Letter Opinion 1971 No. 063

April 19, 1971
 
 
 
Honorable L. Edward Brown
Prosecuting Attorney
Grays Harbor County
Post Office Box 529
Montesano, Washington 98563                                                                 Cite as:  AGLO 1971 No. 63 (not official)
 
 
Dear Sir:
 
            By letter previously acknowledged you have requested an opinion of this office on several questions relating to disability benefits payable under the laws governing the Washington law enforcement officers' and fire fighters' retirement system.  We paraphrase your questions as follows:
 
            (1) May a disability leave or disability retirement allowance granted under RCW 41.26.120 be reduced by such amounts as the member is entitled to receive from workmen's compensation on account of the same disability?
 
            (2) May a disability leave or retirement allowance granted under RCW 41.26.120 be reduced or denied pursuant to a finding by the disability board having jurisdiction that the disability in question was occasioned by "dissipation or abuse" on the part of the member applying for these benefits?
 
            (3) Where an "employer" as defined in RCW 41.26.030 (3), has adopted rules and regulations prohibiting its law enforcement officers or fire fighters from engaging in off-duty activities deemed to be hazardous, or from working for a second employer, would the fact of participation in such prohibited activities or employment at the time of injury preclude a member, as a matter of law, from qualifying for disability or medical benefits under either RCW 41.26.120 or 41.26.150?
 
                                                                     ANALYSIS
 
            We answer question (1) in the manner set forth in our analysis, and questions (2) and (3) in the negative.
 
            All of your questions pertain to disability benefits payable under the laws governing the new Washington law enforcement officers' and fire fighters' retirement system, codified as chapter 41.26 RCW.
 
             [[Orig. Op. Page 2]]
            Question (1):
 
            RCW 41.26.120, to which your first question refers, provides for the payment of certain monthly allowances to members of the law enforcement officers' and fire fighters' retirement system who have become disabled to the extent that they are ". . . unable to continue . . . service, whether incurred in line of duty or not . . ."  (Emphasis supplied.)
 
            Initially, a member who has become thus disabled is to receive from his employer (based upon an order of the local disability board having jurisdiction) a "disability leave"1/ allowance ". . . equal to his full monthly salary . . .," to be paid during continuance of the disability for a period not exceeding six months.  Then, if at the end of this six-month period of disability leave the member continues to be disabled (as found by the local disability board with the concurrence of the state law enforcement officers' and fire fighters' retirement board)2/ he is to be granted a "disability retirement"3/ allowance.  This allowance amounts to a percentage (from 50 to 60 percent) of the member's "final average salary"4/ and is paid out of the state retirement fund, as provided for in RCW 41.26.130.  Subsection (4) of this statute, which is determinative of your first question, reads as follows:
 
            ". . .
 
            "(4) Benefits under this section for a disability that is incurred while in other employment will be reduced by any amount the member receives or is entitled to receive from workmen's compensation, social security, group insurance, other pension plan, or any other similar source provided by another employer on account of the same disability."  (Emphasis supplied.)
 
            By its own express terms, this subsection only applies to a disability ". . . that is incurred while in other employment . . ."  Accordingly, it is only in this one limited circumstance that a disability retirement allowance is to be reduced by reason of workmen's compensation benefits received for the same disability.  Moreover, since this provision only refers to "benefits under this section" ‑ i.e., RCW 41.26.130 relating to disability retirement allowances ‑ it is totally inapplicable, irrespective of the causes or circumstances surrounding the disability, insofar as the employer's initial responsibility to pay a disability leave allowance  [[Orig. Op. Page 3]] for the first six months of disability is concerned.
 
            Question (2):
 
            In addition to its provisions for "disability leave" and "disability retirement" allowances, as discussed above, chapter 41.26 RCW also contains a section under which an employer of law enforcement officers or fire fighters may be required to pay certain costs incurred for medical care by either (a) an active member, (b) a member retired for disability, or (c) a member retired on account of service.  The relevant portion of this statute provides as follows:
 
            "(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 . . ."  (Emphasis supplied.)
 
