Appeal of Elizabeth Doody

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we're going to take later, we're going to have a brief recess after this case, and then we'll take the last two.

Good morning. May, may I please the court? My name is Ann Rice and I re I, pardon me. I have a cold. So first of all, my apologies for that. I represent Elizabeth Judy in this appeal for workers' compensation benefits. Elizabeth Judy seeks benefits under two alternative theories. The first theory is that she suffered a work risk injury, and the second is that she suffered a neutral risk injury. That's her alternative theory. We have alleged that the Compensation Appeals Board made an error with respect to the standard of law with in the, uh, work risk injury and with respect to the application of the increased risk test in the neutral risk injury. In both of these arguments, we essentially have two pieces, um, of the error that we think were committed. The position is that the claimant suffered an injury as a result of a work risk when she felt twice in the exact same location on the same day, and the second time injuring herself. She was on her way to a work duty when she was doing that of interest, is the fact that the work duty was to monitor a locked door because this was the school building and in this day and age, we locked the general public from the school building that will come in later. With respect to the comparison to the general public. General public was not permitted into this building without exceptional cause. Alternatively, she argued that under the neutral risk theory that she was exposed to a significantly increased risk as compared to the general public. In her particular case, she was not a classroom teacher, but rather, uh, she was a speech assistant, so a special ed sort of teacher. So she would have to go and fetch the children and bring them back to her office and then return them again. As a result of that, she would traverse on average 20 times a day through the hallways, unlike a classroom teacher who would've remained more frequently in their building. And Was there any in the, does the record include any, uh, ev evidence as to how the distance that she walked in a given day? No, your Honor, it does not. It simply speaks to the fact that over the course of her 27 years, she walked on average 97,000 times across that floor. And in fact, that she walked on average four times a day, at least to get to the particular duty that she was doing, which is at the location in which she fell. And that's five days a week particular Duty or not? There's no question. But that she was at all times in the workplace, Absolutely. She was within the bounds and time of work. And so in terms of the two part analysis under legal causation, that was never really argued bounds and time was the issue. The question was whether or not she was injured as a result of work hazard. So that was the second piece. And indeed that's our, our concern with respect to the application of the work risk injury and the work risk injury, it appears as though the cab actually applied the medical causation standard. Um, the medical causation standard being that one would have to prove what the actual cause of the fall was. The the fact is we're not focused on the fall, we're focused on the injury, and we're focused on the work hazard. And so in that case, that was an error. And What was the work hazard here? Well, again, we, uh, point out that we don't have to say exactly what it was, but we pointed out a number of them. In this case, she was walking over the exact same location. It was a pitted location. It went from the first report of injury, indicates that she went from a waxy floor to a matted surface, which was in front of the door matting, that it was the springtime of year, and that there was heavy sanding outside in the morning when she fell. She had grit and sand on her in the afternoon when she fell, she was taken by an ambulance. And so that inquiry was not conducted. And so based on that, we submitted that there were any number of work risks. And the only, uh, requirement in her part was to prove that more probably than not one of those hazards caused her injury. She was not required to prove that the floor was particularly slippery, slippery, and that caused it, or that the sand caused it, or that the exchange from the waxed floor to the matting caused it. And that's what the court, excuse me, that's what the cab required. So what we said is that the cab is actually essentially now required that claimants prove negligence. And that's just not what workers' comp is about. Meaning fault, correct. Fault. More than fault, though, your Honor. That they prove the exact mechanism or cause of, in this case, the fall. Kelly tells us that it's improper to focus on the call on the fall. We're supposed to be focusing on the injury, not the fall. So not only did they require that we essentially conduct a negligence analysis, that they even talked about the fact that we should probably have experts and that, you know, maybe we would have to measure the number of times that the general public actually walks. If we do this sort of thing, we're in full blown discovery. We're not what we were intended to be. Which when we look at Moha, we go back to the very beginning of this. When we gave up the right to negligence, when