                                                                                                    AILED
                                                                                                1 ri T OF AE' PEA S
                                                                                                 0i \1ISIQi'a I
                                                                                         2014 MAR 1 I     AN 8: 88
                                                                                         sT;

                                                                                         BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                  DIVISION II

DOUGLAS MERINO and KAY MERINO,                                               No. 43865 -8 -II
husband and wife, and the marital community
composed thereof,


                                    Appellants,


        V.



THE STATE OF WASHINGTON and ITS                                         PUBLISHED OPINION
AGENCIES; THE WASHINGTON STATE
DEPARTMENT OF RETIREMENT
SYSTEMS; THE WASHINGTON STATE
PATROL and JOHN R. BATISTE, Chief
Thereof, and DAVID J. KARNITZ, Deputy
Chief Thereof,




                                                 Merinos

         HUNT, J. —     Douglas     and    Kay             appeal the- superior court' s denial of their motion


for summary judgment and granting of the State' s motion for summary judgment in their action

for   disability    benefits   against    the    Washington    State Patrol ( WSP).      Merino     argues that


Washington law entitles him to disability compensation as long as he remains disabled from

injuries incurred in the line of duty, even after WSP terminated his employment as a trooper for

violating WSP       regulations.     Holding that under RCW 43. 43. 040, Merino' s disability benefits


s Although both Douglas Merino and his wife, Kay Merino, filed suit and appeal the superior
court' s rulings,   the issues   relate   solely from Douglas Merino'    s employment.
No. 43865 -8 -II



vested when he became disabled in the line of duty and that he is entitled to continuing disability

payments, we reverse the superior court' s summary judgment rulings and remand for entry of

summary judgment in favor of Merino, reinstatement of his disability benefits, and calculation of

attorney fees to which he is entitled under RCW 49.48. 030.

                                                              FACTS


                                                          I. BACKGROUND


                                                    A. WSP Disability Status

           The       parties agree on        the facts.   Douglas Merino joined the WSP in 1978 and served as a


fully    commissioned           trooper until October             11,   1988, when he suffered a herniated disc and


injuries to his left neck and left shoulder after being ejected from a patrol vehicle while on duty.

As a result of these injuries, Merino was unable to meet the physical requirements for his WSP

trooper        position and went without            pay from 1989 through 1991.              On February 10, 1994, then -

Chief Roger Bruett placed Merino on full job- related disability status, for which he received
                                                                                                               2
                payments      equal     to   one -half of   his   previous   active -
                                                                                    status   monthly salary.       Sometime
monthly


thereafter, Merino found employment as an investigator with the Department of Labor and

Industries ( L &I).




2 The WSP' s disability system is divided into ( 1) active status, for WSP employees who perform
 duties for the WSP; and ( 2) inactive status, for WSP employees " who, while in the performance
 of    their   official    duties ...        have been ...        injured or incapacitated to such an extent as to be
 mentally       or   physically incapable          of active service."      RCW 43. 43. 040( 1);   see WAC 446 -40 -020.
 A WSP employee placed on disability status under RCW 43. 43. 040 continues as a WSP
 employee, but on inactive status; such employee receives monthly payments equal to one -half of
 his    active    status   monthly salary.          RCW 43. 43. 040( 2)(      a).   Merino was on inactive status from
 February 1994 until his WSP termination in August 2008.



                                                                        0
No. 43865 -8 -II




        On November 1, 1999, more than five years after becoming disabled, Merino received a

certified   letter that the WSP   sent   to   all   troopers   on   disability     status at    that time.   This letter ( 1)


confirmed    that Merino   was    an " employee on           inactive     status   due to   a   disability," ( 2)   informed


him that he   must continue   to comply       with    WSP      regulations and policies, (        3) required him to sign


and to return the letter, and ( 4) threatened potential loss of his disability payments if he did not

do so. Clerk' s Papers ( CP) at 212. Merino promptly signed and returned the letter.

                                  B. Insurance Fraud; WSP Termination


        In 2005 and 2006, while still on WSP disability status, Merino became involved in an

insurance fraud    scheme:    He    attempted        to defraud Farmers Insurance                 of $60, 000   and lied to


insurance investigators questioning this            claim.    On January 28, 2008, a jury convicted Merino of

two felony counts of fraud based on this false insurance claim. Three days later, WSP received a

letter from Merino asking to retire. On February 1, WSP advised Merino that he was not eligible

to retire because he had not yet applied for active duty status.

