APPLICABILITY TO PREVIOUSLY INJURED WORKERS

WORKERS' COMPENSATION ‑- INDUSTRIAL INSURANCE ‑- VOCATIONAL REHABILITATION AMENDMENTS ‑- APPLICABILITY TO PREVIOUSLY INJURED WORKERS 

Sections 1 through 13 of chapter 63, Laws of 1982, relating to vocational rehabilitation for injured workers, are remedial statutes which apply retroactively to such workers regardless of the date of injury; § 18, however, applies prospectively only to those workers whose deaths were caused by injuries that occurred on or after January 1, 1983.

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                                                                   April 18, 1983

Honorable Sam Kinville
Director
Department of Labor and Industries
General Administration Building
Olympia, Washington 98504

Cite as:  AGO 1983 No. 8                                                                                                                  

 Dear Sir:

             By letter previously acknowledged you asked our opinion on the following question relating to chapter 63, Laws of 1982:

             Do the provisions of chapter 63, Laws of 1982, and in particular §§ 8, 9, and 11 of that chapter, that increase existing benefits, create new benefits, and provide for vocational rehabilitation services for "qualified injured workers" apply only to those persons who first sustained job‑related injuries or illnesses on or after January 1, 1983 (the effective date of chapter 63, Laws of 1982)?

             For the reasons given in the analysis below we conclude that the provisions of §§ 1 through 13 of the subject act apply to injured1/ workers regardless of the date of injury.  The provisions of § 18 apply only to persons whose deaths were caused by injuries occurring on or after the effective date of the act.  The other  [[Orig. Op. Page 2]] sections of chapter 63, supra, do not affect benefits or vocational rehabilitation services and are not considered in this opinion.

                                                                      ANALYSIS                                                                       

             By its enactment of chapter 63, Laws of 1982, the legislature added several new sections to, and amended other sections of, the Industrial Insurance Act (Title 51 RCW).  Of the 26 sections in the act, §§ 1 through 13 and 18 are relevant to your question.  Because §§ 1 through 10 together set up a new program, we will consider these sections as a group.  Sections 11, 12, 13, and 18 will then be analyzed separately.

             Sections 1 through 10:

             Sections 1 through 10 of chapter 63, supra, are new sections which authorize the Department of Labor and Industries to order and pay for vocational rehabilitation services for "qualified injured workers."  Your question is whether the department may provide those vocational rehabilitation services to "qualified injured workers" who were injured before January 1, 1983, the effective date of the act as specified in § 26.

             The general rule of statutory construction is that a statute is presumed to operate prospectively‑-that is, to operate only on conduct, events, and circumstances that arise after the statute becomes effective.  Ashenbrenner v. Department of Labor and Industries, 62 Wn.2d 22, 380 P.2d 730 (1963).  However, inNelson v. Department of Labor and Industries, 9 Wn.2d 621, 627, 115 P.2d 1014 (1941), the Court adopted an exception to that general rule.  A statute is deemed to have a retroactive application if it relates to remedies and does not affect a contractual or vested right.  As the Court said inHaddenham v. State, 87 Wn.2d 145, 148, 550 P.2d 9 (1976):

            ". . . Where . . . a statute is remedial and its remedial purpose is furthered by retroactive application, the presumption favoring prospective application is reversed. . . ."

             The Court went on to define a "remedial statute" at page 148 as follows:

             ". . . Remedial statutes, in general, afford a remedy, or better or forward remedies already existing for the enforcement of rights and the redress of injuries.   [[Orig. Op. Page 3]] Sutherland,Statutory Construction § 60.02 (4th rev. ed. 1974). . . ."

             Sections 1 through 10 of chapter 63, supra, clearly provide a remedy for "qualified injured workers."  Those sections do not afford "qualified injured workers" a new right separate from that given injured workers in general by the Industrial Insurance Act.  The right of "qualified injured workers," as for other injured workers, to obtain a remedy for their injuries arises, instead, from RCW 51.04.010 which states in part:

            ". . . sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title [51 RCW]; . . ."

