SUPPLEMENTAL TIME LOSS COMPENSATION PAID INJURED WORKMAN

SUPPLEMENTAL TIME LOSS COMPENSATION PAID INJURED WORKMAN

Where a contract of employment provides for vacation and sick leave during the period of employment, the employer may supplement the time loss compensation received by an injured workman under the Workmen's Compensation Act and charge the same against his accrued vacation and sick leave.

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                                                                    May 1, 1952

Honorable A. M. Johnson
Director
Department of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 293

Attention:  Mr. John Shaughnessy

Dear Sir:

            We acknowledge receipt of your letter of April 22, 1952, requesting our opinion on the following question:

            "Where, by virtue of the employment contract, the employer agrees to supplement the time loss compensation received by an injured employee under the Workmen's Compensation Act, is it lawful to charge the supplemental wage compensation against the employee's accrued vacation and sick leave during a period of convalescence?"

            Our conclusions may be summarized as follows:

            Where a contract of employment provides for vacation and sick leave during the period of employment, the employer may supplement the time loss compensation received by an injured workman under the Workmen's Compensation Act and charge the same against his accrued vacation and sick leave.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Your question is presented in view of the provisions of subdivision (e) of RCW 51.32.095, which provides:

            "Should a workman suffer a temporary total disability and should his employer at the time of the injury continue to pay him the wages which he was earning at the time of such injury, such injured workman shall not receive any payment provided in paragraph (a) of this section from the accident fund during the period his employer shall so pay such wages."

            Under the foregoing provisions of the statute, the limitation is placed upon the workman who is being paid his full salary or wages by the employer during a period of temporary total disability.  It has no application to a situation where the employer is willing to supplement the time loss compensation in order that the combined compensation of the workman is equal to his regular wage.

            In an opinion dated June 21, 1949, to the chief examiner of the Division of Municipal Corporations [[Opinion No. 49-51-70]]it was pointed out that in an opinion dated November 23, 1940, to the director of Labor and Industries, this office held that notwithstanding the provision of the industrial insurance statute above quoted, an individual suffering an injury may be compensated even though he was receiving vacation pay during the period for which he is being compensated for time loss by industrial insurance.  In the same opinion it was held that where the employer supplements the industrial insurance payments it is not considered that the workman is receiving his wages, and therefore industrial insurance may, nevertheless, be paid.

            We therefore conclude that an employer may supplement the time loss compensation of an injured workman and charge it against his accrued vacation and sick leave.

Very truly yours,

SMITH TROY
Attorney General

BERNARD A. JOHNSON
Assistant Attorney General