        Merino' s fraud involvement prompted WSP to investigate whether he had violated WSP

regulations, and it charged him with several grounds for discipline. On June 2, 2008, WSP Chief

John Batiste conducted a predetermination hearing to give Merino an opportunity to respond to

WSP' s administrative disciplinary charges; Merino' s attorney was present, but Merino was not.

On August 6, Chief Batiste found that Merino had violated WSP regulations and terminated him

from WSP for violating WSP Rules               of    Conduct Regulation 8. 00. 010.              As a result of Merino' s

                                                                                       3
 employment     termination, WSP terminated            his   disability   payments.




 3 On November 24, 2009, Merino withdrew all remaining funds from his WSP retirement
 account.




                                                               3
No. 43865 -8 -II



                                                           Il. PROCEDURE

                                                                                     4
           Merino did     not appeal          Chief Batiste'      s    decision.         On January 31, 2011, Merino sued the

State of Washington, the. Washington State Department of Retirement Systems, WSP, Chief

Batiste, and WSP Deputy Chief David Karnitz.5 Merino and the defendants filed cross -motions
for summary judgment            under         CR 56.       Merino argued. that WSP had wrongfully terminated his

                            because he                            disabled from injuries in the line                  of   duty.    The
disability      payments                          remained




defendants sought dismissal of all of Merino' s claims.


           The superior court denied Merino' s summary judgment motion and granted summary

judgment to WSP; ruling that RCW 43. 43. 040 entitled Merino to

            a disability benefit so long as he was an officer of [the] WSP and not fit to return
           to   activeduty. The fact that he committed a fraud and that fact that he was
            convicted of a crime did not affect his right to continued receipt of the disability
            payment; but when he was terminated from the WSP the right to the payment also
            terminated because he was no longer an officer.

                                      6
CP    at   308. Merino     appeals.



                                                             ANALYSIS


            Merino argues that ( 1) his WSP disability benefits vested when he was hired as a state

patrol officer     in 1978; (   2) Washington law requires payment of disability benefits as long as his

disability exists and does not allow termination of these vested benefits, regardless of whether he
was    terminated from WSP for committing                        a    felony;   and (     3)   under   Wash. Const.   art.   I, § 15, his




 4 See RCW 43. 43. 100

 5 At the time of this lawsuit, Merino was no longer employed by L &I.
 6
                                                                                   summary judgment to WSP.                   Thus, this
     Merino     appeals   only the        superior     court' s        grant    of

 appeal addresses        only WSP'        s   liability,   not   the   other    defendants' liability.
No. 43865 -8 -II




disability     compensation                qualifies     as    an " estate,"      which cannot be forfeited based on a felony

conviction.          WSP counters that the superior court ruled properly on summary judgment because

 1) Merino' s disability payments were compensation paid by his employer and, thus, were not

vested       benefits;          and (    2)    the disability compensation that Merino received was specifically

provided only to WSP officers, for which Merino no longer qualified when he was terminated

14170711111WAM


             Merino'        s   first   argument      fails:   His disability benefits did not vest when he was hired as a

WSP trooper; rather, he was entitled to such benefits only if and when he became disabled in the

line                   the                            these benefits                   See RCW 43. 43. 040( 1);      see also State ex
        of   duty,              point at which                            vested.




rel.   Johnson         v.   Funkhouser, 52 Wn.2d 370, 373, 325 P. 2d 297 ( 1958).                            We agree with Merino' s


second argument; and,                    therefore,      we    do   not reach      his third,   constitutional argument.     We hold


that the legislature enacted RCW 43. 43. 040 to provide disability benefits to WSP officers that

vested upon injury in the line of duty; Merino' s WSP disability benefits vested when he was

injured in the line of duty; and, therefore, they are a vested statutory benefit that continues as

long as he remains disabled, including after his termination from WSP.

                                                          I. STANDARDS OF REVIEW


             We    review a             summary judgment ruling de                  novo, "   engaging in the same inquiry as the

trial   court."        Navlet       v.   Port of Seattle, 164 Wn.2d 818, 827, 194 P. 3d 221 ( 2008) (                    citing City of

Sequim        v.   Malkasian, 157 Wn.2d 251, 261,                             138 P. 3d 943 ( 2006)).          Summary judgment is

 appropriate when "                there      is   no genuine    issue   as   to any   material   fact   and ...   the moving party is

 entitled     to   a   judgment          as a matter of         law."    CR 56( c).      The parties here agree that there are no


 factual disputes and that we may resolve the issues as a matter of law. We review such questions


                                                                              5
No. 43865 -8 -II



of   law de        novo.   Andersen   v.   King County,   158 Wn.2d 1, 13, 138 P. 3d 963 ( 2006); Hanson Ind.,


Inc.   v.   Kutschkau, 158 Wn.         App.    278, 286 -87, 239 P. 3d 367 ( 2010), review denied, 171 Wn.2d


1011 ( 2011).


