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Court of Appeal, Fourth District, Division 1, California.


No. D020395.

Decided: February 21, 1996

The County of San Diego (the County) seeks a writ of review after the Workers' Compensation Appeals Board (the Board) denied its petition for reconsideration of an award of benefits to Deputy Sheriff Deborah M. Dibb (Dibb) under Labor Code1 section 4850. In this opinion, we address the application of that section which requires payment of an injured public safety officer's full salary in lieu of disability benefits. We hold that an employer is not required to continue paying benefits under section 4850 if an employee is validly terminated for misconduct during the time the employee is receiving benefits under the section.


On September 4, 1991, Dibb injured her neck in the course of her employment as deputy sheriff for the San Diego County Sheriff's Department (the Department). Dibb was absent from work for seven days during which time, pursuant to section 4850, she was paid her full salary before returning to modified work. On December 4, 1991, Dibb took a leave of absence for temporary disability arising from her work related injuries. Until June 16, 1992, she was paid her full salary pursuant to section 4850. On June 16, however, she was terminated from her employment for misconduct not related to her injury.2 At that time, the County started paying temporary disability payments rather than Dibb's full salary under section 4850.

Dibb filed a claim with the Board contending that following her termination she was entitled to leave of absence benefits under section 4850. The Workers' Compensation Judge (WCJ) agreed. The Board, with one commissioner dissenting, denied the County's petition for reconsideration. The County petitioned this court for a writ of review. We issued a writ of review calling up the record. The parties waived oral argument.


Section 4850 provides that whenever a city or county peace officer is disabled by injury or illness arising out of his or her duties, the officer is entitled to a leave of absence without loss of salary in lieu of disability payments. (§ 4850, subd. (a).) The leave of absence is for the period of disability not exceeding one year or until the officer is retired on a permanent disability pension. (Ibid.)

The payment of full salary under section 4850 is a workers' compensation benefit and an employer cannot deprive an officer of the benefits by terminating his or her employment on the grounds of physical fitness. (Boyd v. City of Santa Ana (1971) 6 Cal.3d 393, 397.) Nor can the employer avoid honoring the compensation obligations by abolishing the injured employee's position even in good faith. (City of California City v. Worker's Comp. Appeals Bd. (1979) 95 Cal.App.3d 329, 335.) However, an employee who voluntarily or involuntarily resigns for non-medical reasons is not entitled to leave of absence benefits under section 4850. (County of San Mateo v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 737, 745; Collins v. County of Los Angeles (1976) 55 Cal.App.3d 594, 599.)

The question presented is whether an employer must continue paying an employee's full salary pursuant to section 4850 if during the time the employee is receiving benefits he or she is terminated for misconduct totally unrelated to her disability. Dibb contends the County cannot relieve itself of its obligation to pay benefits by its unilateral act of terminating her during the course of her leave of absence. She argues that a termination post-injury does not deprive an employee of the opportunity to return to work as long as the employee appeals the decision which she did in this case.3 We disagree.

“Section 4850, in speaking of a ‘leave of absence,’ clearly contemplates the existence and eventual resumption of the employment relationship. In Black's Law Dictionary, Fourth Edition, ‘leave of absence’ is defined as temporary absence from duty with intention to return.” (Collins v. County of Los Angeles, supra, 55 Cal.App.3d at p. 597.) Section 4850 benefits are proper only where the employee would have been receiving wages or salary had he or she not been disabled. Termination of employment for good cause is legally inconsistent with the status of a “leave of absence.”

No resumption of the employment relationship was contemplated by the County after the date the termination became effective. Moreover, had Dibb's disability resolved itself, Dibb would not have been free to resume the employment relationship once she was terminated for dishonesty. The fact that Dibb appealed her termination and might even have obtained a reversal does not change the fact that she had no right to employment at the time of the termination. Dibb was not fired because of her disability. (See Boyd v. City of Santa Ana, supra, 6 Cal.3d 393.) Nor was she terminated to deny her section 4850 benefits. We can conceive of no public policy justification requiring the County to pay section 4850 benefits to a former employee who had no right to employment solely because she had been collecting such benefits before she was terminated.


The order of the Board denying reconsideration and the decision of the WCJ are annulled and the matter remanded to the Board for further proceedings consistent with this opinion.


FN1. All statutory references are to the Labor Code unless otherwise specified..  FN1. All statutory references are to the Labor Code unless otherwise specified.

2.  We take judicial notice of our opinion in Dibb v. County of San Diego Civil Service Commission (slip opinion filed July 21, 1995, D019350). Dibb was terminated for dishonesty by the Department on June 15, 1992. (Slip opinion p. 2.) Upon Dibb's appeal to the Civil Service Commission, the Commission affirmed the order of termination. (Slip opinion, p 4.) Dibb petitioned the superior court for a writ of administrative mandamus. (Slip opinion, p. 4.) The trial court found that the penalty of termination was grossly excessive and an abuse of discretion by the Commission and granted the petition for writ of mandate. (Slip opinion, p. 5.) Upon the Commission's appeal, this court reversed with directions to enter a different judgment denying the petition for writ of mandate. (Slip opinion, p. 15.) Remittitur issued on September 20, 1995.

3.  At the time she filed her brief, Dibb also contended the issues presented had been rendered moot because she had been reinstated to her position of deputy sheriff pending appeal in the mandate matter. In light of our reversal in that matter, we now reach the question whether Dibb was entitled to section 4850 benefits post-termination.

WORK, Acting Presiding Justice.

NARES and BENKE, JJ., concur.

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