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AGO 1971 No. 14 - April 14, 1971
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

PENSIONS ‑- WASHINGTON LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM ‑- DISABILITY LEAVE ‑- DISABILITY RETIREMENT

(1) A local disability board may allow a member of the retirement system who has previously been granted a disability leave, to return to duty on a conditional basis and for a limited period of time as a method of determining whether he is unable to continue his service within the meaning of RCW 41.26.120, where the existence or nonexistence of a continuing disability has not been conclusively established to the satisfaction of the board by a medical examination.    

(2) Such a conditional return to duty does not entitle the member to a second six-month period of disability leave for the same disability if, based upon this trial period of service, he is then found still to be disabled; if this should occur, disability retirement is the proper benefit to be granted.

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

                                                                   April 14, 1971

Honorable Lloyd G. Baker
Director, Washington Law Enforcement
Officers' and Fire Fighters' Retirement System
201 General Administration Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1971 No. 14

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) May a local law enforcement officers' and fire fighters' disability board allow a member of the retirement system, who has previously been granted a disability leave, to return to duty on a conditional basis and for a limited period of time as a method of determining whether he is unable to continue his service within the meaning of RCW 41.26.120, where the existence or nonexistence of a continuing disability has not been conclusively established to the satisfaction of the board by a medical examination?

            (2) If the answer to the first question is in the affirmative,  [[Orig. Op. Page 2]] does this conditional period of service entitle the member to a second six-month period of disability leave for the same disability if, based upon his trial period of service, he is then found still to be disabled?

            We answer your first question in the affirmative, and your second question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Chapter 41.26 RCW codifies the provisions of law1/ establishing and governing the new Washington law enforcement officers' and fire fighters' retirement system.  RCW 41.26.120, to which you have referred, deals with the processing of applications by members of this system for disability retirement allowances.2/   This statute provides, in material part, as follows:

            "Any member, regardless of his age or years of service may be retired by the disability board, subject to approval by the retirement board as hereinafter provided, for any disability which has been continuous since his discontinuance of active service and which renders him unable to continue his service, whether incurred in the line of duty or not.  No disability retirement allowance shall be paid until the expiration of a period of six months after the disability is incurred during which period the member, if found to be physically or mentally unfit for duty by the disability board following receipt of his application for disability retirement, shall be granted a disability leave by the disability board and shall receive an allowance equal to his full monthly salary from his employer for such period.  Applications for disability retirement shall be processed in accordance with the following procedures:

            "(1) Any member who believes he is or is believed to be physically or mentally disabled shall be  [[Orig. Op. Page 3]] examined by such medical authority as the disability board shall employ, upon application of said member, or a person acting in his behalf, stating that said member is disabled, either physically or mentally:  Provided, That no such application shall be considered unless said member or someone in his behalf, in case of the incapacity of a member, shall have filed the application within a period of one year from and after the discontinuance of service of said member.

            "(2) If the examination shows, to the satisfaction of the disability board, that the member is physically or mentally disabled from the further performance of duty, and that such disability has been continuous from the discontinuance of active service, the disability board shall enter its written decision and order, accompanied by appropriate findings of fact and by conclusions evidencing compliance with this chapter as now or hereafter amended, granting the member a disability retirement allowance; otherwise, if the member is not found by the disability board to be so disabled, the application shall be denied pursuant to a similar written decision and order, subject to appeal to the retirement board in accordance with RCW 41.26.200."

            When investigating the requirements of these provisions, it is perhaps instructive to have in mind the procedures which are to be followed after the incurrence of the disability in the case of a member whose disability is clearly established; in sequential order, these procedural steps are as follows:

            1. Application for a disability retirement allowance is made;

            2.         The local disability board3/ finds the member unable to perform his duty;

            3. The member is granted a disability leave for a period of not to exceed six months and receives an allowance from his employer during this period in an amount equal to his full monthly salary;

             [[Orig. Op. Page 4]]

            4. At the end of the six-month disability leave period the member is examined by "such medical authority as the board shall employ";

            5. If, on the basis of this examination the member is found still to be disabled, and the disability is found to have been continuous since his discontinuance of service, the member is then granted a disability retirement allowance, subject to review by the state retirement board.4/

             Your questions contemplate a situation in which the medical examination (No. 4 above) does not conclusively establish the continuing existence of a disability.  What alternatives then exist for the local disability board?

