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California: Jurisdiction over Repayment of Disability Retirement Benefits

October 03, 2022 (3 min read)

In what might be a case of first impression, a Board Panel has issued a decision on the WCAB’s jurisdiction over repayment of disability retirement benefits. Read the LexisNexis headnote below.


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Rebecca Gage, Applicant v. County of Sacramento, PSI, Defendant

W.C.A.B. No. ADJ8010054—WCAB Panel: Chair Zalewski, Commissioners Razo, Sweeney

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed September 15, 2022

Publication Status:  CAUTION:  This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition:  Reconsideration is granted, the January 5, 2022 Findings and Order is rescinded, and a new Findings of Fact and Order is substituted.

Temporary Disability—Disability Retirement Benefits—WCAB Jurisdiction—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant and defendant were expected to meet and confer to determine plan under Labor Code § 4850.4(f) for repayment of advanced disability pension payments defendant made to applicant (who suffered lumbar spine injury while working as deputy sheriff through 9/14/2011) before ultimately denying her disability retirement application, when WCAB held that (1) initial jurisdiction over establishment of repayment plan under Labor Code § 4850.4(f) vests solely with local agency (in this case, defendant) that issued payment, and local agency must establish administrative appeals remedy to determine repayment plan if parties do not reach agreement, (2) although WCAB had jurisdiction in this matter to impose Labor Code § 5814 penalties for defendant’s delayed payments under Labor Code § 4850.4 because these payments are “compensation” under Labor Code § 3207, WCAB had no jurisdiction to compel applicant to participate in process outlined in Labor Code § 4850.4(f) to determine plan for repayment of advanced disability pension payments after disability retirement application was denied, and (3) while Labor Code § 4850.4(f) permits local agency to pursue litigation to recover advanced payments if repayment is not made according to plan, local agency may not pursue litigation until injured employee has failed to repay advanced payments through agreed-upon repayment plan or through repayment plan adopted after submission of issue to local agency’s administrative appeals remedy; therefore, it was premature for WCJ in this case to address whether “litigation” under Labor Code § 4850.4(f) includes proceedings before WCAB. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.113[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.21[6], [7].]

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