Morrison Mahoney Partner Justin Veiga recently obtained a New Hampshire Compensation Appeals Board (“CAB”) decision maintaining the carrier’s claim denial. The claimant, who worked in retail, suffered catastrophic injuries the night of November 24, 2023 due to a motor vehicle accident. That accident occurred after the claimant and his supervisor finished their “Black Friday” shifts together. He then drove the supervisor to her house before continuing toward his own home, and was struck head-on by another vehicle.
Like many other jurisdictions, New Hampshire workers’ compensation law includes a “coming and going” rule, which generally precludes compensation for injuries suffered by claimants while traveling to/from work. However, the rule is riddled with exceptions, including one for special duties or errands: “When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or supervisor, an injury in the course of that work in compensable.” Cook v. Wickson Trucking Co., Inc., 135 N.H. 150 (1991), citing 1A Arthur Larson, The Law of Workmen’s Compensation § 27.41, at 5-424 (1990). At the client’s request, Justin completed an initial compensability analysis following the accident and recommended that the claim be denied despite the special errand exception to the coming and going rule because the claimant’s supervisor did not order or direct him to give her a ride home after work. Rather, the two were friendly with each other, and the claimant voluntarily offered or agreed to provide the ride. Even if the supervisor had directed the transportation, the claimant’s injuries occurred when he was principally occupied with returning to his home rather than with some aspect of his employment. Due to the claimant’s extensive medical bills, the carrier faced seven-figure exposure on the claim.
As expected, claimant’s counsel petitioned the Department of Labor for a hearing to dispute the carrier’s denial. The hearing went forward last summer, with the claimant stressing that his supervisor, who did not own a vehicle, regularly relied upon him for rides to/from work. The claimant argued that his employer benefited by the supervisor’s reliable work attendance as a result of the transportation he provided. Justin obtained a favorable decision from the hearing officer, who agreed that the transportation provided by the claimant to his supervisor conferred no articulable benefit upon the employer, was not done under the direction of the employer, and thus was not a special errand with a work-connected basis for the journey.
The claimant appealed the decision to the CAB. A de novo appeal hearing went forward in late-January featuring several witnesses, including the claimant, his supervisor, and multiple employer managers, who corroborated that no one directed or ordered the claimant to provide transportation to his supervisor. Moreover, the store manager testified credibility that she was responsible for creating the store’s shift schedules, and she never took the supervisor’s need for transportation into consideration when doing so, including on the date of the accident. On cross-examination, the claimant admitted that his employer never directed him to provide the supervisor with rides to/from work, he felt no pressure to accommodate her ride requests, and there were occasions where he declined transportation to his supervisor with no adverse consequences. He also admitted that he and the supervisor were friendly with each other, and that many of their shifts likely aligned because he was available to work nights and she was a closing manager. The CAB ordered that the parties file closing statements. Justin distinguished the claim from those for which the New Hampshire Supreme Court has applied the special errand exception, including recently Appeal of Hawes, 175 N.H. 221 (2022), by highlighting the lack of direction/influence by the employer to provide the transportation and the fact that the claimant’s work day had concluded at the time of the accident. The CAB Panel returned a unanimous (3-0) decision in the carrier’s favor.
