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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. 2010-633

APPEAL OF JAMES MARGESON (New Hampshire Compensation Appeals Board) Argued: May 5, 2011 Opinion Issued: July 21, 2011 Kristin H. Sheppe and Michael C. Reynolds, of Concord, on the brief, and Mr. Reynolds orally, for the petitioner.

Sulloway & Hollis, P.L.L.C., of Concord (James E. Owers and Stacey P. Coughlin on the brief, and Mr. Owers orally), for the respondent.

DUGGAN, J. The petitioner, James Margeson (employee), appeals a decision of the New Hampshire Compensation Appeals Board (CAB) denying him reimbursement for medical treatment and workers' compensation benefits. The parties dispute whether his injury arose out of his employment as required by RSA 281-A:2, XI (2010). We vacate and remand. The CAB found or the record supports the following facts. The employee injured his right knee on April 18, 2009, while working for the respondent, the New Hampshire Department of Health and Human Services (employer), as a youth counselor at the John Sununu Youth Center (Youth Center). The employee was working the third shift and performing a routine bed check to

ensure the residents were in bed at the required time. While conducting this bed check, he descended the stairs in one of the Youth Center's buildings, and his left foot landed awkwardly, causing him to lose his balance and twist his right knee. The stairs were in new condition and were not defective. Additionally, they were not wet or otherwise hazardous. While the employer alleged that the injury was precipitated by a pre-existing war wound to the employee's foot, the CAB rejected this as a cause of his injury. As a result of the knee injury, the employee sought treatment and incurred medical bills at four different medical centers and hospitals and missed work from April 19 to June 5. The employee subsequently sought reimbursement for his medical expenses and disability and indemnity benefits. The employer denied his claim because it determined that his injury did not arise out of his employment. A department of labor hearings officer upheld the employer's denial of benefits and the employee appealed to the CAB. The CAB upheld the decision because the employee "did not encounter any greater risk of his employment than in his everyday life and the stairs were merely an incident or an occasion that accompanied the injury and the employment was not a contributory or additional risk in bringing his injury about." The CAB denied the employee's motion for reconsideration. This appeal followed. We will not disturb 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 Belair, 158 N.H. 273, 276 (2009); RSA 541:13 (2007). The appealing party has the burden of demonstrating that the CAB's decision was erroneous. Appeal of Belair, 158 N.H. at 276. To make out a claim for workers' compensation, the employee had to show that his injuries arose "out of and in the course of his employment." RSA 281-A:2, XI. The phrase "in the course of" employment refers to whether the injury "occurred within the boundaries of time and space created by the terms of employment" and "occurred in the performance of an activity related to employment." Murphy v. Town of Atkinson, 128 N.H. 641, 645 (1986). The phrase "arising out of" employment refers to the causal connection between the injury and risks of employment, and requires proof that the injury "resulted from a risk created by the employment." Id.; see also Rio All Suite Hotel and Casino v. Phillips, 240 P.3d 2, 4-5 (Nev. 2010); Odyssey/Americare of Oklahoma v. Worden, 948 P.2d 309, 311 (Okla. 1997); 1 A. Larson, Larson's Workers' Compensation Law

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