Letter Opinion 1970 No. 135

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                                                                October 16, 1970
 
 
 
Honorable R. DeWitt Jones
Prosecuting Attorney
Clark County Court House
Vancouver, Washington 98660
                                                                                                             Cite as:  AGLO 1970 No. 135
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on several questions pertaining to the ascertainment of disability benefits under the laws governing the new Washington law enforcement officers' and fire fighters' retirement system.
 
                                                                     ANALYSIS
 
            Specifically, your questions relate to the liabilities of a county, as an "employer,"1/ with respect to the payment of ". . . the necessary hospital, care, and nursing expenses not payable from some other source . . ." under the following provision of RCW 41.26.150:
 
            "(1)  Whenever any active member, or any member hereafter retired, on account of service, sickness or disability, not caused or brought on by dissipation or abuse, of which the disability board shall be judge, is confined in any hospital or in his home, and whether or not so confined, requires nursing, care, or attention, the employer shall pay for such active or retired member the necessary hospital, care, and nursing expenses not payable from some other source as provided in subsection (2).  In the case of active or retired fire fighters the employer may make the payments provided for in this section from the firemen's pension fund established pursuant to RCW 41.16.050 where such fund had been established prior to March 1, 1970:  Provided, That in the event the pension fund is depleted, the employer shall have the obligation to pay all retirement benefits payable under chapters 41.16 and 41.18 RCW:  Provided, That the disability board in all cases may have the active or retired  [[Orig. Op. Page 2]] member suffering from such sickness or disability examined at any time by a licensed physician or physicians, to be appointed by the disability board, for the purpose of ascertaining the nature and extent of the sickness or disability, the physician or physicians to report to the disability board the result of the examination within three days thereafter.  Any active or retired member who refuses to submit to such examination or examinations shall forfeit all his rights to benefits under this section for the period of such refusal:  Provided further, That the disability board shall designate the hospital and medical services available to such sick or disabled member."
 
            We have previously issued the following three opinions (copies enclosed) regarding this statute:  AGO 1970 No. 7 [[to Prosecuting Attorney, Clark County on May 5, 1970]]; AGO 1970 No. 16 [[to Prosecuting Attorney, Grant County on June 29, 1970]]; and opinion dated August 31, 1970, to the Clallam county prosecuting attorney.  In addition, we have commented further upon the authority and responsibility of a county or city disability board administering this statute, in a letter dated September 8, 1970, to State Representative C. E. "Chuck" Evans, copy enclosed.  Based upon these materials, we may state, and answer, your questions as follows:
 
            Question:
 
            "Is Clark county, as the employer, liable for all medical care provided for an employee not covered by insurance or similar source?"
 
            Answer:
 
            Clark county, as an employer, is liable for payment of ". . . the necessary hospital, care, and nursing expenses not payable from [insurance or] some other source as provided for in subsection (2).  . . ." of RCW 41.26.150 ‑ to the extent that the county or city disability board having jurisdiction2/ has determined (a) that the sickness or disability in question was not caused or brought on by dissipation or abuse (see our letter to Representative Evans); and (b) that the hospital and medical services for which payment is claimed should be available to the sick or disabled member (accord, AGO 1970 No. 16, and our opinion to the Clallam county prosecuting attorney).
 
             [[Orig. Op. Page 3]]
            Question:
 
            "If such amounts are payable, must a claim first be approved by the Disability Board before payment is made by the county?"
 
            Answer:
 
            In accordance with our answer to your first question, supra, we answer this question in the affirmative.  Furthermore, not only must the claim first be approved by the disability board but the incurrence of the costs for which the claim is made must first have been approved by the disability board based upon an application by the retirement system member or retired former member ‑ for the liability of the employer is predicated upon the proposition that the hospital and medical services for which the claim is made have been designated by the disability board to be available to the claimant.
 
            Question:

 
            "If approval by the Disability Board is required, what proof should the board require concerning the claim?"
 
            We take your reference to the "board" in this question as meaning the board of county commissioners of Clark county, and not the disability board.  The statute is silent on the manner in which a disability board manifests its approval of an application for medical or hospital benefits; however, it would most certainly seem to us appropriate, if not necessary, for auditing purposes to require written documentation of the application, and of the disability board's action with respect thereto, as a condition precedent to the disbursement of any county funds in payment for any hospital, care, and nursing expenses incurred by a member or retired former member of the law enforcement officers' and fire fighters' retirement system.
 
            Question:
 
            "Section 15 provides in part:  'Employer shall pay for such active member . . . the necessary hospital care and nursing expenses of such member.'  Does this include each, all and every kind of medical attention provided for a member to relieve a disease or bodily condition requiring treatment from someone practicing in one of the established healing arts?"
 
            Answer:
 
            Again, consistent with our answer to your first question and the views expressed in AGO 1970 No. 16, supra, the expenses for which a county or other employer will be liable are those  [[Orig. Op. Page 4]] ". . . necessary hospital, care and nursing expenses not payable from [insurance or] some other source as provided for in subsection (2). . ." of RCW 41.26.150, which the disability board, in the exercise of its authority and discretion, has determined should be available to the sick or disabled member.  However, as was indicated in our opinion to the Clallam county prosecuting attorney, supra, it matters not, under RCW 41.26.150, whether or not the injury or illness for which benefits are claimed was incurred in the performance of duty as a law enforcement officer or fire fighter.
 
            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, RCW 41.26.030 (2).
 
2/See, RCW 41.26.110.