CITIES AND TOWNS ‑- FIREMEN ‑- DISABILITY PENSIONS ‑- DISEASES COVERED ‑- APPLICATION ‑- POWERS AND DUTIES OF PENSION IN PASSING ON ‑- BURDEN OF PROOF

CITIES AND TOWNS ‑- FIREMEN ‑- DISABILITY PENSIONS ‑- DISEASES COVERED ‑- APPLICATION ‑- POWERS AND DUTIES OF PENSION IN PASSING ON ‑- BURDEN OF PROOF.

Any disease, including poliomyelitis, contracted by a fireman in connection with the performance of his duties as a member of the fire department would entitle him to a disability pension.  The burden of establishing a right to pension ordinarily rests on the claimant.  The pension board in passing upon and allowing or disallowing a fireman's claim for pension, bases its decision on a determination of fact.  Before disposing of any claim adversely to the claimant such a board must accord the claimant an opportunity to be heard and to present testimony in support of his claim.

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                                                                 August 28, 1957

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 117

Attention:  !tt A. E. Hankins, Chief Examiner

            Division of Municipal Corporations

Dear Sir:

            We acknowledge receipt of your request for an opinion of this office on the following questions pertaining to the firemen's relief and pension fund:

            (1) Is the incidence of poliomyelitis which results in handicapping a fireman to the extent that he cannot carry on his duties as a regular fireman, a disablement within the meaning of the word as used in RCW 41.18.050?

            (2) If the answer to the first question is yes, will the firemen's relief and pension board of the city of Anacortes be justified in finding the applicant disabled as a result of the performance of duty without further proof as to  [[Orig. Op. Page 2]] the source of the infection, or as to arduous duty resulting in rendering the applicant particularly susceptible to the disease?

            (3) If the answer to question No. 2 is no, to what extent must proof be obtained showing the connection between the incidence or poliomyelitis and the performance of duty, and who has the burden of proof?

            Based on the most favorable factual assumptions which can be made, and as more particularly pointed out in our analysis, we answer your first question in the affirmative and the second question in the negative.  The third question is answered in our analysis below.

                                                                     ANALYSIS

            The facts as submitted to us, are as follows:

            A fireman entered the service October 12, 1954.  His application for disability benefits filed with the firemen's relief and pension board, states in addition to the date of his entry into the fire service that "The applicant has become disabled as a result of the performance of his duty as such fireman," and "The disability occurred October 30, 1955, and results from poliomyelitis incurred in the performance of duty as fireman during October, 1955."

            The board required his examination by a doctor, and "The results of said examination indicated that without a doubt the employee is handicapped to the extent that he cannot carry on his duties as a regular fireman, and that the prognosis as to any further improvement is not optimistic."

            No hearing has been held, although there is information to the effect that the fireman participated in fire prevention activities during fire prevention week in October, 1955, during which school children were lifted on and off the trucks in connection with rides on the fire trucks.  The only incident of poliomyelitis among children in the particular school occurred in August, 1954.

            The rights herein involved are governed by chapter 382, Laws of 1955, RCW 41.18.010 through 41.18.170.  RCW 41.18.050 (1955 Supp.) provides for the retirement of a fireman "who shall become disabled as a result of the performance of duty."  "Performance of duty" includes "the performance of work and labor regularly required of firemen and shall include services of an emergency nature rendered while off regular duty."  (RCW 41.16.010.)

             [[Orig. Op. Page 3]]

            A fireman's right to retirement on disability pension depends upon whether or not he sustained the disability while in the performance of his duties as a fireman. (Benedict v. Board of Police Pension Fund Commissioners, 35 Wn. (2d) 465) The general principles applicable to this determination are stated in McQuillin, Municipal Corporations, 3rd Ed., § 12.149, as follows:

            "Disablement from injury suffered in line of duty or employment may entitle an officer or employee to assignment to light duties, or to a pension.  As a general rule, disability, as a condition to the right to a pension, must have happened because of the claimant's employment, and not merely during the period of his public service.  If the disabilities of a discharged officer or employee bear no relationship to any injuries which he sustained in line of duty and are not in any way connected with service in a municipal department, he is not entitled to a pension.

            "The disability for which a pension is payable is not limited to injuries caused by external violence, physical force, or as a result of accident, but embraces incapacity suffered in the line of duty from any cause, including sickness or disease contracted in line of duty, . . ."

            (1) Based on the foregoing, poliomyelitis suffered by a fireman in connection with the performance of his duties as a member of the fire department is such a disability as would entitle him to a disability pension.  In other words, it is our opinion that if a fireman contracted the disease while on the job performing his duties, the fact that it might have resulted from contagion, or because of the negligence of some third party, would not deprive him of his right to a disability pension.  SeeEngstrom v. Seattle, 92 Wash. 568.

            (2) & (3) Your second inquiry raises the question of whether the board is under any obligation to verify, or contravert, the allegations of the claimant's application.  The application simply states that the fireman became disabled from poliomyelitis incurred in the performance of his duties in October, 1955.  These statements appear to be mere conclusions, for the board is obviously concerned with the factual basis upon which the fireman relies to prove he contracted poliomyelitis in the performance of his duties.

            RCW 41.18.020 (1955 Supp.) specifying the powers and duties of the firemen's pension board, in so far as here pertinent, provides:

             [[Orig. Op. Page 4]]

            "The board, in addition to such general and special powers as are vested in it by the provisions of chapter 41.16 [[chapter 41.16 RCW]], which powers the board shall have with respect to this chapter shall have power to:

            "(2) Pass upon and allow or disallow applications for pensions or other benefits provided by this chapter;

            "(5) Require the physicians appointed under the provisions of chapter 41.16 [[chapter 41.16 RCW]], to examine and report to the board upon all applications for relief and pensions under this chapter; and

            "(6) Perform such acts, receive such compensation and enjoy such immunity as provided in RCW 41.16.040."

            The requirement of subdivision (5) has apparently been complied with, in that the physician appointed by the board had reported following his examination of the applicant that he "is handicapped to the extent that he cannot carry on his duties as a regular fireman."  This leaves for determination the basic fact of whether or not the claimant incurred polio during the performance of or as a result of his duties as a fireman.

            Since the board shall"pass upon and allow or disallow" the application, the ascertainment of facts on which to base such a determination is its prerogative and obligation.  The right to conduct a hearing and compel witnesses to appear and testify under oath is provided for in RCW 41.16.040 (6).  As was pointed out inCarleton v. Board of Police Pension Fund Comr's., 115 Wash. 572, hearings on applications for pensions call for determinations of questions of fact of which the board, performing judicial functions, are the triers.  Such hearings are to be conducted in the ordinary way and manner, with witnesses attending and testifying under oath and with full opportunity accorded the applicant to give evidence in support of his claim.  The burden of establishing the right to a pension ordinarily rests on the claimant.  (McQuillin,supra, § 12.163)

            We conclude that a fireman is eligible for disability benefits under the provisions of RCW 41.18.050 when he becomes disabled because of any injury, sickness or disease incurred during the performance of or as the result of the performance of his duty as a fireman.  A pension board in allowing or  [[Orig. Op. Page 5]] disallowing such a claim should base its decision upon a determination of fact upon factual evidence submitted to it.  Before disposing of any matter adversely to the claimant he must be accorded an opportunity to be heard and present testimony in support of his claim.  Carleton v. Board of Police Pension Fund Comr's., supra.  See alsoBenedict v. Board of Police Fund Comr's., 35 Wash. (2d) 465 andIn Re Gifford, 192 Wash. 562.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General