Frost v. S. S. Kresge Co.

• Decision Date: 17 December 1980
• Docket Number: No. 64048,64048
• Parties: Mildred A. FROST, Appellee, v. S. S. KRESGE COMPANY, Appellant, and Iowa Industrial Commissioner.
• Court: Iowa Supreme Court

Page 646

299 N.W.2d 646

Mildred A. FROST, Appellee, v. S. S. KRESGE COMPANY, Appellant and Iowa Industrial Commissioner.

No. 64048.

Supreme Court of Iowa.

Dec. 17, 1980.

John B. Grier of Cartwright, Druker & Ryden, Marshalltown, for appellant.

Allan H. Rauch, Des Moines, for appellee.

Considered en banc.

LARSON, Justice.

Mildred Frost, an employee of the S. S. Kresge Company, sought workers' compensation benefits after a fall on a public sidewalk adjoining the Kresge store in Marshalltown. A deputy industrial commissioner's award was reversed upon the employer's appeal to the industrial commissioner. The district court, upon judicial review, reversed the commissioner and reinstated the deputy's award. On appeal challenges are made as to the jurisdiction of the commissioner and the district court as well as the soundness of the district court's disposition. We hold that the industrial commissioner and the district court had jurisdiction, and that Mrs. Frost is entitled to benefits under chapter 85, The Code 1977. We therefore affirm the district court.

In judicial review of agency action, the findings of fact by the agency are binding upon us if sustained by substantial evidence. § 17A.19(8)(f), The Code 1977. The facts in this case are largely without dispute. Mildred Frost was an employee of Kresge on the date of her fall. According to the commissioner's findings, her husband drove her to work earlier in the day than usual so she could attend a birthday breakfast held prior to an 8:30 store meeting. Alighting from the vehicle's passenger side, she walked around the rear of it and up a handicap ramp, or "curb cut," in the public sidewalk. After starting across the sidewalk to Kresge's front door, she slipped on an accumulation of ice. The exact location of the fall was not established; some evidence put it as far as twenty feet from the store entrance, others as close as twelve feet. The time of the incident was found by the commissioner to be "a short period of time" before the scheduled 8:00 breakfast.

I. Jurisdiction on Appeal to the Industrial Commissioner. Mrs. Frost contends there was no jurisdiction on the part of the industrial commissioner to hear and decide the employer's appeal from the ruling of the deputy commissioner because it was not taken within twenty days of that decision, as required by the commissioner's rules, 500 I.A.C. § 4.27 (1977). The deputy, however, did not purport to make a final determination in his first order. He decided only the issue of compensability, reserving the computation of benefits for a later order. Notice of appeal to the commissioner was filed within twenty days of the final order setting the amount of benefits. Rule 4.2(86) of the industrial commissioner's rules provides, in part, that "(i)f the order on the separate issue does not dispose of the whole case, it shall be deemed interlocutory for purposes of appeal." 500 I.A.C. § 4.2(86) (1977). We conclude that the order was not final, and thus the time for appeal did not begin to run until the second order was filed. See 82 Am.Jur.2d Workmen's Compensation § 622, at 329 (1976). The appeal to the industrial commissioner was therefore timely, and he had jurisdiction to proceed.

II. Jurisdiction of the District Court. Mrs. Frost, having lost on Kresge's appeal to the industrial commissioner, sought judicial review by the district court. §§ 86.26, 17A.19, The Code 1977. Section 17A.19(4) requires the petition for review to state the name of the "agency" involved. In this case, the industrial commissioner is that agency. § 86.27, ch. 86, The Code 1977. The petition for review named the "Industrial Commission," rather than the Commissioner, and Kresge contends this was a fatal flaw in the proceedings since there is no such agency as the "Industrial Commission."

Section 17A.19(2) provides that copies of a petition for further review

shall be mailed by the petitioner to all parties named in the petition and, if the petition involves review of agency action in a contested case, all parties of record before the agency. Such mailing shall be jurisdictional and shall be addressed to the parties at their last known mailing address.

(Emphasis added.) Here the agency was misnamed, and the issue is whether this is a fatal jurisdictional defect. Kresge claims no prejudice by the error, and although the industrial commissioner did not participate in the judicial review proceeding, it is undisputed that he actually received mailed notice of its pendency.

