*1 S042327.Dec. [No. 1996.] SERVICE, INC., al., Petitioners,
SEA-LAND et WORKERS’ COMPENSATION APPEALS BOARD and CHRIS A. LOPEZ, Respondents.
Counsel B. for Petitioners. Moseley B. M. Bates and Wendy Frank Jeanne Hugg, Mathiason, Axelrod, Fastiff, Littler, Mendelson, Margaret D. & Tichy Roy on behalf of Petitioners. C. M. as Amici Curiae Bell Samantha Paynter Boxer, Elkind & Gerson and Michael G. Gerson for Respondents. William A. Herreras and Patrick as Amici Curiae on behalf O’Shaughnessy of Respondents.
Opinion BAXTER, When amaritime employee suffers an industrial injury J. falls within the concurrent jurisdiction and Harbor Work Longshore ers’ (LHWCA) (33 Act Compensation U.S.C. 901 et and the Califor seq.) § Code, nia Workers’ (Lab. Act 3200 et must the total seq.),1 § amount of disability benefits to the under the paid employee LHWCA be credited the total amount of benefits awarded under the act, California or credit for LHWCA may benefits be determined com the amount or paring paid awarded in each specific category benefits under each act?
We conclude that credit for LHWCA must be calculated *5 based a upon of the total comparison benefit disability awards payments act, under each regardless category. Accordingly, contrary judgment of the Court of is reversed and the Appeal matter remanded for further consistent with this proceedings opinion. Background
I. Factual and Procedural Service, The facts are not Sea-Land disputed. (Sea-Land) Inc. employed A. 15, 1985, Chris Lopez (Lopez) as maritime warehouse worker. On July suffered an Lopez industrial to his shoulder injury while for Sea- working Land. parties stipulated fell within the concurrent Lopez’s injury juris-
diction of the California Workers’ Act and the federal Compensation Sea-Land, self-insured, LHWCA. all medical care and permissibly provided paid under temporary disability indemnity the LHWCA. These Lopez $25,457, $9,617 totaled temporary disability payments which was more than $15,840 to which was entitled temporary disability indemnity Lopez statutory 1All further references are to the Labor Code unless otherwise indicated. order, a federal After a formal hearing the California act.2 under loss disabil- wage permanent awarded unscheduled law judge administrative $7,041 Sea-Land paid the LHWCA. Although under benefits of Lopez ity this award was $7,041 benefits to Lopez, disability in federal permanent on later reversed appeal. Board Workers’ Appeals the California
Subsequently, disability indemnity (WCAB) scheduled permanent partial awarded Lopez benefits $9,020. disability amount of temporary Even the maximum though ($25,457) the total com- LHWCA exceeded under the available to Lopez available to disability and permanent bined amount of temporary that, in claimed addition ($24,860), act Lopez him under the California benefits, he was entitled to state permanent disability the federal temporary allowed under the no such benefits were benefits because LHWCA. and the federal prior
In order to reconcile the state award entitled to before the WCAB that Sea-Land was conceded Lopez payments, the LHWCA for benefits of the same a credit for all made under that, credit). In this regard, Lopez agreed category (category-by-category than California because federal benefits were higher temporary disability allowed, disabil- have was not entitled to additional temporary would he Also, Sea-Land was entitled under state law. agreed ity payments Lopez award for the indemnity to a credit his state against permanent disability $7,041 Sea-Land made before federal permanent disability payments however, to Sea-Land’s petition federal award was reversed. Lopez objected, $9,617 for credit of its excess federal temporary disability payments $1,979 its for state remaining liability benefits.3
A that federal workers’ concessions judge compensation accepted Lopez’s and disability should be credited state temporary disability against temporary state permanent that federal should be credited disability against permanent however, for credit of the denied Sea-Land’s petition disability. judge, disability liability benefits were 2Sea-Land’s state was lower because state figures All have been capped weekly comparable at a lower rate than the federal benefits. rounded to the nearest dollar. Lopez’s claim for judge who decided 3The decision of the federal administrative law $7,041 that, though was not entitled to the Lopez under the LHWCA indicates even Sea-Land, provide does not permanent disability payments by made the LHWCA federal compensation. except against future recoupment overpaid compensation, of as an offset for the position that Accordingly, proceedings, “[w]hen Sea-Land took the in the WCAB $7,040.88 liability WCAB against is credited the permanent disability payment LHWCA of $1,979.12.” $9,020.00, disability owed is permanent the remainder
excess federal temporary disability against permanent disability $1,979 The WCAB denied reconsideration of the awarded to Lopez. judge’s determination, and the Court of denied Sea-Land’s Appeal summarily peti- writ After this court Sea-Land’s tion for of review. granted petition to with instructions review and transferred the matter to the Court of Appeal review, denial and the writ of Court Appeal vacate summary grant in a that the WCAB category-by- concluded decision split properly granted credit of Sea-Land’s federal temporary category We Sea-Land’s for review. granted petition payments.
