Appeal of Michael Messina

In Case No. 2024-0712, Appeal of Michael Messina, the court on January 6, 2026, issued the following order: The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The claimant, Michael Messina, appeals an order of the New Hampshire Compensation Appeals Board (CAB) ruling that he failed to prove that his injury arose out of employment. We affirm.

I. Background This is the second appeal of this case. See Appeal of AmGUARD Insurance Group & a., No. 2022-0373 (non-precedential order), 2024 WL 3178142 (N.H. June 26, 2024). The underlying facts are as follows. The maintenance worker whose primary duties were cleaning the company’s office in Manchester and a gym “a couple doors down” from the office. Id. at *1 (quotation omitted). The claimant did other maintenance projects at other locations as needed, received assignments from his employer during the workday by phone, and considered himself “always on call.” Id. (quotation omitted).

On November 10, 2020, the claimant requested and received permission from his supervisor to leave work and retrieve his motorcycle from his home, approximately twenty miles away from his primary worksites, so that he could put it in storage for the winter. Id. After picking up his motorcycle, and while on his way back to work in downtown Manchester, the claimant was hit by a van and severely injured. Id. There is no evidence that the employee was responding to a call from his employer at the time of the accident. Id.

The CAB found that the claimant was injured in the course of his employment and that his injury was compensable. Id. The CAB determined that “while [the claimant] was riding his motorcycle he was still acting in an activity related to his employment since he had never ‘left’ work and could be called on his way back to downtown Manchester.” Id. (quotation omitted). On appeal, we vacated the CAB’s order and remanded for the CAB to make a finding on the first element of the test articulated in Murphy v. Town of Atkinson, 128 N.H. 641 (1986) — whether the claimant’s injury resulted from a risk created by his employment. Id. at *2.

On remand, after a hearing, the CAB issued a written order. It found as a matter of fact that: “travel was not an essential part of [the claimant’s] job”; he used his personal vehicle “to perform any varied errands”; he was not paid mileage or reimbursed for gas; and, with the exception of “limited, intermittent assignments,” his job was “primarily associated with maintenance at the employer’s facilities located at 977 and 1015 Elm Street in Manchester NH.” Accordingly, the CAB rejected the claimant’s assertion that he “was a ‘traveling employee’ and therefore, the hazards of the travel route [become] a hazard of employment throughout the sojourn.” The CAB also found that “[t]he record showed that the trip the claimant was making was solely for his own personal benefit, i.e., putting his motorcycle in winter storage.” Therefore, the CAB concluded that the claimant did not meet his burden of proving “that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment.” The claimant unsuccessfully moved for reconsideration.

This appeal followed.

II. Analysis On appeal, the claimant argues that the CAB erred (1) “in determining that [he] was not a traveling employee at the time of his injury” and (2) “in finding that [his] injury resulted from a ‘personal risk.’” (Quotation omitted.) 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). The CAB’s factual findings are prima facie lawful and reasonable. See RSA 541:13. We review the CAB’s factual findings deferentially and will uphold them unless the evidence does not support them. Doody, 172 N.H. at 805. We review the CAB’s legal rulings de novo. Id. We construe the Workers’ Compensation Law liberally to give the broadest reasonable effect to its remedial purpose. Id. Thus, when construing it, we resolve all reasonable doubts in favor of the injured worker. Appeal of Estate of Dodier, 174 N.H. 548, 553 (2021). Here, as the appealing party, the plaintiff has the burden to show reversible error. See Appeal of Hawes, 175 N.H. 221, 223 (2022).

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 (2023). “The phrase ‘arising out of’ employment 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.” Hawes, 175 N.H. at 223 (citation and quotation omitted). “The phrase ‘in the course of’ employment 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.” Id. (citation and quotations omitted). “The test, thus, contains three elements, and the failure to prove any one of them is fatal to a claimant’s workers’ compensation claim.” Id. at 224.

The limited issue before us is whether the claimant proved that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment.