            In a letter dated September 8, 1970, to then State Representative C. E. "Chuck" Evans, copy enclosed, we advised that the question of whether a particular disability was "caused or brought on by dissipation or abuse" for the purposes of this statute was in each case to be regarded as a factual question to be resolved by the disability board.5/   We said:
 
            ". . . the only way that a standardized state‑wide guideline can be obtained on the matter of which types of situations should be compensable and which should not be under the subject statute is through the enactment of clarifying amendments thereto.  Under the statute as it presently reads, and as quoted above, it will be seen that the legislature has stated that each disability board having jurisdiction over a particular case shall be the judge of whether the illness or injury complained of was brought on by either 'dissipation' or 'abuse.'  Thus, under the present statute, each of the various disability boards must decide this issue on a case by case basis . . ."
 
            Moreover, responding directly to your second question, the only benefits which may be denied to a disabled fire fighter or law enforcement officer because his disability was caused by "dissipation or abuse" are the medical benefits provided for in RCW 41.26.150,  [[Orig. Op. Page 4]] supra; there simply is no comparable language in RCW 41.26.120, supra, which would provide any ground for denying either the basic "disability leave" or "disability retirement" allowance itself because of this casual factor.
 
            Question (3):
 
            Repeated for ease of reference, your final question (as paraphrased) reads as follows:
 
            Where an "employer" as defined in RCW 41.26.030 (3), has adopted rules and regulations prohibiting its law enforcement officers or fire fighters from engaging in off-duty activities deemed to be hazardous, or from working for a second employer, would the fact of participation in such prohibited activities or employment at the time of injury preclude a member, as a matter of law, from qualifying for disability or medical benefits under either RCW 41.26.120 or 41.26.150?
 
            From discussions with you regarding this question, it is understood that you are not here inquiring as to the authority of any particular governmental body employing law enforcement officers or fire fighters to promulgate such rules or regulations.  Instead, you are simply asking whether a disability or injury incurred by a member of the retirement system while in the performance of activities which violate such rules or regulations would, nevertheless, be compensable under the various "disability benefit" provisions of chapter 41.26 RCW which we have discussed above.

 
            By way of summary, the statutory prerequisites for the various benefits which are provided for under the applicable sections of this chapter are as follows:
 
            (1) Disability leave allowance (RCW 41.26.120) ‑ member found to be "physically or mentally unfit for duty by the disability board"; immaterial as to "whether incurred in line of duty or not";6/
 
             (2) Disability retirement allowance (RCW 41.26.120) ‑ member is "physically or mentally disabled from the further performance of duty . . . continuous since discontinuance of service"; likewise, immaterial as to "whether incurred in line of duty or not";7/
 
             (3) Medical benefits (RCW 41.26.150) ‑ member, including active members as well as those retired on account of disability (not caused or brought on by dissipation or abuse) "confined in any hospital or  [[Orig. Op. Page 5]] his home, and whether or not so confined, requires nursing, care, or attention"; again, immaterial as to "whether incurred in line of duty."8/
 
             Clearly, since none of these benefits are statutorily limited to occurrences in the applicant's line of duty, it is obvious that his employer could not establish such a limitation by rule or regulation.  Moreover, beyond this, it is to be seen that none of the governing statutes purport to make the applicant's compliance or noncompliance with his employer's rules regarding outside employment or other activities an issue, per se, in determining his eligibility for any of the benefits for which they provide.  Therefore, it is our opinion that the fact of participation in outside activities or employment in violation of an employer's rule or regulation at the time of a member's injury would not preclude the member, as a matter of law, from qualifying for whatever disability or medical benefits he is eligible for under either RCW 41.26.120 or RCW 41.26.150, supra.  Thus, we answer your third question in the negative.9/
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
WAYNE L. WILLIAMS
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, RCW 41.26.030 (19).
 
2/See, RCW 41.26.120 ‑ 41.26.130.
 
3/See, RCW 41.26.030 (20).
 
4/See, RCW 41.26.040 (12).
 
5/Notably, while this phrase appears to have been taken from certain prior statutes relating to police and firemen's pensions, including RCW 41.18.080 and RCW 41.20.060 ‑ 41.20.120, it does not appear to have received any judicial construction.
 
6/See, opinion dated August 31, 1970, to the Clallam County Prosecuting Attorney, copy enclosed.
 
7/Ibid.
 
8/Ibid.
 
9/This is not to say that an employer is totally lacking in any sanctions to enforce compliance with its valid rules or regulations regarding outside employment or other activities on the part of its law enforcement officers or fire fighters; it is merely to say that a denial of disability benefits under chapter 41.26 RCW cannot be regarded as one of those sanctions.