On-Call Permission Does Not Convert a Personal Errand into “Traveling Employee” Risk Under New Hampshire Workers’ Compensation Law

I. Introduction

This workers’ compensation appeal concerns the boundary between employment-related travel and a “distinct departure on a personal errand.” Michael Messina, a handyman/maintenance employee for Baroody & Greenwood, LLC, was severely injured when a van hit him while he was riding his motorcycle back toward downtown Manchester. Earlier in the day, he had obtained permission to leave work and travel approximately twenty miles to his home to retrieve the motorcycle for winter storage.

The key legal issue was not whether the accident occurred within the time-space orbit of employment (the “in the course of” component), but whether it satisfied the separate requirement that the injury “arose out of” employment—i.e., whether the injury resulted from a risk created by employment. After the first appeal and remand (see Appeal of AmGUARD Insurance Group & a., No. 2022-0373 (non-precedential order)), the CAB found the trip was personal, travel was not integral to the job, and the claimant was not a traveling employee.

II. Summary of the Opinion

The Supreme Court of New Hampshire affirmed the CAB. It held that competent evidence supported the CAB’s finding that travel was not an essential or integral part of Messina’s job and that his trip home was “solely for his own personal benefit.” Because the accident occurred during that personal errand, the risk of road travel at that time was “personal to the claimant” and could not be attributed to employment. Accordingly, Messina failed to prove the “arising out of” element required for compensability under RSA 281-A:2, XI.

III. Analysis

A. Precedents Cited

1. Murphy v. Town of Atkinson, 128 N.H. 641 (1986)

Murphy supplies the “test” framework referenced throughout this litigation and drove the remand in the first appeal. In the first Supreme Court order (the non-precedential remand), the Court required the CAB to make an explicit finding on the first element: whether the injury resulted from a risk created by employment (the “arising out of” component). In this second appeal, the Court evaluates the CAB’s remand findings through that lens and treats failure on this element as dispositive.

2. Appeal of Hawes, 175 N.H. 221 (2022)

Hawes is used for two critical points:

• It restates the statutory two-part requirement—injuries must arise “out of” and occur “in the course of” employment—and explains that the test contains three elements, with failure on any element “fatal.”
• It illustrates when travel risks can be employment-created: in Hawes, the employee was directed by the employer to go home and rest and then return, making the travel hazard employment-created.

The Messina Court implicitly contrasts that employer-directed travel with Messina’s employer-permitted but purely personal trip. Permission and being “on call” did not substitute for direction or necessity tied to job duties.

3. Appeal of Griffin, 140 N.H. 650 (1996)

Appeal of Griffin provides New Hampshire’s core articulation of “traveling employee” doctrine: an employee “whose business requires that he be away from home.” The Court emphasizes the factual hallmarks from Griffin—multi-state, multi-week assignment; overnight lodging; meal allowances; employer-provided accommodations/vehicle—and the doctrinal consequence: where employment requires living away from home, travel necessary to meet basic needs (like meals) can be an employment-created risk.

Griffin is also cited for the majority-rule principle that traveling employees are within the course of employment continuously during the trip “except when a distinct departure on a personal errand is shown.” Messina’s case is treated as falling within that “distinct departure” concept—only more strongly so, because he was not a traveling employee in the first place.

4. Appeal of Pelmac Indus., 174 N.H. 528 (2021)

Appeal of Pelmac Indus. refines the traveling-employee category to include “employees for whom travel is an integral part of their jobs,” contrasted with employees who commute to a single workplace. The case also provides an example of compensable travel risk: “extensive travel throughout New Hampshire,” typically direct travel between remote work sites and home in a company van.

Messina’s work, by contrast, was found “primarily associated” with two Elm Street locations within walking distance. This supported the CAB’s conclusion—and the Court’s affirmance—that travel was not “integral.”

5. Appeal of Margeson, 162 N.H. 273 (2011)

Appeal of Margeson supplies the risk taxonomy the Court applies: (i) risks directly associated with employment (always compensable) and (ii) risks personal to the claimant (never compensable). The Court uses Margeson to anchor its conclusion that a hazard “could not possibly be attributed to” employment when the underlying trip is “solely” personal.