            Question (1):

            Your first question must be resolved by deciding whether the medical examination referred to in subsections (1) and (2) of RCW 41.26.120 is to be regarded as the exclusive evidentiary source available to a local disability board in determining whether or not a continuing disability exists.  The critical statutory language is as follows:

            "(2) If the examination shows,to the satisfaction of the disability board, that the member is . . . disabled . . . the disability board shall enter its written decision and order . . . otherwise, if the member is not found by the disability board to be so disabled, the application shall be denied . . ."  (Emphasis supplied.)

            Here, in a case such as that giving rise to your questions, the medical examination hasnot shown ". . . to the satisfaction of the disability board, that the member is . . . disabled . . ."  Nor, on the other hand, has the board been able to make a negative finding; i.e., that ". . . the member is  [[Orig. Op. Page 5]] not found . . . to be so disabled . . ."  The very possibility of this "middle ground," so to speak, suggests that the legislature did not intend the medical examination to be the exclusive method of determining the extent of the member's disability ‑ i.e., his ability or inability to return to work ‑ at the end of his period of disability leave.  Moreover, this view is supported by the qualifying language, "to the satisfaction of the disability board," which indicates that the board is to weigh the value of the medical evidence against other factors.  Thus, in order to be retired for disability a member must have been "found by the disability board to be so disabled" and not merely by the medical examiner.

            To the extent that RCW 41.26.120, supra, may, nevertheless, be said to be ambiguous on this point, the foregoing view is also supported by the applicable rules of statutory construction, starting with the rule that an act must be read as a whole in order that the general purpose and intent will not be smothered by a pedantic construction of a particular provision.  Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963);Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968).

            Under RCW 41.26.110, which provides for the creation of county or city disability boards, it appears clear that the legislature intended to grant broad powers to such boards to administer claims for disability benefits under the act.  Thus, RCW 41.26.110 (1) and (3) provide as follows:

            "(1) All claims for disability shall be acted upon and either approved or disapproved by either type of disability board hereafter authorized to be created.

            ". . .

            "(3) The disability boards authorized for establishment by this section shall perform all functions, exercise all powers, and make all such determinations as specified in this chapter."

            Nor is the existence of these broad powers diluted by the presence of the state board which reviews certain decisions of the local boards.5/   Therefore, mention must be made of the rule of construction that when an act contains a grant of authority to achieve a lawful objective, the grant also  [[Orig. Op. Page 6]] includes, by implication, the power to perform the acts reasonably necessary to attain that objective.  State v. Melton, 41 Wn.2d 298, 248 P.2d 892 (1952).

            Beyond question, the local disability boards have been given the basic authority to determine the existence or nonexistence of disabilities on the part of members making application for retirement.  In the pursuit of this objective, these boards are required to consider the findings of a medical examination.  RCW 41.26.120 (1).  Normally, it is true that the mention of one thing in a statute implies the exclusion of others.  Ramsay v. Dept. of Lab. & Ind., 36 Wn.2d 410, 218 P.2d 765, opinion adhered to 36 Wn.2d 410, 222 P.2d 855 (1950).  However, this rule is not to be applied where to do so would defeat the intention of the act. State ex rel. Becker v. Wiley, 16 Wn.2d 340, 133 P.2d 507 (1943).  Here, as we have seen, the fact that the local boards are to grant the retirement allowance only if the examination shows the existence of the disability, "to the satisfaction of the retirement board," mitigates against any conclusion that the medical evidence excludes other considerations.

