|IN RE: FRANK SERVISS||)||DOCKET NO. 57,651|
|Claim No. G-709237||)||DECISION AND ORDER|
- Claimant, Frank Serviss, by
- H. Frank Stubbs, per
- Stan Rumbaugh
- Employer, Franklin Pierce School District #402, by
- Joseph Cheesman, Director of Personnel and
- Department of Labor and Industries, by
- The Attorney General, per
- Thomas G. Hall and Dorothy Bullitt, Assistants
This is an appeal filed by the claimant on September 12, 1980, from an order of the Department of Labor and Industries dated August 26, 1980, which adhered to the provisions of a prior order demanding reimbursement for time-loss compensation paid for the periods June 16, 1975 through November 3, 1975, and June 11, 1976 through September 25, 1976, and denied time-loss compensation for the period December 1, 1978 through September 3, 1979. Reversed and remanded.
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on timely Petitions for Review filed by the claimant and the Department of Labor and Industries to a Proposed Decision and Order issued by an industrial appeals judge for this Board on July 21, 1981 in which the order of the Department dated August 26, 1980 was reversed, and the claim remanded to the Department.
The Board has reviewed the evidentiary rulings of the industrial appeals judge and finds that no prejudicial error was committed and said rulings are hereby affirmed.
At issue in this appeal is whether Mr. Serviss is entitled to compensation for temporary total disability for the specified periods: June 16, 1975 -- November 3, 1975, June 11, 1976--September 25, 1976,  October 16, 1976--January 3, 1977, and December 1, 1978--September 3, 1979. In addition, we are asked to determine whether subsection (6) of RCW 51.32.090 effectively prohibits Mr. Serviss from receiving time- loss benefits for periods he was being paid for using sick leave he had accrued during his years of service as a school teacher and wrestling coach for Franklin Pierce School District No. 402.
We are in agreement that during all pertinent periods at issue, Mr. Serviss was unable to perform his regular work or any suitable work for which he had training and experience, and ordinarily he would unquestionably be entitled to time-loss benefits.
During the course of his employment on February 18, 1975, Mr. Serviss injured his low back which later twice required surgery. He eventually returned to work in September 1979. Mr. Serviss' employment contract was typical of most public school district employees in this state whereby he was paid over a twelve-month period for services per- formed essentially between early September through mid-June. In addition and pursuant to state law, Mr. Serviss was granted ten days sick leave for each contract year which as of the date of his injury, also pursuant to statute, was allowed to accumulate only up to a maxi- mum of 180 days. RCW 28A.58.100.
Ultimately the question for decision is whether RCW 51.32.090(6) legally precludes the claimant from receiving time-loss compensation for those periods of time he received sick leave pay at his regular salary rate from his employer. The statutory provision in question reads:
"Should a worker suffer a temporary total disability and should his or her employer at the time of the injury continue to pay him or her the wages which he or she was earning at the time of such injury, such injured worker shall not receive any payment provided in subsection (1) of this section during the period his or her employer shall so pay such wages."
Prior to the enactment of RCW 51.32.090(6), numerous employers,  especially smaller ones in this state, did not have formal and definite leave policies. However, when a valued employee was injured on the job, a genuine concern for that employee's welfare prompted many employers to continue the worker's wages for a period of time to allay any immediate financial hardship on a worker or his or her family. When such circumstances prevailed, it seemed illogical to the legislature to further reward the worker with time-loss compensation benefits. it was perceived that to so permit would prove to be a disincentive to return to work.
In situations like that before us, school teachers are not paid when sick or injured without giving up something in return which, up to a specific limit through the years, they had been able to "bank". Mr. Serviss' case is not one where his employer either because of humanitarian largess or to avoid an adverse industrial insurance cost experience, voluntarily continued to pay his regular salary. By electing to take sick leave, Mr. Serviss effectively called upon and used his own financial resources. In fact, RCW 28A.58.100(d) (formerly subsection (c)) states:
"(d)Compensation for leave for illness or injury actually taken shall be the same as the compensation such person would have received had such person not taken the leave provided in this proviso."
The statute's designation of level of compensation to be paid for sick leave in an amount equal to one's regular compensation had leave not been taken implies that something other than "wages" is being paid. It must be remembered that only the receipt of continued wages prohibits an injured worker from receiving time-loss benefits.
Parenthetically, we note that RCW 28A.58.100 requires local school boards to adopt written policies granting leave with compensation for "illness, injury, and emergencies" in accord with the statutory directive contained therein. The record before us does not contain a copy of any district policy which may govern the school  district's right to seek recoupment of paid sick leave from Mr. Serviss. (See, e.g., the regulations governing classified employees of the state of Washington relative to sick leave adjustment for employees covered by workers' compensation, WAC 356-18-080). This is, of course, the reciprocal of the legal issue presented before this Board, and is one over which we have no authority.
