Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board No. BAK 0147388, William K. O’Brien, Frank M. Brass, and Alfonso J. Moresi, Commissioners. Robert K. Norton, Workers’ Compensation Administrative Law Judge.
Adams, Ferrone & Ferrone and Michael T. Bannon, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Robert W. Daneri, Chief Counsel, Suzanne Ah-Tye, Assistant Chief Counsel, and Alan R. Canfield Appellate Counsel, for Respondents California Department of Corrections and Rehabilitation, Wasco State Prison and State Compensation Insurance Fund.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
Alvin Wiley petitions for a writ of review to inquire into and determine the lawfulness of the decision of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) Wiley contends the WCAB erred in concluding a two-year limit on workers’ compensation temporary disability (TD) benefits enacted as part of the 2004 workers’ compensation reforms (Sen. Bill No. 899 (2003-2004 Reg. Sess.); Stats. 2004, ch. 34, § 29) runs consecutively to a year of enhanced industrial disability leave (IDL) payable to temporarily disabled state employees. Following our recent decision in Brooks v. Workers’ Compensation Appeals Board (2008) 161 Cal.App.4th 1522 [75 Cal.Rptr.3d 277] (Brooks), we conclude the WCAB appropriately limited Wiley to a combined total of two-years of enhanced IDL and TD benefits.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
Wiley worked as a correctional officer in Wasco for the California Department of Corrections and Rehabilitation (CDCR) when he sustained admitted industrial injuries to his psyche and left foot as the result of a December 29, 2004, inmate assault. The CDCR is permissibly self-insured for workers’ compensation and its claims are adjusted by the State Compensation Insurance Fund (SCIF).
The CDCR and SCIF determined Wiley qualified for an enhanced IDL benefit applicable to certain state employees injured by an inmate and therefore provided him with his full net take-home salary for the period between December 30, 2004, through December 29, 2005. For December 30, 2005, through December 28, 2006, the SCIF provided Wiley with TD of $728 per week. The SCIF then ceased providing TD, advising Wiley that “‘we have paid you the maximum number of benefit weeks allowed by law for your type of injury; up to 104 compensable weeks within a period of two years from the date of first payment’ and that ‘IDL benefits were paid to you in lieu of TD from 12/30/04 to 12/29/05.’” The parties stipulated that Wiley nevertheless remained totally temporary disabled through the time of a May 3, 2007, workers’ compensation hearing.
Following a request for additional briefing as to the relationship between enhanced IDL and the 104-week limit on TD under section 4656, subdivision (c)(1), the workers’ compensation administrative law judge (WCJ) concluded Wiley was entitled to two years of TD after exhausting his initial year of enhanced IDL, for a total of three years of benefits resulting from his temporary disability. Acknowledging regular IDL likely would be treated differently, the WCJ reasoned the full wage replacement nature of enhanced IDL placed it in line with the salary continuation benefit afforded certain public safety officers under section 4850 and which the WCAB has found to be in addition to workers’ compensation TD.
The SCIF petitioned for reconsideration, contending the WCJ erred in awarding additional TD because the first year of enhanced IDL fell within the two-year TD benefit period established under section 4656, subdivision (c)(1). Finding there was not any significant statutory distinction between regular and enhanced IDL, the WCAB disagreed with the WCJ and concluded Wiley was entitled to only 104 weeks of combined TD and enhanced IDL.
Because the 104-week TD period under section 4656, subdivision (c)(1) ran “from the date of commencement of temporary disability payment” rather than from the date of injury, the WCAB ordered the SCIF to provide six additional days of TD indemnity. The provision has since been amended to provide for 104 weeks of aggregate temporary disability indemnity within “five years from the date of injury” if the injury occurs after January 1, 2008. (Stats. 2007, ch. 595; Assem. Bill No. 338 (2007-2008 Reg. Sess.).)
DISCUSSION
In Brooks, supra, 161 Cal.App.4th 1522, this court recently addressed whether the payment of regular IDL to a state correctional officer fell within the ambit of the two-year limitation on aggregate TD payments established by section 4656, subdivision (c)(1). We concluded state employees are limited to a maximum of two years of combined forms of temporary disability indemnity. We explained:
“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.” (Brooks, supra, 161 Cal.App.4th at p. ___ [75 Cal.Rptr.3d at p. 283].)
“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.’”
In Brooks, we determined IDL and TD are not distinct classes of benefits that run consecutively, but instead run concurrently. Accordingly, a state employee may receive up to one year of IDL followed by up to one year of TD.