             Sections 1 through 10 of chapter 63, supra, provide a new remedy to enable injured workers better to enforce that right to "sure and certain relief."  Therefore, the presumption that a remedial statute is retroactive, as stated inNelson v. Department of Labor and Industries, supra, is applicable.

             We recognize that several Washington cases have held that when the Industrial Insurance Act is amended to increase monetary benefits, the amendment applies only to injuries which occur after the effective date of the amendment.  Thorpe v. Department of Labor and Industries, 145 Wash. 498, 261 Pac. 85 (1927);Lynch v. Department of Labor and Industries, 19 Wn.2d 802, 145 P.2d 265 (1944); Ashenbrenner v. Department of Labor and Industries,supra.  However, we believe that those cases should here be distinguished.  They all involved increases in monetary benefits for workers who are injured, or for the dependents of workers who die.  These monetary benefits have been part of the Industrial Insurance Act since it was first enacted in 1911.  Under the common law that prevailed before 1911, an injured employee could obtain financial recompense for his or her injuries only by suing his or her employer for a common-law tort.  Because these common-law remedies for injured workers against their employers were "uncertain, slow and inadequate" (RCW 51.04.010), the legislature in the Industrial Insurance Act abolished them and set up a new system of mandatory monetary benefits to compensate injured workers.  The purpose of these monetary benefits is to diminish the financial damage to the worker or the worker's dependents caused by the injury or death.

              [[Orig. Op. Page 4]]

            By way of contrast, however, the new vocational rehabilitation remedy in §§ 1 through 10 of chapter 63,supra, is intended to put injured workers back to work in the shortest possible time.  It does not compensate an injured worker for his or her injury, and thus differs significantly from the monetary benefits.  Further, unlike amendments that increase monetary benefits, the vocational rehabilitation remedy is intended to limit the number of benefit payments necessary to an injured worker‑-and thus lower the total amount paid.  Accord, see § 1 of the act which states:

             "The purpose of rehabilitation in workers' compensation is to return the injured worker to suitable gainful employment as soon as possible.  The policy of the state is to provide early notification and referral of qualified injured workers to vocational rehabilitation services, development of comprehensive rehabilitation plans, and independent review and evaluation of service delivery.  This policy shall be implemented with the express intent of assisting the qualified injured workerwhile avoiding expensive litigation and unnecessary time lost from work."  (Emphasis supplied)

             The Washington Court has never, in depth, analyzed its prior decisions holding that increases in monetary benefits do not apply retroactively.  The Court based its early decisions on the general rule of statutory construction that a statute is presumed to operate prospectively.  Thorpe v. Department of Labor and Industries, supra.2/   Then, after the adoption in Nelson v. Department of Labor and Industries, supra, of the exception that remedial statutes are presumed to operate retroactively, the court decisions have merely cited that earlier case as authority for the proposition that increases in monetary benefits have only prospective operation.  SeeLynch v. Department of Labor and Industries,supra, at 807, andAshenbrenner v. Department of Labor and Industries,supra, at 25.  The cases after Nelson that concern  [[Orig. Op. Page 5]] increases in the Industrial Insurance Act's monetary benefits thus simply do not discuss the presumption that remedial statutes operate retroactively.  Nevertheless, although the Court has not seen fit to change its rule about the prospective application of those monetary benefits, it has held‑-both with and afterNelson‑-that other remedial statutes (including amendments to the Industrial Insurance Act that did not affect monetary benefits) do operate retroactively.  Thus, inPape v. Department of Labor and Industries, 43 Wn.2d 736, 264 P.2d 241 (1953), the Court held retroactive a change in the Industrial Insurance Act's statute of limitations.  And inNelson v. Department of Labor and Industries, supra, the Court held that an amendment to the appeals provisions in the Industrial Insurance Act operated retroactively.

             This willingness of the Court to hold retroactive those provisions of the Industrial Insurance Act which do not increase monetary benefits indicates to us that the Court's post-Nelson decisions in Ashenbrenner and Lynch,supra, are limited to increases in the Industrial Insurance Act's monetary benefits.  Because §§ 1 through 10 of chapter 63, supra, do not increase monetary benefits, however, we believe thatAshenbrenner and Lynch are not controlling.

