ETCHELLS v. WORKERS COMPENSATION APPEALS BOARD (1985)

The Workers' Compensation Appeals Board on reconsideration amended a finding of the workers' compensation judge (WCJ) and concluded that applicant is not entitled to Labor Code section 4850 benefits.¹  In this review proceeding Teresa Etchells (applicant) claims that the Board's conclusion is erroneous.

On November 11, 1982, applicant sustained injury to her right knee, neck and back in the course of her employment as a deputy sheriff trainee by respondent County of Los Angeles (County).   After her injury, she continued working in a limited capacity until late May 1983.

On May 16, 1983, County notified applicant that based on her current medical condition she would be relieved of law enforcement responsibilities while off duty and would be issued civilian identification, temporarily, until such time as her medical condition improved and she was able to resume academy training.   She continued working in light duty positions such as storing inmates' property and clothing and opening and closing security gates until late May 1983, when she ceased working because of her knee condition.   She considered those positions as being in sworn officer status.

Dr. Latteri examined her on July 19, 1983, and concluded that her knee condition precluded her return to deputy sheriff-type work.

Applicant testified that following the end of May 1983, she requested light duty work.   Sergeant Williams offered her a position in the sheriff's department at the same salary that was within her work limitations;  however, she refused the position because she believed it was a civilian status position and she would lose her sworn officer status.

In July 1983 Lieutenant Sivard, endeavoring to return her to work in the sheriff's department, offered her a job as a sales clerk involving moderate duties, with the understanding that she would be free to reapply for the deputy sheriff's examination when her knee has recovered.   She also refused this job offer because it was a civilian status position and she would lose sworn officer status, although she acknowledged that she would be given an opportunity to reenter the academy if she recovered.

Applicant did not receive temporary disability benefits or section 4850 benefits in the May 1, 1983, to May 1, 1984 period;  and on June 6, 1984, she retired on a deputy sheriff service-connected disability.

The WCJ found that applicant's industrial injury resulted in 39 1/212 percent permanent disability commencing June 4, 1983, and that she was entitled to receive full salary benefits pursuant to Labor Code section 4850 for 52 weeks commencing May 31, 1983.

On reconsideration, the Board affirmed all of the WCJ's findings except the finding that applicant was entitled to the section 4850 benefits.   The Board unanimously rescinded that finding and substituted its finding, as follows:  “Applicant's loss of wages was due to her refusal to accept jobs that the employer offered to her.   This refusal was because she could not retain her sworn officer status.”   Based on its finding, the Board concluded that applicant was not entitled to section 4850 benefits.

In its decision, the Board opined that since section 4850, by its express terms, confers benefits “in lieu of temporary disability,” and since applicant was not entitled to and did not receive temporary disability because she refused to take proffered jobs in the sheriff's department within her work limitations, she was not entitled to the loss of salary benefits conferred by section 4850.  (See fn. 1, supra.)   The Board noted that “ ‘in cases of temporary partial disability the employee is expected to be willing to earn such wages as [she] is able considering [her] injury, and ․ if some other ascertainable cause other than the injury substantially contributes to [her] inability to earn wages, such separate cause must be separately evaluated, and only the proportion chargeable to the industrial injury allowed a[s] compensation.’ ”  (Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal.2d 417, 420, 340 P.2d 622.)   In that regard, the Board found that the sole cause of her refusal to accept the jobs and earn wages was loss of sworn officer status, and that her disability was not a cause thereof.

In denying applicant's ensuing petition for reconsideration, the Board concluded further that applicant's reliance on Boyd v. City of Santa Ana (1971) 6 Cal.3d 393, 99 Cal.Rptr. 38, 491 P.2d 830 was misplaced since Boyd (id., at p. 397), 99 Cal.Rptr. 38, 491 P.2d 830) merely held that an employer could not deprive a police officer of section 4850 benefits by terminating his employment on grounds of physical fitness where his disability is due to industrial injury.   Here, applicant's employment was never terminated;  she was not entitled to temporary disability because she refused jobs within her work limitations;  and her disability was not a cause of her refusal to accept the jobs and earn wages.²

We originally denied applicant's petition for writ of review;  however, the Supreme Court granted applicant's ensuing petition for review and retransferred the matter to this court “with directions to issue a writ of review to be heard before that court when the proceeding is ordered on calendar.  (See Boyd v. City of Santa Ana (1971) 6 Cal.3d 393 [99 Cal.Rptr. 38, 491 P.2d 830];  Pacific Employers Ins. Co. v. IAC (1959) 52 Cal.2d 417 at 420–421 [340 P.2d 622];  and Kimball v. County of Santa Cruz [sic ] (1974) 24 Cal.App.3d 780 [101 Cal.Rptr. 353]. )”

We have done so, and conclude the Board correctly determined that applicant is not entitled to section 4850 benefits.

