RESTORATION TO ACTIVE SERVICE OF MEMBERS RECEIVING DISABILITY RETIREMENT ALLOWANCES

RETIREMENT ‑- PENSIONS ‑- LEOFF PLAN II ‑- RESTORATION TO ACTIVE SERVICE OF MEMBERS RECEIVING DISABILITY RETIREMENT ALLOWANCES 

Pursuant to RCW 41.26.470(2), nonduty LEOFF Plan II disability retirees who recover from their disabilities are to be restored to duty based on the same procedures and under the same conditions as duty disability retirees.

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                                                                 August 16, 1983 

Honorable Bob Williams
State Representative, District 19A
111 Victoria Street
Longview, Washington 98632

Cite as:  AGO 1983 No. 16                                                                                                                

 Dear Sir:

             This is written in response to your request for our opinion on the following question:

             "Pursuant to RCW 41.26.470(2) are nonduty LEOFF II disability retirees, who recover from their disability, to be returned to duty using the same procedures and under the same conditions as duty disability retirees?"

             We answer your question in the affirmative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             RCW 41.26.470 provides for the payment of disability retirement allowances to those law enforcement officers and firefighters who are covered by LEOFF Plan II by reason of their having initially established membership in the LEOFF Retirement System on or after October 1, 1977.  See, RCW 41.26.005 and RCW 41.26.410.  Subsection (1) of RCW 41.26.470 provides:

             "A member of the retirement system who becomes totally incapacitated for continued employment by an employer as determined by the department upon recommendation of the retirement board shall be eligible to receive an allowance under the provisions of RCW 41.26.410 through  [[Orig. Op. Page 2]] 41.26.550.  Such member shall receive a monthly disability allowance computed as provided for in RCW 41.26.420 and shall have such allowance actuarially reduced to reflect the difference in the number of years between age at disability and the attainment of age fifty-eight."

             The pertinent language of the statute, with which you are here concerned, then appears in subsection (2) thereof as follows:

           "Any member who receives an allowance under the provisions of this section shall be subject to such comprehensive medical examinations as required by the department.  IF such medical examinations reveal that such a member has recovered from the incapacitating disabilityand the member is no longer entitled to benefits under Title 51 RCW, the retirement allowance shall be canceled and the member shall be restored to duty in the same civil service rank, of any, held by the member at the time of retirement or, if unable to perform the duties of the rank, then, at the member's request, in such other or lesser rank as may be or become open and available, the duties of which the member is then able to perform.  In no event shall a member previously drawing a disability allowance be returned or be restored to duty at a salary or rate of pay less than the current salary attached to the rank or position held by the member at the date of the retirement for disability.  If the department determines that the member is able to return to service, the member is entitled to notice and a hearing.  Both the notice and the hearing shall comply with the requirements of chapter 34.04 RCW, as now or hereafter amended."  (Emphasis supplied)

             The above underscored portion of the statute highlights the legal issue which underlies your question.  RCW 41.26.470,supra, provides for the same disability retirement allowance for all LEOFF Plan II members without regard to whether the 51 RCW.  See, RCW 41.26.480; RCW 51.32.010 and particular disability was incurred in line of duty.  Those members, however, whose disabilities were incurred in line of duty may also be eligible for industrial insurance benefits as provided by Title RCW 51.32.180.  Therefore, we understand it to have been suggested that the that the reference to Title 51 RCW benefits in the above underscored portion of RCW 41.26.470(2) might have the effect of somehow limiting the applicability of the reemployment provisions of that portion of the statute to those  [[Orig. Op. Page 3]] individuals receiving disability retirement allowances for line of duty disabilities.

             Only members whose disabilities occurred in the course of their employment would have been entitled to benefits under Title 51 RCW at the outset‑-and therefore, only those members could later be said to be "no longer entitled" to such additional benefits.  Thus, the argument apparently would go, only they can meet the second condition which is spelled out in the statute for restoration to active service with their former employers.

