Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Rick Dietrich, Frank M. Brass and Alfonso J. Moresi, Commissioners. Donald H. Johnson, Workers’ Compensation Administrative Law Judge, WCAB No. BAK 150011.
Adams Ferrone & Ferrone and E. Earl Dove, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Robert W. Daneri, Suzanne Ah-Tye, and David M. Goi, for Respondent California Department of Corrections and Rehabilitation
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.
David Cortes petitions for a writ of review (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494) asking this court to determine whether the payment of industrial disability leave (IDL) to an injured state employee constitutes workers’ compensation temporary disability (TD) for purposes of a two-year benefit period under section 4656, subdivision (c)(1). This court recently concluded, however, that “[b]ecause IDL is statutorily defined as the equivalent of TD, then the two-year limitation under section 4656, subdivision (c)(1), necessarily must apply to both IDL and TD.” (Brooks v. Workers’ Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522, 1532 (Brooks).) Finding no convincing reason to disagree with Brooks, we will deny the petition.
Further statutory references are to the Labor Code unless otherwise stated.
Because Cortes failed to include a copy of the minutes of hearing with its petition for writ of review, as required under California Rules of Court, rule 8.494(a)(1)(B), we accept as true the undisputed facts set forth by the parties and by the workers’ compensation administrative law judge (WCJ).
Cortes worked as a correctional officer at the California Correctional Institution in Tehachapi for the state department now known as California Department of Corrections and Rehabilitation (CDCR) when he sustained a specific injury to his back and right knee on February 18, 2005. At the time of Cortes’s injury, the CDCR was legally uninsured for workers’ compensation and its claims were adjusted by the State Compensation Insurance Fund (SCIF). (§ 3700.) The CDCR admitted the injury was work-related and provided Cortes with state employee IDL indemnity for February 18, 2005, through January 31, 2006, and for a single day on January 19, 2007. The first IDL payment was provided to Cortes on March 17, 2005.
The parties stipulated that Cortes was adequately compensated for his temporary disability through January 31, 2006, but that he again became temporarily disabled as of November 26, 2007. Cortes brought the matter before a WCJ after the SCIF rejected Cortes’s request for additional TD indemnity. On March 7, 2008, the WCJ issued an opinion agreeing with the SCIF and concluding Cortes’s eligibility for additional TD payments ceased on March 17, 2007, two years from the first IDL payment pursuant to section 4656, subdivision (c)(1).
Cortes petitioned the WCAB for reconsideration and the WCJ issued a report on April 10, 2008, recommending the WCAB deny the petition. The next week, this court published our decision in Brooks concluding the 104-week limitation on TD within two years from the commencement of TD included payment for IDL. Five days later, the WCAB denied reconsideration by adopting and incorporating the WCJ’s report and citing Brooks.
The Supreme Court unanimously denied review of Brooks on July 30, 2008, in Case No. S163769.
DISCUSSION
Applicable to state officers and employees, the state’s IDL program provides industrially injured employees who are temporarily disabled by a work-related injury or illness with up to 52 weeks of indemnity benefits. (Gov. Code, § 19871, subd. (a); Brooks, supra, 161 Cal.App.4th at pp. 1528-1529.) Meanwhile, the state’s workers’ compensation system requires both public and private employers to provide TD indemnity for a period that “shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment” for injuries occurring between April 19, 2004, and December 31, 2007. (§ 4656, subd. (c)(1); Brooks, supra, at p. 1531.) Although both IDL and TD generally provide a temporarily disabled employee with about two-thirds his or her regular salary, IDL benefits include a 22-day period of full salary and are not capped by an average weekly earnings rate applicable to TD. (Brooks, supra, at pp. 1528-1530.)
The parties agree the state appropriately provided Cortes IDL indemnity for his temporary disability between March 17, 2005, through January 31, 2006, but Cortes contends he is further entitled to TD benefits beginning November 26, 2007, when he became medically temporarily disabled a second time. Raising nearly identical arguments presented in Brooks, Cortes contends IDL and TD are distinct benefits and therefore the respective eligibility time periods for each do not overlap. He argues the plain meaning of the IDL and TD statutes, regulated separately by the Government and Labor codes, compels the conclusion they are separate entitlements. Cortes relies on the lack of any legislative declaration expressly including IDL within Senate Bill No. 899 when it enacted the two-year TD indemnity period in section 4656 and on the 1994 statutory changes examined in Brooks. Cortes also asks this court to liberally construe the statutory provisions liberally for the purpose of extending workers’ compensation benefits pursuant to section 3202. While Cortes’s statutory interpretation claims are reviewable by this court de novo, we accord significant respect to the WCAB’s conclusions unless clearly erroneous. (Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290; Brooks, supra, 161 Cal.App.4th at p. 1528.)
