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AGO 1950 No. 260 - April 25, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

WORKMEN'S COMPENSATION ACT (7684 Rem. Supp. 1947) --  ALIEN NONRESIDENT BENEFICIARY AND TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION WITH ITALIAN REPUBLIC, FEBRUARY 2, 1948

1. A qualified beneficiary, an alien national of Italy, is not subject to limitation as to compensation under section 1, chapter 56, Laws of 1947 (7684 Rem. Supp. 1947), by virtue of the superiority of Article XII, Treaty of Friendship, Commerce, and Navigation with the Italian Republic, February 2, 1948 (U.S. Cong. Serv. '48, p. 2813).

2. More favorable treatment is given to an alien sister than to a nonresident wife or child under the same section of the act by operation of the same treaty.

                                                                  - - - - - - - - - - - - -

                                                                   April 25, 1950

Honorable A. M. Johnson
Director
Department of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 260

Attention:  !ttMr. John Shaughnessy,
            Supervisor, Industrial Insurance

Dear Sir:

            We are in receipt of your oral request for an opinion on the claim of Tony Giampietri, deceased, Claim # B‑651646.  The questions to be answered are as follows:

            1. Can a sister of a workman who is a resident national of the Republic of Italy and who qualifies receive payments for his death under the Workmen's Compensation Act, section 1, chapter 56, Laws of 1947 (7684 Rem. Supp. 1947), by virtue of Article XII, Treaty of Friendship, Commerce, and Navigation with the Italian Republic, February 2, 1948 U. S. Cong. Serv. '48, p. 2813)?

            2. By operation of the same treaty is more favorable treatment given to an alien sister than to a nonresident wife or child under the same section of the act?

             [[Orig. Op. Page 2]]

            The conclusions reached may be summarized as follows:

            1. A qualified beneficiary, an alien national of Italy, is not subject to limitation as to compensation under section 1, chapter 56, Laws of 1947 (7684 Rem. Supp. 1947), by virtue of the superiority of Article XII, Treaty of Friendship, Commerce, and Navigation with the Italian Republic, February 2, 1948 U.S. Cong. Serv. '48, p. 2813).

            2. More favorable treatment is given to an alien sister than to a nonresident wife or child under the same section of the act by operation of the same treaty.

                                                                     ANALYSIS

            The State of Washington in its declared policy to aid the welfare of the wage worker in hazardous occupations by providing for compensation for injury in employment regardless of fault has the following provision regarding alien beneficiaries:

            "* * *

            "Except as otherwise provided by treaty, whenever under the provisions of this act, compensation is payable to a beneficiary or dependent who is an alien not residing in the United States, the department shall pay fifty per centum of the compensation herein otherwise provided to such beneficiary or dependent.  * * *"Section 1, chapter 56, Laws of 1947 (7684 Rem. Supp. 1947)

            The sister of the workman killed in an industrial accident is a resident citizen of Italy who claims dependence on the wages of her brother.  Whether the amount of the possible recovery is limited to fifty per cent of the compensation as provided in the act or a full sum as would be received by a resident citizen of this country is dependent upon the construction of the language of the treaty.  A treaty will not be held to infringe on the exercise of the sovereign power of the state unless it so manifestly appears from the wording of the treaty.  The treaty should be liberally construed to carry out the intention and purpose of the contracting parties thereto, and to secure equality between them.  United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796; Lukich v. Dept. of Labor and Industries, 176 Wash. 221, 29 P. (2d) 388; Antosz v. State Compensation Comm'n., 130 W.Va. 260, 43 S.E. (2d) 397.

             [[Orig. Op. Page 3]]

            No question of conflict of laws is presented as the paramount authority of treaties between the United States and foreign powers is recognized by the above quoted portion of 7684 Rem. Supp. 1947.

            Recovery of full benefits under treaties entered into by the United States has been recognized by the Supreme Court of this state.  The following quotation is taken fromLukich v. Department of Labor and Industries, supra:

            "It appears that, during the past fifteen years, the United States has entered into treaties with European nations in several of which appears a provision by the terms of which a person occupying the position of respondent here would be entitled to receive the full benefits accruing under the workmen's compensation act of this state without diminution, as provided in the portion of Rem. Rev. Stat., § 7684, above quoted.  So far as we have been able to ascertain, this clause is contained in treaties of 'Friendship, Commerce and Consular Rights,' and appellant argues that the 'most favored nation' clause contained in the agreement between the United States and Yugoslavia, which agreement is entitled a 'Convention of Commerce and Navigation,' is limited in its effect to agreements between the United States and other nations of similar import, and that its scope is not enlarged by clauses contained in treaties of friendship, commerce and consular rights between the United States and other nations."

            By the title of the treaty alone through the interpretation by the Supreme Court, the sister would appear to be entitled to receive the full benefits under the act, the treaty in question being entitled, "Treaty of Friendship, Commerce, and Navigation."

            By going even further, a reading of Article XII of the same treaty reveals the clear intention of the High Contracting Parties to accord to alien beneficiaries equal rights of recovery under any state act as received by citizens of this country:

                        "ARTICLE XII

             [[Orig. Op. Page 4]]

            "1. The nationals of either High Contracting Party, regardless of alienage or place of residence, shall be accorded rights and privileges no less favorable than those accorded to the nationals of the other High Contracting Party, under laws and regulations within the territories of such other High Contracting Party that (a) establish a civil liability for injury or death, and give a right of action to an injured person, or to the relatives, heirs, dependents or personal representative as the case may be, of an injured or deceased person, or that (b) grant to a wage earner or an individual receiving salary, commission or other remuneration, or to his relatives, heirs or dependents, as the case may be, a right of action, or a pecuniary compensation or other benefit or service, on account of occupational disease, injury or death arising out of an in the course of employment or due to the nature of employment.

            "2. In addition to the rights and privileges provided in paragraph 1 of this Article, the nationals of either High Contracting Party shall, within the territories of the other High Contracting Party, be accorded, upon terms no less favorable than those applicable to nationals of such other High Contracting Party, the benefits of laws and regulations establishing systems of compulsory insurance, under which benefits are paid without an individual test of financial need:  (a) against loss of wages or earnings due to old age, unemployment or sickness or other disability, or (b) against loss of financial support due to the death of father, husband or other person on which such support had depended."

            The language here contained goes beyond that in Micaz v. Compensation Commissioner, 123 W.Va. 14, 13 S.E. (2d) 161, where the treaty there in question simply established "'* * * a civil responsibility for injuries or for death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs * * *.'  (Italics supplied.)"

             [[Orig. Op. Page 5]]

            By virtue of the Supreme Court's analysis of treaty titles and the clear intention of the United States as evidenced by Article XII, the result must be that the sister alien beneficiary, if qualifying as a dependent, is entitled to full compensation under the act.

            The same section of the workmen's compensation act, section 1, chapter 56, Laws of 1947 (7684 Rem. Supp. 1947), has the following proviso:

            "* * *Provided, further, That if the injured workman shall have resided in the United States as long as three years prior to the date of the injury such payment shall not be made to any widow or child who was at the time of such injury a nonresident of the United States."

            If the interpretation given to the term "nonresident" citizen under the act would be precluded.

Very truly yours,

SMITH TROY
Attorney General

T. H. LITTLE
Chief Assistant
Attorney General

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