Appeal of Estate of Matthew Kelley

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2025-0029, Appeal of Estate of Matthew Kelley, the court on April 9, 2026, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The claimant, the Estate of Matthew Kelley, appeals an order of the New Hampshire Compensation Appeals Board (CAB) ruling that the estate failed to prove that Kelley's death arose out of employment. See RSA 281-A:2, XI (2023). We affirm.

The following facts are derived from the CAB's order or are otherwise supported by the record. Kelley worked as a carpenter for Evroks Corporation. In April 2023, Kelley was working on a bridge over a river when he suffered a pulmonary embolism. He fell about eight feet onto the embankment below and then rolled into shallow water face down.

EMS arrived and provided immediate medical attention, but Kelley remained unresponsive and was ventilated. EMS transported Kelley to the hospital, where he remained on a ventilator. Despite treatment, Kelley went into cardiac arrest, resuscitative efforts were unsuccessful, and he was pronounced dead. The deputy chief medical examiner for the State of New Hampshire (the medical examiner) performed an autopsy the following day. He determined that Kelley's cause of death was a pulmonary embolus with a contributory condition of water aspiration.

The estate filed a workers' compensation claim, which the respondent, The Phoenix Insurance Company, insurer of Evroks Corporation (the carrier), denied. The New Hampshire Department of Labor granted the estate benefits and the carrier appealed that decision to the CAB. The CAB held a de novo hearing. The parties agreed that the only issue was causation. The evidence entered before the CAB included Kelley's medical records, the autopsy report, and a report from the carrier's expert doctor, Dr. Pulde. The CAB found that the essential determination was whether the water aspiration was a substantial factor in Kelley's death, or whether Kelley's death was caused by the embolism and subsequent cardiac arrests. After finding that Pulde's report was persuasive, the CAB determined that "[t]he aspiration is a medical finding but not a cause of death." The CAB thus unanimously

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concluded that "the claimant Estate did not carry its burden of proof that the decedent[']s death arose from his employment." The estate's motion for reconsideration was denied, and this appeal followed.

We will affirm the CAB's decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. Appeal of Doody, 172 N.H. 802, 805 (2020); see RSA 541:13 (2021). The CAB's factual findings are prima facie lawful and reasonable. RSA 541:13. We review the CAB's factual findings deferentially and will uphold them unless the evidence does not support them. Appeal of Doody, 172 N.H. at 805. We review the CAB's legal rulings de novo. Id. We construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose. Id. Thus, when construing it, we resolve all reasonable doubts in favor of the injured worker. Appeal of Estate of Dodier, 174 N.H. 548, 553 (2021). Here, as the appealing party, the estate has the burden of demonstrating that the CAB's decision was erroneous. See Appeal of Doody, 172 N.H. at 806. To obtain workers' compensation benefits, a claimant must demonstrate that the employee's injury arose "out of and in the course of employment." RSA 281-A:2, XI. A claimant must prove: (1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment; and (2) that 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. Murphy v. Town of Atkinson, 128 N.H. 641, 645-46 (1986). "The test, thus, contains three elements, and the failure to prove any one of them is fatal to a claimant's workers' compensation claim." Appeal of Hawes, 175 N.H. 221, 224 (2022).

In the instant case, there is no dispute that Kelley was acting "in the course of" employment at the time of his death. RSA 281-A:2, XI. Rather, the issue in dispute is whether Kelley's death "resulted from a risk created by [his] employment." Murphy, 128 N.H. at 645. In Appeal of Margeson, 162 N.H. 273, 277 (2011), we 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; and (4) neutral risks." We also instructed that "in determining the appropriate test in future cases, the CAB should first make a finding regarding the cause of the claimant's injury."

Appeal of Margeson, 162 N.H. at 284-85; see Appeal of Kelly, 167 N.H. 489, 494 (2015). Depending on which risk category the CAB determines the cause of the employee's injury falls within, different analytical tests will apply. See Appeal of Kelly, 167 N.H. at 493-94 (providing that "[i]f the cause is a neutral risk, the increased-risk test applies," and "[i]f the cause is a non-neutral risk, the claimant must prove legal and medical causation").

