State Ex Rel. Crabb v. Olinger , 196 Wash. 308 ( 1938 )

I concur in all that is said in the dissenting opinion of Judge Simpson. I desire, however, to emphasize that portion of the dissent which points out that the contributions paid by the various employers into the accident fund are not, as intimated in the opinion written by Judge Millard, license taxes exacted of employers for the mere privilege of engaging in business. On the contrary, they are contributions required of and paid by those engaged in extrahazardous industries to meet the burden resting upon them of carrying the greater part of the cost of accidents occurring in such industries; and, when so paid, these contributions constitute trust funds to be devoted to the purposes specified by the workmen's compensation act. The distinction between these two concepts is very important.

If these contributions be considered merely as "license taxes," then, obviously, the employer is concerned only with the payment of his "tax" in order to engage in business, and he is in no way concerned with the manner in which such "taxes" are disposed of or distributed by the department among injured employees. The only question that the employer could raise, under that theory, would be whether the tax was reasonable. But the workmen's compensation act by its terms discloses beyond any question of doubt that the employer has a very vital interest in the administration of the accident fund, and that he has the right to be heard before the department and in court upon every claim made by a workman. The employer is not a mere licensee under the act; he is in the position of an assured who, for the premiums that he pays, is entitled to have every just claim arising under the act compensated out of the fund and every spurious claim rejected.

I emphasize this phase of the case because the theory of Judge Millard's opinion is that, since the employer's connection with the workmen's compensation act is merely by virtue of a taxing process, he therefore does not have an appeal to the courts as a matter of right, but only as a matter of grace; and that, since under the language of the statute the appeal granted to the employer does not operate as a stay, therefore the compensation awarded by the joint board must be paid without regard to the question whether the appeal of the employer may be successful. With that reasoning I do not agree.

This same theory was expounded at length in a dissenting opinion written by Judge Blake in the case of Mud Bay LoggingCo. v. Department of Labor Industries, 193 Wash. 275,75 P.2d 579, and was adopted by three of the judges sitting in that case. The other six judges declined to accept that theory. In the case now before us, four judges appear to subscribe to that doctrine; two, however, have merely concurred in the result; and the other three, of whom I am one, have dissented. I take it, therefore, that, regardless of the result of this case, the theory upon which the four-judge opinion here is written has not been accepted by a majority of the members of this court. I am moved to register my disapproval of that theory because of the serious consequences which I apprehend would follow if it should be accepted by this court. If that should be the law, then the only right that the employer would have under the act would be that of paying the bills incident to the maintenance of the fund.

One other matter appearing in the opening opinion should be noted. It is there said:

"If the employer is successful upon its appeal, the employer will then have the right to require charged off of its cost experience any disbursement made to the claimant."

If this be a correct statement, which I think it is, then the department can never safely allow any claim in a case in which the employer takes a position contrary to the employee, for, having once allowed the claim, the department can, as Judge Millard's opinion now holds, be compelled to pay it at once; but, having paid the claim, the department runs the risk of having any disbursement charged off the employer's cost experience, with no chance of getting back the money from the claimant in the event the case is reversed on the employer's appeal. This is a situation that does not augur well in the future for either the department or for injured employees.

I dissent.