Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 03CC10643, Gregory H. Lewis, Judge.
Faunce, Singer & Oatman, Faunce, Singer, Oatman & Woodson, Edward L. Faunce and Larry J. Roberts, for Plaintiff and Appellant.
David H. Lantzer for Defendant and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
This case deals with payment of disability retirement to plaintiff Mary Porter by defendant Board of Retirement of the Orange County Employees’ Retirement System. The first time it was before us we determined that, under Government Code section 31724 (section 31724), the effective date of plaintiff’s application for disability retirement was the day after the last day she was paid regular compensation. (Porter v. Board of Retirement of the Orange County Employees’ Retirement System (Dec. 23, 2005, G034319) [nonpub. opn.], p. 6; (Porter 1).) We remanded the matter for the trial court to determine whether plaintiff had elected to begin retirement as of that date, and if so, whether she is required to reimburse for any payments she received for leave of absence or sick leave or both. (Id. at p. 7.)
Upon remand, the trial court found that plaintiff had elected to take retirement on the day following her last date of regular compensation. It also found that pursuant to section 31724, at the time plaintiff’s disability retirement would have become effective she was receiving workers’ compensation. The statute provides that disability retirement cannot begin until after expiration of a “leave of absence with compensation.” (§ 31724.) Because there was insufficient evidence in the record showing when plaintiff received workers’ compensation, the court remanded the matter to defendant to determine both this and plaintiff’s ability to repay the benefits.
Plaintiff claims the court erred in holding she was required to repay any workers’ compensation payments because they do not fall within the meaning of “leave of absence with compensation” under section 31724 and further that she is entitled to interest on all sums that should have been paid to her to date. Defendant maintains plaintiff has not exhausted her administrative remedies because she filed this appeal before defendant held a hearing to determine the amount of workers’ compensation paid to her and whether she could afford to repay it. In addition, it asserts that section 31724 prohibits plaintiff from receiving workers’ compensation and disability retirement benefits simultaneously.
We agree that the appeal is premature and dismiss it.
FACTUAL AND PROCEDURAL HISTORY
The factual and procedural history underlying this case is set out in Porter 1 and we do not repeat the details here. Suffice it to say plaintiff was injured while driving a bus for the Orange County Transportation Authority. After she was treated, and received workers’ compensation, it was determined she was permanently injured and there was no available job for her. She later filed for disability retirement, which was denied. After appeal, a referee recommended defendant be awarded her retirement pay as of the date her application was filed.
After losing her petition for writ of mandate in the superior court, plaintiff appealed to our court, arguing that, under section 31724, the effective date of her application should have been the day following the last day for which she was paid her regular salary, not the date her application was filed some 13 months later. We agreed and reversed and remanded, directing the superior court to determine if plaintiff had elected to retire on the date of her application, and if so, whether she was required to repay her workers’ compensation and sick leave payments. (Porter 1, supra, G034319, pp. 3-4.)
The trial court found that plaintiff had elected to retire on the day after her last regular day of compensation. It held that section 31724 directs that retirement is not to begin until the expiration of a “leave of absence with compensation under Division Four . . . of the Labor Code, or after expiration of any sick leave to which [plaintiff was] entitled.” Relying on the definition of compensation in Division Four, which includes every benefit given to an injured employee under the workers’ compensation scheme, it held that plaintiff was not entitled to have disability retirement benefits begin until after her workers’ compensation benefits ended. Because the record contained insufficient evidence about the period during which plaintiff received workers’ compensation benefits, the court remanded the matter to defendant to make such a determination and also decide whether plaintiff could repay any worker’s compensation she had received after the effective date of her retirement. Before any such hearing occurred, plaintiff appealed to this court.
DISCUSSION
1. The Tone of Plaintiff’s Briefs
Initially we must note the inappropriate tone of plaintiff’s briefs, especially the opening brief. Neither the sarcasm nor the disdain expressed wins points. Disparaging the trial court by suggesting that we “will have to continue [its] education” in this decision “is a tactic that [we do not] take[] lightly . . . .” (In re S.C. (2006) 138 Cal.App.4th 396, 422.) Finally, we particularly do not appreciate the gloss put on our opinion in Porter 1, i.e., that we “unceremoniously informed defendant[],” “curtly” commented on interpretation of the statute, or “resoundingly reversed.” We know what our opinion said and what it meant and it was not the pejorative document plaintiff suggests. Counsel would do well to avoid this style and instead “present temperate, well-reasoned arguments.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 9:29, p. 9-9.)
2. Prematurity of Appeal
Defendant correctly claims that this appeal is premature because plaintiff filed it before defendant could conduct a hearing to determine the period during which plaintiff received workers’ compensation and her ability to repay that amount. “‘Under the doctrine of the exhaustion of administrative remedies, a party must go through the entire proceeding to a “final decision on the merits of the entire controversy” before resorting to the courts for relief.’ [Citation.]” (Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1125, italics omitted.)
Plaintiff concedes she did not exhaust her administrative remedies but asserts this case falls within an exception that “the exhaustion requirement is excused where its pursuit would be futile, idle or useless. [Citation.]” (Bollengier v. Doctors Medical Center, supra, 222 Cal.App.3d at p. 1126.) She maintains that once defendant makes the ordered findings, the case will ultimately return to this court to decide whether the trial court’s interpretation of compensation to include workers’ compensation benefits is correct. She concludes the information is “meaningless for purposes of this appeal.” We disagree.
The question posed by this appeal, and by a subsequent appeal after the hearing ordered by the trial court under plaintiff’s suggested scenario, requires us to construe the meaning of “leave of absence with compensation.” Whatever our ultimate decision will be, if in fact the case returns for another appeal, it is important that we have a complete record as to payments plaintiff received, including sick leave, which was not mentioned in the trial court’s order remanding the case for a hearing. There are basically four types of workers’ compensation benefits: permanent disability, temporary disability, which the parties agree plaintiff received, medical payments, and vocational rehabilitation payments. (Gamble v. Workers’ Comp. Appeals Bd. (2006) 143 Cal.App.4th 71, 79; Edgar v. Workers’ Comp. Appeals Bd. (1998) 65 Cal.App.4th 1, 10.)
Neither party disputes the court’s finding there was insufficient evidence in the record of the payments plaintiff actually received. Plaintiff claims we need this information only if we will decide she must repay some or all of what she received. We may or may not require it, depending on our construction, but it makes no sense to begin to decide the underlying issue and then realize that is critical information. We need to deal with facts, not speculation or hypotheticals.
At oral argument defendant agreed that the only type of payment it seeks to have plaintiff repay is temporary disability. We invited the parties to stipulate to that amount to avoid the administrative hearing and provide us with the information we need to determine this on the merits. They did not file a stipulation within the time we allowed. Therefore, we are dismissing the appeal as premature.
DISPOSITION
The appeal is dismissed. At the time the trial court makes its final judgment it shall determine which party is entitled to costs for this appeal.
WE CONCUR: O’LEARY, J., MOORE, J.