             The primary issue here is whether Merino was entitled to disability benefits under RCW

43. 43. 040 while his disability, incurred in the line of duty, persisted after his termination as a

WSP         employee.       We look to the    plain   language   of a statute   to discern legislative intent.   Wright


v.   Dep' t    of Soc. &        Health Servs., 176 Wn.     App.    585, 594, 309 P. 3d 662 ( 2013) (     citing Lacey

Nursing Ctr., Inc. v. Dep' t ofRevenue, 128 Wn.2d 40, 53, 905 P.2d 338 ( 1995)).
                                   II. RCW 43. 43. 040: WSP DISABILITY BENEFITS

             RCW 43. 43. 040 provides, in pertinent part,


              1)     The chief of the Washington state patrol shall relieve from active duty
             Washington state patrol officers who, while in the performance of their official
             duties ... have been ...    injured or incapacitated to such an extent as to be
             mentally or physically incapable of active service: PROVIDED, That:
                      a) Any officer disabled while performing line duty who is found by the
             chief to be physically incapacitated shall be placed on disability leave for a period
             not    to   exceed six months ....       Prior to the end of the six -
                                                                                  month period, the chief
             shall either place the officer on disability status or return the officer to active
             status.



                           c)   An officer injured while engaged in willfully tortious or criminal
             conduct shall not be entitled to disability benefits under this section;

                   2)( a)   Officers on disability status shall receive one -half of their
             compensation at the existing wage, during the time the disability continues in
              effect, less any compensation received through the department of labor and
              industries.
No. 43865 -8 -II



 Emphasis       added.)        Merino contends that his WSP disability payments were vested benefits

under this statute and, therefore, the WSP cannot terminate them as long as he is disabled,

regardless of whether he committed a felony or violated WSP regulations after becoming

disabled. We agree with Merino.


         WSP counters that ( 1) because RCW 43. 43. 040' s compensation scheme is separate from

the "   Washington        Law           Enforcement    Officers'       and    Firefighters'    Retirement      System      Act"


 LEOFF),     ch.   41. 26 RCW ( which             covers most   Washington law         enforcement personnel),           WSP is

                                                                                                8;(
not subject     to the    rules     that ordinarily   govern    disability     compensation           2) Merino' s disability

payments        could    not       be    vested   compensation         because they     were    fundamentally "      wages,"




functioning as deferred compensation for services he already rendered, not a pension; and ( 3)

because LEOFF disability benefits apply to former officers and former employees ( individuals



7 Most public law enforcement employees and firefighters receive disability and retirement
benefits under the " Washington Law Enforcement Officers' and Firefighters' Retirement System
Act" ( LEOFF),          ch.          But WSP employees receive disability benefits under RCW
                              41. 26 RCW.
43. 43. 040, not LEOFF; under LEOFF, RCW 41. 26. 120 specifically provides disability benefits
as part of a disabled employee' s retirement compensation. RCW 41. 26. 120( 4).

8 More specifically, WSP argues that according to Callecod v. Washington State Patrol, 84 Wn.
App..    663,    672,    929 P. 2d 510,           review   denied, 132 Wn. 2d 1004 ( 1997),                WSP' s disability
retirement      system        is   fundamentally      incomparable           with   LEOFF     and,     therefore,   we    cannot

compare vested          LEOFF benefits to WSP benefits in RCW 43. 43. 040.                            We disagree.   We read.

Callecod to stand for the much narrower proposition that only the disability benefits eligibility
 standards for LEOFF and WSP are not comparable because ch. 43. 43 RCW and ch. 41. 26 RCW
have different      procedures           to qualify for    disability   benefits.    In Callecod, Division One of this

 court addressed only the disability requirements under the two disability systems; it did not
 consider whether RCW 43. 43. 040 disability payments are vested benefits for WSP officers
 placed on disability status. See 84 Wn. App. at 672. Thus, Callecod is not dispositive here.
 9
     At the outset we note that neither the method by which the WSP paid disability benefits to
 Merino, nor the source or classification of these funds, is dispositive on the issue of whether
 RCW 43. 43. 040 creates a vested disability benefit.


                                                                   7
No. 43865 -8 -II



whose employment                 relationship has     ended),     RCW 43. 43. 040 applies only to currently employed

WSP officers. We disagree with WSP.


