SituationsThat May Not be Thought of as Workers’ Comp, but Should be Reported DEBORAH HANDRAHAN MEMBER SERVICES COORDINATOR The New Hampshire Workers’ Compensation Statute, RSA 281-A:2, XI defines injury as an “accidental injury or death arising out of and in the course of employment.” Both criteria must be met for a claim to be compensable. Not all injuries that occur in the course of employment are compensable. There has to be a risk or hazard created by the employment that is the cause of the injury. Risk of employment has been the subject of several New Hampshire Supreme Court cases. The most recent of which, the Appeal of James Margeson 162 N.H. 273 (2011), more clearly defined what risks are employmentrelated. The Supreme Court broke these types of risk into four categories: 1. Employment-related risks were described as “all of the obvious kinds of injuries that one thinks of at once as industrial injuries.” The Court went on to say, “Typically, a slip and fall is only attributable 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 that are “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: “While not all injuries resulting from mixed risks are compensable, the concurrence of personal risk does not necessarily 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 distinctly personal character.” These are the claims that are the most controversial of modern Workers’ Compensation law, according to the New Hampshire Supreme Court, and these cases must be decided based on the facts of the individual case. While many accidental injuries are clearly work-related or not work-related, some situations arise that are not as definitive: • Injuries that occur before or after employees “punch in/out” of work The New Hampshire Supreme Court has decided that commuting to and from work is not considered part of the course of employment. However, the Court has decided that injuries sustained when an employee is walking to or from their car in a designated parking area, whether punched in or not, is considered in the course of employment. Whether the injury was caused by a risk or hazard created by the employment has to be determined by the facts of the case. • Injuries that occur due to motor vehicle accidents When an employee is injured in a motor vehicle accident during their employment, there is frequently confusion about whether a workers’ compensation 12 D R I V E
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