II. Discussion be but a “A law is that there shall basic premise to account of a or disability; of benefits on single recovery single injury double burden on industry a double would be to recovery place permit more to from encourage malingering; right an one source is to the rule that a credit shall be allowed against than subject that it a double recovery.” award for extent permits payment Cottrell, (Raischell Bd. Comp. App. & Inc. Workmen’s Cal.Rptr. Cal.App.2d that, case, when on the general proposition this parties agree LHWCA and the falls within the concurrent jurisdiction
an injury Act, not obtain a worker may California Workers’ Compensation also it is agree appropriate “double benefits. recovery” They to the LHWCA benefit made employer pursuant such California act to prevent an award for the same under the injury double recovery. are their evident accord on the above points, parties
Notwithstanding what method of must be crediting applied over sharp disagreement under the where benefits are later sought LHWCA disability payments above, it should be given act. indicated Sea-Land argues California As excess federal temporary or full economic credit of its dollar-for-dollar dis- for state permanent its payments against remaining liability latter ante.) amount exceeds the (See fn. As the former ability indemnity. *7 case, additional amounts it should not have to pay in this Sea-Land reasons that argues indemnity. Conversely, Lopez for state permanent disability on a category- the LHWCA should be determined under or awards the total payments basis rather than by comparing by-category benefits disability claims that since made under each act. Lopez case, under is in his no credit applicable not available under the LHWCA are
83 and, therefore, receive state permanent is entitled to he California act the he received benefits disability in addition to the temporary the LHWCA. under to this: boils down essentially difference in the two crediting systems
The an em- advanced by Lopez, credit system the category-by-category Under an injury benefits for and federal final of state recovery ployee’s act LHWCA or the California under either the exceed that available could Sea-Land, an credit system supported by Under the dollar-for-dollar alone. to the available higher would be limited final recovery injured employee’s difference, we our begin or the other. Mindful of this under one act recovery analysis. federal workers’ com “establishes a comprehensive
The LHWCA
with med
and their families
longshoremen
pensation program
provides
ical,
and death.”
and survivor benefits for work-related
disability,
injuries
78,
92,
L.Ed.2d
(Howlett
(1994)
v. Birkdale
Co.
512 U.S.
Shipping
[129
exclusive,
86,
2057,
is not
2062].)
114 S.Ct.
Jurisdiction under the LHWCA
have been interpreted
however. Amendments made to the LHWCA 1972
schemes to
as
states to
their own workers’
allowing
apply
(Sun
federal act.
Ship,
land-based
that fall within the
injuries
coverage
458, 100 S.Ct.
(1980)
Inc. v.
double in the context of LHWCA awards. In Calbeck recovery crediting 368, (1962) v. Travelers L.Ed.2d 82 S.Ct. Insurance Co. 370 U.S. (hereafter Calbeck), ordering court two awards high affirmed 1196] LHWCA, benefits under the that an holding injured employee’s previous an election of of state benefits did not constitute acceptance remedies so as to a claim for benefits under preclude subsequent In “in compen LHWCA. so the court observed: the order holding, pay [to made sation under the amount all payments LHWCA] full award, the state was credited employer [under act] [LHWCA] (Calbeck, no supra, double impermissible recovery possible.” 379], added.) in Sun U.S. at L.Ed.2d at italics Subsequently, Calbeck, supra, 447 U.S. court relied Ship, supra, high upon workers’ compensation that a of concurrent federal-state concluding system one awards under does not threaten double since jurisdiction recovery second under the are credited system against any (Sun fn. 8 L.Ed.2d 447 U.S. at system. Ship, supra, below, determined of the Court of Appeal the proceedings majority crediting answering ques- Calbeck and Sun Ship unhelpful concerned employees here for two reasons: both decisions tion posed *8 84 benefits; (2) their references to impermis-
who for state initially applied of double was recovery sible “double were dicta because the issue recovery” in either case. not before court not because
While we that the two decisions are agree dispositive they first, we find addressed situations where workers sought compensation In Sun Ship, that Sun to an resolution the matter. Ship points appropriate scheme the issue was “whether a State its workers’ may apply compensation [LHWCA], as to land-based that fall within the of the coverage injuries 460].) amended Prior to the (447 in U.S. at 716 L.Ed.2d at 1972.” p. p. [65 amendments, had established a 1972 decisions of the court high effectively of concurrent federal-state over such in light regime jurisdiction injuries the unfortunate circumstance that “the at which state boundary [workers’ was far remedies to federal remedies compensation] gave way [LHWCA] (Id. from obvious in individual cases.” at L.Ed.2d at p. p. [65 from the Such a had been to rescue maritime workers regime necessary that had were forced to dilemma” resulted when “jurisdictional employees (Id. claim relief under one of two exclusive schemes. at compensation p. ; L.Ed.2d at see also id. at L.Ed.2d at p. p. p. [65 461] [“the 463] from the error was foreclosure price unnecessary expense possible