Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 262 -
Attorney General Don Eastvold


In order to qualify for the six months full salary benefit provided in Rem. Rev. Stat. Supp. § 9565, a temporarily disabled "prior fireman" must be so disabled as to require nursing and medical care.

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

                                                                   May 24, 1954

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                 Cite as:  AGO 53-55 No. 262

Attention:  Mr. A. E. Hankins, Chief Examiner

Dear Sir:

            We are in receipt of your letter of May 17, 1954, requesting our advice on the following question: Is a "prior fireman" as defined in RCW 41.14.010 who has suffered a temporary disability in performance of his duties, but who does not require "nursing and medical care," entitled to the six months full salary benefit as indicated in Rem. Rev. Stat. Supp. § 9565?

            We conclude that the question should be answered in the negative.


            "Prior firemen" within the definition of RCW 41.16.010 are entitled to receive payments and benefits from the pension fund in the amount and in the manner provided by the laws which were in effect prior to January 1, 1947.  See RCW 41.16.230, Jolly v. Bremerton, 31 Wn. (2d) 873.  Consequently, the statute relating to sick benefits for "prior firemen" is Rem. Rev. Stat. Supp. § 9565.  The pertinent language of that statute provides:

             [[Orig. Op. Page 2]]

            "Whenever any member of the fire department of any city or town shall, on account of temporary physical disability, in consequence of the performance of his duty or duties, as defined in this act, be confined to any hospital or to his bed, or unable to perform his duties as such member on account of such temporary disability,and shall require nursing and medical care, the board of trustees shall provide a professional nurse and pay all necessary [expenses] * * *; the salary of such member shall continue and be paid as other salaries are paid, while he is necessarily confined to such hospital or bed, or unable to perform his duties as a fireman on account of such temporary disability, for a period of not exceeding six months * * *" (Emphasis supplied)

            The only question is whether the language "and shall require nursing and medical care" sets forth a condition precedent to the qualification for the six months salary benefit.

            The last underscored phrase ("such temporary disability") is a reference back to the phrase "temporary physical disability" mentioned in the third line of the quoted statute, and means the same thing.  There is also a reference to physical disability in Rem. Rev. Stat. Supp. § 9563, relating to disability pensions; but the term is not expressly defined anywhere in the act.  Consequently, its meaning must be derived strictly from the manner of its use in Rem. Rev. Stat. Supp. § 9565.

            A number of possible reasons for the insertion of that language at this particular point may be conceived.  The most logical explanation, it seems to us, is that it reveals an intent on the part of the legislature to impose an additional qualifying condition upon those firemen who are confined to bed.  If the disabling condition were not serious enough to require either nursing or medical care, there would be no objective guide by which to determine the necessity for, or duration of, such confinement.  It is the usual practice to rely upon the statement of a physician or nurse as controlling in this respect.  If the inserted language is considered a condition to compensable disability, there is a clearly defined limitation upon such benefits.  It seems quite likely that such was the intent of the legislature in using this language.

             [[Orig. Op. Page 3]]

            This result is further supported by the grammatical form of the statute.  The language in question is preceded by the conjunction "and."  This word is uniformly used to denote something in addition to that previously stated.  Following this rule, the statute requires that the fireman be confined to hospital or bed, or unable to perform his duties; and in addition, that he require nursing and medical care.  As a matter of grammatical form, the clause is used in the conjunctive, and not in the disjunctive.

            We conclude that a "prior fireman" must be so disabled that he requires nursing and medical care in order to entitle him to the six months full salary benefit provided in Rem. Rev. Stat. Supp. § 9565.

Very truly yours,

Attorney General

Assistant Attorney General