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AGLO 1980 No. 32 - November 18, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington

PENSIONS ‑- RETIREMENT ‑- INDUSTRIAL INSURANCE ‑- LEOFF ‑- SIMULTANEOUS PAYMENT OF DISABILITY LEAVE AND WORKERS' COMPENSATION

Neither RCW 41.26.130(4) nor anything contained in the state Industrial Insurance Act preclude a Plan I LEOFF member who is on disability leave because of injuries sustained in the performance of some other employment from simultaneously receiving a disability leave allowance under RCW 41.26.120 and workers' compensation benefits in accordance with Title 51 RCW.

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                                                               November 18, 1980

Honorable R. Ted Bottiger
State Senator, 2nd District
8849 Pacific Avenue
Tacoma, Washington 98444                                                                                                               Cite as:  AGLO 1980 No. 32

Dear Sir:

            By recent letter you requested our opinion on two questions regarding disability coverage for certain members of the Law Enforcement Officers' and Fire Fighters' retirement system (LEOFF).  We paraphrase your questions as follows:

            (1) May the provisions of RCW 41.26.130(4) be applied to a Plan I LEOFF member who is on disability leave, and does a local disability board have the authority to invoke those provisions?

            (2) If a Plan I member of LEOFF is employed at a second job and has coverage under state industrial insurance for that second job, can the member receive disability leave pay and workmen's compensation benefits from the two systems at the same time?

            We answer your first question in the negative and your second question in the affirmative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            A Plan I member of the Law Enforcement Officers' and Fire Fighters' retirement system is one who established membership in that retirement system on or before September 30, 1977.  See, RCW 41.26.005.  Your questions, as above stated, deal only with such a member and not, instead, with the situation of a Plan II member under RCW 41.26.400, et seq.

            According to material accompanying your letter the particular case in point involves a certain Plan I LEOFF member who was employed full time as a fire fighter by a fire protection district in Pierce County and, in addition, was working at another unrelated job during his off-duty hours.  While engaged in his second job he sustained a broken leg and, as a consequence, is currently unable to work at either position.  Because he is thus unable to perform his duties as a fire fighter he applied to the Pierce County Law Enforcement Officers' and Fire Fighters' disability board for disability coverage in accordance with RCW 41.26.120 and was granted a "non-duty related disability leave, not to exceed six months."  In addition, inasmuch as he was covered by state industrial insurance in connection with his second job, he is also now receiving workers' compensation payments from the Department of Labor and Industries.

            Question (1):

            Your first question involves the applicability, under the foregoing factual circumstances, of so much of RCW 41.26.130 as provides that:

". . .

            "(4)Benefits under this section for a disability that is incurred while in other employment will be reduced by any amount the member receives or is entitled to receivefrom workmen's compensation, social security, group insurance, other pension plan, or any other similar source provided by another employer on account of the same disability.

            ". . ."  (Emphasis supplied.)

            In our opinion, this provision is not applicable.  Simply stated, the "benefits under this section"‑- which are  [[Orig. Op. Page 3]] thus to be reduced‑-involve only the disabilityretirement allowance which is payable, under RCW 41.26.130 itself, ". . . upon retirement for disability . . ." and not the disabilityleave allowance referred to in RCW 41.26.120.

            Under the latter statute, receipt of a disability retirement allowance (to which RCW 41.26.130(4),supra, would apply) is generally preceded (as in the instant case) by a period of not more than six months during which the disabled Plan I member is to receive what is therein referred to as a disabilityleave allowance ". . . equal to his full monthly salary . . ."1/   But, unlike RCW 41.26.130, supra, RCW 41.26.120 contains no provision for off-setting, or reducing, a disability leave allowance because of workers' compensation payments or the like.

