“When an employee is injured on a public sidewalk over which the employer has no control, and on which there are no employer-created hazards, the connection between the injury and the employment is insufficient to make the injury compensable.”
How later courts described this case
- “When an employee is injured on a public sidewalk over which the employer has no control, and on which there are no employer-created hazards, the connection between the injury and the employment is insufficient to make the injury compensable.”
- “If plaintiff's injury arose out of and in the course of employment, she would be entitled to workers' compensation benefits. Because of the exclusivity of this remedy, she would, therefore, not be ‘legally entitled’ to recover from her co-worker in such circumstance. Accordingly, if plaintiff's injury is compensable under the workers' compensation provisions, she may not recover against defendants.”
- “[W]hen an employee traveling to or from work *333 sustains an injury on or near the employer’s premises, there is a ‘sufficient work relationship’ between the injury and the employment only if the employer exercises some ‘control’ over the place where the injury is sustained.”
- “[W]hen an employee traveling to or from work sustains an injury on or near the employ- er’s premises, there is a ‘sufficient work relationship’ between the injury and the employment only if the employer exercises some ‘control’ over the place where the injury is sustained.”
Written by the judges who cited it.
The opinion
GILLETTE, J.,
concurring
I join fully in the decision of the Court. I write separately only to point out that there is an issue raised by the procedural posture of this case that we do not decide.
*241 Before argument in this case, we asked the parties by letter to address the following questions:
“Under what circumstances can a trial court decide as a matter of law that a worker is within workers’ compensation coverage? When is that not a question in the primary jurisdiction of the workers’ compensation system?”
We put these questions to the parties because it appeared that this might be a case for application of the administrative practice or doctrine known as “primary jurisdiction.” Our opinion does not mention this doctrine; I agree that, given the posture in which this case comes to us, it need not mention it.
“Primary jurisdiction” is a court-created doctrine that recognizes that there are circumstances in which an administrative agency, rather than a court, ought to make the initial determination of legal questions that fall within the scope of the agency’s statutory authority. See generally, 4 K. Davis, Administrative Law Treatise § 22 (2nd ed. 1983). In the present context, the doctrine arguably would call for the Workers’ Compensation Board or a referee, rather than the trial court, to rule on whether plaintiff was within the jurisdiction of the workers’ compensation system. However, no one suggested to the trial court in this case that the matter should be referred to the Workers’ Compensation Board.
Surprisingly, there have been relatively few appellate decisions that have applied the doctrine of primary jurisdiction to the subject of workers’ compensation law. See generally, 2 A. Larson, The Law of Workmen’s Compensation § 67.60 (1989). The majority of courts that have considered whether the workers’ compensation adjudicatory system has primary jurisdiction to determine whether a particular claim falls within the statutory workers’ compensation scheme have concluded that the courts and the administrative agency have concurrent jurisdiction to determine the issue. Thus, the first tribunal to face the issue is entitled to decide it. See, e.g., Ehredt v. DeHavilland Aircraft Co. of Canada, 705 P2d 446 (Alas 1985); Yavitch v. Workers’ Comp. Appeals Bd., 142 Cal App 3d 64, 190 Cal Rptr 793 (1983); Ward v. General Motors Corp., 431 A2d 1277 (Del Super 1981); Singer Shop-Rite, Inc. v. Rangel, 174 NJ Super 442, 416 A2d 965 (1980); Jones Drilling Company v. Woodson, 509 P2d 116 (Okla 1973); S. D. Med. Service, Inc. v. Minn. Mut. Fire & Cas. Co., 303 NW 2d 358 *242 (SD 1981). Cases holding that the workers’ compensation system has primary jurisdiction include: Harrington v. Moss, 407 A2d 658 (D.C. 1979); Profitt v. J. G. Watts Construction Company, 140 Mont 265 , 370 P2d 878 (1962); O’Rourke v. Long, 41 NY 2d 219 , 391 NYS 2d 553 , 359 NE 2d 1347 (1976). By our decision today, we do not choose between these two rationales; we leave the matter for another day.
Whether and when the doctrine of primary jurisdiction is applicable to the workers’ compensation system is an interesting issue, and important to the most efficient administration of our burdened workers’ compensation system. The day may come when a party to a court requests and either is granted or denied the right to have the issue of workers’ compensation jurisdiction referred to the workers’ compensation system. At that time, it may be appropriate to resolve the issue. Until that day, however, I am content to let stand the decision of a court of competent general jurisdiction that assumes the court’s authority.