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Keyword: ‘4850’

CoA: 4850 Benefits Inapplicable to Modified Duty

January 31st, 2014 No comments

So, dear readers, the week is almost over.  Giving it a proper send-off is a blog post with all my beloved city and county readers in mind: the case of County of Nevada v. WCAB, David Lade.

The case is a pretty simple one – applicant was a Deputy Sheriff for Nevada County and sustained an injury to his shoulder in the line of duty.  At that time of the injury, he was working the night shift, which entitled him to a 5% pay bonus (who wants to work nights, right?)

Well, he was placed on modified duty during the months leading up to his shoulder surgery, and that consisted of “light” duty during the day.  The opinion is somewhat unclear as to whether it was light duty in the sense that the tasks put before Deputy Lade were not as strenuous as those that might be for a deputy on full duty, or if it was light duty simply because it was to be performed during the day light hours.  (That one was a joke – a pun of sorts – it was less arduous work to be performed during day light hours.)

Now, during the time he was completely off work, he was paid his full pay, including his 5% differential for working the night shift. But, while on light duty, the 5% was NOT paid to him.

So, citing Labor Code section 4850, Deputy Lade advanced the argument that he was, in fact, entitled to the 5% pay bump because section 4850 served as a guarantee that he would see no decrease in his pay as a result of an industrial injury (in lieu of temporary disability benefits, of course).

When he was placed on light duty, he lost the 5% bump he was receiving before.  Just for frame of reference, Nevada County’s Sheriff Deputies make about $4-$4.8k/mo for Deputy I, and $4.4-$5.4k per month for Deputy II, and that’s without overtime pay.  So the 5% base is about $200 to $270 per month extra or $2,400 to $3,240 per year.  Now, this may not seem like a lot to the big shot applicants’ attorneys out there, lighting their cigars with $100 bills while dipping their feet in gold-plated swimming pools filled with the tears of employers and insurers, but for the rest of us, that’s not money to be left on the table.

So, dear readers, what say you – does section 4850 apply to guarantee a shift differential/bonus that non-injured employees do not receive?

Well, the Court of Appeal, in a published decision, held that section 4850 does not apply to a decrease in earnings due to modified duty.  Relying on a plain reading of the statute, the CoA held that 4850 applies only to an actual leave of absence.  Assignment of modified duty, by definition, is not such a leave.

Apparently, as a matter of law, one cannot be on a leave of absence while actually back at work, even if working light duty on a different shift.  In other words, no 5% bump.

Now, remember if you will, this humble blogger once had the pleasure to report to you another case on LC 4850, wherein the Court of Appeal found that benefits under 4850 go towards the Labor Code section 4656 cap on temporary disability benefits.  So the two cases are in line with the same policy: certain public employees get full salary for a year in lieu of temporary disability benefits.  But that’s what 4850 benefits are: super-duper temporary disability benefits, which you don’t really need (or get) if you’re back at work on modified duty.

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Paid Administrative Leave Doesn’t Count Towards TD 104 Week Cap

August 1st, 2016 No comments

Hello, dear readers!

Your humble blogger is back from his short (but well-earned) hiatus and brings you a report on a case recently denied review by the Court of Appeal: Ortega v. City of Guadalupe.  Therein, a police officer sustained an admitted injury to the back and psyche.  He was placed on paid administrative leave for about 41 weeks, and then was placed on temporary total disability after his employment ended.

So… what’s the problem?  Defendant took credit for the 41 weeks of paid administrative leave against the 104 week cap of Labor Code section 4656.  Naturally, applicant and his attorney had a problem with this, as… well… MONEY!

The parties proceeded to trial on this sole issue – can paid administrative leave paid by the employer be credited as temporary disability benefits?

Well, the WCJ and the WCAB gave a pretty fairly resolute “No.”

As the WCJ and the WCAB reasoned, paid administrative leave is, technically, “working.”  As applicant was earning wages, even as leave being a form of “modified” duty, where the modification is to do no work, these were wages and not wage loss.

