Cape v. Veeck

• Decision Date: 24 October 2001
• Docket Number: No. 93A02-0105-EX-264.,93A02-0105-EX-264.
• Citation: 756 N.E.2d 1079
• Parties: COMMUNITY ACTION PROGRAM OF EVANSVILLE, Appellant, v. Marian L. VEECK, Appellee.
• Court: Indiana Appellate Court

756 N.E.2d 1079

COMMUNITY ACTION PROGRAM OF EVANSVILLE, Appellant, v. Marian L. VEECK, Appellee.

No. 93A02-0105-EX-264.

Court of Appeals of Indiana.

October 24, 2001.

Curt J. Angermeier, Evansville, Indiana, Attorney for Appellant.

Mark W. Rietman, Berger & Berger, Evansville, Indiana, Attorney for Appellee.

OPINION

KIRSCH, Judge.

Community Action Program of Evansville, ("CAPE") appeals the decision of the Indiana Worker's Compensation Board ("Board") awarding payment of medical expenses to Marian L. Veeck, contending that Veeck was not eligible for payments by law because she was not an employee, but a paid volunteer. CAPE presents the following issues for review:

I. Whether Veeck, a participant in the Foster Grandparents program, was a volunteer entitled to medical payments under IC 22-3-2-2.3, or whether she received disqualifying compensation for her services.

II. Whether federal law preempts state worker's compensation laws, preventing Veeck from receiving coverage under Indiana's Worker's Compensation Act.

We affirm.

FACTS AND PROCEDURAL HISTORY¹

The Foster Grandparents program, also known as the Domestic Volunteer Service, is a federally-funded program administered by eligible local organizations, or sponsors. See 42 U.S.C.A. § 5011 et seq. Through the program, older persons act as foster grandparents, receiving assignments to help children with special or extraordinary needs by providing meaningful one-on-one attention. See 45 C.F.R. § 2552.11 et seq. Volunteer foster grandparents receive an hourly stipend and reimbursement of some expenses, in addition to other benefits. Id. Only individuals whose income does not exceed 125% of the poverty line established in the area are eligible to receive a stipend as foster grandparents. Id. Moreover, if both members of a married couple serve, only one may receive a stipend. Id. Veeck was a foster grandmother at Evansville Psychiatric Children Center ("Center") through the program administered by CAPE. As a participant in the program, Veeck worked twenty hours per week at the Center: four hours per day, five days per week. In return, she did not receive a salary, but did receive a stipend of $2.45 per hour for each hour worked.

On March 31, 1994, while working at the Center, Veeck tripped on a piece of furniture, fell, and broke her hip. The damage to her hip was irreparable, and she underwent hip replacement surgery the same day. Because of Veeck's injury, she was unable to return to work at the Center until August 1994. In addition, she incurred medical expenses for her surgery and follow-up care.

Veeck filed her Application for Adjustment of Claim with the Board. The single hearing member ruled that she was not entitled to worker's compensation benefits because she was not an employee, but that she was entitled to payment of her unpaid medical expenses pursuant to IC 22-3-2-2.3. After CAPE requested a review by the full Board, the Board adopted the single hearing member award.

DISCUSSION AND DECISION

CAPE appeals the decision of the Board. In an appeal from a decision of the full Board, we are bound by the Board's factual determinations, and we will not reverse the findings unless it conclusively appears that "the evidence upon which the Board acted was so devoid of probative value or was so proportionately inadequate that the finding could not rest on a rational basis." Calvary Temple Church, Inc. v. Paino, 555 N.E.2d 190, 192 (Ind.Ct.App.1990) (quoting Dane Trucking Co. v. Elkins, 529 N.E.2d 117, 120-21 (Ind. Ct.App.1988), trans. denied (1989)). We must disregard all unfavorable evidence and must examine only that evidence and the reasonable inferences therefrom which support the Board's findings. Rogers v. Bethlehem Steel Corp., 655 N.E.2d 73, 75 (Ind.Ct.App.1995).

In reviewing the Board's decision, we will not reweigh the evidence or assess the credibility of the witnesses. K-Mart Corp. v. Morrison, 609 N.E.2d 17, 27 (Ind.Ct.App.1993), trans. denied. We employ a two-tiered standard of review. Id. We review the evidence in the record to see if there is any competent evidence of probative value to support the Board's findings. Id. We then examine the findings of fact to see if they are sufficient to support the decision. Id.

