CITIES AND TOWNS ‑- FIREMEN'S BENEFITS ‑- DISABILITY ALLOWANCE ‑- ELIGIBILITY

CITIES AND TOWNS ‑- FIREMEN'S BENEFITS ‑- DISABILITY ALLOWANCE ‑- ELIGIBILITY

1. Where a fireman is permanently disabled in line of duty the firemen's benefit act in effect at the time of his disability governs his inactive duty disability pension.

2. The six-month period after disability during which a disabled fireman draws his disability allowance need not run consecutively.

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                                                                  August 7, 1956

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington

                                                                                                              Cite as:  AGO 55-57 No. 309

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

            Division of Municipal Corporations

Dear Sir:

            On behalf of the City of Olympia you have requested the opinion of this office on certain questions pertaining to the status of the assistant fire chief of the City of Olympia under the firemen's benefit acts of 1947 (chapter 41.16 RCW) and 1955 (chapter 41.18 RCW).  The legally relevant facts and circumstances from which your problems arise are set forth below.  With regard to those facts and circumstances, your questions may be paraphrased as follows:

            1.         Where a fireman is permanently disabled in the line of duty subsequent to the effective date of the firemen's benefit act of 1955 (chapter 41.18 RCW), which firemen's benefit act governs his inactive duty disability pension?

            2.         Must the six-month period after disability during which the disabled fireman draws his disability allowance run consecutively?

             [[Orig. Op. Page 2]]

            We answer your first question as follows: The inactive duty disability pension is governed by the 1955 firemen's benefit act (chapter 41.18 RCW).

            We answer your second question in the negative.

                                                                     ANALYSIS

            Chapter 382, Laws of 1955 (chapter 41.18 RCW), became effective on June 9, 1955.  In December, 1955, the assistant chief of the Olympia fire department was hospitalized with a back ailment.  He had injured his back in the line of duty several years prior to said date but had not been hospitalized at the time of the original accident.  The pension board authorized the payment of medical expenses and disability allowance in December, 1955.  The assistant chief was off duty during the months of December, 1955, and January, 1956.  He returned to duty on February 1, 1956, but on the advice of the firemen's pension physician, he went on inactive duty on March 1, 1956.  At that time he had not served with the department twenty-five years nor attained the age of fifty-five.  Although the assistant chief intended to sign and file a certificate of intention to remain within the 1947 firemen's benefit act as provided for in RCW 41.18.160 (1955 Supp.) within the sixty-day period therein provided, he did not do so.

            With regard to your first question, the pertinent statutes provide as follows:

            RCW 41.18.070 (1955 Supp.)

            "If a fireman, disabled as a result of the performance of duty, shall have at the time of his retirement (after six months disability) a total of less than twenty-five years of creditable service or shall be less than age fifty-five, he shall be placed on inactive duty and shall receive a disability pension of fifty percent of his basic salary.  If he recovers from his disability he shall be restored to active service with the same rank held at the time of the disability.  If such fireman at the time of his disability retirement shall have a total of twenty-five years or more of creditable service and shall be not less than age fifty-five or, becoming fifty-five years of age or more while on disability retirement he would have had a total of twenty-five years or more of creditable service had he continued in active service, he shall receive a disability pension computed in the same manner  [[Orig. Op. Page 3]] and selected under the same options as the service retirement pension provided for under RCW 41.18.040."

            RCW 41.18.170 (1955 Supp.)

            "The provisions of this chapter governing contributions, pensions, and benefits shall have exclusive application (1) to firemen as defined in this chapter hereafter becoming members of a fire department, (2) to firemen as defined in this chapter heretofore employed in a department who have not otherwise elected as provided for in RCW 41.18.160, and (3) to firemen on disability retirement under chapter 41.16, at the effective date of this chapter, who thereafter shall have been returned to active duty by the retirement board, and who have not otherwise elected as provided for in RCW 41.18.160 within sixty days after return to active duty."

            The recent case ofBakenhus v. Seattle, 148 Wash. Dec. 643 [[48 Wn.2d 695]], indicated that the application of laws providing for policemen's retirement pensions depends on the act in effect on the date the particular policemen was employed by the department for the first time.  We believe that this case is applicable to the firemen's benefit acts, as well as to the laws affecting policemen.

