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AGO 1952 No. 442 - December 17, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

LIABILITY OF POLICE AND PENSION FUND BOARD FOR CLAIM OF PATROLMAN INJURED IN LINE OF DUTY WHO RECEIVED SETTLEMENT FROM PERSON CAUSING ACCIDENT.

A Patrolman who received medical and hospital care under a private contract waives payment for such services from Police Relief and Pension Fund.

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                                                               December 17, 1952 

Honorable Cliff Yelle
State Auditor
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 442

 Attention:  Mr. A. E. Hankins 

Dear Sir:

             In 1946 the Police Relief and Pension Fund Board of the city of Aberdeen, a first class city, executed a contract with Grays Harbor Community Hospital Association under the terms of which the latter was obligated to furnish to the members of the Police Department all necessary medical, nursing and hospital services to which they are entitled by virtue of the provisions of RCW 41.20.120.  The cost of this service is a monthly fee, based on the number of members covered by the contract, paid out of the police relief and pension fund.  A poll of the members of the police department resulted in a majority vote in favor of the contract.

             A police patrolman was injured while riding a police vehicle on an emergency run.  He did not avail himself of the services to which he was entitled under the contract above mentioned but he received medical and hospital care through the Grays Harbor Medical Service Corporation with which he had a private family medical service plan contract, the premiums on which he personally paid.  The action brought by the police patrolman to recover from the tort feasor because of whose negligence the former sustained personal injuries resulting in settlement in the amount of $4,000 in favor of the patrolman.  A provision of the private contract the patrolman had with the Grays Harbor Medical Service Corporation relieves the contractor from payment for medical and hospital services, or subrogates it to the patrolman's right to recover from a third party causing the injury for such medical and hospital services.  Under that provision the medical service corporation with which the patrolman filed claim with the Police Relief and Pension Board for payment in the amount of $929.00 for hospital and medical care received by him for the injuries which he sustained in the line of duty.

              [[Orig. Op. Page 2]]

            On the above statement of facts you pose in your letter of December 4, 1952, the specific question:

             "Is the Police Relief and Pension Fund Board liable in view of RCW 41.20.120 for the claim amounting to $929 as presented by the police patrolman?"

             It is the conclusion of this office that the patrolman, by his failure or refusal to avail himself of the services to which he was entitled under the contract of the Police Relief and Pension Board with the Grays Harbor Community Hospital Association, abandoned or waived payment from the police relief and pension fund of his claim for payment for medical and hospital services received by him under his private contract.

                                                                      ANALYSIS

             RCW 41.20.010 to 41.20.040 provide for the creation of the board of trustees of the Police Relief and Pension Board in a first class city and define the powers of that board.  The statute specifically authorizes the board to make all needful rules and regulations for its guidance in conformity to the provisions of the statute under which the members of the police department are entitled to certain benefits.

           The board is an agency created by the statute and is empowered to make rules and regulations for the government and management of the business of the relief and pension fund.  In administration of the act that administrative board possesses, in addition to the specific powers granted to it by the legislature, all such powers as are either necessarily incident or essential to the purposes and object of the statute.  Pursuant thereto the board entered into a contract with the Grays Harbor Community Hospital Association under which the members of the police department would receive all necessary medical and nursing and hospital care.  RCW 41.20.120 provides that whenever any member of the police department suffers or sustains sickness or disability while a member of the department not caused or brought on by his own misconduct and is confined to a hospital or to his home and requires nursing care or attention, the police relief and pension board shall pay the cost of the necessary hospital care and nursing expenses out of the fund.

             The Relief and Pension Board made provision (as it had the right to do), which was approved by the members of the police department, for treatment of injured members of the police department.  The injured patrolman refused to avail himself of the services to which he was entitled under that contract and exercised his right to enter into a private contract with another contractor for medical and hospital services.

              [[Orig. Op. Page 3]]

            It is a rule of universal application and needs no citation of sustaining authority that where, as in the instant case, one refuses to accept medical and hospital care provided for him under a contract made for his benefit and receives care under the terms of a private contract made by him with another medical service corporation, such rejection constitutes a waiver of his rights under the former contract.

 Very truly yours, 
SMITH TROY
Attorney General

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