Supreme Court Rules Regular Sworn Peace Officers Are Not Entitled to Same Disability Benefits as Volunteer Peace Officers

Sworn peace officers who are regular employees of a law enforcement agency are not entitled to the same disability benefits as volunteer peace officers, according to the Supreme Court’s latest decision.

On October 26th, the California Supreme Court decided the case of Larkin v. Workers’ Compensation Appeals Board. The Supreme Court ruled that Labor Code section 4458.2 does not apply to sworn peace officers who are regular, salaried employees of a law enforcement agency.

Under Labor Code section 4458.2 an officer’s temporary disability (or “TD”) benefit is set at the maximum statutory rate instead of being based on what they were actually earning. This means that if an officer was serving as a volunteer or reserve officer when they were injured on duty, they would receive TD benefits as if they were full-time employees of the agency. And the officer would receive TD benefits at the highest possible rate even if they were actually paid less while they were working.

This makes a huge difference in the amount an officer is paid for an on-the-job injury. Normally, an employee’s TD benefit payment is only two-thirds (2/3) of their regular salary. But under Section 4458.2 an officer would receive the maximum statutory rate of TD, as if they were among the highest paid employees.

To put this in real terms, in 2008 Police Officer John Larkin was seriously injured in a vehicle accident while on duty. His average weekly salary at that time was around $1000. The City of Marysville said it would only pay Larkin TD at two-thirds of his salary, meaning around $670 per week. But if Section 4458.2 was applied and Larkin was paid TD at the maximum statutory rate, he would receive over $900 per week in TD benefits. That is a difference of more than $10,000 over a year.

Officer Larkin filed a claim for TD benefits under Section 4458.2. But the Workers’ Compensation Appeals Board ruled for the City of Marysville and denied his claim. The Court of Appeal then ruled against his appeal. With attorneys Brian Dixon and Gregory Gomez from the Law Offices of Mastagni Holstedt, A.P.C. representing him, he took his case all the way to the California Supreme Court.

Unfortunately, the Supreme Court sided with the City of Marysville and ruled that Section 4458.2 did not apply to Officer Larkin. The Court largely deferred to the Workers’ Compensation Appeals Board, although it did offer some of its own reasons for the ruling.

The Supreme Court’s main justification was that Section 4458.2 was originally written to provide disability coverage to volunteer peace officers. Officer Larkin’s attorneys pointed out that the word “volunteer” was removed from the law in 1989 and is not in the other law it references (Labor Code section 3362). But the Court said that when the State Legislature made these amendments it did not mean to broaden the law to apply to all peace officers. To back this up the Court pointed to certain historical legislative documents and ignored others that did not support its ruling.

Another reason the Supreme Court gave was that regular peace officer employees are covered under Labor Code sections 4850 and 4853. These laws allow an injured officer to take up to one year of full-paid leave and then up to one year of TD benefits at the normal two-thirds rate. The Court argued that it was “balancing” the interests of regular and volunteer peace officers by denying regular officers Section 4458.2 benefits.

The Court ignored the reality facing many peace officers in smaller cities and rural counties. Officers like Larkin choose to serve in dangerous positions for less pay than their colleagues in wealthier cities and counties. They should not be punished when they suffer an on-the-job injury. But now, not only will officers like Larkin get less in TD benefits than many regular peace officers. They cannot even get the same TD benefits that volunteer peace officers receive. This ruling affects the rights of more than 73,000 police and sheriff patrol officers across the state. (Employment Development Department, Police and Sheriff Patrol Officers in California.)

On behalf of the thousands of peace officers hurt by this inequity, Mastagni Holstedt, A.P.C. hopes the Legislature immediately fixes the law and overturns the Supreme Court’s ruling.

California Supreme Court Grants Review of Mastagni Holstedt, APC Workers Compensation Case

The California Supreme Court agreed to hear oral arguments on one of Mastagni Holstedt, APC's workers compensation cases. At issue in the case is whether a permanent peace officer is entitled to the maximum temporary disability benefit as a result of an on the job injury.

Officer John Larkin was injured in a motor vehicle accident in November of 2008 while employed as an active police officer with the City of Marysville. He received benefits under Labor code section 4850 which expired. He then received temporary disability benefits. The temporary disability benefits are paid at two thirds the weekly earning rate. Officer Larkin's weekly earnings were $1008 resulting in a $671 weekly temporary disability benefits rate.