In one sense, this is perfectly reasonable: applicant was hired with certain rights and responsibilities and benefits.  Among them paid administrative leave was included as part of the terms of employment, and the available money for wages was likely reduced to account for this other benefit (in lieu of, for example, unpaid administrative leave).

But, on the other hand, the guy is not actually working.  There’s no benefit being conveyed to the employer through this applicant’s labors while he is on administrative leave, and there are further losses to the employer – someone has to pick up applicant’s shifts and duties while he is on leave.

How does it apply to those employers in the private sector?  Well, there are going to be times when employees are entitled to various benefits that include them not doing any work but earning wages.  Some employers offer paid sabbaticals.  Certainly, it is conceivable that as part of a contract for employment, employees will demand a provision for paid administrative leave during administrative review of any lay-off or termination appeal.  Employees sometimes even use paid vacation to avoid taking a hit on their earnings while unable to work or while the injury is still in dispute.

Although wage continuation benefits under Labor Code section 4850 go towards the 104 week cap, at least according to the Court of Appeal in Knittel, wages that come directly from the employer (even the self-insured employer) rather than as a workers’ compensation benefit, might not be credited against temporary disability limits.

Perhaps this is something that can be remedied with legislation – the injured worker isn’t “working” unless there is actual benefit to the employer being conveyed.  Until there is such legislation in place, employers and insurers should be wary of claiming TD credit for non-TD benefits.

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Legislation Proposed to Kaibosh Knittel Case

March 26th, 2014 1 comment

Some of your humble blogger’s devoted readers represents cities and counties, and so, naturally, have to deal with injury claims from peace officers entitled to paid leave rather than temporary disability benefits for up to one year.

It would be the rudest form of neglect if I was not prepared to provide an equal amount of disappointment and dread with respect to the workers’ compensation system in California to all readers, including those who employ peace officers and firefighters.

In the Court of Appeal’s opinion in the case of Knittel, the law became very clear to us all, that Labor Code section 4850 allowed peace officers and fire fighters to have a leave of absence of one year without any loss of salary in lieu of temporary disability benefits, but not in addition to the 104 week cap imposed by Labor Code section 4656.

Well, about that…

It appears that Assembly Member Perea is not happy with the Knittel opinion, and has introduced Assembly Bill 2378 “to abrogate the holding in … Knittel,” amending the Labor Code to make section 4850 benefits payable in addition to those benefits outlined by Labor Code section 4656.

In other words, if you are injured as a firefighter, you should be able to be paid to be off work for 3 years!

Your humble blogger has a great deal of respect for our beloved public servants, but come on.  Each firefighter and police officer is already expensive enough for every city and county (and the state), without adding another cost to the bottom line.  At the risk of being pulled over for a soon-to-be-broken tail light, why not get elected by promising to make every single peace officer a millionaire?

The police and firefighters in California do a tough job and they are compensated very well.  They enjoy more privileges and better benefits than most of the other people in the state.  Do you really want to burden cities and counties barely making ends meet with an extra $56,000 in temporary total disability liability?

Your humble blogger says no – let the public servants sleep in beds no better than the public served.

Police Chief Wiggum

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Court of Appeal Rules Wage Continuation Counts Towards 104 Week TTD Count

February 1st, 2013 No comments

Your humble blogger once offered his condolences to his beloved readers representing and adjusting claims made against cities and counties and even the State by peace officers entitled to wage continuation.  As you may recall, in the matter of City of San Rafael v. Workers’ Compensation Appeals Board (Monte Payne), the Court of Appeal denied the City’s petition for a writ of review, allowing the workers’ compensation Judge’s and the WCAB’s findings that wage continuation under Labor Code section 4850 did not start the clock on 104 weeks of temporary disability payments (see LC section 4656.)

So… about that.

