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AGO 1951 No. 110 - August 28, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

STATE PATROL ‑- BENEFITS DEDUCTED FROM DISABILITY AWARDS ‑- INDUSTRIAL INSURANCE

All amounts received as monthly pensions from the Department of Labor & Industries, including increases pursuant to statute, are to be deducted from the State Patrol's disability award, and the most practical and lawful means of recovering overpayments is to deduct a small amount each month from the officer's award until the overpayments are made up.

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                                                                 August 28, 1951

Honorable James A. Pryde
Chief, Washington State Patrol
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 110

Dear Sir:

            This is in reply to your letter of August 2, 1951, in which you requested our opinion regarding the State Patrol Disability Retirement Act.

            The facts involved in your inquiry are essentially as follows:

            An officer had been adjudged permanently disabled and paid one‑half of his then existing wage less any amounts he was to receive from the Department of Labor & Industries.  Thereafter, the officer received an increase in his workmen's compensation pension from the Department of Labor & Industries pursuant to statute.  This increase amounted to $40.00 per month.  The State Patrol was not advised of this increase and did not deduct the $40.00 increase each month from the amount it paid to the disabled officer.

            The first question then is whether the State Patrol should deduct the $40.00 increase from the disability award it pays to the officer.  Secondly, if this $40.00 increase should be deducted, can the State Patrol now recover back from the officer the overpayments?

            Our conclusion is as follows:

             [[Orig. Op. Page 2]]

            All amounts received as monthly pensions from the Department of Labor & Industries, including increases pursuant to statute, are to be deducted from the State Patrol's disability award, and the most practical and lawful means of recovering overpayments is to deduct a small amount each month from the officer's award until the overpayments are made up.

                                                                     ANALYSIS

            Section 1, chapter 174, Laws of 1947 (§ 6362-65 Rem. Supp. 1947), provides in part as follows:

            "The Chief of the Washington State Patrol shall, and he is hereby authorized to, relieve from active duty Washington State Patrol officers who, while in the performance of their official duties, have been injured or have become incapacitated, or may hereafter be injured or become incapacitated, to such an extent as to be mentally or physically incapable of active service.  Such officers shall receive one‑half (1/2) of their compensation at the existing wage, during the time such disability continues in effect, less any compensation received through the Department of Labor and Industries.  * * *"

            The above section makes it clear that "any compensation received through the Department of Labor & Industries" is to be deducted from the amount paid to the disabled officer by the State Patrol.  Thus, it is our opinion that any increases in the pension awarded by the Department of Labor and Industries are accordingly to be deducted by the patrol from its award.  When the legislature in 1947 undertook to increase the Department of Labor and Industries' awards it must have intended chapter 174, Laws of 1947, to take into consideration these increases.  Accordingly, we feel that the patrol should deduct any increases awarded by the Department of Labor and Industries from a disability award it makes to a disabled officer.

            The problem of whether the patrol may now recover what amounts to an overpayment is not so easily answered.  We know of no express statutory authority authorizing the state to recover overpayments.

            In an opinion to the Department of Labor & Industries November 18, 1942, we held that the department had the right to collect overpayments from a claimant who had received more than he was entitled to receive.  We would be of the  [[Orig. Op. Page 3]] opinion that this same right would apply to the State Patrol were it not for the doubts cast in the case of State ex rel. Dunbar v. Olson, 172 Wash. 424, 20 P. (2d) 850, in which our court held that there being no provision in the workmen's compensation act authorizing a recovery of a part of an award from an injured employer, no action would lie for the recovery of an excessive award.  This case can be distinguished from the instant situation, but we feel the distinction would not warrant us in advising you to institute steps to recover the full amount of the overpayments.

            It would be our suggestion, in light of the circumstances, that the patrol withhold a small sum each month from the officer's salary until the overpayments have been absorbed.  We feel this procedure would be more closely in accord with the status of the law and more in keeping with the circumstances of this matter.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General

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