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AGO 1967 No. 28 - August 03, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


PENSIONS - FIREMEN - AUTHORITY OF CITY COUNCIL TO REVIEW DECISION OF MUNICIPAL FIREMEN'S PENSION BOARD - LIABILITY FOR HOSPITAL, MEDICAL AND NURSING CARE.

(1) The city council of a city which has covered its paid firemen under the pension provisions of chapters 41.16 and 41.18 RCW is not authorized to review, amend or reject a claim for a pension which has been allowed by the firemen's pension board for the city involved.

(2) Where a paid fireman is disabled as a result of an injury incurred while in the performance of his duties as a fireman, (a) if coverage is under chapter 41.16 RCW, the municipal pension board is required to provide medical, hospital and nursing care in connection with the disability for such period as the board deems proper; (b) if coverage is under chapter 41.18 RCW, the municipal pension board is required to provide medical, hospital and nursing care in connection with the disability as long as the disability exists; (c) however, in neither case should the board be regarded as liable for any and all medical, hospital and nursing costs incurred by the disabled fireman without regard to whether the fireman has made a prior application and received prior approval in accordance with established procedures.

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

                                                                  August 3, 1967

Honorable R. Ted Bottiger
State Representative, 29th District
8849 Pacific Avenue
Tacoma, Washington

                                                                                                                 Cite as:  AGO 1967 No. 28

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions pertaining to the laws governing the pension systems for paid firemen.  We paraphrase your questions as follows:

            (1) Is a city council of a city which has covered its paid firemen under the pension provisions of chapters 41.16 or 41.18 RCW authorized to review, amend or reject a claim for a pension that has been allowed by the firemen's pension board for the city involved?

             [[Orig. Op. Page 2]]

            (2) Where a paid fireman who is covered by the provisions of chapters 41.16 or 41.18 RCW is disabled as a consequence of an injury incurred while in the performance of his duties as a fireman, is the municipal firemen's pension board required to pay all of his medical, hospital and nursing expenses as long as the disability exists?

            We answer question (1) in the negative; question (2) is answered in the manner set forth in our analysis.

                                                                     ANALYSIS

            Preliminarily, it should be noted that this opinion is concerned only with the provisions of chapters 41.16 and 41.18 RCW and has no application to the rights of municipal firemen, fully paid or otherwise, who are covered under the provisions of the volunteer firemen's relief and pension act chapter 41.24 RCW.1/   With this explanation as to the scope of this opinion, we now turn to a consideration of your questions, as paraphrased.

            Question (1):

            In each city, town or fire protection district which is covering its paid firemen under the provisions of the paid firemen's pension systems, pursuant to chapters 41.16 and 41.18 RCW, there is a municipal firemen's pension board.  See RCW 41.16.020.  The powers of this board are set forth in RCW 41.16.040, as supplemented by RCW 41.18.020.  Both of these statutes specifically empower the board to "pass upon and allow or disallow all applications for pensions or other benefits provided by this chapter."

            On the other hand, detailed examination of the statutes reveals no provision for review, amendment, or rejection by the city council or other municipal governing body of a pension claim that has been awarded by the pension board.  In fact, such review, amendment or rejection appears to be expressly precluded.  RCW 41.16.040 (10), which is applicable with respect to claims arising under both chapter 41.16 and chapter 41.182/ RCW, contains the following provision:

             [[Orig. Op. Page 3]]

            ". . . Said board shall hear and decide all applications for such relief or pensions under this chapter, and its decisions on such applications shall be final and conclusive and not subject to revision or reversal except by the board."

            InKruse v. Lovette, 52 Wn.2d 215, 216, 217, 324 P.2d 819 (1958), our state supreme court, speaking of an identical provision contained in a prior firemen's pension law,3/ said:

            "The applicable statute, Rem. Rev. Stat., § 9571 (Laws of 1929, chapter 86, § 10, p. 154), provides in part:

            "'Said board shall hear and decide all applications for such relief or pensions under this act, and its decisions on such applications shall be final and conclusive and not subject to revision or reversal except by the board.'

            "InState ex rel. Chapman v. Edwards, 161 Wash. 268, 295 Pac. 1017 (1931), this court, in refusing to review by mandamus the rejection of a disabled fireman's application for a pension, stated [p. 271]:

            "'By this statute [Rem. Comp. Stat., § 9571], the action of the board is, in plain language, made final and conclusive, and it is expressly provided that the ruling thereof shall not be subject to revision or repeal, except by the board.'

            "InState ex rel. Criswell v. Board of Trustees of the Firemen's Relief & Pension Fund, 93 Wash. 468, 161 Pac. 361 (1916), this court held that, under the firemen's relief and pension fund law, the pension board had the exclusive power to hear and decide all applications for relief or pensions under the act; that its decisions on such applications were conclusive, and that mandamus would not lie to inquire into the correctness of the ruling of the board.  In the cited case, the court stated [p. 470]:

             [[Orig. Op. Page 4]]

            "'It is within the power of the legislature, when enacting a statute creating a new right with its remedy, to vest in some board or person power to adjudicate all matters arising under the statute, and to make such adjudication final and conclusive.'

