Opinion
Pеtitioner sought a writ for the purpose of having this court review the opinion and decision after reconsideration of the Workmen’s Compensation Appeals Board of the State of California (hereafter the board). The writ was granted and we review herein the record of those proceedings.
Petitioner Glenn Lyons filed a workmen’s compensation claim alleging injury to his back arising out of and in the course of his employment as a firefighter for the City of Los Angeles (hereafter the city). The injury was alleged to have occurred on June 8, 1966. The city filed its answer, denying all liability and alleging as affirmative defenses “credit for money paid” and the statute of limitations.
Hearing was had with respect to petitioner’s claim on July 29, 1971, before Referee David I. Lippert. Thеreafter, the referee made his findings and award in favor of petitioner with respect to temporary disability indemnity and permanent disability indemnity, together with reimbursement of medical-legal costs and self-procured medical treatment as well as further medical treatment. However, the referee allowed the city credit “against temporary and permanent disability indemnity and life pension awarded to the extent payments have been or hereafter *1009 shall be made to applicant'[petitioner] pursuant to provisions of Los Angeles City Charter Article XVIII and to the extent that temporary and permanent disability indemnity and life pension have been paid to applicant [petitioner] prior to payments made to him pursuant to Los Angeles City Charter Article XVIII.”
Petitioner filed a petition for reconsideration, which was granted. Thereafter, the board rendered its opinion and decision after reconsideration, adopting and affirming the referee’s findings and award.
The issue presented herein is whether the board properly concluded that the city was entitled to a full credit against an award of workmen’s compensation on account of disability pension payments made and to be made to petitioner.
The referee’s findings of fact adopted and affirmed by the board, as herein pertinent, are as follows: 1 1.“Glenn E. Lyons, bom April 2, 1930, while employed on June 8, 1966, as a firefighter at Los Angeles, California, by the City of Los Angeles, legally uninsured, sustained an injury arising out of and occurring in the course of the employment, to his back. . . .” 2. “Applicant has been adequately compensated for all periods of temporary disability through May 31, 1969. Applicant is entitled to additional temporaiy total disability indemnity for the period June 1, 1969 through May 6, 1971, at the rate of $70.00 per week.” 3.“This injury caused permanent disability of 81%, equivalent to 324 weeks at $52.50 per week, in the total sum of $17,010.00, and thereafter a life pension payable at the rate of $25.44 per week.” 4.“On account of payments heretofore made to applicant by defendant pursuant to provisions of Los Angeles City Charter Article XVIII and to the extent such payments are hereafter made to applicant, the defendant is entitled to credit against its obligation to pay temporary and permanent disability indemnity and life pension under the Labor Code. Therefore there are no funds due and payable to applicant as of the date hereof.” 5.“Disability herein was wholly caused by this injury. . ; .” 6.“Article XVIII of the Los Angeles City Charter which includes Sections 190.01 et seq. was effective January 1, 1967.” 7. “The applicant effectively became covered by Article XVIII as of December 21, 1967.” 8.“Prior to December 21, 1967, the applicant was a member of the Pension System under Article XVII of the Los Angeles City Charter which includes Sections 180 et seq.” 9.“Applicant received payments of $52.50 per week as permanent disability indemnity for the period June 1, 1969 through *1010 June 30, 1969 by separate checks.” 10.“A disability pension was granted to the applicant on or about May 7, 1969, effective retroactively to December 29, 1968; that for the periоd December 29, 1968 through January 13, 1970, applicant was paid a 65 percent pension, equivalent to $562.85 per month; that for the period January 14, 1970 through October 6, 1970, applicant was paid a 70 percent pension, equivalent to $605.85 per month; and that for the period October 7, 1970 to the present date, applicant has been paid a 65 percent pension, equivalent to $562.85 per month.” 11.“In connection with the payments of the 65 percent pension and the 70 percent pension for the periods above-stated, the City of Los Angeles reduced the pension amounts by amounts equivalent to temporary disability compensation at $70.00 per week for the period above-indicated and by the amounts of permanent disability compensa-, tion of $52.50 рer week for the period above-indicated, so that the net result was that applicant received a total sum of $562.85 per month for the period December 29, 1968 through June 30, 1969.” 12.“Applicant performed no services for the City of Los Angeles subsequent to June 8, 1966.” 13.“Applicant was granted a pension by defendant pursuant to Charter Article XVIII, Section 190.12, and payments of such pension have been made from funds designated for such by Charter Article XVIII.”
Petitioner contends that the city, in accordance with the formula enunciated in
City of Los Angeles
v.
