Implicit “Personal Risk” Finding May Sustain Denial of Workers’ Compensation Where CAB Credits Expert that Non-Work Cause Was Sole Cause of Death

Introduction

In Appeal of Estate of Matthew Kelley (N.H. Apr. 9, 2026), the New Hampshire Supreme Court affirmed a denial of workers’ compensation death benefits where an employee suffered a pulmonary embolism at a bridge worksite, fell into shallow water, and later died. The claimant, the Estate of Matthew Kelley (the Estate), contended that the workplace condition—water immersion and aspiration—contributed to death, making the case compensable. The respondent, The Phoenix Insurance Company (the carrier), argued that the embolism (a personal medical condition) was the sole cause of death, rendering the claim non-compensable under the “personal risk” category.

The decisive issue was causation framed through New Hampshire’s risk-category approach under Appeal of Margeson: whether the death resulted from a non-compensable “personal risk” (embolism alone) or a potentially compensable “mixed risk” (embolism plus a work-related contributing cause such as aspiration).

Summary of the Opinion

The court affirmed the Compensation Appeals Board (CAB). It held that the CAB sufficiently determined—though not with perfect clarity—that Kelley’s death resulted from a “personal risk” because it credited the carrier’s expert, Dr. Pulde, who opined that the pulmonary embolism was the sole cause of death and that the water aspiration was not causative. Because personal risks “are never compensable,” the CAB’s finding ended the analysis; no further legal/medical causation framework was required. The court also held that the CAB acted within its factfinding authority in crediting Dr. Pulde over the deputy chief medical examiner’s autopsy conclusions.

Justice Gould dissented, arguing that the CAB failed to make express, reviewable findings resolving the central dispute (whether aspiration significantly contributed to death), and that the decision’s reasoning was too opaque to permit meaningful review under RSA 541:13.

Analysis

Precedents Cited

  • Appeal of Doody, 172 N.H. 802 (2020)
    The majority relied on Appeal of Doody for the appellate standard of review: CAB decisions are affirmed absent legal error unless “unjust or unreasonable” by a clear preponderance of the evidence, and CAB factual findings are reviewed deferentially. The case also supplied the court’s caution that it will not reweigh conflicting evidence, reinforcing deference to CAB resolution of expert disputes.
  • Appeal of Estate of Dodier, 174 N.H. 548 (2021)
    Cited for the liberal construction of the Workers’ Compensation Law and resolving reasonable doubts in favor of the worker. Notably, the majority invoked this remedial principle but still found the CAB’s factfinding sufficient to sustain denial—illustrating that liberal construction does not override supported factual determinations.
  • Murphy v. Town of Atkinson, 128 N.H. 641 (1986)
    Provided the classic three-element “arising out of and in the course of employment” formulation and the “risk created by employment” requirement for “arising out of.” It framed the dispute: only the “arising out of” prong was contested.
  • Appeal of Hawes, 175 N.H. 221 (2022)
    Reinforced that failure to prove any element of the statutory test is “fatal” to a claim—supporting the majority’s bottom-line affirmance once “arising out of” failed.
  • Appeal of Margeson, 162 N.H. 273 (2011)
    Central to the court’s structure: it identifies four categories of risk—employment, personal, mixed, and neutral—and instructs that the CAB “should first make a finding regarding the cause of the claimant’s injury.” The Estate’s chief appellate argument—CAB did not make the required risk-category finding—was evaluated against this directive.
  • Appeal of Kelly, 167 N.H. 489 (2015)
    Used to explain how the applicable test depends on the risk category (neutral risks trigger the increased-risk test; non-neutral risks require proof of legal and medical causation). The majority used Appeal of Kelly to show the CAB understood the choice between “personal” (non-compensable) and “mixed” (potentially compensable if work was a substantial factor).
  • Appeal of LeBorgne, 173 N.H. 488 (2020)
    Cited by the majority for the proposition that interpreting a CAB decision is a question of law reviewed de novo—supporting the court’s willingness to read the CAB’s decision as implicitly making a personal-risk finding. The dissent also cited Appeal of LeBorgne (and its reliance on Appeal of Lemire-Courville Associates) to emphasize that decisions resting on contradictory findings should not be affirmed.
  • Appeal of Rancourt, 176 N.H. 139 (2023)
    Supported the principle that factfinders may accept or disregard conflicting expert testimony in whole or in part. The majority used it to uphold the CAB’s choice to credit Dr. Pulde and to reject challenges to the CAB’s credibility determinations and reliance on expert evidence.
  • Appeal of Morin, 140 N.H. 515 (1995)
    Addressed the “treating physician” concept: treating physicians’ opinions are often accorded substantial weight in workers’ compensation cases. The majority distinguished it factually because the Estate conceded “there wasn’t a treating doctor” and held that, even if analogized, the CAB could still credit other competent expert evidence.
  • Appeal of State of N.H. (Adjutant General), 177 N.H. 569 (2025), 2025 N.H. 40
    Reinforced that the CAB may credit a medical expert over a treating physician, supporting the majority’s conclusion that crediting Dr. Pulde over the medical examiner was not legal error.
  • Karch v. BayBank FSB, 147 N.H. 525 (2002) (dissent)
    Used to contextualize the workers’ compensation exclusivity bargain (benefits in exchange for waiver of tort remedies) and to emphasize the importance of CAB decision quality given the remedial purpose and the rights waived.
  • Appeal of Lemire-Courville Associates, 127 N.H. 21 (1985) (dissent via Appeal of LeBorgne)
    Cited for the principle that courts will not affirm administrative decisions that rest on contradictory factual findings—central to the dissent’s critique of the CAB’s reasoning.