we gave up the right to all of the added benefits that one can get under negligence, the idea was that almost every injury, if it occurred within the bounds and time of work and in a work activity was supposed to be covered. That's the remedial nature of the statute we're supposed to start with. Most folks are gonna get covered. So are you saying that Justice Duggan went astray in his recent pronouncement? Uh, you'll have to Of the, the three tests? No, no, because the, if your, if Your Honor is referring to assessing what the, uh, risk was for the injury in Margeson. Yes, yes. Okay, sure. No, so the analysis here is that in order to determine the second part of, um, the legal causation risk, we have to determine, um, what the cause of, excuse me, what the, um, the risk was. Why is that? Because we know that in Dustin v Lewis, uh, walking on a flat floor is not in itself inherently dangerous. Likewise, neither is descending a stairway. So if we do what the, uh, carrier would have us do here, and we simply look at walking, essentially no, um, claimant is ever going to win their case because walking is not inherently dangerous. You have to take into consideration the qualitative way in which they perform their duty if that happens to be walking and the quantitative way. And so that clarification by the court was absolutely necessary. And I'm not saying that we should abandon that. When we find, and as you know, we argued first that it was a work risk. So assuming that we lose on that work is that work risk, uh, claim, then we move to the neutral risk. We're not saying that we shouldn't look at the neutral risk because there is an instance in which, for example, personal risk if somebody had epilepsy and that's the reason they fell, if that would be one of the exceptions to the rule, because it wasn't as a result of a work activity in that case that the person was injured. But that was never argued here. There's no evidence of that. Moreover, as you know, the very, I think, I think that's conceded. Yes. The Number of times walking. I mean, can that in and of itself be enough to raise it from a normal risk, neutral risk to Well, it, it remains a neutral risk, your Honor, but what it does is it means that it's ins significantly increased risk as compared to the general public. The court in Marin specifically gave us a few examples and guidance with respect to how to look at the qualitative and quantitative analysis that they ask us to do with respect to the quantitative, they pointed to the case of Rio Wall Suite Casino hotels. In that case, the claimant walked 25,000 times over the course of 17 years, on average, I think it was six times a day, our claimant walked 20. And they said in that case it was so clear they didn't even have to remand it, that based on the facts, they simply found that that claimant was, had a compensable work injury. Indeed, that's what we're asking the court to do today, to find that by comparison, where we've got 97,000 times where we've got 20 times on average, five days a week, 27 years of employment, and we've got an individual who has to specifically walk over the area in which she fell, which we had photographs showed pitted, which the first report of injury, by the way, completed by the employer, says that she walked from a waxy floor up, up onto the mat is where she fell. Where there is uncontested evidence that she fell in the exact same place twice in the same day, never fell before, never fell after. That's pretty, would be pretty unusual to have that kind of a, a coincidence of two falls within one day over 27 years in the exact same spot. That's Your qualitative piece, something having to do with the environment. Interestingly, we sort of have made it in two ways, haven't we? I I think we argued it with respect to being the work risk that we were saying that there were any number of risks that could have caused it. And we don't have to tell you which one it was. She doesn't have to do a forensic search at the end of her injury to see how much sand there is or what the height of the difference between the mat and the flooring is As a plaintiff might have to do if they slipped and fell going into Walmart. Right. Which they would absolutely have to do. But that is not the case here. So I think there was some confusion actually, because we used that same piece of information with respect to the qualitative argument. Um, and then I think the cab never really looked at the quantitative argument to see that we could win either way. We argued that the way in which she used that fall, that that flooring walking over that flooring gave her a qualitative increased risk, but also quantitative. What is also terribly important, I think in this case is that we look at the specific facts of the case. Marson made that clear. You have to do a fact specific analysis, which means you have to look at the activity in which the person was engaged, and you also have to look at the floor upon which they were walking. If we were saying that as part of my job, I have to walk on a tightrope that's walking. If I have to walk on, um, at the airports, you know, those moving, um, floors, that's a walking, if I were an airport employee that's walking, we have to look at the specific work hazard, which I submit means we have to look at the flooring upon which they walk. And that was not done