Industrial Acc. Com. (Fraide),
While it was true that under article XVII part of the disability pension was paid with employee contributions, the court acknowledged the fact that the city had made substantial contributions to the pension fund as well, and expressed its concern that the employee not be afforded “double recovery” for an industrial injury. The Supreme Court found a solution to this problem by allowing the city a partial credit against workmen’s compensation liability. The Supreme Court stated (
More recently, in
Symington
v.
City of Albany,
In enunciating its rationale, the court in
Symington
stated (
Petitioner in the instant case commenced his employment as a fireman with the City of Los Angeles on Sеptember 23, 1957. He was injured on June 8, 1966. Prior to December 21, 1967, petitioner was a member of the pension system under article XVII of the Los Angeles City Charter, the same pension system with which the Supreme Court was concerned in Fraide 3 As of December 21, 1967, petitioner became a member of the pension system under article XVIII of the Los Angeles City Charter, after “freely and voluntarily” having made a request to become a member of the new pension system under that article. A disability pension was granted to petitioner on or about May 7, 1969, effective *1013 retroactively to December 29, 1968, at which time he was a member of the new pension system under article XVIII. 4
Section 190.06 of article XVIII creates and establishes “[t]wo entirely separate and distinct funds” for the payment of pension bеnefits. One of the funds is called the “New System Service Pension Fund” (hereafter Service Fund) and the other is called the “New System General Pension Fund” (hereafter General Fund). Section 190.06 provides that the Service Fund shall consist of: (1) deductions from members’ salaries as provided for in section 190.10: (2) contributions and donations; (3) fines levied against members; (4) proceeds from sales of unclaimed property; and (5) interest, earnings and profits from investment of such moneys. That section further provides that the General Fund shall consist of: (1) all receipts from taxes levied pursuant to section 190.09; (2) all moneys appropriated to the fund by the city council; and (3) interest, earnings and profits from investment of such moneys.
Section 190.06 provides that moneys from the Service Fund is to be used “exclusively for the payment of service pensions granted pursuant to Section 190.11.” Moneys from the General Fund “shall be used, other than for the investment thereof and except as hereinafter in this immediate paragraph specifically provided, exclusively for the payment of all pensions other than service pensions and of all administrative expenses of the New System [as created by article XVIII] and of the Fire and Police Pension System provided by Article XVII of this Charter.”
Should the moneys in the Service Fund be insufficient to pay service pension benefits, section 190.06 authorizes the transfer of funds from the General Fund to the Service Fund, but provides that “[i]n no other event shall any of the moneys in either of said funds be commingled with any of the moneys in the other of said funds, whether as moneys or cаsh on deposit or as moneys invested.” It is provided further that in case of an insufficiency of moneys in dither the Fire and Police Service Pension Fund or in the Fire and Police General Pension Fund (created and established by article XVII of the charter) the board is authorized to transfer sufficient moneys to either of said funds from the General Fund.
Finally, section 190.06 provides: “Neither the . . . [Service Fund] nor the . . . [General Fund] shall be a trust fund for any purpose, and the *1014 obligations to pay benefits pursuant to this Article shall be general obligations of the City.”
The manner in which the new pension system is funded under article XVIII is different from the manner in which the article XVII pension system was funded at the time it was reviewed in
Fraide.
As pointed out hereinabove, under article XVII as of the time pertinent in the
Fraide
case all pensions, including service and disability pensions, were paid out of one fund which consisted of employee contributions as well as tax moneys. Although in
Fraide
the city argued that it was originally intended that deductions from members’ salaries be used to pay service pensions, and that a charter provision provided that the city levy a tax in an amount equal to “estimated disability pensions,” the court pointed out that no provision of the charter “required that disability pensions be paid out of tax dollars.” The Supreme Court stated (
Under article XVIII the city has created two separate funds, one funded by deductions from employees’ salaries and other miscellaneous sources, the other funded by tax moneys. The Service Fund, which is the only fund containing deductions from members’ salaries under article XVIII, is to be used “exclusively” for service pensions. The effect of the funding provisions of section 190.06, article XVIII, is to provide a pension system under which disability pensions can only be paid with tax moneys.
Of course, the city’s right to credit pension payments against its workmen’s compensation liability depends upon the existence of an express provision allowing such credit in its charter, which constitutes a part of the contract of employment. Thus, in
Symington
v.
City of Albany, supra,
As was said in
City of Oakland
v.
Workmen’s Comp. App. Bd.,
In City
of Oakland
v.
Workmen’s Comp. App. Bd., supra,
Thus, where deductions from employees’ salaries are not commingled with contributions by the city to pension funds and where the city only seeks a credit against its workmen’s compensation liability with respect to its own contributions to a disability pension, the Fraide formula is inapplicable.
