Henderson v. Jennie Edmundson Hospital

• Decision Date: 23 June 1970
• Docket Number: No. 53965,53965
• Citation: 178 N.W.2d 429
• Parties: Bertha E. HENDERSON, Appellant, v. JENNIE EDMUNDSON HOSPITAL, Appellee, Aetna Casualty & Surety Co., Insurance Carrier.
• Court: Iowa Supreme Court

Page 429

178 N.W.2d 429

Bertha E. HENDERSON, Appellant, v. JENNIE EDMUNDSON HOSPITAL, Appellee, Aetna Casualty & Surety Co., Insurance Carrier.

No. 53965.

Supreme Court of Iowa.

June 23, 1970.

B. A. Webster, of Gamble, Riepe, Martin & Webster, Des Moines, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

MOORE, Chief Justice.

This is an appeal from the disallowance of a claim for Workmen's Compensation. Plaintiff-claimant while cleaning a tub at defendant hospital twisted her back resulting in a ruptured disc causing permanent injury, pain and suffering which required medical and hospital care. The hospital and insurance carrier denied claimant was employed by the hospital at the time of injury and denied the injury arose out of the course of employment by the hospital.

After a hearing the deputy industrial commissioner denied the claim based on a finding claimant had failed to prove she was an employee or apprentice of the hospital at the time of injury. On review and after taking additional evidence the commissioner made similar findings and likewise denied the claim. On appeal to the district court the commissioner's action was affirmed.

Plaintiff's brief states: 'The sole question to be determined on appeal is whether the plaintiff has failed to establish that she was under the employment or apprenticeship of the hospital at the time of the injury.'

I. Before referring to the record we call attention to some of the applicable principles of law and to the functions of the industrial commissioner and the court in this and like cases.

Code section 86.29 in part provides: 'In the absence of fraud the findings of fact made by the industrial commissioner within his powers shall be conclusive' on appeal. Section 86.30 in so far as here applicable provides any decision of the commissioner 'may be modified, reversed, or set aside on one or more of the following grounds and on no other: * * * 3. If the facts found by the commissioner do not support the order or decree. 4. If there is not sufficient competent evidence in the record to warrant the making of the order or decision.' No claim is made here of fraud or that the commissioner acted without or in excess of his powers.

We have consistently construed these provisions as making the commissioner's findings of fact conclusive where the evidence is in dispute or reasonable minds may differ on the inferences fairly drawn from the facts. Such findings have the same standing as a jury verdict. Uhe v. Central States Theatre Corp., 258 Iowa 580, 581, 139 N.W.2d 538; Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 454, 127 N.W.2d 636, 637; Sister M. Benedict v. St. Mary's Corp., 255 Iowa 847, 849, 124 N.W.2d 548, 549, and citations.

In Musselman v. Central Telephone Co., 261 Iowa 352, 355, 356, 154 N.W.2d 128, 130, after stating the above rule, we say: 'In cases, however, where the facts are not in dispute and different inferences could not be reasonably drawn therefrom, it becomes a question of law and the court is not bound by the commissioner's findings or conclusions.

'It is the commissioner, not the court, who weighs the evidence and his findings will be broadly and liberally construed to uphold, rather than defeat, his decision.

'Of course, a claimant has the burden of showing by a preponderance of the evidence, before the commissioner, the injury arose out of and in the course of employment.

'Our question is not whether there is sufficient evidence to warrant a decision the commissioner did not make, but rather whether there is sufficient evidence to warrant the decision he did make.'

Code section 85.61(2) provides: "Workmen' or 'employee' means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified.'

There is no legal distinction between the phrases in section 85.61(2), 'a person who has entered into the employment of (an employer)' and '(who) works under contract of service, express or implied'. In other words, employment implies the required contract on the part of the employer to hire and on the part of the employee to perform service. Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 455, 127 N.W.2d 636, 637; Sister M. Benedict v. St. Mary's Corp., 255 Iowa 847, 850, 851, 124 N.W.2d 548, 550, and citations.

The factors by which to determine whether an employer-employee relationship exists are (1) the right of selection, or to employ at will (2) responsibility for the payment of wages by the employer (3) the right to discharge or terminate the relationship (4) the right to control the work, and (5) is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed. Prokop v. Frank's Plastering Co., 257 Iowa 766, 775, 133 N.W.2d 878, 883, and citations. In Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1216, 146 N.W.2d 261, 265; and Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 456, 127 N.W.2d 636, 637, 638, in addition to the five above named elements we recognize the overriding element of the intention of the parties as to the relationship they are creating may also be considered.

II. With these rules in mind we go to the record for an examination of the evidence before the commissioner. In January 1965, plaintiff, Bertha E. Henderson, then age 53, was having difficulty finding a job. She saw a newspaper advertisement that Jennie Edmundson Hospital was starting their school for nurse's aids. Approximately the same time a friend told her about a job that would be coming up at the hospital as a physical therapist's aid. She went to the hospital and talked with Paul Patterson, an employee in the business office, about this job. He told her the physical therapy unit was not complete and he thought it would be a good idea if she went ahead and took the nurse's aid training and then if an aid job came up on physical therapy he would consider her. She apparently made out a job application at that time.

In response to the newspaper ad that the hospital was starting a three-week nurse's aid training course and applications were being received at the hospital plaintiff telephoned the person named in the ad, Mrs. Gittins, and was told when the class was to begin and plaintiff should bring a pencil and pad at that time. Mrs. Gittins told plaintiff there would be a $10 fee. Plaintiff testified she understood it was her tuition for the class. Any person desiring to take the course and willing to pay the $10 was accepted. The hospital did not screen the applicants. Fourteen women comprised the class in which plaintiff became a member.

The group spent the first three days in classroom training in the form of lectures by Mrs. Gittins. The trainees took notes and in the second week each started a notebook. The course was taught from a Nurse's Aid Manual designed to teach standard procedures. Each member was required to...