Public employers and administrators are familiar with Labor Code section 4850 and salary continuation benefits for certain public officials. Labor Code section 4850 affords city police officers, firefighters and sheriffs among other listed public employees active in law enforcement a leave of absence, without loss of salary, in lieu of temporary disability payments, where the individual is disabled temporarily or permanently by injury or illness arising out of and in the course of employment. Salary continuation payments pursuant to Labor Code section 4850 are allowed for up to one year.

Liberal construction of Labor Code section 4850 has afforded an extension of these benefits in a variety of ways over the past few years. Salary continuation benefits have been afforded to a law enforcement agent subsequent to his voluntary resignation from employment (City of San Carlos v. WCAB (Maloney), (1999), 64 Cal.Comp.Cases 563 [writ denied]). Salary continuation under Labor Code §4850 has also been opined distinct from temporary disability indemnity extending the time frame of commencement of temporary disability and the limitations period assigned by LC §4656(c)(1) (City of Oakland v. WCAB (Felicia Aisthorpe, Johnna Watson) 72 Cal.Comp.Cases 249 [writ denied]). The effect of latter, extending the ability to those active in law enforcement to collect Temporary Disability/Salary continuation benefits for an additional 52 weeks.

Recent activity, however, suggests both the WCAB and Appellate courts are reconsidering the extent of liberal construction which may reign in such holdings.

Labor Code section 4850 and Resignation

A panel decision issued by the WCAB on December 21, 2012 (Jonathan Wycinsky v. City of Citrus Heights), reverses the holding in Maloney. In Wycinsky, applicant was employed as a police officer for the City of Citrus Heights. He sustained an injury to his left shoulder and was off on temporary disability for a short period of time. He returned to his position as a police officer for the City of Citrus Heights, but would soon after resign in order to take a higher paying position as an officer for the City of Richmond. After taking this position, applicant fell in need of surgery to his injured left shoulder. Although entitled to and receiving temporary disability, Mr. Wycinsky sought full salary benefits pursuant to Labor Code section 4850. The trial court afforded him benefits based on the holding in Maloney. On reconsideration, the WCAB found the facts of Wycinsky to be similar to those in Maloney, but declared their holding in Maloney to be in error.

Instead, the WCAB cited two prior cases Collins ((1971) 55 Cal.App.3d 594) and Warren ((1982) 133 Cal.App.3d 727) both of which have law enforcement officers resigning from employment for various reasons. Collins retired from employment although deferred the retirement for financial reasons, while Warren was a probationary employee who would not be kept after the probationary period based on performance. Warren elected a voluntary resignation as opposed to being terminated. Neither Collins nor Warren were afforded Labor Code section 4850 benefits based on the resignations, as the resignation itself would distinguish itself from a leave of absence as contemplated by Labor Code section 4850. The WCAB’s current position is that “any resignation for non-medical reasons, whether voluntary or involuntary, precludes the possibility of a ‘leave of absence’ that is the predicate for payment of full salary pursuant to section 4850.”

The possibility for review is still available in Wycinsky, but the holding itself appears to correct the prior misplaced construction of the holding in Maloney.

Interaction of Labor Code section 4850 and the Limitations of Labor Code section 4656

The First District Court of Appeals is also weighing in on issues surrounding Labor Code section 4850. Although a decision has not yet issued, the court has taken oral arguments pertaining to the interaction of Labor Code sections 4850 and 4656, and whether the limitations of Labor Code section 4656 (temporary disability limited to 104 weeks within a period of five years from the date of injury) applies to salary continuation pursuant to Labor Code section 4850. (County of Alameda v. WCAB (Knittel)).

A determination in this matter would have far reaching effects as to the costs associated with benefits afforded active law enforcement personnel under Labor Code section 4850.

Labor Code section 4656 is a limitation of the period of collection of temporary disability benefits an applicant is afforded following injury. Labor Code section 4656 was amended by way of the enactment of SB 899 effective April 19, 2004 and amended again January 1, 2008 by AB 338. For dates of injury April 19, 2004 through December 31, 2007, Labor Code section 4656 limits payment of temporary disability to 104 weeks within a period of two years from the commencement of temporary disability payment. (Labor Code section 4656(c)(1)). For dates of injury January 1, 2008 through the present, temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury. (Labor Code §4656(c)(2)).

