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AGO 1958 No. 197 - May 27, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

CITIES AND TOWNS ‑- POLICE ‑- SICK AND DISABILITY BENEFITS ‑- ELIGIBILITY.

A policeman who is incapacitated for any reason, either from sickness or disability, except when the incapacity results from his own dissipation or abuse, or when it results while engaged for compensation in outside work not of a police nature, is eligible for benefits under the police pension act of full salary for a period not exceeding six months when the incapacity necessitates confinement requiring nursing, care or attention, or of half salary when it does not, or where the confinement continues after six months.  The determination is a factual one to be made by the police pension board.

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

                                                                   May 27, 1958

Honorable Arnold S. Wang
State Representative, 23rd District
2001 Nipsic
Bremerton, Washington                                                                               Cite as:  AGO 57-58 No. 197

Dear Sir:

            We acknowledge receipt of your request for an opinion on two questions which we have restated as follows:

            (1) Is a police officer, injured while working as a police officer for another municipality, entitled to disability benefits from the city where he is regularly employed?

            (2) Is a police officer entitled to sick benefits for sickness or disability contracted while off duty?

            We answer both questions in the affirmative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            We are here particularly concerned with two provisions of the police pension act (chapter 41.20 RCW) applicable to first class cities.

            The first involves retirement pensions for disability under RCW 41.20.060 (1957 Supp.), which, in pertinent part, provides:

            "Whenever any person, while serving as a policeman in any such city becomes physically disabled by reason of any bodily injury received in the immediate or direct performance or discharge of his duties as a policeman, or becomes incapacitated for service, such incapacity not having been caused or brought on by dissipation or abuse, . . . the board may . . . retire such person from the department, and order and direct that he be paid from the fund during his lifetime, a pension equal to one‑half of the amount of salary attached to the rank which he held . . .

            ". . .

            "Disability benefits provided for by this chapter shall not be paid when the policeman is disabled while he is engaged for compensation in outside work not of a police or special police nature."

            The second involves provisions for sick and disability benefits under RCW 41.20.120 (1955 Supp.) which provides in part that:

            "Whenever any member of the police department, on account of sickness or disability, suffered or sustained while a member of the department, and not caused or brought on by dissipation or abuse, . . . is confined to any hospital or to his home and requires nursing, care, or attention, the board shall pay the necessary hospital, care, and nursing expenses of such member out of the fund, and the salary of such member shall continue while he is necessarily confined to such hospital or home and necessarily requires care and nursing on account of such sickness or disability for a period not exceeding six months, after which period the other provisions of this chapter shall apply:Provided. . ."

             [[Orig. Op. Page 3]]

            Although these statutory provisions are not altogether clear and unambiguous, we find considerable unanimity among the several attorneys representing the cities affected generally in accord with the conclusions herein reached.

            Our search reveals a number of cases which refer to these sections and are helpful in our interpretation.  Clark v. Board of Police, Etc. Commissioners (1937), 189 Wash. 555;Luellen v. Aberdeen (1944), 20 Wn. (2d) 594;Darnell v. Seattle (1948), 29 Wn. (2d) 713; and State ex rel. Johnson v. Funkhouser (1958), 152 Wash. Dec.      [[52 Wn. 2d 370]], cite RRS 9583 (now RCW 41.20.060, supra).  Augustine v. Board of Police Pension Fund (1954), 44 Wn. (2d) 732, mentions RCW 41.20.120.  AndBenedict v. Board of Police, Etc. Commissioners (1950) 35 Wn. (2d) 465, interprets RRS 9585 (now RCW 41.20.080).

            In the cases cited above under RCW 41.20.060, Clark, Augustine and Johnson were injured while in the performance of their police duties; while Luellen and Darnell became physically incapacitated because of illness.  Benedict was shot and killed by his twelve‑year-old son while he was off duty at home.  In each case the disability resulted while in the service of the city which employed them.  Darnell was denied a pension because of his failure to comply with the provisions of the act, while Benedict's widow was held ineligible for a pension since the board found he did not lose his life "while actually engaged in the performance of his duty" under RCW 41.20.080.  Clark, although granted a pension originally, was held not entitled to its continuance because the disability had ceased, and he was found to be reasonably able to perform his duties.  Luellen, whose sickness incapacitated him, was held to have met all the requirements of the act entitling him to a pension.  Augustine was found to be entitled to his hospital, care and nursing expenses, which the court held could not be limited to those provided under a hospital contract where less than those allowed by law.  Johnson was held to be entitled to a disability pension even though he was later discharged from the department, the undisputed facts showing that he suffered his disability while serving as a policeman.

            The foregoing comprise the law and the cases in this state upon which the answers to your specific questions must be based.  They lead us to these conclusions:

            (1) A police officer is eligible for a pension under RCW 41.20.060 (1957 Supp.) when he either:

(a) becomes physically disabled by reason of any bodily injury received in the performance of his duties; or
(b) becomes incapacitated for service;

 [[Orig. Op. Page 4]] (c) while he is serving as a policeman in any city covered by the act.

            (2) A police officer is eligible for the benefits provided under RCW 41.20.120 (1955 Supp.) when:

(a) on account of sickness or disability;
(b) sustained while a member of the department;
(c) he is confined to either any hospital or his home; and
(d) requires nursing, care, or attention.

            (3) He is not eligible for either if the incapacity:

(a) was brought on by dissipation or abuse; or
(b) was received while engaged for compensation in outside work not of a police or special police nature.

            In so far as the sickness or disability is concerned which makes a police officer eligible for the benefits, we find no distinction between RCW 41.20.060 (1957 Supp.) and RCW 41.20.120 (1955 Supp.).  The same individuals are eligible for the same reasons.  The only distinction is in the amount payable under different conditions.  If the sickness or disability requires confinement and nursing, care and attention, he receives full salary for six months.  If not, and after six months if it does, he receives half salary.  In an opinion dated August 10, 1949, to the director of the veterans' rehabilitation council (1949-1950 OAG 49e) [[Opinion No. 49-51-103]], we reached this same conclusion, holding that the police pension law does not contemplate six months' full salary for all retiring, incapacitated policemen, but restricts such payment to those requiring confinement or special care. restricts such payment to those requiring confinement or special care.

            Consequently, we conclude that a policeman who is incapacitated for any reason, either from sickness or disability, except when the incapacity results from his own dissipation or abuse, or when it results while engaged for compensation in outside work not of a police nature, is eligible for benefits under the police pension act including full salary for a period not exceeding six months when the incapacity necessitates confinement requiring nursing, care or attention, or half salary when it does not or where it continues after six months.  The determination is a factual one to be made by the police pension board.  (Cf.Kruse v. Lovette (1958), 152 Wash. Dec. 176 [[52 Wn.2d 215]], involving a determination of eligibility by the board under the firemen's act;Carleton v. Board of Police Com'rs. (1921) 115 Wash. 572, pointed out that the police pension board is vested  [[Orig. Op. Page 5]] with the power and authority to determine pension rights; and AGO 57-58 No. 117 [[to Cliff Yelle, State Auditor on August 28, 1957]]dealing generally with the duties and functions of such boards.)

            We trust the foregoing analysis will be helpful in connection with the problems involved.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General

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