McNeil v. Industrial Commission

617 P.2d 531, 126 Ariz. 579, 1980 Ariz. App. LEXIS 565
CourtCourt of Appeals of Arizona
DecidedSeptember 16, 1980
DocketNo. 1 CA-IC 2304
StatusPublished
Cited by2 cases

This text of 617 P.2d 531 (McNeil v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNeil v. Industrial Commission, 617 P.2d 531, 126 Ariz. 579, 1980 Ariz. App. LEXIS 565 (Ark. Ct. App. 1980).

Opinion

OPINION

JACOBSON, Presiding Judge.

This review of an award of the Industrial Commission presents the issue of whether federal regulations require that a CETA employee be deemed to be an employee of the “program agent” rather than an employee of the agency which actually utilizes the employee’s services.

Both parties agree that the hearing officer’s findings of fact adequately reflect the factual posture of this matter, the only controversy being what legal conclusions are to be drawn therefrom.

Sometime in May, 1978, petitioner, James P. McNeil, started working as a maintenance man and carpenter under the federally funded Comprehensive Employment and Training Act (CETA). While working in this capacity petitioner suffered an industrial eye injury which is conceded by all parties to be the industrial responsibility of the State Comprehension Fund. Since the sole issue is which entity under the CETA program is to be considered the petitioner’s employer, a review of that program is in order.

The CETA program is federally funded and has as its purpose the providing of federal monies to train and employ previously unemployed or underemployed individuals. The federal funds are first distributed to a “sponsoring organization” which in the Phoenix metropolitan area is either the County of Maricopa or the City of Phoenix. These sponsoring organizations either use the CETA funds directly to pay employees working for that sponsor, or distribute the funds to “program agents”, in this case, respondent City of Tempe, which originally interviewed and processed the petitioner.

In turn, the “program agent” may use the CETA funds to hire qualified individuals to work either directly for the program agent or for “out stations”, normally under nonprofit organizations such as school districts. The petitioner in this matter is classified as an “out station employee”, that is, he is paid with federal funds which have passed through the proper channels from the federal government to the sponsoring organization (Maricopa County) and eventually to the program agent (City of Tempe), but the employee does not perform any services for the sponsoring organization or the program agent; his work is of direct benefit to the “out station”, in this case, respondent Kyrene School District (Ky-rene).

When petitioner made application for CETA employment, he was directed to report to the City of Tempe personnel division to fill out an application. He was interviewed by that division of the City of Tempe and then sent to an interview with a Mr. Warren Converse, the maintenance supervisor for Kyrene. Following a successful interview with Mr. Converse, petitioner was sent back to the City of Tempe where his employment application was approved and he was given a City of Tempe employee handbook and was told he was to be working under the supervision of Mr. Converse.

During the entire period of petitioner’s employment, he worked solely under the supervision of Mr. Converse at four different schools in the Kyrene School District. He performed services for no other entity and received the complained of injury while performing services beneficial to Kyrene. Petitioner was paid for his services by checks drawn on the City of Tempe for the services rendered to Kyrene. The actual money to cover these checks was received from the federal government through the CETA program.

On December 27,1978, the petitioner suffered the industrial injury and filed a workmen’s report of injury alleging that the City of Tempe was his employer. The respondent State Compensation Fund (Fund), as insurer for the City of Tempe, issued a notice of claim status denying the petitioner’s claim for benefits. Although no claim had been filed with Kyrene, the Fund, also Kyrene’s insurer, issued a notice of claim [581]*581status stating that Kyrene was petitioner’s employer and on behalf of the employer accepted all industrial responsibility for petitioner’s injury. The petitioner timely protested denial of his claim as to the City of Tempe and hearings were held limited to the issue of which entity, City of Tempe or Kyrene, was petitioner’s employer at the time of the industrial accident.1 The hearing officer, based upon the undisputed facts, found that Kyrene was petitioner’s employer, utilizing the familiar workmen’s compensation principles of right to control/responsibility/benefits received. Petitioner, after exhaustion of administrative review, has sought review in this court.

The petitioner first argues that under the applicable principles of Arizona Workmen’s Compensation Law, the hearing officer erred in determining that Kyrene was petitioner’s employer. We disagree. Kyrene received the benefits of petitioner’s work, it supervised and controlled his day-to-day activities in performing that work and Kyrene was the entity to whom petitioner was responsible for the work performance. Using the criteria of control, responsibilities and benefits, the court concludes that there was sufficient evidence to support the hearing officer’s finding that petitioner was an employee of Kyrene. See Employer’s Mutual Liability Insurance Company of Wisconsin v. Industrial Commission, 18 Ariz.App. 403, 502 P.2d 1080 (1972). The fact that the petitioner was paid for his services by Tempe through federal funds is, in and of itself, not controlling. State Compensation Fund v. Le Desma, 23 Ariz.App. 126, 531 P.2d 171 (1975).

Petitioner next argues that because of certain federal regulations dealing with the CETA program, as a matter of federal law the petitioner is an employee of Tempe and that this federal law determination controls here. The federal regulations relied upon provide in part:

29 C.F.R. § 96.23(b)(6):
Outstationed participants are still to be considered employees of the employing agency and shall be assured of the same working conditions and benefits, as specified by section 98.24, as received by other similarly employed employees of the employing agency (not of the outstationed worksite).
29 C.F.R. § 98.24(a)(1):
Each participant in an on-the-job training, work experience or public service employment program under the Act shall be assured of worker’s compensation at the same level and to the same extent as other employees of the employer who are covered by a State or industry worker’s compensation'Statute. Whether provided through the State’s compensation agency or a private insurance carrier, this coverage includes medical or accident insurance as well as income maintenance insurance.
29 C.F.R. § 98.24(c):
Every participant must be advised pri- or to entering upon employment of the name of his employer, and his rights and benefits in connection with his employment ....

Petitioner has argued that under Article VI, Clause 2 of the United States Constitution (the Supremacy Clause) the federal regulations control over state law.

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Cite This Page — Counsel Stack

Bluebook (online)
617 P.2d 531, 126 Ariz. 579, 1980 Ariz. App. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneil-v-industrial-commission-arizctapp-1980.