PAYMENT BY THE STATE DEPARTMENTS OF INDUSTRIAL INSURANCE AND MEDICAL AID PREMIUMS ON ASSISTANT ATTORNEYS GENERAL

PAYMENT BY THE STATE DEPARTMENTS OF INDUSTRIAL INSURANCE AND MEDICAL AID PREMIUMS ON ASSISTANT ATTORNEYS GENERAL

State departments may legally pay industrial insurance and medical aid premiums on assistant attorneys general assigned to such departments and deduct from their salary one‑half of the medical aid premium.

The departments are also authorized to deduct contributions for the State Employees Retirement Funds.

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                                                               November 29, 1955

Mr. L. H. Bates
Director
Department of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 170

Dear Mr. Bates:

            We are in receipt of your request for an opinion of this office upon the following paraphrased question:

            "May the department legally pay the industrial insurance and medical aid premiums on the assistant attorneys general assigned to the department and also deduct from their salary one‑half of the amount an employer is required to pay into the medical aid fund under RCW 51.16.140, even though the department is not the employer?"

            Our answer to this question is in the affirmative.

                                                                     ANALYSIS

            RCW 51.16.140 provides as follows:

            "The employer shall deduct from the pay of each of his workmen engaged in extrahazardous work one‑half  [[Orig. Op. Page 2]] of the amount the employer is required to pay into the medical aid fund for or on account of the employment of such workmen, but it shall be unlawful for the employer to deduct or obtain any part of the premium required to be by him paid into the accident fund from the wages or earnings of any of his workmen, and the making of or attempt to make any such deductions shall be a gross misdemeanor."

            Under the foregoing statute the duty of making deductions for one‑half of the medical aid premium rests with the employer.

            In the instant case, the actual and legal employer is the attorney general.  However, the salaries of the assistants are paid by the department in accordance with the provisions of RCW 43.10.070, which is as follows:

            "The attorney general shall fix the compensation of all assistants, attorneys, and employees, and in the event they are assigned to any department, board, or commission, such department, board, or commission shall pay the compensation as fixed by the attorney general, not however in excess of the amount made available to the department by law for legal services."

            In the case ofLunday v. Department of Labor and Industries, 200 Wash. 620, the question of dual employment was determined.  In that case the court, on page 624, said:

            "In any event, an employee may, in contemplation of workmen's compensation acts, sustain the relationship of employee to two employers, a general employer who pays his wages and a special employer to whom he may be loaned and for whom he may be performing services.  When such an employee is injured in the course of extrahazardous employment, he is aworkman in contemplation of the workmen's compensation act, upon the theory that he is an  [[Orig. Op. Page 3]] employee of either one or both of the employers.Umsted v. Scofield Engineering Const. Co., 203 Cal. 224, 263 Pac. 799;New York Indemnity Co. v. Industrial Acc. Commission, 126 Cal. App. 37, 14 P. (2d) 160; Atherholt v. William Stoddart Co., 286 Pa. 278, 133 Atl. 504;DeNoyer v. Cavanaugh, 221 N.Y. 273, 116 N.E. 992; Wright v. Cane Run Petroleum Co., 262 Ky. 251, 90 S.W. (2d) 36.  sp,d=ago-1955,nc (Emphasis by the court.)  In the latter case, the doctrine is stated:

            "'In such case, the employer who directs his servant to work for another is regarded in law as the general employer, and the one for whom he works as a special employer, and the relation of employer and employee, in the circumstances, exists between both of them and the employee, himself.  If the employee is under the exclusive control of the special employer in the performance of the work which is a part of his business, he is, for the time being, his employee; yet, at the one and the same time, he is the employee of the general employer, as well as the employee of the special employer.  And he may, under the common law of master and servant, look to the former for his wages and to the latter for damages for negligent injuries; so under the Workmen's Compensation Act he

            "'"may so far as its provisions are applicable, look to the one or the other, or to both, for compensation for injuries due to occupational hazards."'"

            It is, therefore, our conclusion that the department may legally pay industrial insurance and medical aid premiums on the assistant attorneys general assigned to the department and deduct from their salary one‑half of the medical aid premium.

            This opinion applies with equal force to all assistants assigned to the various departments of state government and in addition authorizes deductions  [[Orig. Op. Page 4]] of contributions into the State Employees Retirement Funds.

            We trust the foregoing analysis will be helpful.

Very truly yours,

DON EASTVOLD
Attorney General

BERNARD A. JOHNSON
Assistant Attorney General