            Nor, in our opinion, could a local disability board administratively invoke the provisions of RCW 41.26.130(4), supra, in a disability leave situation.  Such a board, as a public agency, has only those powers which have been granted to it by the legislature, either expressly or by necessary implication.  Accord,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).  There is, however, nothing in the applicable statutes which even remotely suggests the existence of a legislative authorization to a local disability board to modify or reduce the disability leave allowance payable to a Plan I LEOFF retirement system member because of his or her contemporaneous receipt of workmen's compensation benefits.

            Question (2):

            Likewise, in response to your second question, we have carefully examined the provisions of our state Industrial Insurance Act (as codified in Title 51 RCW) and have found nothing therein which precludes the simultaneous payment of a LEOFF disabilityleave allowance and workers' compensation benefits under industrial insurance to a Plan I LEOFF member.

             [[Orig. Op. Page 4]]

            We are aware of RCW 51.32.090(6), a part of the Industrial Insurance Act which provides as follows:

            "(6) Should a worker suffer a temporary total disability and should his or her employer at the time of the injury continue to pay him or her the wages which he or she was earning at the time of such injury, such injured worker shall not receive any payment provided in subsection (1) of this section during the period his or her employer shall so pay such wages."

            In our opinion, however, this subsection is inapplicable under the factual circumstances here contemplated.  In the first place, the fire protection district involved is not an "employer" under Title 51 RCW insofar as its LEOFF Plan I employees‑-such as the individual here in question‑-are concerned.  See, RCW 41.26.270; and see also, Taylor v. Redmond, 89 Wn.2d 315, 571 P.2d 1388 (1977).  Secondly, as we read the provision it applies only to wages paid by the employer in whose employ the worker was injured and not to payments made by another employer‑-in this case, the subject Pierce County fire protection district.  And thirdly, in any event, disability leave payments made by a municipal employer under RCW 41.26.120,supra, are not "wages"; rather, they are disability benefits in lieu of wages.  See, AGO 1978 No. 8, copy enclosed, where, at page 3 (quoting from our previous opinion of September 9, 1971 to the Benton County prosecuting attorney) we explained:

            "'The critical point to be noted . . . is that a "disability leave allowance" constitutes a benefit which is paid to a disabled law enforcement officer or fire fighter is lieu of salary; in other words, disability leave connotes a separation from an employer's payroll because of disability‑-followed by payment to the separated member of a disability leave allowance equal to the full salary which was payable to the member at the time of incurrence of his disability.'"2/

              [[Orig. Op. Page 5]]

            We also have taken note of RCW 51.12.050 which deals, specifically, with industrial insurance coverage for state, county and municipal work and provides, in part, that:


            "Whenever and so long as, by state law, city charter, or municipal ordinance, provision is made for employees or peace officers injured in the course of employment, such employees shall not be entitled to the benefits of this title and shall not be included in the payroll of the municipality under this title:  Provided, That whenever any state, law, city charter, or municipal ordinance only provides for payment to the employee of the difference between his or her actual wages and that received under this title such employees shall be entitled to the benefits of this title and may be included in the payroll of the municipality."

            The thrust of this provision, however, is merely to qualifiedly disqualify those noted state, county or municipal employees from simultaneous industrial insurance coverage in their capacities as public employees and not, as in the instant case, in conjunction with some other "second" job in the private sector.  Therefore, like RCW 51.32.090(6), supra, this portion of RCW 51.12.050 has no bearing on the proper resolution of your present question.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Notably, no such disability leave allowance, as a precursor to disability retirement, is provided for in the case of Plan II LEOFF members under RCW 41.26.400, et seq .

2/Thus, in that respect, disability leave is to be distinquished from either sick leave or vacation time during which a member is still on the payroll and thus must be regarded as still "in service," at least insofar as the Law Enforcement Officers' and Fire Fighters' retirement system is concerned.   Accord, RCW 41.26.030(14) which defines "service" as meaning ". . . all periods of employment for an employer as a fire fighter or law enforcement officer, for which compensation is paid, . . ."  On the other hand, under RCW 41.26.120, supra, disability leave is only payable following a "discontinuance of service."

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