6. Appeal of Doody, 172 N.H. 802 (2020); Appeal of Estate of Dodier, 174 N.H. 548 (2021); Appeal of Hawes, 175 N.H. 221 (2022)

These cases are used to define standards of review and interpretive approach:

• Appeal of Doody: deferential review of CAB factfinding; de novo review of legal rulings.
• Appeal of Estate of Dodier: workers’ compensation statutes are construed liberally, with reasonable doubts resolved for the worker.
• Appeal of Hawes: claimant bears the burden to establish each element; failure is fatal.

Notably, even under liberal construction, the Court treats the CAB’s supported finding of a purely personal trip as outcome-determinative.

7. Appeal of Carnahan, 160 N.H. 73 (2010)

Appeal of Carnahan is cited for the appellate task: determining whether CAB findings are supported by “competent evidence.” The Court uses it to justify deference to the CAB’s factfinding that travel was not essential and the trip was personal.

8. Appeal of AmGUARD Insurance Group & a., No. 2022-0373 (non-precedential order)

The prior order is procedurally central: it vacated the initial CAB decision and required findings on the “arising out of” element. The present opinion is best understood as enforcing that remand mandate and clarifying that “on call” status, without more, does not convert a personal errand into an employment-created risk.

B. Legal Reasoning

The Court’s reasoning proceeds in two steps, matching Messina’s appellate arguments:

1. Traveling employee status was not established

The CAB made specific remand findings: travel was not essential; the job was primarily tied to two nearby Elm Street sites; the claimant used a personal vehicle for “varied errands” without mileage reimbursement; and only “limited, intermittent assignments” involved other locations. On that record, the Court held the claimant’s job did not fit the traveling-employee category described in Appeal of Griffin or Appeal of Pelmac Indus.

The decision emphasizes a practical, work-centered definition: “travel” must be integral to the work itself, not merely something the employee occasionally does or could do. Importantly, the Court treats the relevant “required travel” on the day of injury as the ordinary route between two buildings on the same street within walking distance—making the 20-mile trip an outlier and not employment-created.

2. The risk was personal because the trip was purely personal

Applying Appeal of Margeson, the Court classifies the relevant hazard (motor-vehicle travel risk during the 20-mile trip) as “personal to the claimant,” because the CAB found the trip was “solely” for winter storage of the motorcycle. The Court rejects the idea that being “on call” or having permission to leave work transforms that personal purpose into an employment risk, especially given the absence of evidence that the claimant was responding to an employer call at the time of the accident.

The Court’s citation to Appeal of Hawes underscores the dividing line: employer-directed travel in service of work needs can convert ordinary travel hazards into employment-created risks; employer-permitted personal travel does not.

C. Impact

• Constrains “on call” arguments: The opinion signals that “always on call” status is not, by itself, enough to satisfy “arising out of” when the employee is engaged in a purely personal trip and not responding to a call or direction.
• Reinforces “integral travel” as a factual threshold: Claimants seeking traveling-employee treatment must show that travel is essential/integral—not merely occasional—and courts will defer to CAB findings on that point if supported by competent evidence.
• Clarifies the remand-driven focus on the first Murphy element: Even if time-and-space considerations might support “in the course of” findings (e.g., permission to leave and return), a claim still fails if the risk is not employment-created.
• Practical guidance for employers and CAB litigation: Records about reimbursement, frequency of offsite assignments, whether travel is required by job description, and whether the employee was responding to employer direction at the time of injury will be pivotal.

IV. Complex Concepts Simplified

• “Arising out of” vs. “in the course of” employment: “In the course of” asks when/where and whether the activity is employment-related (time and place). “Arising out of” asks why the injury happened—whether the risk that caused it was created by the job.
• Employment-created risk: A danger that exists because the job requires exposure to it (e.g., required travel to remote sites).
• Personal risk: A danger stemming from purely personal choices or conditions that cannot fairly be attributed to the job—even if it occurs during work time.
• Traveling employee: Not simply someone who sometimes drives for work, but an employee for whom travel is integral (or whose job requires being away from home), such that certain travel hazards may become hazards of employment.
• Standards of review: CAB facts get deference (affirmed if supported by competent evidence); legal conclusions are reviewed independently (de novo).

V. Conclusion

Appeal of Michael Messina reinforces a clear dividing line in New Hampshire workers’ compensation law: permission to leave work—and even “on call” status—does not convert a purely personal errand into compensable, employment-created travel risk. The decision anchors traveling-employee status in whether travel is integral or required by the job, and it treats a “solely personal” trip as creating a personal risk that cannot satisfy the “arising out of” element under RSA 281-A:2, XI.