                                                            A. Vesting

            The legislature' s purpose for these disability payments is to provide income to a WSP

officer who can no longer perform line duty by virtue of injuries suffered while protecting the

public.      RCW 43. 43. 040( 1).             Merino was injured while engaged in line duty as a WSP officer

and,   as    a   result,    was      placed    on    disability    status    under   RCW 43. 43. 040.         He qualified for


disability       benefits    under     this   statute,   which provides         that "[   o] fficers on disability status shall

receive one -half of their compensation at the existing wage, during the time the disability

continues        in   effect."    RCW. 43. 43. 040( 2)( a) (      emphasis added).




            Once an officer is assigned disability status, he or she retains only the title " officer" and

the right to be considered to a return to active service; the officer no longer has the law

enforcement power of a state                  trooper on   active status.     10 State v. Hendrickson, 98 Wn. App. 238,

242 -43, 989 P. 2d 1210 ( 1999),                review    denied, 140 Wn.2d 1024 ( 2000).                Because the disability

prevents the officer from earning a regular income working full -ime for the WSP, the monthly
                                                                t

 half-wage"            disability payments help offset the officer' s diminished earning capacity and

                 compensates         the   officer    for his     or   her   sacrifices    in the line   of   duty:   See RCW
partially


43. 43. 040( 1).




 10 But a disabled officer may seek employment elsewhere, as Merino did.


                                                                       N.
No. 43865 -8 -II



        In striking contrast with the legislature' s explicitly narrow disqualification of disability
                                                                                                         11
benefits if the trooper       receives   injuries   while   engaged   in    a   tort   or   a crime,          ch. 43. 43 RCW


contains no analogous language requiring a disabled recipient to continue WSP employment in
                                                       12
order   to   receive   such   disability benefits.          On the contrary, the plain language of RCW

43. 43. 040 shows that the legislature drafted this statute to compensate WSP officers for injuries

sustained in the line of duty (to compensate them partially for employment -generated wages that

these disabilities have taken from them, not to compensate them for continued employment);

thus, the legislature conditioned this statutory disability benefit only on the officer' s becoming

injured " in the line of duty."

         Washington courts' have adopted a similar approach with other statutory disability and

disability -related pension benefits, holding that such disability payments vest, at the time of




 11 RCW 43. 43. 040( 1)( c).

 12 WSP contends that trooper disability benefits under RCW 43. 43. 040 are not " vested" because
the statute requires the condition precedent of becoming disabled to meet two contingencies—
 that the disability continues and that the disabled trooper remains a WSP officer. But WSP cites
 no authority for its proposition that Merino' s termination as a WSP officer either retroactively
 divested him of existing disability benefits or somehow prevented their vesting at all.
 Accordingly,     we   do   not   further   consider    this    argument.       RAP     10. 3(   a)(   6);    Cowiche Canyon

 Conservancy V. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).


                                                               0J
No. 43865 -8 -II ,


                                                                                                                    107113 (

          See Newlun                Dep' t   of Ret. Sys., 53 Wn.          App. 809,       821 -22, 770 P. 2d                   quoting
injury.                        v.



Johnson, 52 Wn.2d             at   372 -73), review denied, 113 Wn.2d 1014 ( 1989).


          In Newlun, Division Three of our court favorably cited a Delaware court' s holding that

the primary purpose of a disability pension statute is to compensate injured police officers for
permanent       disabilities       received    in the     course of   their   official   duties,   including   that "` [t] he right to


a pension [ depends] on             fulfillment      of   the statutory    requirements      for eligibility. "'    53 Wn. App. at

823 ( quoting Miller           v.    City    of Wilmington, 285 A.2d 443, 445 -46 ( Del. Ch. 1971),                          aff'd, 293

A.2d 574 ( Del. 1972)).


          Newlun        also        emphasized        the    importance        of "`     consider[   ing]   the    liberal    rules   of


construction .          in construing         pension statutes.       Because of the remedial purpose of such statutes


        a forfeiture or waiver of [ disability] pension rights should be found only where clearly

intended       by   the parties. "'         Newlun, 53 Wn.         App.       at   823 ( 3rd   alteration   in    original) (   quoting


Miller, 285 A.2d         at   445 -46).      And our Washington legislature has expressly intended a forfeiture

or   waiver     of   disability       benefits only         when   an      officer   becomes disabled " while engaged in




 13 The Washington Department of Retirement Systems' and City of Spokane refused to pay a
disability pension to former law enforcement officer Newlun, whom the police department had
placed on disability status as a result of his drug addiction caused by cocaine use during an
undercover police         investigation. Newlun, 53 Wn.                    App.    at   811, 813.    When Newlun attempted to
return    to   active service,       the    police   department       refused      to employ him.       Newlun, 53 Wn. App. at
 814.     He subsequently resigned from the police force and applied for a disability pension.
Newlun, 53 Wn.      App. at 814 -15. Interpreting LEOFF ( ch. 41. 26 RCW), Division Three of our
 court held that Newlun' s resignation from the police force did not disqualify him from seeking
 disability benefits. Newlun, 53 Wn. App. at 824.