On Wednesday, the Court of Appeal issued an opinion in the case of County of Alameda v. Workers’ Compensation Appeals Board (Bryan Knittel), holding that the 104 week limitation on temporary disability payments found in section 4656 includes wage continuation paid to a Sheriff’s deputy.

Deputy Knittel sustained an industrial injury to the knee and went to temporary disability, receiving his full wages for one year after the injury.  After the wage continuation payments expired, the County started paying temporary disability, but only for one year.  At that point the well ran dry and Deputy Knittel called the cops his attorneys.

Under Payne, a police officer would be entitled to three years of payments – one at full pay, and two more at the regular temporary total disability rate.  But, the Court in Knittel held that the term “aggregate disability payments” as used in section 4656 includes wage continuation benefits as well as temporary total disability payments.

Score another victory for the defense!

In the meantime, your humble blogger will try to avoid getting pulled over by some unhappy peace officers…

angry cop meme

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How to (Sometimes) Save on 1 Year of Temp. Disability

March 9th, 2012 No comments

The Court of Appeal recently denied the City of San Rafael’s petition for a writ of review, the workers’ compensation Judge and the Workers’ Compensation Appeals Board having both rejected defendant’s theory that Labor Code section 4850, using the words “in lieu,” triggers the two-year maximum on temporary disability found in Labor Code section 4656(c)(1). The case is City of San Rafael v. Workers’ Compensation Appeals Board (Monte Payne).

The WCJ and the WCAB both held that the wage continuation benefits are not temporary disability, so applicant was entitled to one year of wages (§ 4850) and two years of temporary disability (§ 4656(c)(1)). Fortunately for most employers, Labor Code section 4850 is confined to peace officers, firefighters, and other public servants with especially powerful unions and lobbying groups. (To my dear city and county adjusters, I’m sorry!)

This was a laudable effort, but it appears there was some non-binding, writ-denied authority rejecting the idea. Your forward thinking blogger could re-list that authority here, but can’t imagine how such leg-work could possibly help the defense community. However, your ever-creative blogger has a modest, suggestion of what might help in a very limited and narrow set of circumstances.

Labor Code section 4850 allows for continued wages “in lieu of temporary disability benefits,” whenever an applicant “is disabled, whether temporarily or permanently, by injury arising out of and in the course of his or her duties.” But for those injuries which occurred on or after April 19, 2004, and on or before December 31, 2007, section 4656(c)(1) limits the amount of temporary disability to not only 104 weeks, but a maximum of two years, whether all 104 weeks have been used or not.

Bear in mind, dear readers, what follows is another “crazy” idea from your legally adventurous blogger – I’m not sure if this will work, and if you’re inclined to try it, please let me know how it goes. And if you’re looking for a lawyer willing to risk sanctions and a disapproving head-shake from a WCJ, I’ll be glad to step in.

So you’ve got an applicant who qualifies for wage continuation under section 4850, and the date of injury is between 4/19/04 and 12/31/07. section 4850, in terms of temporary disability, only applies if there IS temporary disability. So, when applicant is TD and demands section 4850 benefits, send him or her two checks – one for a day of temporary disability, and one for wage continuation under 4850.

But now that the applicant is getting wage continuation under 4850, he or she is no longer entitled to temporary disability payments, so in two weeks, send only one check (wage continuation) and a termination of benefits notice. When the 4850 benefits have become exhausted, and applicant demands temporary disability benefits, the clock has already been running for a year, and you may have just saved 2/3rd of a year’s salary for your reserves.

I cite, as example, the panel decision of Rhonda Morris v. Nummi (2008 Cal. Wrk. Comp. P.D. Lexis 925), where the WCAB held that the payment of temporary disability from December 14 to December 18, 2005 had precluded applicant from collecting temporary disability payments more than two years later, following surgery, and that WCAB was not permitted to consider whether applicant was actually temporarily disabled at the time the first payment was made.

Do you think this would work?