222 Cal. App. 4th 335
Cal. Ct. App.2013Background
- Mary Porter, an Orange County bus driver, was injured on the job, received workers’ compensation temporary total disability (TTD) payments, and later applied for disability retirement under the County Employees Retirement Law (CERL).
- Dispute centers on the effective date of her disability retirement under Gov. Code § 31724 — whether it begins the day after her last regular paid day or only after exhaustion of workers’ compensation benefits.
- Administrative referee awarded retirement as of application filing date; Porter appealed, and prior appellate proceedings remanded for factual findings on the period and amount of TTD received and Porter's election to retire earlier.
- On remand, the trial court found Porter had elected retirement the day after her last regular compensation and relied on Cal. Gov. Code § 31646.1 to conclude TTD payments are not "compensation" that would delay retirement under § 31724; it ordered retirement effective Feb. 15, 2000 without offsets for sick leave or TTD.
- Orange County Board of Retirement appealed, arguing § 31724’s phrase "leave of absence with compensation to which he shall become entitled under Division 4 of the Labor Code" includes workers’ compensation benefits and thus retirement must await expiration of TTD.
- The Court of Appeal affirmed the trial court, granting judicial notice of legislative history and holding CERL’s definition of "compensation" and legislative intent exclude workers’ compensation TTD from the § 31724 "leave of absence with compensation" concept for nonsafety members.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "leave of absence with compensation" in § 31724 includes workers’ compensation temporary disability benefits | Porter: phrase refers to employer-authorized paid leave (remuneration under CERL), not TTD indemnity; § 31646.1 treats TTD as separate from compensated leave | Board: Division 4 defines "compensation" broadly to include workers’ compensation, so § 31724 delays retirement until TTD expires | Court: Held phrase excludes TTD for nonsafety members; § 31646.1 and CERL definition of "compensation" support Porter's reading; affirmed judgment |
| Whether § 31646.1 was properly relied on despite not being previously cited and not adopted in Orange County | Porter: statute is new legal authority clarifying statutory meaning and may be cited; use was interpretive, not application | Board: citation was untimely and statute not operative in Orange County, so court erred relying on it | Court: Rejected Board's objections — § 31646.1 is legitimate interpretive aid; court could consider it to construe "leave of absence with compensation" |
| Whether CERL must be read like PERS (PERL §21165) to delay retirement until exhaustion of TTD | Porter: Legislature used different language in PERL when intending to include disability benefits; absence of similar language in CERL shows different intent | Board: legislative history and PERL analogy show intent to prevent early retirement that shifts cost while TTD is payable | Court: Rejected analogy; when Legislature included TTD it said so (PERL); omission in CERL indicates different intent |
| Whether public policy or double recovery concerns require offsetting TTD against CERL disability pension | Porter: no charter/statute prevents concurrent TTD and pension; ambiguities in pension law resolved for applicant | Board: allowing concurrent payments risks double recovery and undermines policy against it | Court: Held double recovery objection requires explicit statutory or charter provision; absent that, plaintiff may receive both; liberal construction favors pensioner |
Key Cases Cited
- Ventura County Deputy Sheriffs’ Assn. v. Bd. of Retirement, 16 Cal.4th 483 (1997) (ambiguities in pension statutes resolved for pensioner)
- Katosh v. Sonoma County Employees’ Retirement Assn., 163 Cal.App.4th 56 (2008) ("regular compensation" may include pay received during sick leave)
- Burnelle v. Continental Can Co., 193 Cal.App.3d 315 (1987) (workers’ compensation "compensation" is indemnity distinct from wages/remuneration)
- Pennington v. Workmen’s Comp. Appeals Bd., 20 Cal.App.3d 55 (1971) (distinguishing CERL and PERS rights regarding concurrent benefits)
- Los Angeles Unified Sch. Dist. v. Workers’ Comp. Appeals Bd. (Matthews), 150 Cal.App.3d 823 (1984) (statutory limits on preventing concurrent recovery apply to safety members only)
- Flint v. Sacramento County Employees’ Retirement Assn., 164 Cal.App.3d 659 (1985) (pension statutes construed liberally to benefit applicants)
- City etc. of San Francisco v. Workmen’s Comp. App. Bd., 267 Cal.App.2d 771 (1968) (municipal charter can prevent double recovery by police officers)
- Stafford v. L.A. Etc. Retirement Board, 42 Cal.2d 795 (1954) (statutory provisions can make disability pensions noncumulative with workers’ compensation)