                                                                      10
No. 43865 -8 -II




willfully tortious         or criminal conduct."                    14 This sole narrow disqualification from WSP disability

benefits is consistent with the general principle that because RCW 43. 43. 040 is the only
                                                                                                                                              15
              benefit                            immediately                     to WSP        officers   disabled in the line   of   duty,
disability                 scheme                                   available



                                                                                          16
we     liberally   construe          it in favor          of recipient     eligibility.




14
      RCW 43. 43. 040( 1)(                c).    Merino argues that this provision demonstrates the legislature' s intent
to    exclude      other reasons                 for    denying    benefits to disabled         officers.   We   agree:    The legislature

chose to deny disability payments on the basis of willfully tortious or criminal conduct only if
the    officer was engaged                      in   such     disreputable   conduct when        the   disabling injury   occurred.    RCW
43. 43. 040( 1)(     c).    Based on the legislature' s language, we assume that it could have, but chose
not to, allow WSP to revoke an already disabled officer' s benefits if the officer later commits
such     tortious     or   criminal                  conduct.      Here, however, it is undisputed that Merino' s disability
resulted from an injury during line duty, not from his " willfully tortious or criminal conduct."
RCW 43. 43. 040( 1)(                c).     Thus, he does not fall within the legislature' s narrow exemption.


15 When the legislature enacted RCW 43. 43. 040 as a disability scheme to replace LEOFF for
WSP officers, it simultaneously denied them the opportunity to participate fully in LEOFF. See
RCW 43. 43. 290; see also CP at 235 ( explaining that WSP troopers are subject to the WSP' s
disability    system, which                     is   separate    from LEOFF),        and 1951 - 1953 Op. Att' y Gen. No. 274, 1952
WL 44888,           at *   1 ( "[         A] disabled [ trooper] does not participate in the retirement system and
therefore has no way of building up his reserve in order that he may receive full benefit of the
retirement upon            reaching              retirement age.          The legislature made no provision to take care of this
situation. ").

           Moreover, because RCW 43. 43. 040' s ' disability scheme is specific to WSP officers, it
prevails over the more general LEOFF law enforcement disability scheme in ch. 41. 26 RCW.
See Chinn v. City of Spokane, 173 Wn. App. 89, 95, 293 P. 2d 401 ( 2013) ( " Where one provision
treats a subject in general terms and another treats the same subject in a more detailed way, the
 specific prevails over                   the    general absent a         contrary legislative intent. ") ( citing    Wells Fargo Bank,
NA v. Dep' t of Revenue, 166 Wn. App. 342, 358 -59, 271 P. 3d 268, review denied, 175 Wn.2d
 1009 ( 2012)).

 16
      Washington       courts             follow the          rule "`   that pension legislation must be liberally construed most
 strongly in favor of                the beneficiaries. "'               Anthis v. Copland, 173 Wn.2d 752, 768, 270 P. 3d 574
                                                                                   1972)); see also
  2012) ( quoting Hanson          of Seattle, 80 Wn.2d 242, 247, 493 P. 2d 775 (
                                                 v.    City
 Harris v. Dep' t of Labor & Indus., 120 Wn.2d, 461, 488, 843 P. 2d 1056 ( 1993) ( holding that "[ a]
 retirement program should be construed liberally in favor of the retired worker "). Because the

 legislature crafted RCW 43. 43. 040 to function as a pension for disabled WSP troopers, we apply
 this principle here as well.



                                                                                11
No. 43865 -8 -II




         WSP asserts that Merino' s reading of the statute would compel it to employ a convicted

felon   as   a   WSP     officer.     This     assertion   is incorrect:           The statute did not prohibit WSP' s


                               WSP                               he                               felony.    Because Merino' s
terminating Merino'        s          employment when                 was convicted of a




 employment [      contract]     include[ d]     service connected       disability       rights,   those   rights ...   vested at




the instant [ he   was]   injured in the       course of   his   employment. "         17 See Johnson, 52 Wn.2d at 373.