*1017
In
Lyons
v.
Hoover,
In
Gallagher
v.
City and County of San Francisco,
Under article XVIII, section 190.06, deductions from employees’ salaries become part of the Service Fund, which fund can only be used to pay service pensions. All other pensions, including disability pensions, are paid out of the General Fund consisting primarily of tax moneys. Under section 190.15 all pensions, except service pensions, which under section 190.06 are partially funded by employee contributions, are reduced by an award of compensation so as to avoid the possibility of double recovery by an employee for an industrial injury. Section 190.15 provides: “No deductions which shall be made from the salary of any System Member and deposited to the credit of the . . . [Service Fund] shall cover, directly or indirectly, the cost of any compensation but shall be applied only to the cost of pensions which shall be granted pursuant to Section 190.11.” Thus, under section 190.15 an employee can collect a full service pension, funded in part by his own contributions, and workmen’s compensation benefits. But, to the extent that it results in double recovery, he may not collect a disability pension funded solely by city contributions and also workmen’s compensation benefits.
Accordingly, the Fraide formula is inapposite in this case since under article XVIII, section 190.06, the disability pension paid to petitioner was paid from the Gеneral Fund which consisted solely of city contributions. However, petitioner argues that the city has failed to meet its burden of proof with respect to those “facts which would entitle it to a total credit.” Petitioner states: “First, no evidence was introduced to show an absence of comingling [sfc] or that petitioner’s contributions were not used to defray the cost of his workmen’s compensation benefits.” However, article XVIII specifically provides that an employee’s contributions shall not be used to defray the cost of his workmen’s compensation benefits. As will be hereinafter noted, with respect to this argument and arguments of a similar nature subsequently considered, in the absence of evidence to the contrary the presumption that official duty has been regularly performed is applicable. (Evid. Code, § 664.)
Next, petitioner states that the city “offered no evidence whatsoever with respect to what happened to the money which Petitioner contributed to the Article XVII pension fund during the first ten years of his employment.” In article XVII, as amended in 1969, section 186 provided for the establishment of two separate funds, one of which, “The Fire and *1019 Police Service Pension Fund,” was to be used “exclusively for the payment of service pensions.” This fund was to consist of contributions from members’ salaries pursuant to section 186 Vi and “[a]ll moneys which shall be on deposit to the credit of the Service Pension Account of the formerly provided Fire and Police Pension Fund as of the effective date of this section . . . .” Thus, it is provided in article XVII that salary contributions made to the article XVII pension plan are part of the Fire and Police Service Pension Fund, a fund used exclusively for the payment of service pensions under article XVII.
Petitioner contends: “. . . no evidence was introduced to show that pensions’under Article XVII still exist. And, if they do exist, what type of pensions are paid out of it now, and on what basis?” However, article XVII provides for a pension system separate from that for which provision is made in article XVIII.
Petitioner contends that “no evidence was introduced with respect to the source of funding for the new Article XVIII pension system.” However, article XVIII, section 190.06, clearly provides for the manner in which the two separate funds created therein shall be funded.
Petitioner contends: “. . . no evidence was introduced to show whether or not any contributions were made under Article XVIII into thе new pension system on Petitioner’s behalf. If no contributions were made pursuant to Article XVIII, since Petitioner’s date of injury was
before
the effective date of the new pension system, it is clear that Petitioner’s entire pension comes into being because of his years of employment and contribution into the comingled [s/c] funds pursuant to Article XVII, which mandates the conclusion that
Fraide
applies.” As has been noted, article XVII was amended to create two separate pension funds similar to the funds created under article XVIII and former contributions from employees’ salaries were placed in the fund designated to exclusively provide for service pensions. As of the effective date of the amendment, January 26, 1967, petitioner’s contributions to the former artiсle XVII pension fund were not commingled with funds used to pay for pensions other than service pensions. Further, to the extent that petitioner’s contentions suggest that the city should have put on evidence tracing actual dollar amounts with respect to contributions deducted from petitioner’s salary and funds used to pay petitioner’s pension, we note that in
Fraide, supra,
the Supreme Court stated (
The pertinent charter provisions are clear as to the particular source to which recourse is to be had for the funding of each kind of pension designated therein. In the absence of evidence to the contrary, it must be presumed that official duty has been regularly performed and that the various provisions of articles XVII and XVIII have been carried out. (Evid. Code, § 664;
Bringle
v.
Board of Supervisors,
Petitioner contends that the decision of the appeals board contravenes his vested rights. He argues: “Your Petitioner worked from his date of hire through the date of injury under the Fraide pension system. Petitioner submits that for individuals who were injured at a time when they were covered by the pension system which was considered by the court in Fraide, that the ‘Fraide doctrine’ must be applied. Therefore, the Appeals Board should have only allowed the City a partial credit in accordance with the formula enunciated by the court in Fraide and it was error to allow a total credit.”
