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Worker who fell asleep at the wheel due comp for lost leg


The Supreme Court of New Hampshire last week overruled a decision by the state’s Compensation Appeals Board to deny benefits to a driver who was injured after he fell asleep behind the wheel of a company truck and struck a utility pole.

The court ruled that the driver, Brandon Kelly, was entitled to workers compensation benefits for the injuries arising from the March 16, 2012, crash. Mr. Kelly was returning to the offices of his employer, Advanced Sheet Metal Services Inc. in Hudson, New Hampshire, after working at a job site in Massachusetts when he struck the utility pole. As a result of the accident, his lower leg was amputated.

After Mr. Kelly sought workers’ compensation benefits, the insurer for Advanced Sheet Metal, Quincy, Maryland-based Arbella Insurance Co., denied his claim. A subsequent hearing was held before the New Hampshire Department of Labor, which awarded him benefits.

Arbella appealed the decision to the New Hampshire Compensation Appeals Board, which ruled in the insurer’s favor, stating that although it was undisputed that Mr. Kelly was acting in the course of his employment at the time of the accident, the injuries did not arise out of his employment.

In overturning the compensation appeals board’s ruling, the New Hampshire Supreme Court found that the board had misconstrued the concept of mixed risks, which happen when a personal risk and an employment risk combine to produce an injury.

“Although not all injuries resulting from mixed risks are compensable, the concurrence of a personal risk and an employment risk does not necessarily defeat compensability if the employment was also a substantial contributing factor to the injury,” the court’s ruling states. “Even if we were to assume that the petitioner was negligent in choosing to drive and in falling asleep while doing so, barring recovery on that basis would be contrary to the remedial purpose of the Workers’ Compensation Law.”

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