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AGLO 1980 No. 15 - April 01, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington


(1) The State Board of Industrial Insurance Appeals may not use Title 51 RCW accident fund or medical aid fund monies to process and adjudicate appeals arising under the Crime Victims' Compensation Act.

(2) In the absence of any funds which may legally be used for the processing of crime victims compensation appeals, no appeal processing which requires an expenditure of state funds can properly be carried on by the Board of Industrial Insurance Appeals.

                                                                  - - - - - - - - - - - - -

                                                                    April 1, 1980

Honorable Michael L. Hall, Chairman
Board of Industrial Insurance Appeals
Capitol Center Building
410 West Fifth Avenue
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1980 No. 15

Dear Sir:

            By letter previously acknowledged you requested our opinion concerning the ability of the Board of Industrial Insurance Appeals to continue adjudication or processing of chapter 7.68 RCW "crime victim appeals" in the event that there are no funds available to cover Board expenses for that purpose.  We paraphrase the questions thus raised as follows:

            (1) May the Board of Industrial Insurance Appeals use Title 51 RCW accident fund and/or medical aid fund monies to process and adjudicate appeals arising under the Crime Victims' Compensation Act?

            (2) To what extent may the Board continue receiving, processing and adjudicating crime victims' appeals in the absence of sufficient funds to pay the costs of such processing?

             [[Orig. Op. Page 2]]

            We answer question (1) in the negative and respond to question (2) in the manner set forth in our analysis.


            Preliminarily, we note that the Board of Industrial Insurance Appeals is an independent quasi-judicial administrative agency which was originally established to review decisions and orders of the Department of Labor and Industries pursuant to appeals arising under the Washington Industrial Insurance Act, Title 51 RCW.  In addition, however, this same administrative tribunal now is also responsible for reviewing the department's decisions under the Washington Industrial Safety and Health Act (chapter 49.17 RCW) and, as indicated by your present inquiry, the Crime Victims Compensation Act (chapter 7.68 RCW).  See, RCW 7.68.110.

            Question (1):

            In response to your first question we conclude that the Board of Industrial Insurance Appeals may not utilize monies from the Title 51 RCW (Industrial Insurance) accident or medical aid funds for the purpose of processing or adjudicating appeals under chapter 7.68 RCW, the Crime Victims' Compensation Act.

            Although the review functions of the board under that act are substantially similar to its original function of reviewing decisions of the Department of Labor and Industries in connection with the state industrial insurance program, the two programs, workmens compensation and crime victims' compensation, are entirely independent of each other insofar as funding is concerned.  See, RCW 7.68.090 which provides as follows:

            "The director shall establish such fund or funds, separate from existing funds, necessary to administer this chapter, and payment to these funds shall be from legislative appropriation, reimbursement and subrogation as provided in this chapter, and from any contributions or grants specifically so directed."  (Emphasis supplied.)

Likewise, RCW 7.68.150 provides that:

            "All benefits and payments made, and all administrative costs accrued, pursuant  [[Orig. Op. Page 3]] to this chapter shall be funded and accounted for separate from the other operations and responsibilities of the department."

            Furthermore, there is simply no provision in Title 51 RCW which purports to authorize expenditures of industrial insurance accident or medical aid fund monies for any crime victims' compensation purpose.  In fact, there is no reference at all to the crime victims compensation program in that law relating to workmen's compensation.  On the contrary, the only Title 51 provision relating to board expenses is to the effect that accident and medical aid fund monies are to be used only for industrial insurance appeals purposes.  See, RCW 51.52.030 which reads as follows:

            "The board may incur such expenses as are reasonably necessary to carry out its dutieshereunder, which expenses shall be paid, one‑half from the accident fund and one‑half from the medical aid fund upon vouchers approved by the board."  (Emphasis supplied.)

            We also note the case ofState ex rel. Trenholm v. Yelle, 174 Wash. 547, 25 P.2d 569 (1933) in which the court held that the legislative design in Title 51 RCW was to create the accident and medical aid funds as trust funds to be utilized only in accordance with stated industrial insurance purposes.  The court then further indicated that absent a clear statement of legislative intent it would not construe a certain provision as allowing expenditure of those funds except for traditional workmen's compensation purposes.  In so concluding the court said, at pp. 549-50:

            "The purpose of the workmen's compensation act, as originally enacted, and as amended from time to time by later statutes, has been, and is, to provide compensation for workmen injured in extrahazardous occupations as defined by the act.  To that end, the act has created and established two funds known as the 'accident fund' and the 'medical aid fund,' respectively.  The industries of the state engaged in extrahazardous work are required to pay into the accident fund certain premiums according to the schedule provided.  The workmen so engaged are required to pay a certain percentage of their wages into  [[Orig. Op. Page 4]] the medical aid fund for its maintenance.  These funds are therefore trust funds drawn from particular sources and devoted to special purposes.  By the act itself, the fund is impressed with a trust."  (Emphasis supplied.)

