California: 3rd District Issues 2 Cases on Public Safety Officers Earnings

California: 3rd District Issues 2 Cases on Public Safety Officers Earnings

The 3rd District Court of Appeal has issued two decisions today with some remarkable similarities. In both cases the applicant attorney and defense firms were the same (although with different individual appearing attorneys), both cases involved earnings issues for public safety officers and in both cases one of the appellate justices was the same (Justice Robie). Perhaps the biggest coincidence is that in both cases the prevailing party was the employer; on one case obtaining a reversal of the W.C.A.B.’s decision and in the second the decision denying benefits was upheld.

County of Nevada v W.C.A.B. (Wade):

The issue is this case is whether a public safety officer, entitled to Labor Code § 4850 benefits of salary in lieu of temporary disability benefits, was entitled to salary to include a 5% shift differential pay while on modified duty which did not include the supplemental pay. The court framed the issue as follows:

“…The question here is whether this section applies to guarantee no loss of salary to an employee who has returned to work, albeit on modified duty…. “

The employee at the time of injury was working a night shift which included a pay differential of 5% from day shift. After a brief return to full duties, the employee was provided a limited duty restriction by his physician while awaiting and then recovering from surgery. For periods of time both before and after his surgery, the employer provided modified duty which required the employee work during the day and did not include a pay differential.

At trial the employee claimed entitlement to the 5% differential based on his usual salary before injury claiming Labor Code § 4850 required he be compensated on modified duty for his full pay before the injury. He was awarded the increased benefit by the WCJ based on the holding in Johnson v Contra Costa County Fire Protection District. In that case the 1st Appellate district had ruled a public safety officer’s salary during a leave of absence included holiday pay even though at the time the employee received his Labor Code § 4850 benefits he was not available to work holidays due to disability. The County had argued the employee should be treated as a non-shift employee because he was not working at the time of the holidays but the Court ruled otherwise. In this case the WCJ opined the employer would have had to pay the differential pay pursuant to Johnson if the employee was on leave of absence and therefore should receive similar compensation while on modified duty.

The W.C.A.B. followed the WCJ’s reasoning and upheld the award.

The Appellate Court however refused to rely on Johnson and instead relied on a different case, Collins v County of Los Angeles. In that case it was determined a former employee was not entitled to Labor Code § 4850 full salary benefits while temporarily disabled as they were no longer employed. The Court however interpreted the decision more broadly on the issue of how to consider a “leave of absence” as required in the statute:

“…At its narrowest, Collins stands for the proposition that a person who is no longer employed cannot be on a leave of absence from his or her job. More broadly, however, Collins supports the conclusion that a “leave of absence” is a temporary absence from employment with the intent to return. This is the common sense understanding of the term. …Applying this common sense understanding here, Lade could not have been on a leave of absence when he was actually back at work for the sheriff’s department, even if he was working light duty on a different shift.

There is nothing in section 4850 that guarantees a worker anything when he is no longer on a leave of absence and is instead back at work. Moreover, there is nothing in section 4850 that can be reasonably understood to mean that a leave of absence is anything less than being absent from one’s employment.”

In answer to its original question in the case the Court held:

We conclude that it does not. A “leave of absence” is a foundational prerequisite to the application of section 4850’s no-loss-of-salary guarantee, and a person who has returned to work, even on modified duty, is not on a leave of absence. Accordingly, we will annul the decision of the Workers’ Compensation Appeals Board (the board) and remand for further proceedings.

The Court determined Larkin did not meet the required status to qualify for Labor Code § 4850 benefits, it: being on a leave of absence, and reversed the W.C.A.B.

Larkin v W.C.A.B.

This case involved a salaried police officer for the City of Marysville. The case does not indicate what his earnings were but one must presume they were less than maximum for temporary disability to the issue in this case to arise. At an Expedited Hearing the applicant attorney raised the issue of earnings claiming the employee was entitled to the maximum statutory benefits based on the combination of Labor Code §§ 4458.2 and 3362. The combination of these sections provides for a presumptive earnings at maximum rates for volunteer police officers. Applicant argued that as a regularly employed police officer he was also entitled to a presumption of earnings at maximum benefits.

At Expedited Hearing, the WCJ ruled the above sections applied only to active volunteer police officers and not to regularly employed, salaried officers. On appeal, the W.C.A.B. upheld the WCJ’s interpretation of these statutes and denied Reconsideration.

The Court of Appeal granted applicant’s Petition for Writ of Review but ultimately denied the relief sought holding the applicant’s interpretation of the statute would be “an absurd result…”

The court noted the specific language of the statutes applied only to volunteer police officers and was supported by the public policy to encourage participation in such volunteer efforts by extension of statutory benefits. Noting prior decisions of the Supreme Court have authorized such fictitious earnings calculations by statute, the Court applied the same rational to this case;

“… in the context of an identical statute regarding volunteer firefighters, the Supreme Court recognized these fictitious earnings were created by the Legislature as it was “ ‘[c]ognizant of the public service provided by the volunteer civilian firefighter and the potential loss of his earnings from other employment [and] determined that the usual benefit schedules should not apply but that a fictitious earnings component should be used. The liberal disability compensation program not only serves to counterbalance any sacrifice of earning power made to engage in firefighting activity, but also provides an incentive to engage in an important public service.’ ” The same policy considerations apply to providing these fictitious earnings for volunteer peace officers.”

There was no such need to provide a public policy to regularly employed officers as they received salary and benefits to support their work. The Court further noted Labor Code § 3362 defines active members of volunteer police forces as employees.

“…There is no dispute that Larkin, as an active duty peace officer, came within this definition of employee and was entitled to workers’ compensation benefits. As such, there is no reason to have a special statute deeming an active duty peace officer to be an employee.”

It is interesting to note that the term “volunteer” does not appear in Labor Code § 3362 (as it does in the preceding sections of the Labor Code. However the placement in the statutory scheme, the reference in Labor Code § 4458.2 make the intent clear that this section is to apply to police officers who are not regularly employed. As noted by the Court, if applicant’s interpretation were to be adopted, there would be no compensation at all for volunteer police officers. The Court’s opinion rejects such a result to maintain statutory harmony.


It has been more or less a maxim of statutory interpretation (on an informal basis at least, perhaps more of an “unwritten rule”) in considering whether to take cases to the appellate level that “public safety officers win”. In the overwhelming number of appellate cases where there has been an issue that could go one way or another, the Courts have shown an consistent solicitude to the statutory intent to provide extra benefits and protections to public safety officers.

One certainly has to wonder with the widely publicized financial problems (including bankruptcies) of public entities, if the Courts are entering a time with a more even handed approach to interpreting statutes providing benefits to public safety officers. The Labor Code already provides a host of special benefits and protections to such employees from presumptions of injuries to special benefits for dependents. It may be that extending benefits that are not statutorily intended simply by interpreting statutes liberally is no longer an acceptable judicial practice. In both of these cases, the Court could have very easily ruled the other way simply by adopting a more liberal approach to the statutory language being reviewed. Instead the Courts considered the public policy issues as well as the detrimental effect the liberal approach would potentially have caused.

Kudos to the Lenahan, Lee, Slater & Pearse for being willing to advance these cases to the appellate level and providing compelling arguments on behalf of their client..

© Copyright 2014 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.

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