PENSION - FIREMEN - RIGHT TO RECEIVE MEDICAL, HOSPITAL AND NURSING CARE

PENSION - FIREMEN - RIGHT TO RECEIVE MEDICAL, HOSPITAL AND NURSING CARE.

RCW 41.18.060 gives the municipal firemen's pension board discretion to provide a disabled fireman with medical, hospital and nursing care as long as the disability exists.

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                                                              September 30, 1960

Honorable Wally Carmichael
State Representative, 38th District
P. O. Box 736
Everett, Washington                                                                                          Cite as:  AGO 59-60 No. 148

Dear Sir:

            By letter previously acknowledged, you have requested the opinion of this office upon a question which we paraphrase as follows:

            Under § 6, chapter 382, Laws of 1955 (RCW 41.18.060) may a disabled fireman receive medical, hospital and nursing care as long as his disability exists, or for a maximum period of six months?

            Your question is answered in the analysis.

                                                                     ANALYSIS

            RCW 41.18.060 provides as follows:

            "Whenever the retirement board, pursuant to examination by the board's physician and such other evidence as it may require, shall find a fireman has been disabled while in the performance of his duties it shall declare him inactive.  For a period of six months from the time of such disability he shall draw from the pension fund a disability allowance equal to his monthly salary at the time of disability and, in addition, he may be provided with such medical, hospital and nursing care as long as the disability exists.  If the board finds at the expiration of six months that the fireman is unable to return to and perform his duties, then he shall be retired as provided in RCW 41.18.070."  (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            Comparison of this statute with a portion of the 1947 Firemen's Benefits Act, a companion statute previously enacted, may prove helpful.  RCW 41.16.190, provides as follows:

            "No fireman disabled in the performance of duty shall receive a pension until six months has elapsed after such disability was sustained.  Therefore, whenever the retirement board, pursuant to examination by the board's physician and such other evidence as it may require, shall find a fireman has been disabled while in the performance of his duties, it shall declare him inactive.  For a period of six months from the time he became disabled, he shall continue to draw full pay from his municipality and in addition thereto he shall, at the expense of the municipality, be provided with such medical, hospital and nursing care as the retirement board deems proper.  If the board finds at the expiration of six months that the fireman is unable to return to and perform his duties, then he shall be retired as herein provided."  (Emphasis supplied.)

            The answer to your question depends upon what the legislature meant by the underlined language of RCW 41.18.060, supra.  In arriving at the intent of the legislative body, the first resort of the courts is to the context and subject matter of the legislation, because the intention of the lawmaker is to be deduced, if possible, from what it said.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745 (1957); Driscoll v. City of Bremerton, 48 Wn. (2d) 95, 291 P. (2d) 642 (1955).  Where the language of a statute is plain, free from ambiguity, and devoid of uncertainty, there is no room for construction, since the meaning will be discovered from the wording of the statute itself.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).  See also, 2 Sutherland, Statutory Construction, § 4701, p. 333.

            Statutory words to be construed must be given their usual and ordinary meaning.  See Miller v. City of Pasco, 50 Wn. (2d) 229, 310 P. (2d) 863 (1957); Pacific Northwest Alloys, Inc. v. State, 49 Wn. (2d) 702, 306 P. (2d) 197 (1957).  As generally used in a statute, the word "shall" is imperative and imposes an enforceable duty, while the word "may" is permissive only and confers discretion; however, these words are frequently used interchangeably and without regard to their literal meaning, and in each case the word is to be given the effect necessary to carry out the legislative intent.  Spokane County ex rel. Sullivan v. Glover, 2 Wn. (2d) 162, 97 P. (2d) 628 (1940).  See also,State ex rel. Blume v. Yelle, 52 Wn. (2d) 158, 324 P. (2d) 247 (1958).  Thus, in the instant case, the legislature has taken pains to use the word "shall" with relation to the fireman's right to draw a disability allowance, and the word "may" with reference to the board's duty to provide such medical and other care.  A similar deliberate choice of words was given effect in State ex rel. Blume v. Yelle,  [[Orig. Op. Page 3]] supra,  Furthermore, reference to RCW 41.16.190, the companion statute, supra, lends an even stronger guide to legislative intent.  There, the language used was ". . . in addition thereto he shall, at the expense of the municipality, be provided with such medical, hospital and nursing care as the retirement board deems proper."  (Emphasis supplied.)  In the act in question, the phrase "as the retirement board deems proper" was omitted, but the word "shall" was changed to "may."

            While the disability allowance provided for in RCW 41.18.060 can be paid for a maximum of six months only, the retirement board may provide medical, hospital and nursing care to a fireman covered by that section, as long as the disability exists.  On this point the statute appears to be clear, unambiguous, and free from doubt, since the legislature has used the phrases "in addition" (to the six months disability allowance) and "as long as the disability exists" with reference to medical, hospital and nursing care.

            If the statute were held to be ambiguous or unclear on this point, our holding would probably be the same.  This office has held, in a previous opinion involving the firemen's pension acts, that "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 fireman."  AGO 55-57 No. 309, to the State Auditor, Division of Municipal Corporations, August 7, 1956, a copy of which is enclosed.

            It appears to have been clearly the legislative intent in both acts to allow the retirement board a wise discretion as to whether, in a given case, the facts justified an allowance of total medical, hospital and nursing care, for as long as the disability existed, or for a lesser period, or in limited amounts only.  Thus, such medical, hospital and nursing care may be furnished at the board's discretion, exercised reasonably and on a sound basis.

            We trust that this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General