            Thus, expenditure of monies from the Title 51 RCW medical aid and/or accident fund for processing appeals under the chapter 7.68 RCW crime victims' compensation law would be contrary to legislative intent specifically expressed in the applicable statutes.  We therefore must answer your first question in the negative.

            Question (2):

            In posing this further question you have asked us to assume the absence of any other monies, appropriated or otherwise, which are legally available to fund the processing and adjudication of crime victims' compensation appeals by the board.  The province of this opinion is thus simply to advise you regarding the legal ability of the board to continue the processing of crime victims' appeals under that assumed factual circumstance.  Conversely, we have not been requested to determine the actual status of the board's funds or to address the issue of seeking additional funding.1/

             As you are aware, chapter 7.68 RCW does not itself prescribe a procedure to be followed by the board should there be insufficient or no funds available to pay for its processing of appeals pursuant to that law.  As a general matter, however, state agencies are not permitted to incur "deficiencies."  We thus find in RCW 43.88.260, a section of the state Budget and Accounting Act, the following:

             [[Orig. Op. Page 5]]

            "It shall be unlawful for any agency head or disbursing officer to incur any deficiency and any appointive officer or employee violating the provisions of this section shall be subject to summary removal."

Accord, State ex rel. Greive v. Martin, 63 Wn.2d 126, 385 P.2d 846 (1963).  And, as this office has previously noted, a deficiency within the meaning of RCW 43.88.260,supra, "presumably means, simply, a liability in excess of available funds."  See, AGLO 1976 No. 32, copy enclosed.

            The requirement that an agency limit its spending to available funds was recently underscored inPannell v. Thompson, 91 Wn.2d 591, 589 P.2d 1235 (1979).  In that case the source of funding for a particular program of the Department of Social and Health Services relating to supplementing "general" public assistance was a limited appropriation.  The court held that when that appropriation was exhausted the program necessarily had to stop.2/   Moreover, in so doing the court in Pannell also pointed out that there are significant statutory penalties for overspending or overencumbering funds or incurring a deficiency.  Accordingly, at page 600, the court said:

            "Far from being required to expend more DSHS funds to continue the increased grant levels, such action by the Secretary would have beenunlawful in light of § 57(7)'s limitation.  RCW 43.88.260, 43.88.270, 43.88.290, 43.88.300.  Further, an incurred deficiency, overencumbrance or expenditure of funds contrary to the terms, limits, or conditions of any appropriation made by law could have caused summary removal of the responsible agency head or appointive officer and could have given rise to civil as well as criminal penalties.  RCW 43.88.260, 43.88.270, 43.88.290, 43.88.300."

             [[Orig. Op. Page 6]]

            Therefore, in response to your second question it is our opinion that in the absence of any funds which may legally be used for the processing of crime victims' compensation appeals, no appeal processing which requires an expenditure of state funds can properly be carried on by the Board of Industrial Insurance Appeals.3/

             We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/We do note, however, that § 70, chapter 270, Laws of 1979, 1st Ex. Sess. contains the following three separate appropriations to the board for the 1979-81 biennium

    "General Fund Appropriation                        ......... $.......................               82,000
     Accident Fund Appropriation                       ......... $.......................          1,526,000
     Medical Aid Fund Appropriation                 ......... $ .....................            1,525,000
     Total Appropriation                                         ......... $.......................          3,133,000"

While the second and third of these appropriations may not be used to process crime victims' appeals (accord, our answer to question (1)), the first one is undoubtedly available for that purpose.

2/Although this case involved the exhaustion of an appropriation for the actual payment of benefits rather than, as here, one for the payment of administrative expenses of a given program the analogy is nevertheless valid.   Absent funds, further performance is impossible.  And where performance is impossible, even a writ of mandamus will not lie to compel agency action.  See,e.g., Uniontown v. Klemgard, 156 Wash. 267, 286 Pac. 648 (1930).

3/Assuming this answer to your second question you have asked whether the board, faced with insufficient funds, should reject further appeals or, instead, hold them ". . . until funding is sufficient to cover the costs of adjudication."   Since no appeal processing which requires an expenditure of funds can be carried on absent such funds, we would advise the board to follow the latter course.

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