            However, we feel that the Bakenhus case must be restricted in its application to retirement pensions.  Disability benefits were not considered in that case.

            RCW 41.18.070 (1955 Supp.) provides for disability benefits computed on the basis of one‑half of the fireman's basic salary.  This is quite different from the manner in which retirement pensions are computed.  Permanently disabled firemen may only receive disability payments as so computed until they are eligible for retirement pensions under the terms of RCW 41.18.040 (1955 Supp.).  These disability benefits are quite distinct from the retirement pension benefits contained in the same act, both as to the manner of computation and as to the eligibility to receive them.  They appear to be more analogous to the disability benefits provided by our workmen's compensation act, Title 51 RCW, than they do to the retirement pensions provided by the firemen's benefit acts.

            It should be noticed that where there is provision in the law for disability benefits for municipal employees, these laws supersede operation of the workmen's compensation law (RCW 51.12.050).

             [[Orig. Op. Page 4]]

            The succeeding statutes, which have modified the Washington workmen's compensation law over the period of years during which that law has been in effect, have contained provisions to the effect that injuries occurring after the effective date of the subsequent modifying act shall be governed thereby.  These provisions are similar to the provision in the 1955 act quoted above as RCW 41.18.170 (1955 Supp.).

            Although the employees under the workmen's compensation act are required by that law to contribute a certain percentage of their salaries or wages to the accident and medical aid benefit funds (RCW 51.16.140), the courts have never applied a vested rights theory as was done in the Bakenhus case to permanent disability claims arising under the workmen's compensation law.  Rather, they have adopted the rule that the law in effect at the time of the injury governs disability payments.  Thorpe v. Department of Labor & Industries, 145 Wash. 498, and Bodine v. Department of Labor & Industries, 29 Wn. (2d) 879.

            For the foregoing reasons, we feel that this rule and not the vested rights rule of the Bakenhus case should be applied to the disability pensions provided for in RCW 41.18.070 (1955 Supp.).

            Therefore, since the assistant chief of the Olympia fire department was injured after the effective date of the 1955 act, he is governed by the 1955 act with regard to his inactive duty disability pension.

            With regard to your second question, the problem presented is whether the words "For a period of six months from the time of such disability" mean a calendar period of six months or a total of six months after being disabled.  In other words, is the right to full salary while disabled limited to the six-month period from the date of the disability, or to a total of six-months' disability after being disabled from a specific disability.

            If the provision is capable of two interpretations, the general rule is that when a statutory provision is susceptible to two interpretations, the interpretation which accomplished the purpose of the act should be adopted; in other words, the interpretation most favorable to the injured firemen.

            On this basis we believe that the legislative intent was to provide full salary for a six-month period while the fireman was disabled from a particular injury before being permanently retired on disability pension.  We do not believe that it was the intention of the legislature to penalize a fireman who has conscientiously endeavored to return to his job and then later, after working for a period of time, finds he is physically unable  [[Orig. Op. Page 5]] to perform his duties because of the disability which he sustained.  To construe this provision otherwise would tend to encourage malingering and inactivity, while the interpretation we have placed on it encourages a return to work at the earliest period ‑ or for the purpose of determining whether the injury is disabling ‑ without being penalized in the event that conditions develop making it impossible to continue.

            The only case we have been able to find construing the clause "From the time of," isIn Re Rosenfield, 20 Fed. 1202, in which it is said that the ordinary interpretation given to the words is that they mean "at a later time" or "afterward," that is, "at any time afterwards."

            Consequently, as here used, "For a period of six months from the time of" is construed to mean a total of six months at any time after the disability.

            We conclude that the statutory provisions for firemen's inactive duty disability pensions in effect at the time of eligibility for such disability pensions govern the firemen, regardless of the date of their first employment in the department, and that the six-month period provided for in RCW 41.18.050 and 41.18.060 (1955 Supp.), after disability during which a disabled fireman draws a disability allowance, need not run consecutively.

            We trust this opinion will be of service to you.

Very truly yours,

DON EASTVOLD
Attorney General

MITCHELL DOUMIT
Assistant Attorney General