The claimant first argues that he was a “traveling employee” at the time of his injuries and, as such, his injuries “arose out of employment, in that they resulted from a risk created by the employment, thereby satisfying the first prong of the Murphy test.” (Quotation, italics, and bolding omitted.) He asserts that “travel was a required component of [his] work duties, when he frequently ventured to various locations at the request of [his employer],” and that at the time of the accident, he “was traveling from his home to a Zoo gym work location, separate from his employer’s office space” and was “on call while traveling.” A traveling employee is one “whose business requires that he be away from home,” Appeal of Griffin, 140 N.H. 650, 654 (1996), or “employees for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace,” Appeal of Pelmac Indus., 174 N.H. 528, 537 (2021). For example, in Appeal of Griffin, the employee’s work entailed duties associated with wrecking and demolition at various locations, including Maine, Massachusetts, and Rhode Island. Griffin, 140 N.H. at 652.

At the time of his injury, the employee had been on a work site in Rhode Island for approximately two weeks, which required him to remain overnight in Rhode Island. Id. During his work assignment, he received daily meal allowances and motel accommodations provided by his employer, and was permitted to use the company vehicle for transportation. Id. Because the employee “was required by his employment to live away from home, the risk of injury to him during travel necessary to take his meals was created by his employment,” and, therefore, the injury he incurred returning from the restaurant to his motel “arose out of employment.” Id. at 654-55. Similarly, in Appeal of Pelmac, where the decedent’s employment “involved extensive travel throughout New Hampshire, and he usually traveled directly between the remote work sites and his home in a company van,” his injury from a motor vehicle accident while traveling home from a work site arose “out of employment by resulting from a risk created by employment.” Pelmac, 174 N.H. at 538-39.

By contrast here, the CAB found that the claimant’s job was “primarily associated with maintenance at the employer’s facilities located at 977 and 1015 Elm Street in Manchester NH.” As the claimant testified, he would begin every workday at the office, and the office building and the Zoo gym on Elm Street were “within walking distance.” Accordingly, the “travel” required by the claimant’s job on the day he suffered his injury was between two buildings on the same street within walking distance of one another. Thus, the claimant’s choice to travel twenty miles away on a personal errand did not constitute travel required by his employment such that “the hazards of the route [became] the hazards of the employment.” Griffin, 140 N.H. at 655. Based on our review of the record, we find no error in the CAB’s finding that the claimant was not a traveling employee. See Appeal of Carnahan, 160 N.H. 73, 77 (2010) (explaining that our task is to determine whether the CAB’s findings are supported by competent evidence).

The claimant next argues that the CAB erred in finding that his injury resulted from a personal risk and not an employment-related risk. We have identified several types of injury-causing risks commonly faced by an employee at work, including “risks directly associated with employment” and “risks personal to the claimant.” Appeal of Margeson, 162 N.H. 273, 277 (2011).

Employment-related risks — such as falling objects, explosives, and fingers being caught in gears — always arise out of employment. See id. Personal risks — risks 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 — are never compensable. See id.

Here, the CAB found that the claimant made a personal decision to travel home to pick up his motorcycle to put in winter storage. We agree with the CAB that the record supports that “the trip the claimant was making was solely for his own personal benefit” and “the injury resulted from a personal risk, i.e., a risk personal to the claimant.” Cf. Hawes, 175 N.H. at 223, 229 (explaining that, where the employee was directed by his employer to go home at noon and rest so he could return to work that evening at 8 p.m., “the risk that he would be injured by a hazard commonly associated with such travel was an employment-created risk”); Griffin, 140 N.H. at 655 (“Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.” (quotation and brackets omitted)). As such, the risk “could not possibly be attributed to” the claimant’s employment and is therefore not compensable.

Margeson, 162 N.H. at 277 (quotation omitted). Accordingly, we affirm the CAB’s decision that the claimant did not meet his burden of proving “that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment.” Affirmed.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.

Timothy A. Gudas, Clerk