                                                        B. Duration


         WSP' s interpretation of the legislature' s statutory scheme for disabled WSP troopers

would    require    us    to   read   into RCW 43. 43. 040( 2)(           a)    a nonexistent restriction of disability

payments —       limiting such payments to the duration of the trooper' s WSP employment, without



         Furthermore,          RCW 43. 43. 290 prohibits an officer on WSP disability status from
                          service     credit   for   purposes    of    WSP'    s   standard retirement system.            Thus, a
acquiring ongoing
disabled WSP officer who does not recover from his or her disability will never be able to access
the standard WSP retirement system benefits, despite his or her status as a WSP employee;
instead, the officer will be limited to the disability status payments provided by RCW 43. 43. 040.
17
     In Johnson, the Washington Supreme Court                         reached      a   similar   result.    Johnson was a city
policeman who became disabled in the line of duty but who was subsequently dismissed from
employment because of misconduct.  Johnson, 52 Wn.2d at 371. His city employer terminated

his disability payments when he was dismissed from the police force. Johnson, 52 Wn.2d at 372.
Interpreting ch. 41. 20 RCW ( which, like RCW 43. 43. 040, is separate from the LEOFF statute),
the court held that ( 1) the city' s action was improper; and ( 2) Johnson' s termination ended his
 employment as a policeman; but ( 3) terminating Johnson' s employment as a policeman " did not
 affect his vested right to disability benefits," over which the disciplinary board had no
jurisdiction. Johnson, 52 Wn.2d at 373.
         Again, although the construction of ch. 41. 20 RCW does not control our reading of ch.
 43. 43 RCW,      find its similarity persuasive. See, e. g., Briggs v. Nova Servs., 166 Wn.2d 794,
                   we

 803 n. 4, 213 P. 3d 910 ( 2009) ( finding textual similarity between federal and state statutes
 persuasive).       Furthermore,        our legislature constructed RCW 43. 43. 040 analogously to the
 statutory disability benefits in Johnson ( interpreting ch. 41. 20 RCW, governing municipal police
 relief and pensions) and Newlun ( interpreting ch. 41. 26 RCW, governing the LEOFF system).
 All three statutory provisions serve the same purpose of ensuring that disabled law enforcement
 personnel are compensated for their sacrifices in the line of duty. RCW 41. 26. 020; former RCW
 41. 20. 060 ( 1998); RCW 43. 43. 040( 1).



                                                                 12
No. 43865 -8 -II



regard    to   the     duration        of    the trooper'     s   disability,    especially   when,   as   here,   the disability

continues      after    WSP       employment          ends.       As we explain above, WSP' s terminating Merino' s

WSP employment when he violated WSP regulations and was convicted of a felony did not

terminate his preexisting,                 vested    disability     benefits.     On the contrary, the legislature' s RCW

43. 43. 040 provision of disability payments to WSP troopers injured in the line of duty entitle

injured troopers, such as Merino, to continue receiving these disability payments as long as the

disability continues. See RCW 43. 43. 040( 2)( a).

          Consistent with this reading of the statute' s plain language, we further note that our

legislature allocated disciplinary and disability decisions between two separate entities in

establishing ( 1) a WSP " trial board" with jurisdiction over officer discipline and discharge, RCW

43. 43. 070;        and (    2)   a    WSP "     disability       retirement     board"    with jurisdiction over disability
               18
decisions.          WAC 446 -40 -060.               Significantly, the legislature did not give this WSP disciplinary

trial board jurisdiction to revoke a trooper' s disability benefits. 19 See RCW 43. 43. 070 -.090. The


18
      Ch. 446 -40 WAC governs procedures for placing or removing WSP officers from ch. 43. 43
RCW      disability         status    to   active status,   and vice versa.         See WAC 446 -40 -030.          In establishing
these procedures, the legislature limited the WSP chief' s disability review to " medical history,
reports, doctors' analyses and the like" when removing an officer from disability status.   WAC
446 -40 -050.The WSP chief' s decision is appealable to the WSP disability retirement board,
whose review is similarly limited to " reports or testimony of mental or physical examinations of
the [   applicant]."          WAC 446 -40- 070( 2).               The legislature did not permit the WSP chief or the
disability retirement board to consider violation of WSP regulations when determining whether
to    change a       disability       benefit   recipient' s      disability   status.   See WAC 446 -40 -050, - 070.       Thus,

WSP can change a recipient' s status only if the condition precedent ( the disability) no longer
 exists. See RCW 43. 43. 040( 2)( a).

 19
      Consequently, WSP could not revoke Merino' s disability benefits by terminating his WSP
 employment for failure to comply with WSP regulations; it is the WSP disability retirement
 board' s duty to decide whether Merino still qualifies for disability benefits.