In addition to the arguments raised and rejected in Brooks, Wiley contends the WCJ was correct in finding the increased benefit level under enhanced IDL entitling eligible state employees to their full net take-home pay somehow transformed it into a completely distinct type of benefit that must be treated differently from regular IDL. Wiley claims that “[b]ecause there is no wage loss associated with the payment of [enhanced IDL], there is no period of TD.” According to Wiley, when an employee receives his or her full wage as a result of being temporarily disabled, the benefit becomes a “salary continuation benefit,” similar to the benefit paid to certain peace officers under section 4850.
We find no statutory support for Wiley’s proposition. Enhanced IDL is a form of IDL, and it is set forth as part of the IDL laws under Government Code sections 19869-19877.1. The only relevant statutory provision differentiating enhanced IDL from regular IDL appears in Government Code section 19871.2, which does not require enhanced IDL to be treated differently from regular IDL in any way other than in the amount of benefit to be paid:
“When an excluded employee is temporarily disabled for more than 22 consecutive working days by an injury or type of injury designated by the director as qualifying an employee for the benefits of this section, he or she shall receive an enhanced industrial disability leave benefit. The enhanced benefit shall be equivalent to the injured employee’s net take home salary on the date of occurrence of injury. Eligibility and benefits may not exceed 52 weeks within a two-year period after the date of occurrence of the injury. For the purposes of this section, ‘net salary’ means the amount of salary received after federal income tax, state income tax, and the employee’s retirement contribution has been deducted from the employee’s gross salary.”
The parties do not dispute Wiley is an excluded employee entitled to enhanced IDL. (See section 3527, subd. (b); Cal. of Regs., title 2, §§ 599.615, subd. (b) & 599.769.)
Government Code section 19871.2 continues: “The final decision as to whether an employee is eligible for, or continues to be eligible for, enhanced benefits shall rest with the appointing authority or his or her designee. The appointing authority may periodically review the employee’s condition by any means necessary to determine an employee’s continued eligibility for enhanced benefits.”
The correctional officer in Brooks also claimed her entitlement to regular IDL was a “salary continuation benefit” rather than a payment for temporary disability, even though that benefit only provided her with two-thirds of her regular salary during her initial year while temporarily disabled. As in Brooks, we again conclude there is no reason to override the express legislative directive set forth in Government Code section 19870, subdivision (a) to treat IDL as anything other than a part of workers’ compensation TD. Wiley nevertheless asks this court to extend the WCAB’s reasoning in City of Oakland v. Workers. Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 249 [writ den.] (City of Oakland) addressing peace officer disability leave of absence under section 4850 to the situation where a state employee first receives enahanced IDL. As we previously explained:
“Brooks draws support for the proposition that a salary continuation benefit does not constitute TD from City of Oakland [citation], where the WCAB concluded the 104-week limitation for payment of TD indemnity set forth in section 4656 does not include the period full salary and benefits are paid to certain public safety workers while disabled as provided under section 4850. The WCAB concluded in City of Oakland, ‘“While salary continuation benefits paid pursuant to section 4850 may be considered compensation, they are clearly not temporary disability benefits and [are] not interchangeable with temporary disability benefits.”’ (City of Oakland, supra, 72 Cal.Comp.Cases at p. 252.)
“While we note that the specific issue presented in City of Oakland is not before us and we therefore make no finding as to the propriety of that decision, the section 4850 salary continuation benefit significantly differs from IDL. For example IDL, like TD, is payable only during an industrially related temporary disability (Gov. Code, 19870, subd. (a)), while a public safety worker continues to receive his or her full salary and benefits regardless of whether an industrial disability causes temporary or permanent disability (§ 4850, subd. (a)). Most significantly for our purposes, the Legislature has expressly established in Government Code section 19870, subdivision (a) that IDL means TD, while no such comparable provision exists defining public safety worker disability leave as TD.” (Brooks, supra, 161 Cal.App.4th at p. ___ [75 Cal.Rptr.3d at pp. 286-287].)
“‘“The practice of distinguishing one case from another is based, after all, on the assumption that the holding of an appellate court is limited to the facts of the case before it.”’ (Signature Fruit (2006) 142 Cal.App.4th 790, 801.)”
We therefore agree with the WCAB, which responded to Wiley’s contentions on reconsideration:
“Government Code section 19871.2 refers to ‘an enhanced industrial disability leave benefit’ to be paid during IDL, which, as shown above, is defined as ‘temporary disability’ under the Labor Code. Consequently, we disagree with the WCJ that [enhanced IDL] should be treated like section 4[8]50 wage replacement and be regarded as distinct from temporary disability. There is no need to seek out analogous statutory provisions, when the Government Code expressly defines IDL as temporary disability. Whether or not [enhanced IDL] results in payment of full salary, payment of [enhanced IDL] benefits equals payment of temporary disability indemnity, for purposes of the section 4656(c)(1) limitation on temporary disability indemnity.”
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.