by the court, uh, by the Compensation Appeals Board. And we say that that was a significant error. Well, Didn't the, didn't they accept the testimony of the, the nurse who your client brought to the hearing who testified that there was nothing wrong with the floor? There was nothing there. They did, and that was a problem. Um, given the fact that, and, and, and it's, it's outlined in our brief that that nurse actually earlier in the first hearing, we showed that her testimony was completely, um, unreliable. She had indicated that she had observed the area on the way to, to the incident, but the incident occurred walking this way. And then we got photographs and we showed in the appeal that she walked this way. So when she was asked, did you really look at the area as you approached, are you telling me that you, you looked at the area before you went to the trauma? And she said, oh, no, I guess I didn't. Well, That's, that's a credibility determination that you Can make. That absolutely is your honor. That absolutely is. And there was another credibility, uh, issue with respect to, she indicated that she had gone afterwards to observe the site on the same day with the principal, but it turns out he was never even in the building that day. But I don't think you have to get to that, your Honor, because you can get to the fact that we don't disagree that the employer indicated that she was walking. She slipped in the first report of injury completed by the principal, and then a second one completed by, I think it was Reen, another employee of the school district said she slipped when she was walking from the waxy floor up onto the matting outside of this locked door area. In the qualitative analysis though, couldn't any floor condition arguably be a risk, if you will, too waxy, too un waxy, too sticky too, you know, your shoes sort of, it, how do we or is that cab's prerogative to evaluate the qualitative nature of the risk? So I, I'm, I wanna be clear that I understand the question, your Honor, because qualitative applies to neutral risk as opposed to my argument that there was a work risk. And so my argument of the work risk is more probably than not, that there was a hazard at work that, and she was in the, um, conducting her duty and in conducting her duty, one of those hazards more probably than not caused an injury. So either the change from one surface to another, or the sand or the water or, Or the pock marking or any of those things caused it. If, if that is, um, two fact intensive and I don't win on that and that has to do with credibility, then I still win. Your honor, respectfully on the issue of the neutral risk theory, because in the neutral risk, when we look at it, the very example that this court gave in Marson to say, here's an example of quantitative risk that is so obvious that there is a significant risk as compared to the general public 25,000 times. I have 97,000 times that was in the record. That record is record You today, but that's over 27 years or something like that. How, how about shouldn't it be looked at? Well, here's somebody each day they're exposed to this situation five times. Is that, shouldn't that be the analysis? Not some been doing it for 27 years analysis. It can be both in this case, your Honor, because when they pointed to the case in Rio, um, they indicated that she walked on that floor six times a day, um, five days a week, and that that was sufficient. They then just happened to tally it up over that person's 17 years of employment. Though I would say that a person's, um, tenure of employment could increase their risk of exposure. The fact that you work only one day in a job may not necessarily increase your exposure as compared to the general public. So tenure could be taken into consideration, but I don't even need that to prevail because I've got that she walked on average 20 times a day, five days a week, and at a minimum four times over the very location where she fell. Even that alone by comparison to Rio establishes that based on the marson example, my client did it more quantitatively. So you don't see a difference between walking on the floor and descending stairs? I do. And in fact, I think that that's the very point. Walking, they're both walking, we have to consider what you're walking upon. And in fact, this very carrier and this counsel argued to this court a year ago in Surs that it was not enough to consider the stairs that the claimant there walked in, in the entire house, but that the court should actually look at more specifically the stairs upon which she fell. Why? Because it's the work hazard and we have to compare the work hazard to the general public's exposure to that same work hazard. So again, if my work hazard is, um, I'm walking on a runway as a model, then you've gotta compare that to how often the general public does that kind of walking. 'cause it's quite specific. If I'm walking on an escalator, stairs, a rug, a dirt road, those would be the conditions of my employment. And ultimately, the second question before the court on legal causation is whether or not there's a connection to work duty and if there's a hazard as a result of that. And that's the only question, and

I think that we've established that. Thank you. That thank or I am out time. Thank you. Thank you. May it please the court. Uh, my name is Eric Falken.