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The estate argues that the CAB erred when it failed to make a finding as to the type of risk to which Kelley was exposed. The carrier counters that the CAB did analyze the legal causation of Kelley's death and found it was the result of a personal risk. Having reviewed the CAB's decision, we agree with the carrier. See Appeal of LeBorgne, 173 N.H. 488, 493 (2020) (stating that the interpretation of a CAB decision presents a question of law, which we review de novo).

The CAB recognized that the essential determination was whether the water aspiration was a substantial factor in Kelley's death, or whether Kelley's death was caused by the embolism and subsequent cardiac arrests. The CAB thus properly set forth the contested issue: whether Kelley's death resulted from a personal risk because his death was caused by the embolism and cardiac arrests, or from a mixed risk because the water aspiration was a substantial contributing factor to his death. See Appeal of Kelly, 167 N.H. at 492-94.

In considering this question, the CAB stated that "[i]t is clear that under a Margeson analysis, if the embolism was the sole cause of Mr. Kelley's death, it would fall into the 'personal risk' category and not be compensable as arising from his employment." It described the estate's argument that "since aspiration/drowning was found to be a contributing cause, it is a 'mixed risk' and compensable under Margeson." After setting forth Pulde's opinion that

"the sole cause of [Kelley's] death was the pulmonary embolism" and that Kelley "was either dead or moribund before he rolled into the water and aspirated," the CAB found Pulde's opinion persuasive. It thus concluded that the water aspiration was "a medical finding but not a cause of death." The CAB accordingly determined that the estate "did not carry its burden of proof that [Kelley's] death arose from his employment."

In summary, the CAB determined that: (1) if the embolism was the sole cause of death, then the death resulted from a personal risk; (2) Pulde's opinion was that the embolism was the sole cause of death; (3) Pulde's opinion was persuasive; and accordingly, (4) Kelley's death did not result from his employment. These determinations show that the CAB found that the cause of Kelley's death was the result of a personal risk. See Appeal of Margeson, 162 N.H. at 284-85. Although the CAB could have been more clear in making this finding, we conclude that the CAB sufficiently made the required determination as to the relevant category of risk. See id.; Appeal of LeBorgne, 173 N.H. at

493.

Having determined that the CAB found Kelley's death resulted from a personal risk, we now address whether that finding is supported by the evidence. See Appeal of Doody, 172 N.H. at 805 ("We . . . will uphold [the CAB's factual findings] unless the evidence does not support them."). The parties do not dispute that the embolism resulted from a risk personal to

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Kelley. They dispute, however, whether Kelley's water aspiration, which resulted from an employment risk, was a contributory cause of death such that Kelley's death should be assessed as the result of a "mixed risk." See id. at 806 (noting that injuries from mixed risks may be compensable "if the claimant's employment was also a substantial contributing factor to the injury"). Although the evidence before the CAB was conflicting, it was for the CAB to resolve those conflicts in evidence in the first instance. Id. at 808. "Our task on appeal is not to decide whether we would have made the same factual findings as the CAB or to reweigh the evidence." Id. Because there is evidence in the record to support the CAB's finding that Kelley's death resulted from a personal risk, we uphold it. See id.

The main piece of evidence that the CAB relied upon was Pulde's opinion. The estate argues that this reliance was erroneous. Specifically, the estate argues that the CAB erred in discounting the medical examiner's opinion in favor of Pulde's opinion, and in failing to provide its reasoning for doing so. We disagree. It is well established that "factfinders are free to disregard or accept, in whole or in part, conflicting expert testimony." Appeal of Rancourt, 176 N.H. 139, 144 (2023). Further, "[t]he CAB is well within its authority as the factfinder to evaluate conflicting expert testimony and to decide to credit one expert over the other." Id. Here, the CAB discussed the similarities and conflicts between the reports from the medical examiner and Pulde. The CAB noted that both doctors agreed that Kelley was unconscious after falling, but that Pulde went a step further by opining that Kelley was "likely moribund or dead prior to his . . . water immersion." The CAB commented that Pulde did a