While it is true that petitioner had a vested right in the pension system in the sense that he could immediately enforce the provision for pension benefits in his employment contract if all the conditions of the contract had been fulfilled, still petitioner did not have a vested right to a double recovery of disability pension and workmen’s compensation benefits. Petitioner voluntarily elected to become a member of the new pension system under article XVIII. And it remains a fact that the disability pension granted to petitioner herein was granted pursuant to section 190.12(a) of said article. Under the charter, pension payments with respect to section 190.12(a) pensions are made out of the General Fund, which consists solely of city contributions. The Fraide formula is applicable only when an employer uses funds which cоnsist in part of contributions from employees’ salaries to defray the cost of either disability pension or workmen’s compensation benefits.
Petitioner contends further that the purpose of the 6 percent pension deduction from his salary was to purchase either a years in-service pension, a service-connected disability pension, or a nonservice-connected disability pension. Thus, it is contended that “in absence of a return
*1021
to him of his pension contributions,” petitioner had a vested right to pension benefits as well as workmen’s compensation benefits. However, as was said in
City etc. of San Francisco
v.
Workmen’s Comp. App. Bd. (Quinn),
In the instant case, petitioner did not choose to enforce his contract rights under article XVII. Instead, he voluntarily entered into a new contract with his employer whereby he became a member of the new pension system under charter article XVIII and gave up any rights he had in the pension system under article XVII. The pension provisions of charter article XVIII constitute part of the contract of employment between petitioner and the City of Los Angeles.
(City etc. of S.F.
v.
Workmen’s Comp. App. Bd., supra,
With respect to deductions from members’ salaries, section 190.10 of article XVIII provides in pertinent part as follows: “Each System Member shall be deemed to consent and agree to each deduction ... and the payment of each payroll check . . . shall be a full and complete discharge ... of all claims and demands whatsoever for the services rendered by such System Member during the period covered by each such payroll check except such claims as such System Member may have to the benefits provided by this Article, and no System Member . . . ever shall be entitled, for any cause or reason whatsoever, to be paid any of the moneys which shall be deducted from his salaiy as hereinabove provided.”
In
Grace
v.
City of Los Angeles,
Finally, petitioner contends: “The referee found in his Award that your Petitioner was entitled to accrued temporary disability of $7,050.00, payable forthwith, as well as permanent disability at the rate of $52.50 per week, beginning May 14, 1971. Therefore, as of the date of the Award on May 2, 1973, there was approximately $12,000.00 due to your Petitioner in a lump sum. [H] Even if the City of Los Angeles is entitled to a total credit, which your Petitioner disputes, that credit can only operate prospectively. Of the approximately $12,000.00 due your Petitioner in May, 1973, the City of Los Angeles is only paying a pension in the sum of $605.85 during that month. Therefore, even if the City of Los Angeles is to be given a total credit, the $605.85 should be deducted from the total lump sum accrued as of May, 1973, and the balance should be ordered paid over to your Petitioner. Any credits subsequent to that time can be taken prospectively.”
However, as petitioner with commendable candor concedes, the court in
City etc. of S.F. v. Workmen’s Comp. App. Bd., supra,
267 Cal.App.2d
*1023
771, decided to the contrary. The court stated (267 CaI.Aрp.2d at pp. 780-781): “From the foregoing authorities it will be seen that under appropriate charter provisions a municipality has broad power to prevent double disability payments to the same person. The order in which the respective payments, awards or allowances are payable is immaterial. Pension payments may be reduced and offset against an earlier and fully paid compensation award.
(City of Los Angeles
v.
Industrial Acc. Com. (Morse), supra,
The award of the Workmen’s Compеnsation Appeals Board is affirmed.
Allport, J., and Potter, J., concurred.
Petitioner’s application for a hearing by the Supreme Court was denied March 26, 1975.
Notes
bindings of fact have been renumbered herein.
Labor Code section 3751 provides as follows: “No employer shall exact or receive from any employee any contribution, or make or take any deduction from the earnings of any employee, either directly or indirectly, to cover the whole or any part of the cost of compensation under this division. Violation of this section is a misdemeanor.”
Article XVII was revised several times. As amended, the article XVII pension plan provides for separate funds in much the same manner as does the article XVIII pension plan which is described in detail infra.
Article XVIII of the Los Angeles City Charter became effective January 26, 1967, approximately eight months after petitioner’s injury occurred and approximately one year prior to the effective date of petitioner’s pension.