Legal Reasoning

1) The court’s threshold move: reading an implicit risk-category finding

The Estate argued that Appeal of Margeson requires the CAB to make an explicit finding identifying the relevant risk category. The majority agreed the CAB “could have been more clear,” but held the CAB “sufficiently” made the required determination because its reasoning necessarily resolved the dispositive question: whether aspiration was a substantial factor in death (mixed risk) or merely a “medical finding” without causal significance (personal risk).

In effect, the Supreme Court accepted an implicit personal-risk finding when the CAB’s narrative and conclusion make plain that it credited an expert who opined the work-related factor did not contribute causally.

2) Deference to CAB factfinding on competing medical causation theories

The record contained (at least) two causation narratives: (a) embolism plus aspiration contributed to respiratory failure (medical examiner), versus (b) embolism alone caused death and aspiration was non-causal (Dr. Pulde). The majority treated the dispute as classic factfinding committed to the CAB. Under Appeal of Doody and Appeal of Rancourt, appellate review does not reweigh medical evidence; it asks whether competent evidence supports the CAB’s finding.

The majority highlighted that the CAB identified points of agreement and conflict between the experts, described Dr. Pulde’s analysis as “complete and thorough,” and then stated it found his opinion persuasive. That was enough, in the majority’s view, to show the CAB exercised its delegated role as factfinder and resolver of expert conflict.

3) Consequence of a “personal risk” finding: the analysis stops

After accepting that the CAB found a personal risk, the court held that “personal risks ‘are never compensable,’” and therefore the CAB was “not required” to conduct additional legal/medical causation analyses (the Estate’s argument that the CAB should have proceeded further was rejected). This is an important structural holding: if the CAB finds the injury/death was caused solely by a personal risk, the workers’ compensation inquiry ends.

4) Expert qualifications challenge

The Estate also attacked Dr. Pulde’s qualifications. The court held that, even assuming preservation, the Estate failed to show error. The CAB had the curriculum vitae and discretionary authority to accept the opinion. The court’s approach underscores that qualification challenges must be developed enough to demonstrate that the CAB relied on incompetent evidence—not merely that another expert (here, the medical examiner) might be viewed as more authoritative.

Impact

  • Administrative decision-writing and appellate review: The majority’s willingness to uphold an implicit risk-category finding may reduce reversals for imperfect CAB drafting, so long as the decision’s reasoning and conclusion sufficiently reveal the category chosen. The dissent warns this approach risks encouraging less transparent agency reasoning and complicates meaningful RSA 541:13 review.
  • Mixed-risk death cases involving personal medical events: The decision underscores that claimants must do more than show a workplace hazard was present; they must prove it was a substantial contributing factor where a personal medical event is asserted as the true cause. In close medical causation contests, the CAB’s choice between experts will often be dispositive and difficult to overturn.
  • Status of medical examiner opinions: The court declined to treat the deputy chief medical examiner as effectively a “treating physician” entitled to special weight under Appeal of Morin. Future litigants should expect that autopsy-based causation opinions may be weighed as expert evidence, not presumptively elevated, absent a specific doctrinal hook.
  • Potential litigation over “reasoned decisionmaking”: Justice Gould’s dissent lays groundwork for future appeals arguing that, even with deference, CAB decisions must articulate findings and reasoning on dispositive issues sufficiently to permit review, especially where expert reports contain tensions or where statutory presumptions and remedial purposes are invoked.

Complex Concepts Simplified

  • “Arising out of” vs. “in the course of” employment: “In the course of” asks whether the event happened at work, during work time, while doing work-related activity. “Arising out of” asks whether work caused the injury—i.e., whether it resulted from a risk created by the employment.
  • Risk categories (from Appeal of Margeson):
    • Employment risks: caused by the job (e.g., machinery hazards).
    • Personal risks: caused by the worker’s personal condition (e.g., idiopathic medical event) and “never compensable” if truly the sole cause.
    • Mixed risks: combination of personal and work risks; may be compensable if work was a substantial contributing factor.
    • Neutral risks: neither distinctly personal nor employment-related; analyzed under an “increased-risk” framework.
  • “Substantial contributing factor”: not necessarily the only cause, but more than a trivial or coincidental contribution. In mixed-risk cases, the claimant must show the work component meaningfully contributed to the outcome.
  • “Prima facie lawful and reasonable” (RSA 541:13): the CAB starts with a presumption of correctness on factual findings; the appealing party must show the decision is legally wrong or clearly unjust/unreasonable.
  • De novo vs. deferential review: appellate courts review legal questions “de novo” (no deference), but factual findings deferentially (upheld if supported by evidence).

Conclusion

Appeal of Estate of Matthew Kelley reinforces two practical rules in New Hampshire workers’ compensation law. First, the CAB’s risk-category determination under Appeal of Margeson may be upheld even if not stated with ideal explicitness, so long as the decision—fairly read—resolves the dispositive causation question and shows the category applied. Second, once the CAB finds the death or injury was caused solely by a “personal risk,” the claim fails without further causation analysis. The dissent, however, signals an ongoing judicial concern about whether CAB decisions must provide clearer, reviewable reasoning on dispositive issues—especially in medically complex, expert-driven death cases.