However, Labor Code section 4458.2 states temporary disability benefits are paid at the maximum statutory rate for eligible peace officers. The maximum rate in 2008, the time of the case, was $916 per week. Labor Code section 4458.2 makes reference to Labor Code section 3362 which defines who is eligible for the maximum benefit. Labor Code section 3362 states that every person registered as an active police officer shall be considered an employee of the municipality he or she works for.

Labor Code section 3362 has evolved over time. Originally the language included only men and specified the peace officer had to be a volunteer to receive the maximum benefit. However, the California State Legislature in 1989 modernized the statute including both genders and removing the word "volunteer." This evidences the intent of the legislature to provide maximum benefits to all peace officers.

Officer Larkin challenged the lower compensation rate in front of the Workers' Compensation Appeals Board. He argued he was entitled to the full $916 per week rather than the $671 per week. The Workers' Compensation Appeals Board argued that since Labor Code section 3362 only applied to volunteer peace officers, Officer Larkin was not entitled to the maximum temporary disability benefit. On appeal, the California Court of Appeal for the Third District upheld the Workers' Compensation Appeals Board determination.

Mastagni Holstedt, APC appealed the decision to the California Supreme Court. In its briefs, the firm argues all officers, regardless of status, are entitled to maximum benefits. This is the clear language of the statute which must be followed by the court system. By reading extra terms into the statute, the Court of Appeal created an absurd result which harms peace officers across the state.

Oral argument for the case will be held on September 2, 2015 at 9 AM in San Francisco. The case will be argued by Mastagni Holstedt, APC attorney Brian A. Dixon. Mastagni Holstedt, APC attorney Gregory G. Gomez assisted in drafting the briefing materials for the case.

Mastagni Holstedt Ranked #1 Litigation Firm by Sacramento Business Journal

The Sacramento Business Journal ranked Mastagni Holstedt the #1 litigation law firm.  The list ranks the top twenty-five law firms in Sacramento metro by number of litigators.

According to Mastagni Holstedt Founder, David P. Mastagni, "We are very pleased to have the growth and success of our litigation practices recognized in this way.  As the firm grows in Southern California, it is important to us to remain the leader in Sacramento litigating on behalf of employees, public safety labor associations, and individual plaintiffs, as well as class and mass actions."

Mastagni Attorneys Score a Victory for Common Sense and Fairness

In a recent decision, Daniel Young v. Workers' Compensation Appeals Board and County of Butte, the Third District Court of Appeals ("Court") held that an injury sustained by an employee as part of a regimen to satisfy employer physical fitness expectations constitutes a compensable industrial injury under California Labor Code section 3600(a)(9). Mastagni attorney Craig Johnsen argued the appeal before the Court. Mr. Johnsen and Matthew Peng collaborated on the appellate brief. Richard Weyuker of Cuneo, Ward, Black, & Missler argued on behalf of the employer. The case has been certified for publication.

Facts

Sergeant Daniel Young began his employment with the Butte County Sheriff's Department in 1995. In 1999, he was promoted to correctional sergeant. In 2004, the Department issued an order requiring all correctional officers, including correctional sergeants, to "maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer."

Sergeant Young took the requirement seriously, and he engaged in a regular physical fitness regimen during his off-duty hours. On January 9, 2012, Sergeant Young was performing his customary warm-up routine prior to his workout, which included jumping jacks. During one of the jumping jacks, Sergeant Young came down and experienced an extreme stabbing pain in his left knee. When Sergeant Young reported the injury, the Department took the position that the injury was not compensable under workers' compensation because it did not occur while Sergeant Young was engaged in his usual duties as a correctional sergeant.

At the trial court level, the workers' compensation judge disagreed with the Departments' position, concluding that Sergeant Young's injury was compensable under the circumstances. The Department requested reconsideration by the Workers' Compensation Appeals Board ("WCAB"). The WCAB sided with the Department and found Sergeant Young's injury was not compensable. Our appeal to the Court followed the WCAB ruling.

