KNACK v. INDUSTRIAL COMMISSION, 18 Ariz. App. 136 (1972)

500 P.2d 1124

Otto A. KNACK, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, J.V. Moan Corporation, Respondent Employer, State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 705.Court of Appeals of Arizona, Division One, Department A.
September 19, 1972. Rehearing Denied October 6, 1972. Review Granted November 14, 1972.

Proceeding upon writ of certiorari to review lawfulness of an award of the Industrial Commission, ICA Claim No. 9/A-06-51. The Court of Appeals, Case, J., held that where a workman applied for a position with an employer and was told there was a job available in California, which he indicated he would accept, and he was transported to his job in California by the employer, receiving no reimbursement though a supervisor of the employer did purchase a meal for him, and the workman was injured in Oregon, the Industrial Commission properly determined that it was without jurisdiction inasmuch as the workman was not regularly employed or hired in Arizona within the meaning of the Workmen’s Compensation Act.


Lawrence Ollason, Tucson, for petitioner.

William C. Wahl, Jr., Chief Counsel, Phoenix, The Industrial Commission of Arizona, for respondent.

Robert K. Park, Chief Counsel, State Compensation Fund, by Dee-Dee Samet, Phoenix, for respondents employer and carrier.

CASE, Judge.

This appeal by certiorari questions a Decision upon Hearing and Findings and Award for Noncompensable Claim of The Industrial Commission of Arizona.

In June of 1969, petitioner applied for the position of cook with respondent employer. He was told that there was a job available in Indio, California, which he indicated he would accept. There was no formal written contract of employment entered into. Petitioner was transported to his job in Indio by his employer. He was not reimbursed for the day that he was traveling, nor did he receive any mileage or subsistence although a supervisor of respondent did purchase a meal for him.

Petitioner traveled to three states in the course of his employment; California, Nevada and Oregon. In September of 1969, while in Oregon, petitioner sustained an injury when he fell down some stairs. Petitioner sought compensation in Arizona and, after a hearing, the Commission determined that it was without jurisdiction since petitioner was not regularly employed or hired in Arizona within the meaning of

Page 137

the Workmen’s Compensation Act. It is petitioner’s contention that he was hired in Arizona and is therefore entitled to the benefits of the Act. We do not agree.

A.R.S. § 23-904, subsec. A provides as follows:

“If a workman who has been hired or is regularly employed in this state receives a personal injury by accident arising out of and in the course of such employment, he shall be entitled to compensation according to the law of this state even though the injury was received without the state.”

Our Supreme Court has held that in order for a person to fall within the provisions of the Act, he must be under a duty to perform and he must receive remuneration for his performance. Watson v. Industrial Commission, 100 Ariz. 327, 414 P.2d 144
(1966). The record reveals that petitioner’s 1969 wage and tax statements show his employer’s place of business to be Lafayette, California, and further indicates that a California withholding tax was taken from his salary. Petitioner never paid an Arizona withholding tax. It is undisputed that petitioner did not begin his employment until he arrived in California and until such time as he began his employment in that state, he had no more than an expectation of being hired. The fact that a supervisor of respondent employer testified that he had “hired” petitioner in Tucson and petitioner’s belief that he was hired in Tucson is not persuasive since neither party can, by agreement, modify the requirements of the Act; nor is the fact that the supervisor may have purchased a meal for petitioner during his trip to California sufficient to bring petitioner within the purview of the Act.

The award is affirmed.

STEVENS, P.J., and DONOFRIO, J., concur.