limitations”].) forum statute of that amendments made proper Reasoning to the LHWCA in “resurrecting 1972 could not be understood as fairly the rule of exclu- jurisdictional existed under monstrosity” previously (id. 463]), sive at court jurisdiction high at L.Ed.2d determined that state workers’ schemes remained applicable to land-based within the LHWCA’s injuries falling sphere coverage. “there is no affirming rule of concurrent the court assumed jurisdiction, of double . . . since awards under one danger recovery employers’ compen- sation scheme would be credited under the second against any recovery (Id. 466], added.) scheme.” fin. 8 L.Ed.2d at italics the United States Court did not this Significantly, assump- Supreme premise Thus, tion on whether or the first. were we the state federal award occurred case, full economic undermine one deny this we would seriously the Sun decision. express underlying Ship assumptions law, In addition LHWCA a specific to the above case itself contains eliminate of double crediting injuries the threat provision which was within the zone of concurrent That falling jurisdiction. provision, “Notwithstanding any added reads by Congress pertinent part: law, injury, to an the same any employee other amounts provision paid under this Act pursuant or death for which benefits are claimed disability, against any other workers’ law . . . shall be credited *9 added.) 903(e), Decisions (33 U.S.C. italics this Act.” liability imposed by § credit for to full economic hold entitles an employer the statute it construing the same out of injury, arising all workers’ compensation payments state categories of were made for different whether such regardless payments F.2d (1st 1993) v. Cir. (D’Errico Dynamics Corp. benefits. General in the disjunc- or death” disability, the LHWCA lists “injury, 505 [because tive, for lost due temporary under the statute liability wages employer’s must be offset its previous payments and “total disability” disfigurement”]; state act for loss” “permanent “permanent under the (1988) 21 Rev. Bd. Serv. Steel & Co. Ben. Shipbuilding Garcia v. National 314, written in the was 317) statute is disjunctive, [because the of to claimant under a credit for entire amount benefits paid entitled to under the sought act for each for which benefits California injury LHWCA, involved].) of disability regardless type Calbeck, credit not Sun the federal economic Ship provision
Like it a worker for applies because addresses the situation where controlling the LHWCA. None- state first and then seeks under compensation theless, existence of of an alternative this statute weighs against adoption illustrates, case of California. As this system very application Sea-Land to more effectively require pay credit would category-by-category if the had Unless reciprocal than WCAB award come first. compensation of dollar-for-dollar credit is the measure of application employ- adopted, er’s will hinge upon final for workers’ liability invariably which entered an award first. fortuity jurisdiction concluded that law full strongly federal Having supports application economic credit for LHWCA benefit we now consider whether or payments, not law favors such a result. mandate, Workers’
Pursuant to state constitutional the California Act for a scheme provides employer liability Compensation compulsory for out and in course of employment. without fault injuries arising “ Const., XIV, (Cal. 4.) ‘a complete art. of the act is to furnish The purpose § such full medi system compensation, including provision [workers’] cal, to cure and remedial treatment is requisite other as surgical, hospital ” & Fidelity Casualty relieve from the effects of injury.’ (Fitzpatrick such LHWCA, Co. (1936) 7 Cal.2d P.2d Like families and California act is workers and their longshore available to extensive disability, remedies such as provides care, medical and permanent disability. Act, we find no Workers’ California reviewing be given made under the LHWCA
statute explicitly providing 4909, however, contains of credit a WCAB award. Section sort *10 allowance, or “Any payment, relevant crediting provision stating part: the of his incapaci- received the during period benefit by injured employee or was not then which terms of this division due payable .. . the by ty, the is or to concerning right compensation, when there dispute question not, for an of liability in the absence of be admission any agreement, shall allowance, on such the of the but any payment, compensation part employer, into board in fixing or benefit be taken account may by appeals to be . .” paid. amount of . compensation below, rejected the Court of unanimously In the proceedings Appeal for to a Sea-Land’s claim that section 4909 entitles it dollar-for-dollar well. The made the claim as under the LHWCA. We reject payments of benefits to encourage voluntary statute is prompt payment purpose a nonindustrial and to make payments protect employers mistakenly (1994) Bd. Cal.App.4th v. Workers’ 27 (Appleby Comp. Appeals condition. 184, in two 375].) a credit Section provides 191 4909 Cal.Rptr.2d [32 First, or credit will be where other given wages payments situations. are clearly are and such liability excess paid, payments an and the as advance on compensation intended by employee (Ott v. (1981) 118 Cal.App.3d become due. Workers’ Bd. Comp. Appeals Second, 648].) in the absence an agreement, 920 Cal.Rptr. [173 made voluntarily WCAB has to allow credit where the employer discretion (Id. 921.) in the statute. at described payments p.