In sum, we are of the view that the payment by Franklin Pierce School District No. 402 of accrued sick leave legally accumulated by Mr. Serviss does not, within the contemplation of RCW 51.32.090(6), preclude him from simultaneously receiving time-loss compensation.
Findings 1 through 5 and conclusion number 1 of the Proposed Decision and Order entered herein on July 21, 1981, are hereby adopted by the Board and incorporated herein by this reference. Conclusions 2 and 3 thereof are hereby stricken, and in lieu thereof the Board concludes:
2.The claimant is entitled to compensation as a temporarily totally disabled worker for the periods from June 16, 1975 through November 3, 1975, from June 11, 1976 through September 25, 1976, from October 16, 1976 through January 3, 1977, and from December 1, 1978 through September 3, 1979.
3.The order of the Department of Labor and Industries dated August 26, 1980, which affirms a prior order demanding reimbursement for time-loss compensation for the periods from June 16, 1975 through November 3, 1975, from June 11, 1976 through September 25, 1976, and denied time-loss compensation for the period December 1, 1978 through September 3, 1979 is incorrect, and should be reversed and this claim remanded to the Department with instruction to reopen the claim and allow time-loss compensation for the aforementioned periods, plus for the period from October 16, 1976 through January 3, 1977, and thereupon to close the claim.
It is hereby ORDERED.
Dated this 3rd day of December, 1981.
BOARD OF INDUSTRIAL INSURANCE APPEALS
MICHAEL L. HALL Chairperson
FRANK E. FENNERTY, JR. Member
I must dissent from the Board's majority decision, because I believe it is erroneous as a matter of law. The ultimate issue here is whether RCW 51.32.090(6) legally precludes a claimant from receiving time-loss compensation for those periods of time he received sick-leave pay at his regular salary rate from his employer.
This is not the first time this issue has been before the Board. It was presented as long ago as 1965. In re S.G. Tudor, Docket No. 22,814, Proposed Decision and Order of February 2, 1965, adopted by the Board March 5, 1965. In that case, it was held that a claimant in such a situation is precluded from receiving time-loss compensation by the provisions of RCW 51.32.090(6). So far as I am aware, the Board has not heretofore deviated from that view.
The language of the statute is, in my opinion, plain and unambiguous and, therefore, not subject to construction and interpretation. Lane v. Department of Labor and Industries, 21 Wn. (2d) 420. It specifically provides that no time-loss compensation shall be paid to a worker for any period during which his employer continues to pay the same amount as the wages he was earning at the time of his injury. Here, the claimant elected to use sick leave, to the full extent it had accumulated to his credit, as was his right. He thereby continued to receive money in the full amount of his regular wages during the period sick leave was drawn. RCW 28A.58.100(d).
The majority opinion indicates that, if the employer had voluntarily continued to pay claimant his regular salary, it would have applied RCW 51.32.090(6) to prohibit the simultaneous payment of time-loss compensation; but, since the payments were based on accrued sick-leave credit, the statute should not be applied. I fail to see any reason for this distinction, and the statute itself certainly does not provide for any such exception. 
It should be borne in mind that the basic purpose of temporary disability compensation is to replace the money a worker loses by reason of temporary inability to work due to an industrial injury. How- ever, where a worker receives his normal salary from his employer in spite of his inability to work, he has not lost anything financially and there is nothing to replace, and the basic purpose of temporary disability compensation is not met.
As to the fact that the claimant "lost" his accumulated sick leave which he otherwise could have available to use during periods of illness or injury due to non-occupational causes, the simple answer is that there was no requirement that he apply for sick leave while incapacitated due to his industrial injury. He chose to use accumulated sick leave; but he could have chosen to take the status of leave without pay so as to not use up any sick leave, in which event, of course, he would clearly have been entitled to full time-loss compensation for the periods in question.
It is noted that the claimant did in fact use up his accrued sick leave as of February 9, 1979, and was on leave without pay after that date through September 3, 1979, when he returned to full employment for the school district. He is entitled to time-loss compensation for the February 10--September 3 period.
Based on my foregoing observations as to the applicability of RCW 51.32.090(6) in this case, and based also on the correct reasoning in the Proposed Decision and Order as to why claimant is entitled to time-loss compensation for basically the summer months, I would modify the Department's order of August 26, 1980, and adjudicate claimant's entitlement to time-loss compensation during the periods here in issue, as follows:
June 16, 1975 through September 1, 1975 -- compensation payable.
September 2, 1975 through November 3, 1975 -- compensation not payable
June 11, 1976 through September 25, 1976 -- compensation payable. 
October 16, 1976 through January 3, 1977 -- compensation not payable.
December 1, 1978 through February 9, 1979 --compensation not payable.
February 10, 1979 through September 3, 1979 -- compensation payable.
Dated this 3rd day of December, 1981.
PHILLIP T. BORK Member