WORKMEN'S COMPENSATION - PREMIUMS - INDUSTRIAL INSURANCE - EXTRAHAZARDOUS OCCUPATIONS

WORKMEN'S COMPENSATION ‑- PREMIUMS ‑- INDUSTRIAL INSURANCE ‑- EXTRAHAZARDOUS OCCUPATIONS.

Office employees of employers under classes 7-1, 9-1, 9-2 and 46-1 are required by the provisions Rem. Rev. Stat. (Sup.) § 7676 (a) (cf. RCW 51.20.010 et seq.) to be reported under their respective classes and class 49-4 applies only to such office employees of an employer subject to the compulsory provisions of the Act as are not covered by some other specific classification.

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                                                                February 16, 1954

Mr. John Shaughnessy
Supervisor of Industrial Insurance
Department of Labor & Industries
Olympia, Washington                                                                                                   Cite as:  AGO 53-55 No. 206

Dear Mr. Shaughnessy:

            We are in receipt of your letter of February 2, 1954, addressed to this office which reads as follows:

            "We are writing you for an opinion clarifying the intent of the law, particularly Class 9-1 and Class 9-2 with respect to what is meant by the term (includes all operations within shipyards).  You will note that this same language is used in connection with operations in Class 7-1 and Class 46-1.

            "Under the general classification of industries where power machinery is used and the offices of the company involved are on the premises and if the office force in such a case who go into the extra-hazardous operations department occasionally may be recorded in Class 49-4 but you will note in the four classes  [[Orig. Op. Page 2]] above listed that it states specifically all operations within the premises are covered under the payroll class of the operation.

            "We would appreciate having an opinion on this matter as soon as possible."

            Our conclusions may be summarized as follows:

            Office employees of employers in classes 7-1, 9-1, 9-2 and 46-1 are reportable under their respective classes, and class 49-4 is applicable only to such employees of an employer subject to the compulsory provisions of the Act if they are not covered by some other specific classification.

                                                                     ANALYSIS

            Rem. Rev. Stat. (Sup.) § 7676 (a) [cf. RCW 51.20.010 et seq.] sets up a schedule of industries and classes of employment according to which are computed the amounts to be paid into the Accident and Medical Aid Funds by the various employers of workmen engaged in extra-hazardous employment.  The classes scheduled therein vary as to their terms of exclusion and inclusion: for example, class 7-1, dam construction (includes every operation); classes 9-1 and 9-2, boat and shipbuilding (includes all operations within shipyards); class 46-1, powder works manufacturing (includes all operations); class 16-1, coke ovens, operations (excludes the office force).  With this latter class, we are not here concerned, but is used merely to point out that under this classification the Legislature has excluded office employees.  These employees could be brought in under class 49-4.  In other classes the statutory classification is broadened by additional and inclusive terms.  The classes with which we are here concerned include everything that properly falls within the occupation.

            It is to be noticed that class 49-4 is a subclass under elective adoption and includes office employees of employers subject to the compulsory provisions of the law and whose employment duties require exposure to extra-hazardous operations being conducted by the employer.  This applies, however, only when and if such office employees are not covered by any other class.  In the case ofPuget Sound Bridge & Dredging Company, et al., v. Department of Labor & Industries, 26 Wn. (2d) 550, the Auditor of the Department had written to the Appellant as follows:

             [[Orig. Op. Page 3]]

            "'In submitting reports to this Department your firm has included under class 49-4, those office employees whose duties require that they go out into the yard where ship construction operations are conducted.

            "'In view of the fact the office is located within the premises of the yard, being inside the fence enclosing the yard, we are of the opinion that all of the office employees are subject to the compulsory provisions of the Workmen's Compensation Act and are to be reported under class 49-4.  We are, therefore, requesting that you report the time of all office employees, starting June 1, 1944.  As your June report has been filed, it will be necessary that you forward a supplemental report for that month covering the time of the employees who were not included on the original report.'"

            From this communication appellant appealed to the Joint Board which sustained the supervisor's action.  On appeal to the Superior Court, judgment was entered affirming the Joint Board.  The Supreme Court in reversing the lower court said on page 557:

            "It is apparent, we think, that subclass 9-1, as found in § 7676 (a),supra, was broad enough to embrace office employees of shipyards, in so far as they performed work which was incidental to the industry within the shipyard.  We think it is also apparent that subclass 9-1, in its application to persons who were not actually engaged in shipbuilding, was broadened by chapter 193, Laws of 1933, when the provisions of that subclass were changed to include all operations within shipyard.

            "That the word 'operations' does not necessarily exclude office workers clearly appears from what was stated by this court in Morris v. Department of Labor and Industries, 179 Wash. 423, 38 P. (2d) 395.

             [[Orig. Op. Page 4]]

            "We are, then, confronted with the question of whether or not it was the intention of the legislature, in enacting into law subclass 49-4, in 1939, to take away the possible classification of shipyard office employees already existing under subclasses 9-1 and 9-2, supra, and make them subject to classification under subclass 49-4.

            "Whether or not the provisions of subclasses 9-1 and 9-2 are broader than the provisions of subclass 49-4, as applied to office employees of an employer subject to the compulsory provisions of the workmen's compensation act, might be a difficult question to answer; however, it seems to us that the provisions of subclasses 9-1 and 9-2 are so broad that it does not appear to us that it was the intention of the legislature, by the enactment of subclass 49-4, to in effect repeal by implication subclasses 9-1 and 9-2, as applied to office employees of shipyards.  In other words, we are of the opinion that, if the particular office employees here involved are subject to classification at all, they can be classified only under Rem. Rev. Stat. (Sup.), § 7676, subclasses 9-1 and 9-2, depending on whether appellant is engaged in constructing steel hulls or wooden hulls, and not under Rem. Rev. Stat. (Sup.), § 7676, subclass 49-4.

            "We are further of the opinion that subclass 49-4 is applicable only to such office employees of an employer subject to the compulsory provisions of the act as are not covered by some other specific classification."

            The same reasoning applies to classes 7-1 and 46-1.

            While the supreme court did not have before it the question of whether these office employees should be classified under class 9 because that question was not before the Joint Board or the trial court, we believe that the observations made disclose the proper interpretation and true intent of the legislature.

             [[Orig. Op. Page 5]]

            You are accordingly advised and it is our opinion that all office employees of the employers under classes 7-1, and 9-1, 9-2 and 46-1 should be reported under their respective classes and that class 49-4 is applicable only to such office employees of an employer subject to the compulsory provisions of the Act as are not covered by some other specific classification.

Very truly yours,

DON EASTVOLD
Attorney General

BERNARD A. JOHNSON
Assistant Attorney General