Here, observed, is no the payments as the Court of there indication Appeal Moreover, an since federal intended as advance. Lopez (33 U.S.C. the LHWCA benefit are by compelled (See v. Work- 908(b)), Appleby cannot be characterized as they voluntary. § Bd., made 27 at ers’ 193 Comp. Appeals supra, [payments Cal.App.4th 4909 law are section under compulsion involuntary].) Accordingly, inapplicable. cred act contains no specific California’s
Although cases LHWCA two California benefit iting covering payments, provision in addressing jurisdictional a rule double recovery have recognized against Bd. Appeals LHWCA. In v. Workers’ Duong Comp. issues involving deter 609], the Court of (1985) Appeal 169 980 Cal.App.3d Cal.Rptr. engaged who incurred while injuries mined that a worker shipyard Com California Workers’ and the activities covered both LHWCA act simultaneously. each Act entitled to seek benefits under was pensation allows concurrent jurisdiction the court concluded: “Where holding, so acts, no double federal there is danger under both the state and coverage be credited under one will contributions because employer’s Calbeck, supra, (169 at relying upon the other.” Cal.App.3d at 131 L.Ed.2d U.S. Bd. Appeals Cal.App.3d v. Workers’ Comp. In Bobbitt on the issue 267], was even the Court of more explicit Cal.Rptr. Appeal were subject oil worker’s rig injuries After that an crediting. concluding the work the court determined that federal-state jurisdiction, concurrent LHWCA did not preclude prose er’s claim for benefits under the *11 pending receive in before “since he any might of his claim the WCAB cution receive in benefits he might the federal be credited may proceeding 849, (143 added.) the italics p. instant proceedings.” Cal.App.3d a view that is recovery imper- these decisions double Though expressed is and that full economic credit for LHWCA benefit payments missible declined of the Court of below to follow them. proper, majority Appeal value, in the the statements as dicta and lacking precedential Viewing of a instead the majority approved application category-by-category system. its reasoned that
To the justify position, majority category-by-cate 4661, in consistent with section which gory crediting provides pertinent “Where an and the part: injury disability, causes both temporary permanent for is entitled to injured employee any permanent disability him in such sustained addition to received by by injured payment (Italics added.) found it employee temporary disability.” majority and have different charac significant disabilities temporary permanent teristics and that the for each meets needs. In this regard, different indemnity the the from majority quoted Comp. Workers’ following passage Maples 827, (1980) 111 Appeals Bd. 836-837 “It Cal.App.3d Cal.Rptr. 884]: be remembered that must temporary disability indemnity permanent were the disability indemnity Legislature intended serve entirely different functions. as disability indemnity wage replace serves Temporary injury. ment worker’s for the industrial during injured healing period contrast, In permanent disability indemnity compensates [Citation.] function residual and/or after maximum handicap impairment the effects of the have been attained. from industrial injury [sic] [Citation.] serves in his adjustment Permanent to assist worker injured Thus, labor instances the allow to the market. returning many [Citation.] ance of credit for a disability overpayment against permanent temporary can be and in some destruc totally instances disability indemnity disruptive Relying tive of the of permanent disability indemnity. purpose [Citations.]” 4661 entitles this and the fact that section injured employees upon reasoning, con- disability indemnity, majority to both temporary permanent the LHWCA do not cluded that benefits under duplicate temporary disability in a double benefits so as result prohibited permanent dissent, Justice concurs in this analysis. his Mosk recovery. between
While we have no with the stated distinction temporary quarrel section 4661 we are not convinced disability indemnity, and permanent last to our Section 4661 was crediting the answer provides question. 1949, Calbeck, 114, supra, before 370 U.S. Sun long supra, Ship, amended 715, confirmed that U.S. and the amendments to the LHWCA to concurrent federal-state subject jurisdic- certain maritime injuries 1945, tion. Prior to section 4661 that where provided injury expressly was not caused both worker disability, both, but entitled to state benefits that were available for only 1937, 90, 4661, (Stats. 284.) a series of of the two. ch. greater By § 1335, 1, 2506; 1947, 1132, 1, (Stats. ch. Stats. ch. amendments § § 2572; 107, 1, 346), Stats. ch. liberalized section Legislature § *12 is entitled to recover one compre- 4661 to that provide injured employee award of both of state benefits. disability Contrary hensive comprised types to the in the Court of below and the assumptions majority Appeal here, in or of section 4661 from dissent there is context nothing history final than which to infer a intent to mandate a legislative recovery greater that available under the state act the most by combining generous temporary and state awards benefits from federal permanent disability separate full without crediting.4 context,
We
courts in numer
find it
that in an
noteworthy
analogous
California,
held
when two sister-state
ous
have
including
jurisdictions,
statutes
to a
suc
injury,
workers’ compensation
single compensable
apply
are
and do not threaten
cessive
awards
appropriate
supplementary
the second.