We do not believe defects of this nature are necessarily jurisdictional. Section 17A.19(2) says such mailing is jurisdictional; but that subsection should not be construed to make all errors or omissions in service jurisdictional. One of the purposes of the judicial review provisions is

to simplify the process of judicial review of agency action as well as increase its ease and availability. In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical and effective government administration.

§ 17A.23, The Code 1977; see Bonfield, The Iowa Administrative Procedure Act: Background, Construction, Application, Public Access to Agency Law, The Rulemaking Process, 60 Iowa L.Rev. 731, 758-59 (1975). Moreover, we are to construe the provisions of the administrative procedure act broadly to effectuate that purpose. § 17A.23, The Code 1977. In view of these principles, we conclude that the notice here sufficiently complied with the notice requirements of section 17A.19(2).

III. The "Zone of Protection" of Chapter 85. Section 85.3(1), The Code 1977, requires an employer to pay compensation "for any and all personal injuries sustained by an employee arising out of and in the course of the employment"; section 85.61(6) provides:

The words 'personal injury arising out of and in the course of the employment' shall include injuries to employees whose service are being performed on, in or about the premises which are occupied, used or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business.

Mrs. Frost contends that the facts compel coverage under the statute; Kresge contends that the "going and coming" rule precludes her recovery.

The industrial commissioner held Mrs. Frost's injury did not "arise out of and in the course of" her employment because (1) it did not occur on the premises of the employer, and (2) certain recognized exceptions to the "going and coming" rule were inapplicable. Coverage of the act under the facts found by the commissioner is a legal conclusion to which we are not bound. McDowell v. Town of Clarksville, 241 N.W.2d 904, 907 (Iowa 1976). We disagree with the legal conclusion of the industrial commissioner in this case because (1) the site of the injury was so closely related in time, location, and employee usage to the work premises to bring the claimant within the zone of protection of the workers' compensation law and (2) the employer had exercised such control over the abutting sidewalk to make it an extension of the business premises.

The general rule is that, absent special circumstances, an employee is not entitled to compensation for injuries occurring off of the employer's premises on the way to and from work. Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174, 178 (Iowa 1979); Otto v. Independent School District, 237 Iowa 991, 23 N.W.2d 915 (1946); 1 A. Larson, The Law of Workmen's Compensation § 15.00, at 4-3 (1978). This is known as the "going and coming" rule.

Conceptually, it is clear that the employment is the cause of injuries in going and coming: if not for the job there would be no reason in most cases to approach or leave the premises. 1 Larson, supra, at 4-12. The going and coming rule pertains to the second prong of the coverage test, requiring that the injury arise "in the course of" the employment. This test measures the work connection of the incident as to time, place and activity. Id. at 4-1.

Several exceptions are recognized to the rule of nonliability in going and coming cases. In effect, these exceptions extend the employer's premises under certain circumstances when it would be unduly restrictive to limit coverage of compensation statutes to the physical perimeters of the employer's premises. Under one exception it is held that any "special hazards" of an employee's route become hazards of the employment where an injury occurs on the only available route to reach the premises. Id. at 4-18. Similarly, travel between two separate premises of an employer which results in an injury enroute is held to be covered under a "divided premises" exception. Thus, an employer may be liable if it operates a parking lot and an employee is injured between the lot and his work site. Id. at 4-35-4-36. Occasionally, even the situs of an injury has been deemed the employer's premises when they are in close proximity, by applying a subjective "reasonable distance" test. See id. at 4-6.

Labels have been attached to these exceptions; application, however, is often difficult. In this case, for example, is an icy sidewalk a "special hazard?" (Most "special hazard" cases, in contrast to the present one, involve substantial dangers such as the crossing of railroad tracks.) And is the "divided premises" exception inapplicable because Mrs. Frost crossed the sidewalk after leaving her husband's vehicle, as opposed to crossing it enroute from an employer-operated parking lot? Or is twelve feet from Kresge's door, as opposed to twenty, as some of the evidence indicated, close enough to be considered part of the premises solely because of its proximity and, if so, where should the line be drawn?

Although, as discussed in division IV, Kresge's involvement in snow removal constituted control of the sidewalk,...