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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Compensation Appeals Board No. 2007-817 APPEAL OF RODERICK JENKS (New Hampshire Compensation Appeals Board) Argued: September 17, 2008 Opinion Issued: December 10, 2008 Decato Law Office, P.C., of Lebanon (William A. Whitten on the brief and orally), for the petitioner. Sulloway & Hollis, P.L.L.C., of Concord (James E. Owers and Timothy A. Gudas on the brief, and Mr. Owers orally), for the respondent. BRODERICK, C.J. The petitioner, Roderick Jenks, appeals a decision of the New Hampshire Compensation Appeals Board (CAB) denying him recovery under the Workers' Compensation Law. See RSA 281-A:2 (1999 & Supp. 2008). The CAB ruled that Jenks was not an employee of the respondent, New Hampshire International Speedway (NHIS), at the time of his injury, and thus not entitled to benefits under the statute. We affirm. The following facts were found by the CAB or are supported by the record. In July 2006, Jenks was employed part-time as a school bus driver for the Lebanon School District and was self-employed performing building maintenance. He was also an active "volunteer" for Fishin' For Kids, Inc. (FFK), a nonprofit corporation established to raise money for children's charities that help children with medical, mental and physical ailments. FFK had no employees and its officers and directors never received any compensation.

NHIS owned and operated a race track in Loudon for many years. It conducted three major event weekends each year; two of which were NASCAR events. In 1992, a member of a youth Pop Warner Football organization approached NHIS, looking for funding to buy uniforms for its football teams. In response, NHIS developed a fundraising model that it used repeatedly in subsequent years to help groups such as churches, school groups and various service clubs raise money. As implemented, "volunteers" from nonprofit or charitable organizations performed services at NHIS during race weekend events. In exchange for the "volunteer" services, NHIS gave $7.00 to the particular organization for each hour that its "volunteers" spent providing services at the speedway. Under this fundraising program, NHIS made arrangements with FFK to allow its "volunteers" to provide services at NHIS during the NASCAR race weekend of July 15-16, 2006. NHIS generally hired about 700 staff for race weekend events and also used the services of hundreds of "volunteers" to put on the event. For the July weekend, FFK completed a "Non-Profit Group Contact Information" form, which identified the number of individuals it proposed to bring to the speedway as "volunteers." Subsequently, FFK signed a "Non-Profit Group Agreement" with NHIS. Under the agreement, FFK promised to provide a confirmed number of "volunteers" and NHIS promised to "donate $7.00 per hour worked for each person who volunteers his/her time from [FFK]." Jenks and his wife Melissa agreed to work at NHIS on behalf of FFK on July 15-16, 2006. Jenks and others who were "volunteering" for FFK attended a one-hour orientation program conducted by NHIS' human resource manager. Because Jenks expressed an interest in performing security duties at the speedway, NHIS required him to complete and submit a criminal records release form. This was the only paperwork Jenks was required to complete. Over the course of the July 15-16 weekend, Jenks and several other FFK participants provided a total of 195 hours of infield security and cleaning services at NHIS. At the start of the weekend, Jenks received a shirt and hat from NHIS to identify his role as a security official. He also was granted a discount at the NHIS gift shop and on food at the track's concessions. Jenks received no direct monetary compensation for his time at the speedway from either NHIS or FFK. While riding on a golf cart on NHIS grounds, en route to his security assignment on July 16, Jenks fell and struck his head on the pavement. As a result he suffered a severe and disabling traumatic brain injury. NHIS does not contest the extent or severity of Jenks' injuries, or that they occurred while he was providing security services. 2

In November 2006, Jenks filed a claim for workers' compensation against NHIS. The hearing officer found that at the time he was injured, Jenks was an employee of NHIS for purposes of the Workers' Compensation Law. NHIS appealed to the CAB, which reversed, finding no employer-employee relationship existed, and thus Jenks was not entitled to benefits. This appeal followed. On appeal, Jenks argues that: (1) the evidence before the CAB overwhelmingly supported a finding that at the time of his injury he was an employee of NHIS for purposes of the Workers' Compensation Law, and that the CAB erred in finding that he was not an employee of NHIS under a "contract of hire"; and (2) the CAB erred in ruling that he was not entitled to the benefit of the five criteria delineated at RSA 281-A:2, VI(b). The critical issue before us is whether Jenks was an employee of NHIS for the purposes of the Workers' Compensation Law. See P. Salafia, New Hampshire Workers' Compensation Manual

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