double
where the first award is
deducted from
recovery
fully
Larson,
(See
(1996)
4
of Workmen’s
Successive
The Law
Awards,
85.40,
85.00-85.70,
cited at
16-29
16-20 et
and cases
seq.,
§
§§
(hereafter Larson).)
et
4
seq.
246,
Department
(1942)
to Davis Labor
4Citing
possibility of successive crediting in the section 4661 was intended to address the issue unpersuaded we remain awards. context of successive state and federal
89 804 (1966) Cal.App.2d v. Industrial Acc. Com. Ins. Co. In Travelers entered who had Ins.), an (hereafter Travelers employee Cal.Rptr. 114] out of arising in California sustained injury into a contract employment carrier paid employee Alaska. After an insurance in that employment $9,271.42 and permanent disability including sums $4,698 workers’ compensation to Alaska’s benefits of pursuant Accident Commis- law, the Industrial received an award from the employee $6,520 benefits and included in temporary in California which sion carrier’s $17,010 that the insurance Noting in benefits. to a formal award had not been made pursuant benefit payments previous law, “in order to nevertheless held it was proper, Alaska the court under allow a credit against for the same injury, a double recovery prevent in of California a sum workmen’s law award made under the compensation the workmen’s on behalf of the insured under to the made equal 810; (240 see also Industrial law of Alaska.” Cal.App.2d compensation (1947) P.2d v. Ind. Acc. Com. Exchange Cal.App.2d etc. workers’ award of California was entitled to an employee 309] [California Utah, but all working benefits for received while injuries law would be amounts to Utah paid pursuant previously Ins., credited].) with the plurality opinion Travelers is consistent supra, L.Ed.2d Co. 448 U.S. Light Thomas v. Gas Washington which, 757, 773, 2647], that the full faith holding 100 S.Ct. the context Const., IV, (U.S. 1) art. does not successive preclude clause § awards,5 that a sister-state workers’ compensation recognized supplemental award does not threaten double since it “allows full credit *13 to the earlier award.” pursuant payments for successive com-
The wisdom of full dollar-for-dollar credit requiring clear when one considers the of such impact awards becomes pensation Larson, on noted Professor a awards As employers employees. by there is a differ- renowned in the field of workers’ authority compensation, On the of of successive awards. ence as to the opinion desirability allowing side, may subject one it has been successive awards argued allowing in different jurisdictions and insurance carriers to claims employers repeated side, it has been out that On the other pointed protracted litigation. their rights are at a in disadvantage learning potential employees typically where to under the various statutes of other states and choose may unwisely concludes, case,” Larson file a claim for benefits. “In Professor initially any Co., Washington Light supra, Gas Thomas 5Strictly speaking, did not involve successive awards, sister-state act Virginia but rather an award under workers’ (448 by act. U.S. at followed a claim under District Columbia’s workers’ fn. L.Ed.2d at carriers], and insurance apart that can [employers “the worst happen above, no is that will have pay mentioned they the inconvenience from having state by any single allowed highest compensation more than the would be is the same amount that always payable statute—which applicable Larson, (4 the first time.” best-informed choice if the claimant made the Thus, 85.60, 16-51, Professor Larson added.) as 16-50 to italics supra, pp. § of full dollar-for- supports application recognizes, public policy implicitly awards as a workers’ compensation dollar credit to successive sister-state to both and employees. matter of fairness employers state workers’ compen In of successive LHWCA and the context awards, of a even more favor heavily concerns of fairness weigh sation above, while federal law expressly As indicated full economic credit system. credit an award against be dollar-for-dollar given that an requires (33 903(e)), U.S.C. the LHWCA for disability payments under § such a credit expressly requiring there is no parallel statutory provision award for LHWCA disability payments. a California compensation against available credited the benefits But if such are not fully act, to offset state and federal then an right under the California employer’s on which each other will jurisdiction depend solely compensation against the extent of fairness and predictability, entered an award first. As a matter not be should liability both an and an employer’s employee’s such a determined by fortuity. Lopez argues adoption the dollar-for-dollar system, opposing with section which provides would be inconsistent
of such system be Act “shall California Workers’ relevant that the part courts with the of extending construed purpose [its] liberally We in the course of their employment.” for the protection persons disagree. does not LHWCA credit for disability payments full economic
Giving
benefits to
its own
extending
California’s interest
infringe upon
where an em-
“[r]egardless
Under such crediting,
injured employees.