I'm representing the Laconia School District. Uh, at least according to the claimant's brief, her primary argument is that the CAB erroneously focused on the cause of the fall instead of on the work relatedness of the hazard. And that's found at page 17 of the claimant's brief. Yet in her closing argument to the CAB, the claimant repeatedly insisted that the de, that the board determined whether the floor caused her fall. And I've given the sites at page 13 to 14 of my brief site, verbatim from her, the transcript of her or oral arguments to the Compensation Appeals Board. In her words, her her statement to the board was because it was uneven parked, take your pick or that the floor and her frequent use of it, the type of the floor, that it was increased the risk. So that was the standard that she put before the board. Any attempt to change that in her brief, any attempt to change that in this oral argument is, is If that's not what the board's supposed to look at though, then what do we do With that? Well, no, that is the standard. She was, she cited the correct standard to the board. Now, she cites that as being somehow erroneous, but that's what exactly what the board did. They looked to determine in the first instance whether there was an employment risk. And that is determined as to whether there's a defect in the floor. Uh, and if there's a defect in the floor, if there's a defect, then the, uh, case is compensable. Do you need a defect? Well, this alternative you do in that, in that instance. And the alternative argument, which she presented was if it's a neutral risk, there does not have to be, uh, a defect unless in one part of the neutral test, it does have to be a defect. So in the, the alternative test is the neutral test, and the argument was the same from the qualitative standpoint. Okay? She's saying there's an increased risk from this floor by virtue of there being a defect in this floor, that it's pockmarked, that there's sand, that there's salt. And the board again, found that those things were not present. And in fact, the testimony about that, and I would urge the court to, we rec cited, uh, numerous excerpts from the brief and, uh, from the, uh, record in our brief, the testimony was actually that these alleged defects, uh, were, were alleged on days other than her fall. No one alleged that there was anything wrong with the fall. My, my problem With the floor on the day that she fell, My, my problem is that this standard and the CAB appears to be importing an issue of fault into a workers' compensation system, which was never designed to consider it. But I think that was addressed in the Marsian decision. And Marsian was looking to address the, they have to show that the injury arose out of employment, not that it just occurred in the course of employment. And that's age old workers' compensation law that ar arises both in the course and out of the course of employment arise out of the course, as Marin's explained means. There has to be, Well, in this case, in this case, what did it arise out of? It's unknown. It's unknown. If you read her testimony, she says, I don't know, my foot just stopped short and I fell. So she didn't even allege a slip. And there's some reference to this being floor being slippery. She doesn't even allege a slip. She says her foot fell, stopped short, and she fell. So counsel says, well, the, So you're saying that idiopathic idiopathic injuries are never compensable? No, this, this really doesn't fall. Idiopathic, idiopathic is really, uh, if it's a personal risk, if there's some personal condition of the employee that results, uh, in the fall that's really idiopathic, this is, uh, a neutral risk where, where the fall is unexplained. I don't know why she fell. Doesn't Mean necessarily it's not compensable. Well, it's, it, it's only compensable if she can show either a qualitative or quantitative risk from the employment such that then you can say it arose out of her employment. So why isn't the quantitative enough if this person's going to this doorway multiple times more than anyone else and more than the general public, Uh, under the law, the, the quantitative is enough, but the claimant didn't prove it. In this case. She didn't prove qualitative for the reasons I already stated. She didn't prove quantitative at its most basic level because what the quantitative test is, did she walk more frequently than the general public, general Public wasn't allowed here? You know, that's, she raised that issue. She didn't raise that issue in her brief. And I think because she recognized that it, it doesn't hold up. The, the Marson case took place where at the Sununu Center where in the dorm of the Sununu Center, the general public wasn't allowed to walk there either. Yet the court articulated the test, and there's been no challenge to the marson articulate articulation of the test until today. That's not what's Hmm, until today. No, she's not even challenging it today. I think you guys asked, her court asked her whether you're challenging marson. I, I I think she said no, and, and it would be too late for her to challenge it today in any event, but Marson is not being challenged here. What she's challenged is the