            "See, also,State ex rel. Crabb v. Olinger, 196 Wash. 308, 312, 82 P.2d 865 (1938).

            "We adhere to the interpretation placed upon the statutes by this court in theChapman andCriswell cases."

            Question (2):

            Repeated for ease of reference, your second question, as paraphrased, is:

            Where a paid fireman who is covered by the provisions of chapters 41.16 or 41.18 RCW is disabled as a consequence of an injury incurred while in the performance of his duties as a fireman, is the municipal firemen's pension board required to pay all of his medical, hospital and nursing expenses as long as the disability exists?

            In answering this question we must first take note of the fact that, depending upon the date of commencement of their employment and upon certain elections individually made in the past, some paid firemen in the service of a given municipality continue to be governed by the provisions of chapter 41.16 RCW (codifying chapter 91, Laws of 1947, with amendments) while others are governed by chapter 41.18 RCW (chapter 382, Laws of 1955, with amendments).  See AGO 61-62 No. 45, copy enclosed, for a discussion of the rather complicated and involved history of firemen's pension laws in this state, and of the criteria to be utilized in determining whether a given fireman is covered under the provisions of one or another of the firemen's pensions acts.4/

             [[Orig. Op. Page 5]]

            We further note that the specific provisions of chapters 41.16 and 41.18 RCW which relate to duty disability benefits are slightly differently worded.

            RCW 41.16.190 provides:

            "No fireman disabled in the performance of duty shall receive a pension until six months has elapsed after such disability was sustained.  Therefore, whenever the retirement board, pursuant to examination by the board's physician and such other evidence as it may require, shall find a fireman has been disabled while in the performance of his duties, it shall declare him inactive.  For a period of six months from the time he became disabled, he shall continue to draw full pay from his municipality and in addition thereto he shall, at the expense of the municipality, be provided with such medical, hospital and nursing care as the retirement board deems proper.  If the board finds at the expiration of six months that the fireman is unable to return to and perform his duties, then he shall be retired as herein provided."  (Emphasis supplied.)

            The chapter 41.18 RCW counterpart to this provision is contained in RCW 41.18.060, which reads:

            "Whenever the retirement board, pursuant to examination by the board's physician and such other evidence as it may require, shall find a fireman has been disabled while in the performance of his duties it shall declare him inactive.  For a period of six months from the time of such disability he shall draw from the pension fund a disability allowance equal to his basic monthly salary and, in addition, he shall be provided with medical, hospital and nursing care as long as the disability exists.  If the board finds at the expiration of six months that the fireman is unable to return to and perform his duties, then he shall be retired at a monthly sum equal to fifty  [[Orig. Op. Page 6]] percent of the amount of his basic salary at any time thereafter attached to the rank which he held at the date of his retirement."  (Emphasis supplied.)

            As we view it, the only legally significant difference between these two statutes is as to the time period during which medical, hospital and nursing care must be provided for firemen disabled in line of duty.  A qualified fireman who is covered by RCW 41.18.060 will be entitled to be provided with this care ". . . as long as the disability exists. . . ."  However, a fireman who is covered by RCW 41.16.190 will only be entitled to be provided with medical, hospital and nursing care for such period as the municipal pension board deems proper.  See, AGO 59-60 No. 148, copy enclosed.

            Both statutes are now mandatory.5/   Both require that the disabled fireman be provided with medical, hospital and nursing care in connection with his disability.  However, neither statute requires the municipal firemen's pension board to pay all of such a fireman's medical, hospital and nursing costs without regard to where, and under what circumstances the costs may be incurred.

            In other words, as we view it, the duty of the pension board, upon request by a qualified disabled fireman, is to provide appropriate hospital, medical and nursing care in accordance with procedures established by rule or regulation.  See RCW 41.16.040 (9).  If the fireman is covered by chapter 41.18 RCW, this duty will continue ". . . as long as the disability exists. . . ."  If he is covered by chapter 41.16 RCW, the term during which the care is to be provided will be decided by the board in the exercise of its sound discretion.  However, in neither case should the board be simply regarded as  [[Orig. Op. Page 7]] liable for any and all medical, hospital and nursing costs incurred by the disabled fireman without regard to whether the fireman has made a prior application, and received prior approval in accordance with established procedures.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See AGO 65-66 No. 104, copy enclosed, for a discussion of the conditions which govern the choice, by a city, town or fire protection district, as to whether to cover its fully paid firemen under the paid firemen's pension system or under the volunteer firemen's pension system.

2/See RCW 41.18.020.

3/Section 10, chapter 86, Laws of 1929.

4/Furthermore, as indicated in that opinion, it remains possible that certain firemen, known as "prior firemen," continue to be covered under pre 1947 statutes.  See,Jolly v. Bremerton, 31 Wn.2d 873, 199 P.2d 587 (1948).

5/Prior to the amendment of RCW 41.18.060 by § 4, chapter 255, Laws of 1961, that statute was purely permissive as to the providing of medical, hospital and nursing care.  See AGO 59-60 No. 148,supra.  The 1961 amendment, making this function mandatory, was an apparent response to our earlier opinion.

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