*14
benefits,
to the maximum
he or she is entitled
first seeks an award of
ployee
legislative
under either comprehensive
allowed to an individual
amount
(1988) 15
(McGowan
Corp.
Conn.App.
General Dynamics
scheme.”
v.
587], italics
893,
A.2d
898],
(1989)
881 F.2d v. Carlson Landry Mooring Rev. Bd. Serv. v. Container 28 Ben. Transbay and Dermont that federal benefits temporary disability 403 to bolster the proposition That reliance is cannot be used to offset state benefits. permanent disability misplaced. cases, workers benefit awards under sought those injured supplemental
the LHWCA after received benefits to claims made under having pursuant workers’ acts. those decisions con Although various state cluded that the were entitled to credit the LHWCA awards against employers (33 amount under the state claims comparable paid full 903(e)), U.S.C. held that the could not claim they employers properly § credit for fees allocated to the workers’ under state attorney attorneys Labor, 596; law v. U.S. 881 F.2d at v. (Lustig Dept. supra, Landry p. Service, 1088), Carbon 643 F.2d at or for state Mooring supra, p. penalties awarded to the worker due to the failure to with the state employer’s comply Container, (Dermont Bd.) act 28 Ben. Rev. Transbay supra, 407). Serv. at The rationale is this: Because those p. underlying holdings awards for fees and do not serve to for the attorney penalties compensate workers’ such awards cannot be credited injuries, against employers’ under the liability (Lustig LHWCA. v. U.S. injury compensation Dept. of Labor, 596; Service, 881 F.2d at supra, supra, v. Carbon Landry Mooring 1088; Container, Rev.) 643 F.2d at Dermont v. 28 Ben. Transbay supra, Since, however, 407.) Bd. Serv. at temporary disability indemnity both serve to permanent disability indemnity compensate indisputably of a inconsistent be nothing worker’s we find consequences injuries, tween the above authorities and Sea-Land’s for credit of its excess request federal its for state temporary disability liability payments Indeed, benefits. more federal authorities hold that an apposite is entitled to full credit for all state benefit out of arising payments the same even if such were for different injury, categories made (See benefits. D’Errico v. General 996 F.2d at Dynamics Corp., supra, injured employees eligible award for which under the Connecticut Workers’ Act, regardless of benefits provided of whether the state act certain classes unavailable under the LHWCA. *15 Co., 505; 21 Ben. Rev. Bd. Steel & Shipbuilding supra, Garcia v. National 317.)7 Serv. at sum, concurrent that where juris- we do not accept Lopez’s argument lies, “best of both worlds” and worker is entitled to the
diction each As choose the best benefits from jurisdiction. and may pick clear, of concurrent jurisdic- makes the rule Sun 447 U.S. Ship, supra, workers the harsh conse- established to maritime protect tion was which a mistake of an exclusive jurisdiction system—under quences at all. The concur- availability forum selection could result in no benefits however, the fact that the LHWCA and the rent does not alter jurisdiction, each provide California Workers’ Act were designed within their own spheres juris- scheme of comprehensive benefits of diction. To allow an to recover the highest employee of another and benefits highest disability one under the federal act type would allow the employee under the state act without crediting type Haerle either act As Justice receive than contemplated. greater compensation below, that is what the United States observed in his dissent “exactly cautioned that ‘double recovery’ Court had in mind when it twice Supreme 725, fn. 8 (See 447 U.S. at Ship, supra, should not be Sun permitted.” Calbeck, 466]; 131 L.Ed.2d at p. L.Ed.2d at 370 U.S. supra, must be credit for LHWCA we conclude Accordingly, basis, full a dollar-for-dollar of category. Providing calculated on regardless each com- underlying economic credit as such with the purposes comports scheme, and and is consistent is fair to both employers employees, pensation sister-state for successive and with the system crediting supplementary workers’ awards. Disposition
III.
reversed
the matter is
of the Court of
is
judgment
Appeal
consistent with this opinion.
remanded for further proceedings
J., Chin, J.,
Brown, J., concurred.
