Labor Code section 4850 provides public safety officers, who become disabled while performing their duties, to a one-year leave of absence without loss of salary in lieu of temporary disability payments for that year. After the injured officer has received the one year of 4850 pay, the officer is then entitled to temporary disability at the state rate. The 2004 Reform measures in SB 899, however, placed a two-year cap on temporary disability benefits. Labor Code section 4656 imposed a 104-week limit on the payment of temporary disability benefits.
Up until recently, the WCAB in City of Oakland v. WCAB and City of Long Beach v. WCAB held the two-year limit on temporary disability did not apply to 4850 benefits. The WCAB reasoned the payment of 4850 benefits did not constitute the commencement of temporary disability benefits to trigger the two-year cap. Thus, police officers would be entitled to one year of 4850 and then two years of temporary disability paid at the state rate.
However, the Legislature once again amended Labor Code section 4656 by stating “aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.” The intent was to provide a period of five years to collect the 104 weeks of temporary disability. However, with this change there arose a new challenge to the prior case law holding that 4850 was excluded from the 104-week cap.
In County of Alameda v. WCAB (2013), a deputy sheriff was injured on duty and received the one-year of 4850 benefits and an additional year of temporary disability benefits. At the end of the two years, the County stopped paying the officer, contending that 4850 benefits applied against the two-year cap in the amended provisions of Labor Code section 4656. Consequently, the County argued the officer was not entitled to that second year of temporary disability benefits. The injured officer challenged the County’s interpretation, contending 4850 benefits were not subject to the two-year cap. Consistent with its prior opinions, the WCAB agreed with the officer and held 4850 benefits did not count against the two years of temporary disability. However, the County of Alameda appealed the WCAB’s decision to the Court of Appeals, First District.
In a published opinion, The Court of Appeals actually reversed the WCAB, holding 4850 benefits paid to an injured officer count toward the 104-week limit on temporary disability benefits. The Court of Appeals reasoned the plain language of the amended section 4656 expressed a clear Legislative intent that “aggregate disability payments” included 4850 benefits. Absent a specific exclusion, the Court held 4850 benefits are subject to the two-year limit on temporary disability benefits. The decision was certified for publication and remains the law, unless the case is appealed to the California Supreme Court.
In effect, the Court of Appeals took away an extra year of temporary disability benefits that public safety officers previously enjoyed. An injured officer is now entitled to one year of 4850 benefits and only a single year of temporary disability for a total of two years. The full impact of this case is still not known. It remains to be seen what public agencies will do in those instances where a second year of temporary disability benefits were actually paid after a full year of 4850 benefits. Will the agency attempt to claim an overpayment for that period of temporary disability benefits? Certainly, it is something the injured officer should try to fight. Currently, we have seen one agency raise the issue of credit for overpayment of temporary disability due to the new case.
With this change in law, it also becomes critical to resolve any delays in medical treatment in that two-year window from the date of injury. The longer the officer’s condition remains at temporary total disability, the closer the officer approaches the fiscal cliff of being off work without any temporary disability benefits. That officer must then rely on permanent disability advances, if any are payable, which pay at a fraction of the temporary disability rate. One way to avoid this fiscal cliff is to ensure that the officer has available a long-term disability policy to deal with the loss of benefits at the end of the two years.
About the Author-John A. Ferrone is a partner in the law firm of Adams, Ferrone & Ferrone. The law firm specializes in the representation of public safety in internal affairs investigations, worker’s compensation, personal injury litigation and labor negotiations The law firm has offices in Westlake Village, Newport Beach, Bakersfield, and San Diego.