick up his wife before
chaperoning. Heinz, 117 N.H. at 216-17. We held that the decedent’s
“chaperoning duties” were “properly . . . characterized as a special duty or
errand, and subjected the decedent to special travel risks.” Id. at 219. We
considered “the undisputed evidence that chaperoning was an irregular event,
that duties occupying evening weekend hours were not routine, and that
evening travel often presents special hazards.” Id. We concluded that “from
the moment he left the party the decedent was principally occupied with the
business of getting to the school dance,” noting that the party “was within
reasonable physical proximity of the school,” and that “objective temporal
circumstances imposed a principally work-connected character on the journey
from the party.” Id. at 220, 221. Therefore, we concluded, the decedent’s
journey from the party to his home was “sufficiently related to the special
duties imposed to be considered a hazard of the employment.” Id. at 220
(quotation omitted).
In Henderson, we were asked to decide whether the facts as stated in the
opening statement by plaintiff’s counsel, if supported by evidence, entitled the
plaintiff to compensation. Henderson, 105 N.H. at 444. According to the
opening statement, the plaintiff’s intestate, the decedent, was employed as a
cocktail waitress by the defendant hotel and had been called to the hotel for
special duty to work until 9:00 p.m. on the night in question. Id. The decedent
was asked to serve liquor to guests at a party that was being held at the hotel.
Id. In the course of waiting upon the guests at the party, the decedent became
intoxicated. Id. Although the employer was aware that she was intoxicated,
she was allowed to leave the hotel alone at about 3:30 a.m. Id. She died in an
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accident on her way home. Id. We held that the facts set forth in the opening
statement, if proved, entitled the plaintiff to compensation in part because “the
decedent’s employment may reasonably be said to have put [her] at the place
where she was and in the condition she was in at the time of the accident.” Id.
at 446 (quotation and brackets omitted).
The employee in Donnelly argued that being required to take a company
vehicle home during his on-call week constituted a “special errand” under
Heinz. Donnelly, 121 N.H. at 242. We assumed without deciding that the
employer imposed such a duty, but concluded that the employee’s morning
journey to his employer’s place of business, before he was required to take
home the company vehicle, “was merely a normal trip by the employee to his
employer’s place of business to begin a usual day of work.” Id. at 242-43. We
reasoned that “[b]ecause a usual day of work would intervene between the
morning journey and the trip home with the truck that evening,” and given that
he was not responding to a call related to his on-call status, the employee’s
injury did not fall within the “special errand” exception to the going and coming
rule. Id. at 243.
Here, we conclude that the claimant’s injuries are compensable under
the special errand exception. The claimant’s journey home that day occurred
at noon, instead of at the end of his regular shift. Although it was not
uncommon for the work schedule to change because of weather, the claimant’s
trip home at noon was not part of his regular schedule. The claimant would
not have left work at noon but for the employer’s direction to do so.
Significantly, when the claimant left work at noon, his day’s work was not
finished. The employer directed him to go home and advised that he rest so
that he could return to work at 8:00 that evening. See Bisdom v. Kerbrat, 232
N.W. 408, 409 (Mich. 1930) (en banc). The claimant’s journey “was special, not
because it differed in nature” from his normal commute, “but because it had to
be done at a time different from [his] usual hours” at the employer’s special
request. Lucas v. Triad Drilling Co., 969 P.2d 363, 367 (Okla. 1998); see Gray
v. Lyons Transp., 579 N.Y.S.2d 213, 214 (App. Div. 1992) (upholding the New
York Workers’ Compensation Board’s determination that reporting to work
early “constituted a special service involving the undertaking of travel not
associated with claimant’s normal work hours”). As the claimant testified:
Q Did you receive any news during the morning of November 1,
2019, about a change in your plans [to be on the job site the entire
day]?
A Yes, we got a call from our boss saying that we were to leave at
12:00 o’clock and come back at 8:00 o’clock p.m.
....
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Q All right. . . . [Y]ou stopped working at noon, right?
A Yes.
Q And you stopped working at noon because your employer
directed you to stop working at noon, right?
A Yes.
Q You didn’t normally stop working at noon, right?
A No.
....
Q If your employer had not directed you to go home in the middle
of the day . . . , would there have been any circumstances when
you . . . would have left work in the middle of the day to go home?
A. No.
....
Q Did your employer tell you what to do when you went home on
November 1, 2019 at noon?
A Yeah, they had told us to go home and rest.