application of Marson. And, and then Marson went through great lengths to lay out, you know, that these, these two part tests, and it's on the quantitative side. It's that you show that the employee walked more frequently than does the general public. And so she says, well, I, I didn't prove that. I didn't present any evidence of what the general public walks, but I did present evidence, or I did present a case called, um, the case that's cited in, in Marson, uh, the New Mexico case, Rio, excuse me, Rio Rio. And so her art, her argument is, well see, in that case, she walked x number of times and this plaintiff walked more times than that. So this plaintiff must have walked more frequently than the general public, except that that overlooks the key point of maron Marin remanded that their case back to the appeals board to do what, to make specific factual findings on the amount of, of, of the, of that comparison of how much the claimant walked relative to the general public. And they already knew in Marson how often the claimant walked. So the only purpose for that remand was to send it back to get this evidence of how often the general public walked. And that's not a burdensome thing to uncover. IIII went on the internet in five minutes and uncovered, would it Be how often the general public walks in a doorway that might have weather impacts? Well, she didn't. Or How do you quantify what exactly it is? I think you, and I think what happened is I have to compare, the board looked at the, what she alleged, and the board made specific findings on what the condition was. So part of the claimant's oral argument today is, well, the floor was this, the floor was that those are allegations. Well, would it Be relevant then? How many times I go in and out the front door of this building? It, what would be relevant is the, is the, is the, I guess the nature of the floor. So if it's a level non defective floor as this board found, how often does the general public walk on that surface At a doorway with a change from this surface to That surface? There was no finding of a change in the surface. There was no finding of a, of a a of a, of a doorway, uh, that was Wax surface and a mat. There was allegations about this being, uh, proximity to a mat. But the, the, what Did the photographs show Photo? I don't re I don't recall if, but the, but the board, there was a photograph of the floor trying to show pock marks. I think that's maybe what you're referring to. But the board found no pock marks. They didn't find any defect. So you, what what I want you, the court to keep in mind is a lot of what's being thrown around here today are allegations. And what you really need to look at is the, what, what did the tribunals find or fact find here? And they found no defect in that floor. So what she would be left with is this, uh, quantitative argument about how frequently she walked in in relation to the general public. But if you have a two part comparison test, and you only give the board one part of that two part comparative test, you've made it impossible for the board to rule in your favor. So was there any evidence about how often the student population traveled up and down this floor? There was general reference to that. They, they changed, they walked through this hall every day, the students. And, and how about through, How about through the door? Was this a side door or a front door? I don't, I don't recall whether it was a side door. I don't think it was a, it was a relevant factor in the case. The, there was, the reference to the door was that there was a anti, they called it an anti room where the people came in and there was a, there was a, a map there underneath was a drain. So that, that was actually a safety feature that would, uh, collect what otherwise might be brought into the area where the claimant fell. Uh, so the evidence that the claimant citing about, about the, the, those features and about the number of times people walked on the floor is all evidence from which a reasonable fact, fire fact, fact finder could draw the, the reasonable inference that, well, this was a safer floor than the general public normally negotiates, uh, given the evidence that was presented. But the board didn't need to reach that they, they simply found, which is all, all as far as they had to go, was that she did not establish that this floor was qualitatively a greater risk IE by virtue of defects, or that the claimant had walked on a level surface more frequently than the general public does in the, uh, than more frequently than the general public does. So you, you referenced qualitatively different and say there's no evidence of a defect. Is there any space between, uh, qualitative aspect that matters and a defect there Could there, there could be, but there was none shown here. I, I see what you're saying. We, we a specific, uh, defect, uh, as, as compared to some code or something, what you, what the qualitative test is, is it more, uh, is it more risk, uh, risk created on that floor than the floors that the general public traverse every day? I would seem to me that you wouldn't say the floor is defective if there was, uh, sand or grit on it. Not necessarily necessarily, but