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AGLO 1971 No. 027 - February 18, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                February 18, 1971
 
 
 
The Honorable Paul Barden
State Representative, 30th District
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 27 (not official)
 
 
Dear Representative Barden:
 
            You have requested our opinion on the following questions relating to industrial insurance coverage for state employees:
 
            1.         Does the blanket order entered by the Department of Labor and Industries in March, 1961 validly bring all state employees under the Workmen's Compensation Act; and
 
            2.         What is the status of monies previously paid into the accident and medical aid funds, as well as the monies currently proposed for appropriation to those funds?
 
                                                                     ANALYSIS
 
            Question (1):
 
            The Department's rule1/ declaring coverage for state employees reads as follows (WAC 296-19):
 
            "(1) It is hereby declared and ordered that the state of Washington through any and all of its departments, divisions, boards, commissions and committees, or other agencies created by the state contitution and/or any legislative action, is engaged in an extrahazardous occupation in relation to all of its officers and employees, and therefore, subject to the compulsory provisions of the workmen's compensation act, effective April 1, 1961:
 
            "(2) With the exception of the following officers and employees‑-
 
             [[Orig. Op. Page 2]]
            "(a) The members of the legislature, the members of their immediate staffs, and any person employed immediately preceding, during, and immediately following the legislative session, to perform duties pertaining solely to that session.
 
            "(b) Commissioned and enlisted personnel of the military service of the state.
 
            "(c) Inmate employees.
 
            "(d) Professional consultants.
 
            "(e) Employees and officers whose employment is occasional, at infrequent intervals, and for a limited or temporary purpose."
 
            It seems clear to us that the Department of Labor and Industries has the power to declare an occupation or work to be extrahazardous and to be under the Industrial Insurance Act.  RCW 51.12.040 provides:
 
            "The director, through the division of industrial insurance, may, after hearing had upon his own motion, or upon the application of any party interested, declare any occupation or work to be extrahazardous and to be under this title.  The director shall fix the time and place of such hearing and shall cause notice thereof to be published once at least ten days before the hearing in at least one daily newspaper of general circulation, of this state.  No defect or inaccuracy in such notice or in the publication thereof shall invalidate any order issued by the director after hearing had.  Any person affected shall have the right to appear and be heard at any such hearing."
 
            RCW 51.12.050 provides, in material part:
 
            "Whenever the state, county, any municipal corporation, or other taxing district shall engage in any extrahazardous work, or let a contract therefor, in which workmen are employed for wages, this title shall be applicable thereto.  . . ."
 
            The Supreme Court, in State v. Bayles, 121 Wash. 215, 209 Pac. 20 (1922), reviewed the legislative history of what is now (in all  [[Orig. Op. Page 3]] material respects) RCW 51.12.040 and issued a clear statement of the Department's power under the statute:
 
            "The legislature has made several attempts to authorize the department to declare certain occupations which are not mentioned or included in the workmen's compensation act to be extra-hazardous and thus come under the provisions of that act.  Section 6604-2, Rem. Code (P.C. § 3469), being a part of the original workmen's compensation act, provides that:
 
            "'If there be or arise any extra-hazardous occupations or work other than those hereinabove enumerated, it shall come under this act, and its rate of contribution to the accident fund hereinafter established, shall be, until fixed by legislation, determined by the department hereinafter created, upon the basis of the relation which the risk involved bears to the risks classified in § 6604-4, Rem. Code (P.C. § 3471).'
 
            "In the case of State v. Powles, 94 Wash. 416, 162 Pac. 569, we held that such language did not authorize the department to declare additional occupations to be extrahazardous.  In an effort to correct this situation the legislature of 1919, in § 1, ch. 131, p. 341, Laws of 1919, added the following to § 2 of the original workmen's compensation act:
 
            "'The commission shall have power, after hearing had upon its own motion or upon the application of any party interested, to declare any such extra-hazardous occupation or work to be under this act.'
 