Although individual counsel has changed, Cortes and the employee in Brooks are represented by the same law firm.
As with the case at hand, Brooks involved an industrially injured state correctional officer employed by the CDCR. The parties in Brooks agreed the worker had been adequately compensated for one year of IDL and at least one year of TD, but disagreed whether the employee was entitled to an additional year of TD for a combined three years of temporary disability indemnity. (Brooks, supra, 161 Cal.App.4th at p. 1527.) We concluded in Brooks the statutory eligibility periods for IDL and TD run concurrently, not consecutively:
“We agree that the statutory scheme is clear, but not with Brooks’s conclusion that IDL and TD are distinct classes of benefits that do not overlap. Despite Brooks’s arguments to the contrary, the Legislature has already answered her inquiry. Located within the IDL provisions, Government Code section 19870, subdivision (a) expressly provides that IDL ‘means temporary disability.’ Because IDL is statutorily defined as the equivalent of TD, then the two-year limitation under section 4656, subdivision (c)(1), necessarily must apply to both IDL and TD. Furthermore, the two-year limitation does not restrict itself only to TD benefits payable under the Workers’ Compensation Act or the Labor Code, as it more broadly applies to ‘Aggregate disability payments for a single injury.’ (§ 4656, subd. (c)(1), italics added.) Finding the statutory scheme unambiguous, we need not resort to interpreting alternate statutory constructions or to section 3202’s requirement to construe benefits liberally towards extending benefits. (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1332 [‘Section 3202 is a tool for resolving statutory ambiguity where it is not possible through other means to discern the Legislature’s actual intent’].) (Brooks, supra, 161 Cal.App.4th at pp. 1532, orig. fn.)
“Government Code section 19870, subdivision (a) provides: ‘“Industrial disability leave” means temporary disability as defined in Divisions 4 (commencing with Section 3201) and 4.5 (commencing with Section 6100) of the Labor Code and includes any period in which the disability is permanent and stationary and the disabled employee is undergoing vocational rehabilitation.’”
Because IDL is statutorily defined as TD, then the SCIF’s initial payment of IDL to Cortes on March 17, 2005, was “the date of commencement of temporary disability payment” opening the two-year window in which he was entitled to TD under section 4656, subdivision (c)(1). As the WCAB concluded, Cortes’s two-year eligibility period for TD benefits therefore expired on March 17, 2007. Although Cortes received less than a year of IDL and no TD indemnity in the two years following the first IDL payment, there is no legal basis to award additional benefits for his second period of temporary disability. For dates of injury on or after April 19, 2004, but before January 1, 2008, TD indemnity, including IDL for state employees, “shall not extend for more than 104 compensable weeks within period of two years from the date of commencement of temporary disability payment.” (§ 4656, subd. (c)(1).)
Subsequent legislation, effective for injuries on or after January 1, 2008, now permits up to “104 compensable weeks within a period of five years from the date of injury.” (§ 4656, subd. (c)(2), emphasis added.) Unfortunately, the provision does not apply to Cortes’s February 18, 2005, injury.
Cortes declares that our holding in Brooks conflicts with several WCAB and appellate court decisions. We disagree. The cases cited by Cortes either involve the forfeiture of IDL by resigning from state service (Bidwell v. State of California (1985) 164 Cal.App.3d 213), a different salary continuation benefit under section 4850 not statutorily defined as TD (City of Oakland v. Workers’ Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 249 [writ den.]; County of Sacramento v. Workers’ Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 854 [writ den.]), or Education Code benefits also not statutorily defined as TD (Rollick v. Contra Costa County Schools (2008) OAK 31334, 36 Cal. Workers’ Comp. Rptr. 63). Moreover, even if the WCAB’s decision in Rollick were supportive of Cortes’s position, it has since been annulled. (Mt. Diablo Unified School Dist. v. Workers’ Comp. Appeals Bd. (Rollick) (2008) 165 Cal.App.4th 1154.)
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.