C.
George,
Labor Code section
I dissent.
is whether
MOSK,
despite
The question
J.
state-mandated
reduce this
worker’s
4661 the
may
longshore
(Me.
Corp.
v. Bath Iron Works
argues
position
supported by
also
his
7Lopez
Bouford
Va.App.
1986)
Ship. Dry Dock
Newport
News
&
Lopez employer stipulated Lopez’s injury subject concurrent of the LHWCA the California Labor Code. jurisdiction
A state workers’ observed that and his em compensation judge Lopez had that state law entitled the to credit for agreed ployer employer payments made under the LHWCA. The further “The judge explained: parties agree is not entitled to a ‘double as a result applicant recovery’ Therefore, concurrent that the concedes jurisdiction. employer applicant is entitled to a credit before the Compensation Appeals [Workers’ Board] all made under the LHWCA benefits of the same class or is, That because under the LHWCA species. temporary disability payments to the in the state are not rather low maximum rate found subject system, is not entitled to additional applicant temporary disability payments entitled under state law. that the agrees employer Similarly, applicant to a credit his state award of disabil against permanent permanent him under the LHWCA. . . . issue only made to ity payments [<H] [U which remains undecided is whether the is entitled to for the LHWCA the state award temporary disability cap.” in excess of the California disability payments *17 confined offsets must be ruled that workers’ judge The i.e., for and for indemnity temporary of benefit: to the same category (WCAB) Board Workers’ Appeals The disability. permanent to it was further entitled Believing for reconsideration. denied petition LHWCA the extent that to disability liability its state law permanent offset law, the under state exceeded those available disability payments temporary review. sought should the WCAB decision is purely legal, Because the question presented standard, it is less deferential Even under that be reviewed independently. be sustained. decision was correct and should clear that its to this references are statutory Code section 4661—unlabeled Labor worker in that an injured be its specification code—could hardly plainer to both. It if entitled and permanent disability must receive both temporary temporary “Where causes both injury relevant here: as provides, to the is entitled injured employee permanent disability, to any him in addition payment sustained by disability any permanent added.) (Italics disability.” for temporary received such injured employee not limit such the statute does temporary As the italicized words emphasize, that received under state law. disability payment reimbursement for of full The reason for the legislative requirement “It must be not hard to discern. disability temporary permanent disability indemnity permanent remembered different func to serve entirely were intended by Legislature indemnity during serves as wage tions. disability indemnity replacement Temporary In the industrial worker’s injury. [Citation.] injured healing period contrast, residual hand for the disability indemnity compensates permanent effects from the of function after maximum and/or icap impairment dis Permanent have been attained. of the industrial injury [Citation.] [sic] in returning worker his adjustment serves to assist ability Thus, of credit instances the allowance market. many the labor [Citation.] indem against permanent for a temporary disability overpayment of the destructive totally and in some instances can be nity disruptive v. Workers’ Comp. (Maples disability indemnity.” purpose permanent 827, 836-837 Cal.Rptr. 884] Bd. Appeals Cal.App.3d (Maples).) case of in section 4661 violate the rule contained
The majority allowing create a principle workers—indeed they certain longshore dis- or elimination of temporary permanent reduction or even the outright that is a rule announcing under state law. In mandated ability payments (Maples, disability indemnity” permanent “destructive purpose 837), reduce majority Lopez’s supra, Cal.App.3d award, law, $10,220 from if not his actual entitlement under state result.1 $602.86. did not intend this Legislature implausible conclusion, section 4661 and their quote support majority 827, 836-837, and note the Court supra, Appeal’s Maples, Cal.App.3d *18 that “we are not convinced on authorities. then assert They reliance those ante, 88), at and to (maj. p. proceed 4661 the answer” opn., section provides 4661 was amended before certain declare that because section last changes law, of in or context section history occurred federal “there is in the nothing a final 4661 from which to infer a intent mandate legislative under the act most by combining than that available state greater and from federal separate benefits generous temporary permanent disability ante, 88.) without at crediting.” p. and state awards full (Maj. opn., The sole conclusion last amended Legislature rationale this is that 1949, 107, 1, (Stats. 