            "In the case of State v. Eyres Storage & Distributing Co., supra, we held that the amendment just quoted failed to accomplish the purpose apparently desired.  The 1921 legislature again amended § 2 of the original act, being § 6604-2, Rem. Code (P.C. § 3469), by adding thereto the following:
 
            "'The director of labor and industries through and by means of the division of industrial insurance shall have power, after hearing had upon its own motion, or upon the application of any party interested, to declare any  [[Orig. Op. Page 4]] occupation or work to be extra-hazardous and to be under this act . . .'  Rem. Comp. Stat., § 7674.
 
            "It is plain that, by this amendment, the legislature has expressly authorized the department, after a hearing as provided by the statute, to find and declare any occupation not already included within the workmen's compensation act to be extra-hazardous."  (Emphasis added.)
 
            In Bayles, the Supreme Court recognized a distinction between issues involving the power or jurisdiction of the Department to declare occupations extrahazardous and those involving the correctness of the Department's factual determinations of such hazard, stating, at p. 220:
 
            "A different question, however, arises concerning the contention of the appellants that the decision of the department was erroneous in that it found and declared that appellants' employees were engaged in an extra-hazardous occupation, when, as a matter of fact, as alleged in their answer, it was not extra-hazardous.  This contention does not go to the validity of the decision of the department but only to its correctness, . . ."
 
            In this regard, we must point out that this office, in issuing opinions, does not resolve or inquire into factual issues.  Accordingly, we do not examine the Department's conclusion that the designated employments are, in fact, extrahazardous.
 
            Further, the Department rule in question is not the only basis for recognizing industrial insurance coverage for the great majority of state employees.  The legislature, in 1961, enacted RCW 51.20.490 and RCW 51.20.600 (sec. 51.20.490, ch. 23, Laws of 1961; and sec. 51.20.600, ch. 23, Laws of 1961), establishing classifications for coverage of state employees, effective February 14, 1961, as follows:
 
            "Class 49-2
 
            "State employees of code departments, boards and commissions whose occupational duties are not enumerated as extrahazardous and regularly assigned inside occupations."  (RCW 51.20.490.)
 
             [[Orig. Op. Page 5]]
            "Class 60-1
 
            "State employees of code departments, boards and commissions, whose duties have been enumerated as extra-hazardous or regularly assigned outside occupations."  (RCW 51.20.600.)
 
            The legislative classifications of coverage are not, of course, necessarily dependent upon a declaration of hazard by the Department under RCW 51.12.040.  See State v. King County, 45 Wn.2d 397, 275 P.2d 429 (1954).  The courts have repeatedly utilized the classifications of occupations contained in RCW 51.20 to determine coverage.  See, e.g., Everett v. Department of Labor & Industries, 167 Wash. 619, 9 P.2d 1107 (1932); Morris v. Department of Labor & Industries, 179 Wash. 423, 38 P.2d 395 (1934); Bowen v. Department of Labor & Industries, 3 Wn.App. 759 (Dec. 1970).
 
            Thus, by administrative rule and legislative enactment, most state employees have been covered by industrial insurance for some ten years.  We are of the opinion that such coverage is valid.
 
            Question (2):
 
            By your second question, you have inquired as to the status of ". . . monies previously paid into the accident and medical aid funds, as well as the monies currently proposed for appropriation to those funds."
 
            Within the context of your letter, we understand this question to be one calling for an answer only if we were to conclude, in answer to your first question, that the coverage of state employees under the Industrial Insurance Act is invalid.  Then, of course, the question would arise as to the appropriate disposition of (a) payments previously made to the accident and medical aid funds on behalf of state employees, and (b) monies currently proposed to be appropriated for such payments.  However, inasmuch as we believe the question coverage to be valid, for the reasons above indicated, we do not reply to this question.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,


 
SLADE GORTON
Attorney General
 
 
JOHN C. MARTIN
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/The rule set forth was filed with the Code Reviser on April 10, 1962.  Prior rules covering the same basic subject matter were filed on December 2, 1960 and March 6, 1961 (see WAC 296-19 [[chapter 296-19 WAC]], p. 1).
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