"complete and thorough" analysis of the autopsy and "spen[t] several pages on the pathology of embolisms and heart failure." It then highlighted the conflicting opinions of the doctors as to whether the water aspiration was a contributory cause of Kelley's death before stating that it found Pulde's opinion persuasive. The CAB was within its authority as the factfinder to reach this conclusion and to credit Pulde's report over the medical examiner's. See id. The estate argues that the CAB should have considered the medical examiner to be "comparable to a treating physician" and thus should have given his conclusions "greater weight." See Appeal of Morin, 140 N.H. 515, 519 (1995) (providing that "[t]reating physicians are especially important in a workers' compensation case" and "their reports must be accorded substantial weight" (quotation omitted)). At the hearing, however, the estate conceded that it was not raising an argument under Appeal of Morin because "[t]here wasn't a treating doctor" in this case. Even if the CAB were to have viewed the medical examiner as "comparable to a treating physician," we conclude there is nonetheless evidence in the record that would support the CAB's acceptance of Pulde's opinion. See Appeal of State of N.H. (Adjutant General), 177 N.H. 569, 576 (2025), 2025 N.H. 40, ¶20 (concluding that CAB was "free to disregard or

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accept, in whole or in part, conflicting expert testimony" and thus did not err by relying upon medical expert's report and testimony rather than the claimant's treating physician (quotation omitted)). For example, in support of his conclusions that Kelley "died independent of his water immersion" and that

"his death was inevitable and not reversible," Pulde cited the facts that: (1) Kelley's coworker "quickly extracted [Kelley] and administered CPR"; (2) EMS was able to intubate Kelley and "there was no evidence of water filling or occluding his airway"; and (3) the autopsy did not demonstrate findings that his lungs were "filled with exogenous water."

The estate additionally argues that Pulde was not qualified to provide a medical opinion on the cause of Kelley's death. The carrier contends that the estate failed to preserve this argument. Even if we assume that this argument is preserved, however, we conclude that the estate has not demonstrated that the CAB's acceptance of Pulde's opinion was erroneous. See Appeal of Doody,

172 N.H. at 806. The CAB had Pulde's curriculum vitae before it and had the discretion to disregard or accept his opinion. See Appeal of Rancourt, 176 N.H. at 144. Because the CAB relied on competent evidence and is authorized to make credibility determinations when rendering findings of fact, we find no error. Id. at 147.

We accordingly determine that the CAB did not err in relying upon Pulde's opinion. There is thus evidence in the record, namely Pulde's report, to support the CAB's finding that Kelley's death resulted from a personal risk. See Appeal of Doody, 172 N.H. at 805. Because personal risks "are never compensable," id. at 806, the CAB's finding of a personal risk ends its analysis. The CAB was therefore not required to provide an analysis on legal or medical causation, as the estate contends. In conclusion, because our task on appeal is not to decide whether we would have made the same factual findings as the CAB, and there is evidence in the record to support the CAB's finding that Kelley's death resulted from a personal risk, we must affirm. See Appeal of Rancourt, 176 N.H. at 144.

Affirmed.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred. GOULD, J., dissented.

Timothy A. Gudas, Clerk

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GOULD, J., dissenting. The majority concludes that the CAB determined that the cause of Mr. Kelley's death was a "personal risk" because the CAB accepted Dr. Pulde's opinion that the embolism was the "sole cause of [Kelley's] death." It reaches that conclusion despite the fact that the CAB does not make an express factual finding as to whether Kelley's death resulted from a "personal risk" or a "mixed risk" or an express finding that the CAB agreed with Pulde that the embolism was the sole cause of Kelley's death. Neither the decision nor Pulde's report addresses the deputy chief medical examiner's finding that water aspiration was a significant contributing condition of Kelley's death. Accordingly, I am unable to determine whether the CAB's decision was unjust or unreasonable. Appeal of Doody, 172 N.H. 802, 805 (2020); RSA 541:13 (2021). Therefore, I respectfully dissent and would vacate the CAB's decision and remand.

"An employee is entitled to compensation under the Workers' Compensation Law for 'accidental injury or death arising out of and in the course of employment' but may not bring a separate tort action against her employer." Karch v. BayBank FSB, 147 N.H. 525, 530 (2002) (quoting RSA 281-A:2, XI). The law provides that an employee subject to the law is presumed to have accepted the provisions of the chapter and therefore waives the right to bring a separate action against the employer or its insurance carrier. See RSA 281-A:8, I(a) (2023). Upon an insurance carrier's denial of a compensation claim, the department of labor, through a hearing officer, will adjudicate the employee's challenge to the denial. See RSA 281-A:42-b (2023), :43(I)(a) (Supp. 2025). The department's determination is subject to a de novo appeal to the CAB. See RSA 281-A:43, I(b) (2023). When a CAB decision is appealed to this court, "[w]e construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose" and "we resolve all reasonable doubts in favor of the injured worker." Appeal of Estate of Dodier, 174 N.H. 548, 553 (2021) (quotations omitted).