District Court of Appeal Analysis and Holding

In analyzing the facts of the case, the court relied upon the two-pronged Ezzy test. Under that test, the "reasonable expectancy" of employment is satisfied where: (1) the employee subjectively believes participation in the injury-producing event is expected by the employer; and, (2) the employee's belief is objectively reasonable.

The Court recognized that the first prong of the test is easily satisfied. Typically, subjective belief is established simply through the credible testimony of the injured employee. Since Sergeant Young had competently testified at trial as to his subjective belief, the Court placed no focus on that element, finding Sergeant Young's testimony "more than sufficient to satisfy that prong."

In asserting that Sergeant Young's case failed to satisfy the objective prong of the Ezzy test, the Department primarily relied on the argument that Sergeant Young's subjective belief that engaging in jumping jacks as part of a home exercise routine was not objectively reasonable because the belief was merely based upon a "general obligation" to maintain good physical fitness. The Court was not persuaded by the argument.

In dismissing the Department's argument, the Court pointed to the departmental order requiring correctional sergeants to maintain a state of good physical conditioning. The Court noted that the Department did not provide exercise opportunities during work hours, nor did the Department's directive offer any guidance as to what types of exercises and/or other physical activities would be considered appropriate in the furtherance of maintaining good physical condition. Further, the Court found it objectively reasonable that the Department would have expected Sergeant Young to perform a warm-up routine as part of his exercise program. Consequently, as the injury at issue satisfied both prongs of the Ezzy test, and there was substantial nexus between the Department's physical fitness requirement and Sergeant Young's specific off-duty activity which resulted in his knee injury, the Court ruled that the injury was compensable as an industrial injury.

Import of Court's Ruling

Although the Young decision applies specifically to a law enforcement employee, there are many other types of jobs that require workers to maintain an adequate level of physical fitness in order to satisfactorily perform necessary job functions. So, the ruling should have broad application in appropriate contexts. It is clearly in the employer's best interest for employees in any type of occupation or profession to make healthy life choices, which includes adequate exercise.

It should be noted that the Court's ruling may have been different had Sergeant Young been engaging in a more high risk activity, such as playing basketball, rollerblading, or kayaking when he was injured. But, since the Court observed that jumping jacks are generally considered to be a "traditional, low-risk and widely performed warm-up calisthenic", it had no difficulty finding the Young decision should not be interpreted to suggest that "anything goes" as long as the activity promotes fitness. In the end, common sense must prevail.

Quirky Physician Predesignation Requirement to Be Lifted

An effective way to take some control over your workers’ compensation claim is to predesignate your personal physician to provide treatment in the event you sustain an industrial injury. Absent a predesignation, you will be limited to physicians within the employer’s medical provider network, which can be wholly frustrating if not a little dangerous.

Currently, an employee is not eligible to predesignate a personal physician unless the employer provides non-occupational group health coverage, whether or not the employee participates in the coverage. That odd provision in the workers’ compensation regulations will be deleted effective July 1, 2014. As of that date, predesignation will be an available option for an employee with non-occupational health care coverage regardless of whether the employer offers  medical coverage to employees.

Thus, as of July 1, 2014, in order to make an effective predesignation election, you must: (1) provide your employer with notice of your predesignation prior to industrial injury; (2) actually possess health care coverage at the time of the injury; and, (3) obtain your personal physician’s agreement to the predesignation before the injury occurs. 8 CCR § 9780.1(a)(1)-(3).

The Division of Workers’ Compensation provides an optional predesignation form (DWC Form 9783) which can be used to provide notice of the predesignation and to evidence your physician’s agreement to the predesignation. The forms may be downloaded from http://www.dir.ca.gov/dwc/forms.html, or may be obtained by calling (800) 794-6900. (Caveat: Be sure to only use forms with 2014 revision date.)

Court of Appeal Upholds Workers' Rights

The Third District Court of Appeal published its decision in City of Sacramento v. Workers Compensation Appeals Board (Cannon) (December 26, 2013, Court of Appeal Case No. C072944). That means the case can now be cited as precedent throughout the state. The decision establishes the Almaraz/Guzman rule is not limited to “complex and extraordinary" workers’ compensation claims, increasing accuracy and fairness in rating workers’ compensation injuries. Mastagni attorney Eric Ledger argued the case for the Sacramento police officer Arthur Cannon before the Court of Appeal.