it would be qualitatively different, Right? Yeah. Right. So what the, what the, what the board did in this case was they said, we don't find these floors any more slippery, uh, than the floors that you would find in a, in a shopping mall or a, or a hospital entrance or, or any place where the public generally traverses. W was there any, uh, factual dispute as to, uh, her testimony was when she fell in the morning, she ca she got up and she was covered with grit and sand. Uh, what was the evidence in regard to that? She Said that there, i, she testified that there was sand on her hand in the morning. She didn't suffer an injury as a result of that fall. The injurious fall came later in the day, and there was, she, there was no report of sand at that time by the claimant and by the nurse that approached the situation and was scanning the situation. And she testified she did not see any either. Um, and that was a witness that was called by the claimant. So the board really relied on evidence presented by the claimant in this case, in reaching the factual finding that it did. And this court has ruled time and time again that it will not disturb the factual findings. So long as there is evidence, competent evidence in the record to support those findings. And the counsel dis uh, claim the claimant's counsel disagrees with the board's findings, uh, and cites evidence that she says should have resulted in an, an inference in the other direction. But that's not the same as saying there's no evidence in the record to support the board's findings. The, the standard isn't really whether there's any evidence that the standard is, whether the decision based upon it is unjust or unreasonable. Isn't that correct? Well, Yeah. It's, it'll be deemed reasonable so long as there's competent evidence in the record to support that decision. That, that, that's my understanding out of your, of your honor. I mean, you look to the record and the board makes a, a determination and then the court looks to the record to say, well, we can see here that the nurse testified about the condition of the floor. We can see here that the claimant testified about her fall and, and, and her, her reaction that she has no idea what caused it. And you can look at those and say, well, that does support a finding that this is an unexplained fall not caused by any defect in the floor or any greater risk created by this floor than the general public faces every day. That's my understanding of the standard that you would look to the record and what's in there, uh, to, to see if that supports the ultimate decision in the case. So I just, um, I I you just wanna emphasize that this is a factual determination, that it is being requested that you look at the evidence anew, that you weigh that evidence differently than to the board, and that you then substitute your judgment for that of the board. There's really no legal issue in here. The claimant agrees with the standard of review under Marson agrees that marson is still valid. Law doesn't challenge marson in any respect. And it, it would seem to me that the, the, the proper ruling in this case would be to uphold the board of the, the ruling of the CAB. Thank You, counsel. Thank you. Okay. Submit it. Court stands in. Oh, did you reserve some time? I did. If, if I may use my one minute. I Forgot. Please use your time. Thank You. First of all, quickly, I'd like to point out that there was testimony that it was a side door, it was locked and also that the front door was locked. That was in testimony and that was also in my brief. So I think that is an error to misrepresent that. Um, we did not go into a huge detail on that fact because we thought that that was enough to establish the fact that clearly the general public didn't walk on that as much. Also, this is not a factual question, this is a question of error of law. First, the court applied the wrong error when they said the claimant failed to prove more probably than not that a defect in the floor surface or floor mat pose an actual risk that caused the claimant's fall one focus on fall two. They said it had to cause it. They did not make a determination that there wasn't sand or there wasn't a risk. They just said that risk didn't cause that fall. Moreover, in the neutral, they compared it to her personal. We didn't really get into that, but they compared it to her personal use that was absolutely incorrect. That's only appropriate in a preexisting more. They failed to take into consideration the specific details of the floor upon which she walked when making their determination. Those are all errors of law. Margeson said we have to look at the specific facts, Margeson said compared to the general public and ready mix and the previous cases. Keo talks specifically about the fact that, um, the standard of the standard of law is really that the claimant has to prove by a preponderance of the evidence that is work-related activity probably caused or contributed to cause the disability. They found that they didn't find no sand, they didn't find that there wasn't a risk. They found the risk didn't cause the fall. And that's the error. Thank you. Thank you counsel. Case submitted, the court stands in recess.