                                                                        13
No. 43865 -8 -II



legislature' s provision of two separate boards to handle WSP disciplinary and disability issues

independently further exemplifies the legislature' s intent for RCW 43. 43. 040 disability benefits
to remain independent of the recipient' s WSP employment status.

          We hold that under the plain language of RCW 43. 43. 040, the legislature does not allow

WSP to revoke vested disability benefits for injuries suffered by WSP troopers in the line of duty

by terminating WSP employment, regardless of the reason for such termination. We further hold
that under the plain language of this statute, Merino is entitled to receive benefits as long as his
                          20
disability   continues.



                                              C. November 1999 Letter


          In its response to the Washington State Patrol Troopers Association' s ( WSPTA) amicus

curiae brief, WSP further argues that ( 1) Merino' s disability payments never vested because he

was always subject to losing them if he violated WSP regulations; and ( 2) Merino waived any

contrary contractual obligation by WSP when he signed and returned the WSP' s November 1,
 1999 letter, which explained that Merino was still subject to WSP regulations, policies, and

directions, and that he risked losing his disability payments if he failed to comply with those

terms,    regardless of whether        he   was still   disabled.   Having held that Merino' s RCW 43. 43. 040



 20
      A 1952 Washington State Attorney General opinion on the retirement and disability payment
 provisions of      RCW 43. 43. 040 is      consistent with our plain    reading   of   this   statute.   1951 -1953 Op.
 Att' y Gen. No. 274, supra. The attorney general concluded that a trooper who receives disability
 payments under this statutory provision " will continue to receive said compensation as long as
                                 the                         has nothing to do     with   it."   1951 - 1953 Op. Att' y
 the   disability   exists and         age of retirement

 Gen. No. 274,       supra ( emphasis added).           Although this opinion addressed whether a trooper is
 entitled to continue receiving disability payments after reaching the retirement age of 60, its
 reasoning applies here, namely that the only precondition for a disabled trooper' s receiving RCW
 43. 43. 040 disability benefits is the ongoing existence of the disability as long as RCW
 43. 43. 040( 1)( c) does not preclude these benefits. See 1951 - 1953 Op. Att' y Gen. No. 274, supra.

                                                             14
No. 43865 -8 -II



disability benefits vested when he became disabled in the line of duty, we reject this argument.

Again, although WSP could terminate Merino' s employment for failing to comply with WSP

regulations, RCW 43. 43. 040( 2)( a) prohibits WSP from terminating his disability benefits as long

as he is disabled.


         Division One of our court rejected a similar agreement as binding on an employee where

the State required the employee to forfeit a vested right, holding that " an agreement in which a

public employee waives his or her vested right to participate in an applicable retirement system

is   void as against public    policy."   Helgeson v. City of Marysville, 75 Wn. App. 174, 182, 881

P. 2d 1042 ( 1994).


         Our legislature enacted RCW 43. 43. 040 to create a vested disability benefit for WSP

troopers injured on the job; we are aware of no authority allowing WSP to create different

conditions for disability benefit eligibility, including WSP' s attempt to do so with its November

1999 letter. WSP' s letter left Merino with little choice other than to sign it; the letter warned him

that if he did not sign it, he risked losing his disability benefits, a condition that did not exist

under   the law   at   the time that Merino became      entitled   to   disability   benefits. As in Helgeson, we


hold that WSP' s November 1999 letter was unenforceable to revoke Merino' s vested disability

benefits because it was void as against public policy and contrary to the legislature' s dictates in

RCW 43. 43. 040. See 75 Wn.         App.   at   182.   Accordingly, we further hold that WSP' s November

 1999 letter does not control whether Merino is entitled to his vested disability benefits.

          The legislature' s decision not to tie a WSP trooper' s disability payments to continuing

job performance shows that the legislature intended to create a lifetime disability scheme with

 benefits that vest when the officer qualifies for them upon being injured in the line of duty.



                                                          15
No. 43865 -8 -II



RCW 43. 43. 040( 1).          Consequently, we hold that Merino' s benefits vested when he became

disabled, they continue as long as his disability exists, and he did not lose them when WSP
terminated him.


                                                     ATTORNEY FEES


           Merino    requests      statutory attorney fees         under    RCW 49. 48. 030.         He argues that if he is


entitled    to   recover   past     due   disability   benefits, then he is        also   entitled   to attorney fees.          We

      21
agree .




