# Cockle v. Department of Labor & Industries > Washington Supreme Court · January 18, 2001 · 142 Wash. 2d 801 URL: https://www.frixlaw.com/law-library/cases/4711963 ## Case - **Full name:** Dianne L. Cockle v. The Department of Labor and Industries - **Court:** Washington Supreme Court - **Decided:** January 18, 2001 - **Citations:** 142 Wash. 2d 801 - **Precedential status:** Published - **Opinion:** Concurring in part by Guy - **Judges:** Bridge, Guy, Talmadge - **Cited by:** 335 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4711963 ## How later opinions describe it (automated extraction) - recognizing that health care coverage is frequently a significant part of an employee’s compensation package and should be considered a wage - recognizing employer-provided health care benefits as "core, nonfringe benefits" provided in consideration for services rendered for purposes of calculating lost wages in the workers' compensation statute - holding that the phrase “other consideration of like nature” in RCW 51.08.178(1) is ambiguous because several reasonable interpretations of the phrase exist ## Opinion text Guy, J. * (concurring in dissent) — I agree with the result and with most of the reasoning of the dissent. I write only to emphasize that when the Legislature enacted the language of RCW 51.08.178 in 1971, health insurance was a well-known and well-recognized form of compensation. By not including health insurance coverage in its definition of wages in RCW 51.08.178, the Legislature intentionally excluded it. Moreover, given the Department of Labor and Industries’ exclusion of health insurance coverage in its calculation of wages, the Legislature has had ample opportunity to clarify the statute if it felt that the Department was misinterpreting it. This case turns upon the interpretation of the definition of “wages”: “The term ‘wages’ shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part of the contract of hire, but shall not include overtime pay except in cases under subsection (2) of this section.” RCW 51.08.178(1). The issue is whether health care premiums are a form of “other consideration of like nature.” The dissent makes it appear as if the definition in *835 question were not enacted into law in 1971, but instead in 1911. See dissent at 823-24, 827-28. The majority stresses the early 20th century origins of the phrase “ hoard, housing, [and] fuel’ ” when it finds that language from the early 1900s should be read to imply that comparable benefits in the late 1900s would include health care coverage. See Majority at 823. But regardless of the origins of the wording, the definition of “wages,” which is at issue in this case, was enacted in 1971. See Laws of 1971, 1st Ex. Sess., ch. 289, § 14. The fact that this language became law in 1971 rather than in the early 20th century is important because this fact affects how we interpret the phrase “other consideration of like nature.” If we conceive of the phrase as having entered into state law in the early part of the last century, we might argue, as the majority does, that the phrase was meant to cover essential employment benefits, which at that time included board, housing, and fuel; since health insurance has now become an essential employment benefit, “other consideration of like nature” should be extended to include the payment of health insurance premiums. But because RCW 51.08.178 was actually enacted in 1971, the listing of only board, housing, and fuel as benefits which count as wages indicates “other consideration of like nature” should be construed narrowly. Since RCW 51.08.178 was enacted at a time in which health insurance had become a significant fringe benefit, we may assume that it was considered and rejected for express mention in that statute. In 1911, health care insurance would not have been recognized as a fringe benefit because it was not until 1929 and the years following that modern health insurance plans took shape. See Rashi Fein, Medical Care, Medical Costs: The Search for a Health Insurance Policy 10-12 (1986); Odin W. Anderson, Blue Cross Since 1929: Accountability and the Public Trust 18 (1975). In 1927, when the Longshore and Harbor Workers’ Compensation Act ( 33 U.S.C. § 901 ) was enacted, employer-funded fringe benefits were virtually unknown. Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, 461 U.S. 624, 632 , 103 S. Ct. 2045 , 76 L. Ed. 2d 194 (1983). By *836 1951, however, 77 million people were covered by health insurance. Fein, Medical Care, Medical Costs, supra at 23. The Court of Appeals in Cockle v. Department of Labor & Industries, 96 Wn. App. 69, 84 , 977 P.2d 668 (1999), observes that “the Washington legislature enacted RCW 51.08.178 in 1971, and by then employer-supplied health insurance was a common way of augmenting monetary compensation.” Because, as we have seen, health or medical insurance was a significant form of fringe benefit in 1971, the Legislature’s failure to list it expressly indicates the Legislature did not consider it to be “wages.” It is unlikely that the Legislature would relegate such an important kind of fringe benefit to the category of “other consideration of like nature.” The majority itself raises a related criticism of its position: that the Legislature left the language of RCW 51-.08.178 unaltered despite the Department’s interpretation of the provision as excluding employer-provided benefits such as health care coverage from its computation of workers’ compensation. Majority at 811-12. Where the Legislature fails to act in such a situation, the interpretation of the Department is given even greater weight: “ Where a statute is ambiguous, construction placed upon it by the officer or department charged with its administration is not binding on the courts but is entitled to considerable weight in determining the legislative intention, and the persuasive force of such interpretation is strengthened when the legislature, by its failure to amend or by amending some other particular without repudiating the administrative construction, silently acquiesces in the administrative interpretation. White v. State, 49 Wn. (2d) 716, 306 P. (2d) 230 [1957].’ ” Seattle-King County Council of Camp Fire v. Dep’t of Revenue, 105 Wn.2d 55, 66 , 711 P.2d 300 (1985) (quoting Hart v. Peoples Nat’l Bank, 91 Wn.2d 197, 201 , 588 P.2d 204 (1978) (quoting Bradley v. Dep’t of Labor & Indus., 52 Wn.2d 780, 786-87 , 329 P.2d 196 (1958))). Although the majority counters the first part of this argument by asserting that an agency’s interpretation is not binding on this *837 court, it does not respond at all to the second part concerning the acquiescence of the Legislature. The decision to count health insurance premiums as wages should be the Legislature’s, not the judiciary’s. Since the Legislature has not seen fit to expressly include health care coverage as wages, this court should not interpret the statute as implying such an inclusion. The leading treatise on workers’ compensation law warns courts against construing “wages” too broadly and making the same mistake as the federal Court of Appeals in Hilyer v. Morrison-Knudsen Construction Co., 670 F.2d 208 (D.C. Cir. 1981), the decision reversed by the United States Supreme Court in Morrison-Knudsen: A general observation is in order here. Workers’ compensation has been in force in the United States for over seventy years, and fringe benefits have been a common feature of American industrial life for most of that period. Millions of compensation benefits have been paid during this time. Whether paid voluntarily or in contested and adjudicated cases, they have always begun with a wage basis calculation that made “wage” mean the “wages” that the worker lives on and not miscellaneous “values” that may or may not someday have a value to him or her depending on a number of uncontrollable contingencies. Before a single court takes it on itself to say, ‘We now tell you that, although you didn’t know it, you have all been wrongly calculating wage basis in these millions of cases, and so now, after seventy years, we are pleased to announce that we have discovered the true meaning of ‘wage’ that somehow eluded the rest of you for seven decades,” that court would do well to undertake a much more penetrating analysis than is visible in the Circuit Court’s opinion in Hilyer of why this revelation was denied to everyone else for so long. 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 93.01[2][b] (2000). I respectfully concur in the dissent. Madsen, J., concurs with Guy, J. Pro Tem. Justice Richard P. Guy is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4711963. Public record. Not legal advice.