In a situation involving an applicant who would have been eligible for Labor Code section 4850 benefits, but has retired, there appears to be an ambiguity whether these benefits apply. Part of the answer is whether the applicant has obtained a service retirement or a disability retirement.

Labor Code section 4850(a) states “Whenever any person listed in subdivision (b), who is employed on a regular, full-time basis and is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled, regardless of his or her period of service with the city, county, or district, to a leave of absence while so disabled without loss of salary in lieu of temporary disability payments or maintenance allowance payments under Section 139.5, if any, that would be payable under this chapter, for the period of disability, but not exceeding one year, or until that earlier date as he or she is retired on permanent disability pension and is receiving permanent disability pension payments or advanced disability pension payments, or advanced disability pension payments pursuant to Section 4850.3.”

Labor Code section 4850(a) seems to imply that a service retirement does not cut off possible 4850 time. Labor Code section 4850(a) states that when an applicant was advanced disability pension payments or retired on a permanent disability pension, then Labor Code section 4850 benefits are ended.

However, there is case law which states that an employee is not entitled to leave-of-absence (LOA) benefits (i.e. 4850 time) if he resigns before its commencement, whether the resignation is voluntary or involuntary County of San Mateo v. WCAB (Warren) (1982) 47 CCC 739. There is also an unpublished case, City of Alhambra v. WCAB (Mendoza)(1999) 64 CCC 150, agreeing with this viewpoint. Also, there is no LOA benefit if the disability arises after termination of his or her employment and the termination injury is not related to the industrial injury.

Based upon the WCAB case law, if an applicant incurs an industrial injury but obtains a service retirement prior to the commencement of the disability period, it can be argued that the applicant is not eligible for Labor Code section 4850 benefits (and of course the same applies if the applicant has retired on a permanent disability retirement pension and is receiving permanent disability retirement pension benefits or advanced permanent disability retirement pension benefits).