As previously stated (fn. 1, supra), section 4850 provides benefits to an officer or employee of the sheriff's office who is temporarily or permanently disabled by injury arising out of employment.   The provided benefits are “leave of absence while so disabled without loss of salary in lieu of temporary disability ․ for the period of the disability.”  (§ 4850.)

 Salary in lieu of temporary disability as provided for in section 4850 constitutes workers' compensation benefits within the meaning of section 3207.  (Boyd v. City of Santa Ana, supra, 6 Cal.3d 393, 397, 99 Cal.Rptr. 38, 491 P.2d 830;  Kosowski v. Workers' Comp. Appeals Bd. (1985) 170 Cal.App.3d 632, 637, 216 Cal.Rptr. 280.)

 Contrary to applicant's claim, a careful reading of section 4850 indicates that an employee does not have an absolute right to leave of absence for one year without loss of salary.  (Gourley v. City of Napa (1975) 48 Cal.App.3d 156, 161, 121 Cal.Rptr. 290.)   This was acknowledged recently in Kosowski v. Workers' Comp. Appeals Bd., supra, 170 Cal.App.3d 632, 216 Cal.Rptr. 280, upholding a credit against section 4850 benefits for income earned by the employee.

The clear purpose of the express provisions of section 4850 is to maintain the disabled employee's income without loss of salary due to such disability.   That purpose would not be served where the loss of salary is occasioned by the employee's rejection of jobs within her limitations, rather than due to the disability itself.   Granted that the section 3202 rule of liberal construction in favor of the employee is applicable to section 4850 (Kimball v. County of Santa Clara (1972) 24 Cal.App.3d 780, 785, 101 Cal.Rptr. 353), it cannot properly be invoked where “otherwise compelled by the language of the statute.”  (Zurich Ins. Co. v. Workmen's Comp. Appeals Bd. (1973) 9 Cal.3d 848, 852, 109 Cal.Rptr. 211, 512 P.2d 843;  see Sprague v. Industrial Acc. Com. (1956) 46 Cal.2d 414, 417–418, 296 P.2d 548.)

 Here, as the Board unanimously concluded, applicant was not entitled to temporary disability since she refused proffered jobs in the sheriff's department within her work limitations;  thus she was not entitled to leave of absence loss of wages in lieu of temporary disability.  (§ 4850.)   She could reasonably be expected to earn wages at jobs compatible with her temporary partial disability, and her refusal of such jobs was the sole cause of her inability to earn wages in the period in question.  (Pacific Employers Ins. Co. v. Industrial Acc. Com., supra, 52 Cal.2d 417, 340 P.2d 622.)   The fact that acceptance of the proposed jobs would result in loss of her sworn officer status is immaterial, since her loss of wages was attributable to her refusal to accept the proffered jobs, not to her disability.   Moreover, the proffered jobs did not result in permanent loss of her sworn officer status, since they were offered with the clear understanding that she might regain sworn officer status upon improvement of her physical condition enabling resumption of such status.

Boyd v. City of Santa Ana, supra, 6 Cal.3d 393, 99 Cal.Rptr. 38, 491 P.2d 830 is factually distinguishable, as the Board correctly noted.

The January 7, 1985, order denying applicant's petition for reconsideration is affirmed.

FOOTNOTES

1.   Labor Code section 4850 provides in part:  “Whenever any ․ sheriff or any officer or employee of a sheriff's office ․ 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 ․ to leave of absence while so disabled without loss of salary in lieu of temporary disability payments, if any, ․ for the period of the disability, but not exceeding one year․”All further section references herein are to the Labor Code unless otherwise indicated.

2.   The Board also concluded that applicant's reliance on Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 117 Cal.Rptr. 513 was misplaced, since the holding in Hadley was on procedural grounds, and the dicta in Hadley relied upon by applicant herein was based on the holding in Boyd.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.