I. Volunteer or compensated worker

CAPE argues that the Board erred in determining that Veeck was entitled to payment of her medical expenses under IC 22-3-2-2.3. IC 22-3-2-2.3(b) provides that volunteer workers at state institutions, while not entitled to other worker's compensation payments, are entitled to medical expenses under Worker's Compensation law. At the time this case arose, IC 22-3-2-2.3(a) defined "volunteer worker" as a person who performs services for a state owned and operated psychiatric institution for which the person does not receive compensation of any nature. Neither party disputes that Veeck performed services or that the Center is a state owned psychiatric institution. Rather, the debate centers on whether Veeck received compensation of any nature for doing so.

Other courts considering the issue of whether foster grandparents are employees have discussed whether such individuals are compensated. In Murray State College v. Akins, 794 P.2d 1218 (Okla.App. 1990), a foster grandmother filed a claim for worker's compensation after she injured her back while working in the program. The sponsor argued that she was not an employee. The court noted that the foster grandmother received a $2.20 per hour stipend, a meal, mileage reimbursement, medical examination, and accident and liability insurance. However, after examining the congressional committee report, the court concluded that it was the intent of Congress to prevent stipend and non-wage reimbursements received from participation in the program from being considered wages or compensation. Accordingly, the court held that the foster grandmother was not compensated and therefore not an employee. Id. at 1220.

Likewise, in Wolf v. Workers' Comp. Appeal Bd., 705 A.2d 483 (Pa. Commw.Ct.1997), a foster grandmother filed a claim for worker's compensation benefits after she was injured while participating in the program. As a participant, she received personal liability insurance, accident insurance, transportation, and a $2.35 per hour stipend. In considering whether the foster grandmother was an employee, the court determined that the grandmother did not receive compensation for her services. Rather, the court explained that the payments were intended to reimburse her for the incidental costs of providing volunteer services. This "nominal gratuity afforded to low-income foster grandparents ... is afforded so as to unburden low-income persons." Id. at 485. Thus, the court held that the payment was not compensation, and the foster grandmother was not an employee. But see Sears v. Oakwood Training Facility Dep't of Human Res., 623 S.W.2d 232 (Ky.Ct. App.1980)

(foster grandmother was employee because payment of hourly rate for tasks beneficial to enterprise was dependent upon her actual service).

We find the reasoning of the Murray State College and Wolf courts persuasive, particularly in light of the expressions of congressional intent and the explanation of the Foster Grandparent's program in the Code of Federal Regulations. First, 42 U.S.C.A. § 5058 provides:

Notwithstanding any other provision of law no payment for supportive services or reimbursement of out-of-pocket expenses made to persons serving pursuant to subchapter II of this chapter shall be subject to any tax or charge or be treated as wages or compensation for the purposes of unemployment, temporary disability, retirement, public assistance, workers' compensation, or similar benefit payments, or minimum wage laws.

(Emphasis added.) The phrase "workers' compensation" was added to the statute by amendment in 1984. During discussions of the amendment, the committee stated: "The Amendment clarifies the intent of congress that the stipend received by participants in the older American volunteer programs is not compensation for the purpose of state workers' compensation programs." House of Representatives, the Committee on Education and Labor, Report No. 98-161, in HR-2655, p. 14, quoted in Murray State College, 794 P.2d at 1220. Thus, Congress clearly did not intend the payments to foster grandparents to be considered compensation.

Further, the Foster Grandparents program is regulated by the Corporation for National and Community Service ("CNCS"), and the CNCS has issued regulations governing the program. At the time Veeck had her accident, these regulations were found at 45 C.F.R. § 1208 (1997).² Under the program, eligible participants were not compensated, but received direct benefits, including "stipends." 45 C.F.R. § 1208.3-5 (1997). Specifically, the regulations define direct benefits to include the participant's stipend, insurance, meals, transportation, and other benefits the participant receives. It then states: "Direct benefits may not be subject to any tax or charge or be treated as wages or compensation for the purposes of unemployment insurance, temporary disability, retirement, public assistance, or similar benefit payments or minimum wage laws." 45 C.F.R. § 1208.3-5(b)(2)(c) (1997).³ Here, Veeck received an hourly stipend. The statute and the regulations specify that this payment was not intended to be compensation, but instead was a reimbursement of her expenses. As an uncompensated volunteer at a state-owned psychiatric hospital, Veeck was entitled to worker's compensation medical bills coverage under IC 22-3-2-2.3.

II. Preemption

Additionally, CAPE contends that the issue of Veeck's entitlement to worker's compensation benefits is preempted by federal law, which it contends prevents foster grandparents from making claims under any state worker's compensation law, including IC 22-3-2-2.3 that allows payment of medical expenses. Specifically, it argues that federal...