Although the CAB characterized the employer’s instruction “to go home and
rest” as an “unenforceable suggestion,” this characterization is not relevant to
our analysis. See Heinz, 117 N.H. at 216, 219 (deciding that, although the
decedent “was not obligated to chaperone school dances” as part of his
employment, his chaperoning duties constituted “a special duty or errand” and
“subjected [him] to special travel risks”).
This case is, therefore, similar to Heinz and dissimilar to Donnelly. Like
the employee in Heinz, the claimant here was traveling home in preparation for
returning to work for a special duty. Heinz, 117 N.H. at 216-17, 220-21. In
Heinz, the special duty was chaperoning, id. at 219; here, the special duty was
overnight storm clean-up work. Unlike the employee in Donnelly, who was
injured during his normal morning commute, before the “special duty” to take
a company vehicle home had been imposed, Donnelly, 121 N.H. at 242-43, the
claimant in this case was injured on his way home, after he was specifically
directed to interrupt his workday.
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We find Bisdom instructive. In Bisdom, the decedent was directed by his
employer to leave work early so that he could go home, eat dinner, change
clothes, and then return to his employer’s home so that the two could travel to
meet with a prospective client. Bisdom, 232 N.W. at 409. The decedent left
work, as instructed, but was killed in an automobile accident on his way home.
Id. The Michigan Supreme Court ruled that the decedent’s death was
compensable as he was “acting within the course of his employment and in
accordance with the directions of his employer at the time he suddenly met
with his death through the hazards incurred on the public highway.” Id.
Similarly, in this case, the claimant was directed by his employer to suspend
his workday so that he could go home before reporting back to work later that
evening and was injured on his way home.
Having concluded that the second and third elements of the Murphy test
are met, we turn next to the first element, whether the claimant’s injury
“resulted from a risk created by the employment.” Murphy, 128 N.H. at 645.
In Appeal of Margeson, we identified four types of injury-causing risks
commonly faced by an employee at work: “(1) risks directly associated with
employment; (2) risks personal to the claimant; (3) mixed risks; and (4) neutral
risks.” Appeal of Margeson, 162 N.H. at 277. Mixed risks “involve a personal
risk and an employment risk combining to produce injury.” Id. at 278.
Neutral risks “are of neither distinctly employment nor distinctly personal
character,” such as “being hit by a stray bullet [or] being struck by lightning.”
Id. (quotation omitted). “They also include cases in which the cause itself, or
the character of the cause, is simply unknown.” Id. (quotation omitted).
Employment-related risks are nearly always compensable; personal risks are
never compensable. Id. at 277-78.
The CAB did not reach the first element of the Murphy test. Ordinarily,
we would remand this unresolved issue because applying the first element of
the Murphy test “requires further fact-finding,” Appeal of Doody, 172 N.H. at
809-10; however, when “the record reveals that a reasonable fact finder
necessarily would reach a certain conclusion, we may decide that issue as a
matter of law,” Appeal of Cote, 139 N.H. 575, 580 (1995).
The only evidence before the CAB was that the claimant was injured
while traveling home in the middle of his workday when a vehicle crossed the
center lane and hit his vehicle “head on,” sending his vehicle “across the
oncoming lane,” where it was “hit by a tractor trailer.” There was no evidence
that a risk personal to the claimant contributed to the accident. Accordingly,
the risk faced by the claimant was neither personal nor mixed. See Appeal of
Margeson, 162 N.H. at 277-78.
The risk of a vehicular accident in this case is of a “distinctly
employment . . . character,” and is not a neutral risk. Id. at 278 (quotation
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omitted). Here, the risk of a vehicular accident occurring during the claimant’s
travel was a hazard commonly associated with highway travel and was not akin
to the risk of “being hit by a stray bullet [or] being struck by lightning.” Appeal
of Margeson, 162 N.H. at 278. Because the claimant’s travel home in the
middle of the workday was occasioned by his employment, the risk that he
would be injured by a hazard commonly associated with such travel was an
employment-created risk. Accordingly, we conclude that the first element of
the Murphy test is met as a matter of law. For all of the above reasons,
therefore, we reverse the CAB’s decision that the claimant’s injuries are not
compensable, and hold that they are.
Reversed and remanded.
MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred;
HANTZ MARCONI, J., concurred specially.
HANTZ MARCONI, J., concurring specially. Although I join the court’s
opinion in full, I write separately to highlight one point: not all injuries incurred
while traveling “in the course of” employment will be directly associated with
employment, and thereby “ar[i]se out of employment.” Appeal of Margeson,
162 N.H. 273, 277 (2011); see RSA 281-A:2, XI (Supp. 2021). In other words,
not all injuries incurred during travel related to employment will be
compensable.
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