The distinguishing feature of the limitations period provided through SB 899 was restricting payments beyond two years from the commencement (first payment) of temporary disability. The very restrictive language affected significantly the extension of benefits for those who missed a short period of time from work immediately following injury, but were able to return to work only to need surgery or additional time off more than two years from the commencement of that initial disability payment. The amendment by AB 338 rectified that issue by lifting the two year limitation and allowing 104 compensable weeks anywhere within five years from the date of injury.

While Labor Code section 4656(c)(1) was in effect, the courts weighed in on the limitations and whether benefits received as salary continuation under Labor Code section 4850 would trigger the commencement of disability clause of Labor Code section 4656(c)(1). In 2007 the WCAB affirmed a WCJ’s opinion that benefits provided through Labor Code section 4850 were distinct from temporary disability indemnity (Aisthorpe) and did not trigger commencement under Labor Code section 4656(c)(1). The opinion concluded that benefits paid pursuant to Labor Code section 4850 are not subject to the two year limitation period for payment of temporary disability indemnity set forth in Labor Code section 4656 as amended by SB 899.

The question now being whether the distinction of Labor Code section 4850 benefits and temporary disability indemnity in Aisthorpe, was significant as to the actual benefits afforded or was the determination influenced by the restrictive language of Labor Code section 4656(c)(1), which has since been amended.

There are multiple other statutory codes allowing salary continuation for state employees which have been determined consistent with temporary disability and are counted towards the limitation periods within Labor Code section 4656. Employees in the field of education are afforded salary continuation benefits pursuant to the Education Code section 44043. Although salary continuation is not paid within Division 4 of the Labor Code, the First Appellate District has held those benefits are conferred upon the finding of industrial injury and thus Education Code section 44043 benefits are in part temporary disability under workers compensation law (Mount Diablo v. WCAB (Rollick) (2008) 165 Cal.App.4th 1154). Salary continuation benefits paid pursuant to Education Code §44043 will qualify as benefits paid towards the limitations of Labor Code section 4656.

Other State employees are allowed industrial disability leave pursuant to Government Code sections 19869-19877.1. The Fifth Appellate District has held payments made under the Government Code sections are also limited by Labor Code section 4656. (Brooks v. WCAB (2008) 73 Cal.Comp.Cases 447.)

Brooks dealt with a correctional officer who qualified for industrial leave under the Government Code sections. Brooks was allowed one year of industrial indemnity leave followed by one year of temporary disability. Brooks petitioned for a second year of temporary disability contending IDL under the government code was distinguished from temporary disability. The WCJ disagreed relying on Government Code section 19870 which provides IDL “means temporary disability as defined in” the labor code.

Both the First District in Mount Diablo and the Fifth District in Brooks commented upon the decision in Aisthorpe but made no determination as to the application of Labor Code section 4850 as it was not before the court. Each court found distinctions between Labor Code section 4850 and the salary continuation benefits provided by each the education and government code sections allowing each case to be distinguished. Labor Code section 4850 affords payment immediately as opposed to the three day waiting period for normal temporary disability benefits. Language within Labor Code section 4850 also allows it to be applied whether the individual is temporarily or permanently disability, the distinction of which was used by Aisthorpe to distinguish from normal temporary disability, but has yet to fully be interpreted. Although there may be some differences in the statutory construction there is nothing in the precedential history that suggests salary continuation in lieu of temporary disability under Labor Code section 4850 is nothing more than an extension of the amount of temporary disability and not the duration.

With the First District now accepting oral arguments on the issue the WCAB’s holding in Aisthorpe is called into question. Did the legislature specifically carve out salary continuation in cases of active law enforcement, distinguishing them from all other state employees, or was the holding in Aisthorpe a reaction to an overreaching statute which has since been amended?

Oral arguments in Knittel took place on December 18, 2012. I know where my thoughts lie. The wait is now on to see if the First District agrees.