Employment Law Alert: Deputy’s Pursuit Of 4850 Benefits Arrested By Court

The California Court of Appeal, Third District, provides municipalities with a cost saving opinion in its decision in County of Nevada v. WCAB, and David Lade, January 29, 2014, C074133. The case answers the question whether industrially injured safety officers, who are granted up to a year of full pay in lieu of temporary total disability benefits, are guaranteed to receive their actual pay at the time of injury during all periods of their recovery from the injury.

Deputy sheriff David Lade suffered an injury to his shoulder while employed by the County of Nevada. At the time of the injury deputy Lade was paid a 5% shift differential as provided under the Nevada County memorandum of understanding for those regular employees who work between 6 p.m. and 6 a.m. during 40 hours of regularly scheduled work. The deputy had been working a shift qualifying him for this differential since 2004.

While under treatment for his industrial injury and awaiting surgery the deputy was returned to modified duty. He was again returned to modified duty approximately 2 months after surgery. During the periods of time that he worked modified duty, he was assigned regular daytime hours that did not qualify for the differential such that he was paid without the differential. While he was recovering from surgery and before he was returned to modified duty, he received his full salary, including the 5% differential, as is required by California Labor Code section 4850(a). That section requires in part that a deputy sheriff who 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 . . to a leave of absence while so disabled without loss of salary in lieu of temporary disability payments.”

Deputy Laid asserted at trial before the WCAB that he was entitled to the differential during the period of the limited duty. The WCJ agreed and found that returning the deputy to modified duties at a lower rate shift was an improper effort to “avoid indemnification for the shift pay.” In response to the County’s petition for reconsideration the WCAB agreed with the WCJ. The County sought review from the Court of Appeal. The Court disagreed with the WCAB and aned the decision.

Relying on the actual words of the statute, the court quickly dispatched the WCAB reasoning. In the statute the legislature extended the full salary entitlement only to qualified safety personnel who are on a “leave of absence” of up to a year. The court noted that the hallmark of a leave of absence is the absence from work and the intention to return to work. Working limited duty cannot be the same as a leave, because the most important feature of the term is “absent.” Responding to the deputy’s argument that this is too narrow an interpretation of the statute and “would create a massive gap between the legislative intent . . and its judicial interpretation,” the court wrote that 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.”

The decision adds to an employer’s tool box for managing industrial injuries. Though directed at municipalities, all employers may take a lesson from the decision that limited duty remains one of the strongest and most flexible tools for managing and ameliorating the costs of an industrial injury.

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January 30, 2014