 For several reasons, however, we think it highly unlikely that a court would adopt such a construction of the present statutory language of RCW 41.26.470.  First, quite simply, we are guided by the rule that where the language of a statute is unambiguous a court ordinarily will construe the statute according to its literal meaning unless the literal meaning is obviously contrary to the legislative intent.  Hatfield v. Greco, 87 Wn.2d 780, 557 P.2d 340 (1976).  In this instance, we are not at all certain that a court would even consider the present language of subsection (2), supra, to be ambiguous.  Read literally the statute draws no express distinction between duty and nonduty disabilities.  Either kind of disability, as above noted, clearly qualifies a member for the disability retirement allowance provided for in subsection (1) of the statute, also above quoted.  We cannot imagine anyone disputing that point.  But if that is conceded, then the language of subsection (2), when also read literally, clearly leads to the conclusion that members who have recovered from either kind of disability are equally entitled to the reemployment rights provided for therein.

            Once again, the first sentence of subsection (2) reads:

             "Any member who receives an allowance under the provisions of this section shall be subject to such comprehensive medical examinations as required by the department.   . . ."  (Emphasis supplied)

             "Any member" clearly includes those whose qualifying disabilities were not incurred in line of duty as well as those whose disabilities were duty-related.

             The second sentence of subsection (2) then begins:

             ". . . If such medical examinations reveal that such a member has recovered from the incapacitating disability  [[Orig. Op. Page 4]] and the member is no longer entitled to benefits under Title 51 RCW, the retirement allowance shall be canceled and the member shall be restored to duty . . ." (Emphasis supplied)

             Here, "such a member" clearly refers back to the words "any member who receives an allowance" in the previous sentence.  Thus, "such a member" includes members who had incurred nonduty disabilities.

             If the statute is read in this manner, the phrase "and the member is no longer entitled to benefits under Title 51 RCW" would, in turn, serve to delay the cancellation of the disability retirement allowance and the restoration to duty until such time as the member, if receiving industrial insurance benefits as well, ceased doing so.  Conversely, that limitation simply would not apply in the case of those members who hadnever been eligible for industrial insurance benefits;i.e., those who incurred nonduty disabilities.  Such a member would be restored to duty as soon as the Department of Retirement Systems determined that the member had recovered from the incapacitating disability.

             Second, if a court were to look beyond the language of the statute itself and search for the legislature's intent, there is little likelihood that it would adopt an interpretation at variance with the plain meaning of the statute.  To do so, the court would have to be shown some convincing evidence of a legislative intent to limit reemployment rights to duty disabilities.  The usual source of evidence of this sort is in the published legislative history of the statute.  In this instance, the 1981 amendment to RCW 41.26.470 which resulted in the language with which we are here concerned (see, § 9, chapter 294, Laws of 1981) was introduced as House Bill 716 and eventually was added as a section of Substitute House Bill 138.  We have reviewed all references to both bills in the House and Senate Journals and have found no evidence to support a restrictive interpretation of the reemployment rights contained in subsection (2),supra.

             Third, the placement in the statute of the phrase "and the member is no longer entitled to benefits under Title 51 RCW" also makes a restrictive interpretation of the reemployment provision unlikely.  If the above‑quoted phrase were read to mean "and the member was disabled in the line of duty," thus limiting reemployment rights to such members, the authority of the Department of Retirement Systems to cancel previously granted disability allowances would be similarly limited to such members  [[Orig. Op. Page 5]] under an otherwise straightforward interpretation of the statute.  Thus, under such an interpretation, members who had fully recovered from a nonduty disability presumably would continue to receive a disability retirement allowance for the rest of their lives because they could not be restored to duty.  It is, however, also an established rule of statutory construction that a court should avoid an interpretation leading to such an absurd result.  See,Blondheim v. State, 84 Wn.2d 874, 529 P.2d 1096 (1975).

             Based upon all of the foregoing we therefore answer your question (as above stated) in the affirmative.  Pursuant to RCW 41.26.470(2), supra, nonduty LEOFF Plan II disability retirees who recover from their disabilities are to be restored to duty using the same procedures and under the same conditions as duty disability retirees.  The statutory language which we have discussed above should be construed to mean, simply, thatif a particular member also was entitled to receive industrial insurance benefits by reason of the qualifying disability, the statutory entitlement to restoration to duty may not be claimed until such time asthat member is no longer entitled to those other benefits.

             We trust that the foregoing will be of assistance.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Senior Deputy Attorney General 

DONALD F. COFER
Assistant Attorney General