By statute, our review of a CAB decision is confined to determining whether the decision "is clearly unreasonable or unlawful." RSA 541:13. The CAB's factual findings are deemed "prima facie lawful and reasonable," and its decision may be set aside only if it is legally erroneous or if "by a clear preponderance of the evidence" the decision is "unjust or unreasonable." Id. While we have not explicitly defined the contours of the "unjust or unreasonable" standard, the legislature plainly contemplated that at a minimum our review will assess the rationality of the administrative decision. For example, it is well established that we will not affirm an administrative board decision that rests on contradictory factual findings. See Appeal of LeBorgne, 173 N.H. 488, 497 (2020) (citing Appeal of Lemire-Courville Associates, 127 N.H. 21, 32 (1985)). For this court to fulfill its statutory duty to determine whether a decision is clearly unlawful, unjust, or unreasonable, we must understand the agency's reasoning underlying its resolution of

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dispositive issues. It should not fall to this court to try to infer the agency's reasoning from the outcome. This approach casts this court in a role that the statute does not prescribe and may encourage or even incentivize administrative agencies to avoid including reviewable reasoning in their decisions.

The carrier's appeal to the CAB was submitted on both parties' exhibits and arguments of counsel. There were no live witnesses called. The record included two documents of relevance here. The first is the report of the deputy chief medical examiner, Dr. Weinberg, in which he concluded that Kelley "was in a state of respiratory failure, due to a combination of the pulmonary embolus and aspiration of water," and that that "water aspiration (drowning) was a significant contributory condition" to the death. The second is the report of the carrier's retained expert, Pulde. Pulde's report reached facially contradictory conclusions about Kelley's death. More than once in his report Pulde opined that Kelley was "moribund or dead" or experienced "sudden death" before he entered the water. He also contended that there was "no evidence of water filling or occluding [Kelley's] airway" when rescue personnel intubated him and that, on autopsy, there were no "pathological lung [sic] findings of lungs filled with exogenous water." He elsewhere acknowledged, however, that Kelley's "water aspiration (drowning) [was] a secondary event." Plainly, if Kelley were dead while submerged he could not have aspirated water.

Pulde's opinion that Kelley was dead "prior to striking the embankment and rolling into the water" was also contradicted by the statement of the man who pulled him from the river. As recounted in the CAB's decision, after the witness retrieved Kelley from the water, he turned him over and "saw that he was breathing but gasping." Pulde's report recognized Weinberg's findings and conclusions from the autopsy but offered no explanation of why he disagreed with Weinberg's opinion that water aspiration was a significant contributing condition in Kelley's death.

The CAB could not have made a credibility determination as between Weinberg and Pulde because neither doctor testified. The CAB found Pulde's

"comprehensive opinion persuasive" notwithstanding the report's internal contradictions as to whether Kelley aspirated water. In the very next sentence, moreover, the CAB disavowed Pulde's opinion that Kelley had not aspirated water and stated, "The aspiration is a medical finding but not a cause of death." The CAB did not provide any reasoning for this cryptic statement. In my view, the CAB's decision in this case offers no satisfactory explanation of why it chose to disregard the opinion of the state's deputy chief medical examiner that water aspiration (drowning) was a significant contributory condition. The extent to which aspiration contributed to Kelley's death was the principal disputed issue before the CAB, yet the CAB did not

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explain how it resolved that issue. Accordingly, I would vacate the CAB decision and remand with instructions to do one of the following: (1) make the requisite findings to support a conclusion that Kelley's death resulted from a personal risk; (2) make the requisite findings to support the conclusion that, despite the fact that the death was caused by a mixed risk, the water aspiration was not a substantial contributing factor to the injury; or (3) make the requisite findings to support the conclusion that the estate is entitled to workers' compensation benefits.