N.H. Finds Evidence Points to ‘Personal Risk’ as Cause of Worker’s Death

Case File

When a carpenter suffered a fatal pulmonary embolism and collapsed into shallow water at a jobsite, the key question on appeal was whether the employment created a compensable risk. Simply Research subscribers have access to the full text.

Case

Appeal of Kelley, No. 2025-0029 (N.H. 04/09/26)

What Happened?

While working on a bridge, a carpenter suffered a pulmonary embolism and fell into shallow water face down. Despite receiving treatment, the worker went into cardiac arrest and died.

The medical examiner determined that the carpenter's death was a pulmonary embolus with a contributor condition of water aspiration. There was no dispute that the embolism occurred before the carpenter entered the water.

The estate filed a workers' compensation claim, which the carrier denied. The New Hampshire Department of Labor granted the estate benefits, and the carrier appealed to the Compensation Appeals Board.

Based on the carrier's expert doctor's report, the CAB determined that aspiration was a medical finding but not a cause of death and unanimously concluded that the estate did not carry its burden of proof that the carpenter's death arose from his employment.

The estate appealed to the New Hampshire Supreme Court.

Rule of Law

In New Hampshire, a claimant must demonstrate that the employee's injury arose out of and in the course of employment by proving:

(1) The injury arose out of employment by demonstrating that it resulted from a risk created by the employment.

(2) The injury arose in the course of employment by demonstrating that: a) it occurred within the boundaries of time and space created by the terms of employment; and b) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, or an activity of mutual benefit to employer and employee.

Although a claimant must establish both prongs, the parties’ dispute and the court’s analysis focused exclusively on the "arose out of" prong, meaning the court considered whether the death resulted from a risk created by the employment.

What the New Hampshire Supreme Court Said

The New Hampshire Supreme Court affirmed the CAB's decision, holding that the carpenter's death did not result from a risk created by his employment. In New Hampshire, the CAB's findings are reviewed for competent evidence, and the CAB decides credibility and weight of expert testimony.

Workers' Comp 101: In Appeal of Margeson, 162 N.H. 273 (N.H. 2011), the New Hampshire Supreme Court 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.

(4) Neutral risks.

The court explained that the CAB correctly recognized that the essential determination was whether the water aspiration was a substantial factor in the carpenter's death or whether the carpenter's death was caused by the embolism and subsequent cardiac arrests.

The court highlighted:

(1) If the embolism was the sole cause of death, then the death resulted from a personal risk.

(2) The expert's opinion was that the embolism was the sole cause of death.

(3) The expert's opinion was persuasive.

(4) The carpenter's death did not result from employment.

In the court's analysis, the "contributing condition" of water aspiration did not equal a "substantial factor" in the carpenter's death because aspiration can be observed without being causative. Instead, the court found that evidence supported the finding that the carpenter's death resulted from a personal risk was supported by the evidence because:

(1) A coworker quickly extracted the carpenter from the water and administered CPR.

(2) EMS intubated the carpenter and there was no evidence of water filling or occluding his airway.

(3) The autopsy did not demonstrate findings that his lungs were filled with exogenous water.

This evidence was relevant because it supported the conclusion that immersion did not meaningfully aggravate the embolism.

"Because the CAB relied on competent evidence and is authorized to make credibility determinations when rendering findings of fact, we find no error," the court wrote.

Verdict: Affirmed.

Takeaway

Once the CAB reasonably determined that the death resulted from a personal risk rather than an employment-created risk, its analysis properly ended, and the New Hampshire Supreme Court deferred to that conclusion.

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