           Merino further argues that under Bates v. City of Richland, 112 Wn. App. 919, 51 P. 3d

816 ( 2002), recovery              of   statutory   disability    benefits    qualifies    as "   wages"      according to the

expansive        definition   of   RCW 49. 46. 010( 7).          WSP counters that if Merino agrees his disability

benefits    are " wages,"      then he      must concede         that the   payments were not a vested               benefit.   We


disagree with WSP. Although the chapter containing RCW 49.48. 030 ( which compels a court to

                                                                 does         define "`             courts have applied the
award      attorney fees for recovery           of wages)               not               wage,'




definition       contained    in [ RCW 49. 46. 010( 7)]."               Bates,   112 Wn.          App.   at   939.     Moreover,


 Washington courts have interpreted RCW 49.48. 030 broadly, and [ have awarded] attorney fees

       for breach     of an employment contract."                 Bates, 112 Wn. App. at 940 ( citing Gaglidari v.

Denny' s    Rests., Inc., 117 Wn.2d 426, 450 -51, 815 P. 2d 1362 ( 1991)).




21
     RCW 49. 48. 030 provides:
           In any action in which any person is successful in recovering judgment for wages
           or salary owed to him or her, reasonable attorney' s fees, in an amount to be
           determined by the court, shall be assessed against said employer or former
           employer:       PROVIDED, HOWEVER, That this section shall not apply if the
           amount of recovery is less than or equal to the amount admitted by the employer
           to be owing for         said wages or     salary.
No. 43865 -8 -II



          In Bates, Division Three of our court further held that


          awards for attorney fees under RCW 49.48. 030 are not limited to judgments for
          wages or salary earned for work performed, but, rather, that attorney fees are
          recoverable under RCW 49. 48. 030 whenever a judgment is obtained for any type
          of compensation due by reason of employment.
                                                                Pensions are deferred
          compensation for work performed.


112 Wn.     App.     at   940 (   emphasis added) (    citing Bakenhus v. City of Seattle, 48 Wn.2d 695, 698,

296 P. 2d 536 ( 1956)).           Even if we were to accept WSP' s argument that the pension benefits in


Bates are distinguishable from Merino' s disability benefits, Merino' s disability payments are still

 compensation        due    by    reason of employment ";      thus, he is entitled to attorney fees under RCW

49.48. 030. Bates, 112 Wn. App. at 940.

          We hold that the legislature enacted RCW 43. 43. 040 to provide . a vested, ongoing

disability payment system to individuals disabled as WSP officers while serving in the line of

duty.    Merino fulfilled this contingency           22 in February 1994 upon becoming disabled as a result of
                                                                              23
injury    on   the   job,    at   which    point   his benefits     vested.        The legislature did not condition


continued receipt of these payments on continued employment with the WSP or continued good


behavior; on the contrary, only recovery from the disability could result in discontinuing these



22
      Nor do we agree with WSP' s argument that RCW 43. 43. 040 disability benefits are " contingent
benefits"      and are    thus    exempt   from the definition       of " wages"     for purposes of RCW 49.48. 030.
 Suppl. Br. of Resp' t at 3 ( citing Teamsters, Local 117 v. Nw. Beverages, Inc., 95 Wn. App. 767,
768 -69, 976 P. 2d 1262 ( 1999) (            holding   that   unclaimed sick        leave is " a contingent benefit due

 only in the event an employee misses work due to illness" and, consequently, is not within the
 definition    of " wages"        under   either ch.   49. 48 RCW      or ch.      49. 46 RCW)).   But unclaimed sick

leave is not comparable to vested compensatory disability payments which Merino was entitled
to receive by virtue of being disabled, a condition he already met.
 23
   The WSP cites no authority for its position that if Merino asserts that his disability
 compensation is classified as wages for purposes of seeking attorney fees under RCW 49.48. 030,

                                                               17
No. 43865 -8 -II



benefits.       RCW        43. 43. 040( 1).       Furthermore,          because    the   legislature   adopted   a broad


interpretation     of "wages"         under   RCW 49. 46. 010( 7), RCW 49. 48. 030 compels the superior court


to award Merino reasonable attorney fees here.

         We reverse the superior court' s grant of summary judgment in favor of WSP and the

superior court' s       denial   of   summary judgment for Merino.                And we remand to the superior court



for entry of summary judgment in favor of Merino against WSP and for calculation of Merino' s

attorney fees..



                                                                      Hurit, J.
We concur,




                                        OV,

             J. P. TI




 then   he forfeits his      earlier    argument        that   they   are vested   benefits.
                                                                                      Consequently, we do not
 address    this   argument.     RAP 10. 3(     a)(   6);   Cowiche Canyon Conservancy, 118 Wn.2d at 809.


                                                                  18