             Finally, we have not overlooked the principle that a statute, although remedial, is not presumed to operate retroactively if it affects a "contractual or vested right".  Nelson v. Department of Labor and Industries, supra.  However, §§ 1 through 10 of chapter 63,supra, affect neither a contractual nor a vested right.

 Section 11:

             Section 11 of chapter 63, supra, amends RCW 51.32.095 which has, since 1971, authorized the Department of Labor and Industries to provide for vocational rehabilitation services to selected injured workers.  The vocational rehabilitation benefits under § 11 are available to a more limited group of injured workers than are those under §§ 1 through 10.  The amendments in § 11 increase the amount the department may expend for vocational rehabilitation services and also clarify the kinds of rehabilitation services the department may provide.

             Because the basic purposes of § 11 and §§ 1 through 10 are similar, we believe that the foregoing analysis of §§ 1 through 10 also applies to § 11.  Under that analysis, the amendments to § 11 also apply retroactively to injured workers regardless of the date of injury.  Although § 11 increases the amount the department may  [[Orig. Op. Page 6]] expend for vocational rehabilitation services (i.e., from $1,500 to $3,000), and thus may appear to be an increase in monetary benefits, the underlying purpose of the remedy in § 11 is identical to that for §§ 1 through 10.  The remedy returns the injured worker to gainful employment; it does not, as do monetary benefits, compensate the injured worker for his or her injury.

 Section 12:

             Section 12 of chapter 63, supra, amends RCW 51.36.020 to authorize the department to pay the costs of necessary modifications to an injured worker's residence or motor vehicle.  Subsection (9) of this section expressly specifies that these benefits, which are included in subsections (7) and (8), are to be applied retroactively:

             "The benefits provided by subsections (7) and (8) of this section are available to any otherwise eligible worker regardless of the date of industrial injury."

             The legislature's intent is controlling.  Section 12 should be given retroactive effect to all eligible workers regardless of the date the workers were injured.

             At this point we should also address a possible argument to the effect that the express specification of retroactivity in § 12 raises a presumption that the legislature intended the other sections of chapter 63, supra, to apply prospectively‑-including §§ 1 through 11, supra.  SeeState v. Douty, 92 Wn.2d 930, 937, 603 P.2d 373 (1979).  We also note, however, that the benefits in § 12 are paid to the injured worker for his or her own use, and thus are closely related to monetary benefits.  Unlike the vocational rehabilitation remedy, they are not designed to return the injured worker to employment, and their payment will not act to limit the number of benefit payments necessary to the injured worker.  We thus believe that the legislature was simply aware of the Court's rule that monetary benefits apply prospectively and, recognizing the similarity of the § 12 benefits to monetary benefits, overrode the Court's rule with the express retroactivity provision.  By contrast, we believe that the legislature saw no need to add an express retroactivity provision for the vocational rehabilitation remedy because that remedy, as shown in the analysis for §§ 1 through 10 and 11, above, differs substantially from monetary benefits.

              [[Orig. Op. Page 7]]

Section 13:

             Section 13, a new section, authorizes the department to pay up to $5,000 of the costs of modifying an injured worker's job.  The purpose of this section is to enable the injured worker to return to work as rapidly as possible.  As with § 11, the analysis for §§ 1 through 10 applies.  Section 13 should thus also be given retroactive effect for injured workers regardless of the date of injury.

             Section 18:

             Section 18 amends RCW 51.32.050 to increase the amount of burial expenses the department is authorized to pay, and the amount of the death benefits the department must pay to the decedent's family.  These payments are monetary benefits.  InAshenbrenner v. Department of Labor and Industries,supra, and Lynch v. Department of Labor and Industries, supra, the Court held that an amendment to the Industrial Insurance Act that increased monetary benefits operates prospectively unless the legislature specifies otherwise.  InLynch, the Court held that a widow's pension was to be paid at the benefit level in effect at the time her husband was injured, not at the higher level in effect when he died.  The increased benefits in section 18, therefore, may be paid only to the families of those persons whose deaths were caused by injuries that occurred on or after January 1, 1983.