            Furthermore, in view of this practical necessity for weighing the results of the medical examination against other factors, even if the medical evidence was clearly required by theletter of the law to be exclusive (which it is not), such a requirement would be rendered ineffective by another rule of construction; i.e., that a thing within the letter of the law but outside the spirit of the law will be inoperative where it would lead to an unreasonable or absurd construction.  American Surety Co. of New York v. Fishback, 95 Wash. 124, 163 Pac. 488 (1917);Discargar v. City of Seattle, 25 Wn.2d 306, 171 P.2d 205 (1946); State ex rel. Thorp v. Devin, 26 Wn.2d 333, 173 P.2d 994 (1946);In re Horse Heaven Irr. District, 11 Wn.2d 218, 118 P.2d 972 (1941).  Clearly, even after a medical examiner has reported the existence and dimensions of a member's physical or mental insufficiency, the disability board must weigh that knowledge against the physical or mental requirements of the particular member's position to determine whether the insufficiency renders the member incapable of performing his duty.  This determination requires that the board consider factors in addition to the results of the medical examination.  To construe the statute as denying any authority on the part of the board to consider these other factors would thus lead to an absurdity in contravention of this rule.  Conversely, it is indeed consistent with the rule that necessary powers are implied (State v. Melton, supra), to conclude that the results of a medical examination may be supplemented by other evidence.

             [[Orig. Op. Page 7]]

            From this conclusion, it is an easy step to approve the approach contemplated by your first question.  It seems apparent that no method could be more objective or less likely to result in error (when doubt exists in the board's mind after reviewing the medical evidence) than to actually test the member's ability to perform the various functions of his assigned job.  For this reason, our answer to your first question is in the affirmative.6/

             Question (2):

            Having thus answered your first question, we may readily answer your second question in the negative.  RCW 41.26.120 provides that no retirement allowance may be granted until the expiration of a six-month period of disability leave.  Subsections (1) and (2) of this statute require that the member be examined and that the disability board make determinations as to whether:

            (1) The disability prevents the member's further performance of his duty; and

            (2) The disability has been continuous since the discontinuance of duty.

            If the board finds these conditions to exist, it is to "enter its written decision and order . . . granting the member a disability retirement allowance."  If the board finds these conditions not to exist, the application is to be denied.  Here, however, neither of these determinations would yet have been made in a case such as we are here considering.  Thus, in allowing the member to return to work on a conditional or trial basis for a limited period of time, the board would merely be taking the final step in the process of deciding to grant or deny a retirement allowance; it would not be recommencing an unending, circular process by retaking the first step.  At this point, as outlined above, the board may only grant or deny the retirement allowance and has no authority to grant a new period of disability leave.

             [[Orig. Op. Page 8]]

            Summary:

            In summary, then, we conclude, first, that a member of the law enforcement officers' and fire fighters' retirement system may, for a limited period of time, be returned to duty on a conditional basis in order to assist the disability board having jurisdiction in making the determination required by RCW 41.26.120 (2) in a case where the medical examination is inconclusive; and secondly, we conclude that such a return to duty would not entitle the member to a second six-month period of disability leave for the same disability if, based upon this trial period of service, he is then found still to be disabled.  If this should occur, disability retirement is the proper benefit to be granted.

            We trust the foregoing will be of assistance.

Very truly yours,

SLADE GORTON
Attorney General

WAYNE L. WILLIAMS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Basically, chapter 209, Laws of 1969, Ex. Sess., as amended by chapter 6, Laws of 1970, Ex. Sess.

2/See, also, RCW 41.26.130 which describes the computation of such allowances.

3/Either a city or a county disability board established pursuant to RCW 41.26.110.

4/See, RCW 41.26.120 (3) with respect to this review procedure; also, RCW 41.26.060 (13) which provides that

            ". . . all disability claims shall be submitted and approved or disapproved by the disability boards established by this chapter and the retirement board shall have authority to approve or disapprove disability retirement requests only."

5/Ibid.

6/In thus concluding we would most definitely urge any local disability board utilizing this approach in a given case to reflect, as clearly and carefully as possible, the factual basis for its decision, as well as the ordered conditional return to service itself, in its "written decision and order" required by RCW 41.26.120 (2), supra.

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