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AGO 1951 No. 024 - April 25, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

LABOR AND INDUSTRIES ‑- ELECTIVE ADOPTION COVERAGE.

Rem. Rev. Stat. 7679-1 does not supersede Rem. Rev. Stat. 7696, elective adoption employers and workers are entitled to the same benefits from Rem. Rev. Stat. 7679-1 as those under compulsory conversion, and the classification of the type of work engaged in is not changed by election to come under the act.

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                                                                   April 25, 1951

Honorable A. M. Johnson
Director of Labor and Industries
Olympia, Washington                                                                                                   Cite as:  AGO 51-53 No. 24

Dear Sir:

            We have your recent letter in which you ask the following question:

            (1) "Does section 7679-1 and the reference therein to extrahazardous employment take precedence over the provisions of section 7696 * * *?

            (2) "Are elective adoption employers and workmen entitled to the same rights and privileges under section 7679-1 as those who are subject to the compulsory provisions of the Act?

            (3) "Does an election to come under the Act change the classification of the employer's work from nonhazardous to extrahazardous in the eyes of the law?"

            Summarized, our conclusions are:

            Rem. Rev. Stat. 7679-1 does not take precedence over the provisions of Rem. Rev. Stat. 7679, giving those workers under elective adoption coverage under the act.  Elective adoption employers and workmen are entitled to  [[Orig. Op. Page 2]] the same rights and privileges under Rem. Rev. Stat. 7679-1 as those who are subject to the compulsory provisions of the act.  Election to come under the act does not change the classification of the employer's work from nonhazardous to extrahazardous.

                                                                     ANALYSIS

            Rem. Rev. Stat. 7679-1 begins with the phrase "Within the contemplation of this act * * *," which indicates the legislative intent to use the term "extrahazardous employment," which appears at the end of the first sentence of the quotation, in the same sense as that term is used in other parts of the act.  The first reference to occupational diseases was in chapter 212, Laws of 1937, which amended section 5, chapter 74, Laws of 1911, as amended by section 2, chapter 132, Laws of 1929, by adding a new section to be known as section 7679-1.  This enactment was amended by chapter 135, Laws of 1939, and reached its present form in chapter 235, Laws of 1941.  The words "This Act" in an amendatory act refer to the original act and not the amendatory act.  Henry v. McKay, 164 Wash. 526, 3 P. (2d) 145, 77 A.L.R. 1025.  Hence the legislature, in referring to extrahazardous employment in Rem. Rev. Stat. 7679-1, did not intend to treat occupational diseases in a different manner than provided for in the rest of the act.

            Section 7696 provides that those coming under the act by elective adoption shall be "subject to all the provisions of section 7673 to 7796 [of Rem. Rev. Stat.], and entitled to all of the benefits thereof."  Rem. Rev. Stat. 7674 states the act "is intended to apply to all such inherently hazardous works and occupations."  Rem. Rev. Stat. 7673 speaks of "* * * sure and certain relief for workmen, injured in extrahazardous work."  The act, being aimed at providing compulsory coverage for those employed in what are described in Rem. Rev. Stat. 7674 as extrahazardous employments, it speaks throughout of injury in extrahazardous employment.  By definition, those eligible for elective adoption are engaged in nonhazardous employment.  If such persons are not eligible for benefits under Rem. Rev. Stat. 7679-1, the purpose of Rem. Rev. Stat. 7696 is lost.  The Workmen's Compensation Act is highly remedial in character, and as such is to be liberally construed with a view to the accomplishment of its beneficent purposes.  Hastings v. Dept. of Labor and Industries, 24 Wn. (2d) 1, 163 P. (2d) 142.  It cannot be presumed the legislature would do a futile thing, and statutes will be interpreted on the assumption that the legislature was aware of existing statutes, the rules of statutory construction, and the jurisdictional decisions.  Sutherland, Statutory Construction, 3rd Ed., section 4510.  That those engaged in nonhazardous  [[Orig. Op. Page 3]] employment but covered by elective adoption are entitled to benefits for injury in nonhazardous employment is shown byThompson v. Dept. of Labor and Industries, 192 Wash. 501, 73 P. (2d) 1320.

            Rem. Rev. Stat. 7674 specifically describes certain kinds of work as extrahazardous and expressly excludes certain others from this classification.  This indicates legislative intention to treat such excluded occupations as nonhazardous regardless of such employers and employees coming under the act by elective adoption.  Further indication that election to come under the act does not change the classification is found in Rem. Rev. Stat. 7674 in the provision for addition to the list of extrahazardous employments by the Director of Labor and Industries, acting through the Division of Industrial Insurance, after a hearing.  Any doubt remaining on this last point as to whether elective adoption changes the classification of the work is answered by the case of Pryor v. Safeway Stores, Inc., 196 Wash. 382, 83 P. (2d) 241, which expressly holds that employments brought under the act by elective adoption do not thereby become extrahazardous.

            Thus, in conclusion, we are of the opinion that Rem. Rev. Stat. 7679-1 does not supersede Rem. Rev. Stat. 7696, elective adoption employers and workers are entitled to the same benefits from Rem. Rev. Stat. 7679-1 as those under compulsory conversion, and the classification of the type of work engaged in is not changed by election to come under the act.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General

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