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Bob Ferguson

AGO 1951 No. 161 -
Attorney General Smith Troy


Upon approval of application for disability benefits, the payments should cover the period of the disability providing the member is not being carried on an employer's payroll.

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                                                                November 2, 1951

Mr. Samuel P. Totten
Executive Secretary
State Employees' Retirement System
215 East Fifth Avenue
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 161

Dear Sir:

            Your letter of September 18, 1951, in which you request our opinion as to when payments can be made for duty disability of members of the state retirement system, is hereby acknowledged.

            It is our conclusion that once a member of the system makes formal application for disability benefits and the claim has been approved, it should cover the period of his disability providing he is not being carried on an employer's payroll.


            RCW 41.40.220, as derived from section 16, chapter 240, Laws of 1949, and RCW 41.40.250, as derived from section 26, chapter 274, Laws of 1947, provide that a member may receive a duty or non-duty [[nonduty]]disability allowance "from the date of his application for disability benefits to his attainment of the age of 60."

            The State Employees' Retirement Act in many respects is similar to the Workman's Compensation Act and our court on numerous occasions has said the latter Act should be liberally construed so that the purpose of justice and the welfare of the working man could be carried out.  We believe this same theory should be applied in the interpretation of this law particularly on procedural and remedial questions.

             [[Orig. Op. Page 2]]

            The Retirement Act has provisions for both duty and non-duty [[nonduty]]disability and it is evident that it was the intent of the legislature that benefits be paid under certain conditions to those being incapacitated whether as the result of a duty or non-duty [[nonduty]]disability.

            The Workman's Compensation Act allows a year in which to file a claim, but there is no provision in the Retirement Act with reference to when or how a person may apply for benefits.  In the absence of such a provision it appears to be well within the power of the Board of the State Employees' Retirement System to make a reasonable rule and regulation covering this matter.

            As indicated in your request, there are many reasons why a member cannot immediately make application and consideration should be given to these reasons.  It may be necessary for a member to wait until he has recovered from injuries or until he knows the type of disability for which he is applying.  This all takes time and the member should not be penalized for a reasonable delay.

            There is no question but that more emphasis should be placed on the payment of disability benefits after proper application than to the procedure of how and when the application was made.  Of course, under no circumstances can payment be made until the member has formally applied and furnished the necessary and required information, nor can payments for disability benefits be made while a member is carried on the payroll as benefits are intended to help the member during the period he is totally incapacitated and drawing no salary.

            It is, therefore, our opinion that once a member has made formal application for disability benefits and his claim has been approved, it should cover the period of his disability providing he is not carried on an employer's payroll for this period.

            It may be that further legislation is needed on this question, but we believe the above interpretation leads to an orderly and justifiable administration of the Act.

Very truly yours,

Attorney General

Assistant Attorney General