346), section 4661 in 1949 ch. before p. “long [United § States Court and the amendments to the LHWCA Supreme 1972 cases] confirmed that certain maritime were to concurrent federal- injuries subject ante, 88.) high at But what the federal court jurisdiction.” (Maj. opn., was a of later “confirmed” concurrent established jurisdiction by regime War court decision a a week after the United States entered World year 246, In Davis (1942) H. Labor 317 U.S. L.Ed. Department 249 [87 of 225], decided, S.Ct. the court albeit a decade a half opaquely, “[a]fter which there had been definite rule to during guiding, not formulated ‘any id., determine the extent of state of at litigation,’ advance power 253, . . . that the border between federal and state schemes zone,’ was less a a line than must have their which ‘twilight ‘employees ,’ id., case . at determined case . . at 256 L.Ed. rights [87 250]. zone, Within this Davis a of concurrent established effectively regime 715, (Sun (1980) Inc. v. 447 U.S. jurisdiction.” Ship, Pennsylvania 461, 458, (Sun L.Ed.2d 100 S.Ct. The Ship).) opinions separate 2432] (317 Davis made this clear. U.S. at at pp. pp. 258-259 L.Ed. 251-252] Frankfurter, (conc. J.); (dis. id. at 261 87 L.Ed. at opn. opn. p. 253] [ Stone, J.)C. latter of the sort dual referring “overlapping system [the .”].) last which Court now . . . When the amended Legislature espouses 4661, claims section concurrent longshore compensation over jurisdiction was in effect. $7,040.88 that, following 1It is trae attorney deductions for fees and the erroneous award $1,979.12. fortuity permanent disability indemnity,
in federal fell to the sum at issue large, erroneous and federal this case does not refute fact nonrefundable award in disability entitlement for his 201/2 majority’s analysis percent permanent Lopez’s reduces nothing. to almost Moreover, even sum, belies the majority’s chronology. Sun Ship simply accurate, be irrele- their would point if the chronologically majority 4661. It provides the words of section plainly We are governed by vant. “in addition to any are entitled to employees added.) (Italics “Any payment” disability.” ... payment temporary Reducing Lopez’s perma- not state-mandated payment. means any, just any $10,220 $602.86 because from nent entitlement with section federal law cannot be reconciled benefits mandated by with the so. never They grapple not to do attempt 4661. The do majority 4661, its anachronistically “history” discussing of section instead words ante, 88). and context are interpretive But history “context” (maj. opn., (People cannot be understood. if the language aids to be utilized only plain P.2d 597-599 Cal.Rptr.2d v. Valladoli 13 Cal.4th clear. here: the statute’s meaning That is not the case *19 (1966) Com. Co. v. Industrial Acc. also on Travelers Ins. The majority rely that an for the (Travelers), 804 principle 240 Cal.Rptr. Cal.App.2d [50 114] regime against made under another is entitled to offset payments reliance is misplaced. By That its state law liability regardless category. disabil case for and permanent dollar amounts that temporary listing paid ante, that Travelers addressed the 89) the majority imply at ity (maj. opn., did not. credit. But it issue of category-by-category that, of category-by- does contain the question Travelers language if issue, the majority’s at might support credit had been conceivably category observe, was for the Travelers stated that “it proper conclusion. As they commission, for a double recovery in order to prevent [industrial accident] under the work- credit the award made the same to allow a injury, to the made law of California in a sum equal payments men’s compensation Alaska.” law of the insured under the workmen’s compensation on behalf of to have 810.) issue does not (240 appear at But our relevant Cal.App.2d court; much into the read too accordingly majority the Travelers been before not not for an issue authority axiomatic that an is opinion the decision. “It is v. (Santa Authority County Transportation therein.” Clara Local considered P.2d 902 (1995) 11 Cal.4th 243 Cal.Rptr.2d Guardino [45 Duong the consideration The same defect surrounds majority’s (1985) Cal.Rptr. 980 Bd. 169 Comp. Appeals Cal.App.3d Workers’ (1983) 143 609], Cal.App.3d Bd. Comp. Appeals Bobbitt v. Workers’ Com. 267], v. Ind. Acc. Exchange Industrial etc. and Cal.Rptr. category-by- of these cases was P.2d none Cal.App.2d 309]. se. rather, one of credit per was merely at issue: the issue credit category the those cases nor the courts in contemplated neither the Evidently parties of far greater Of now before us. paramount significance—certainly question on which majority rely—is than the isolated passages significance Duong, workers in is to tell whether the injured fact that it impossible Bobbitt, both Exchange or Industrial etc. even suffered per- majority correctly explained, As the Court disability. Appeal manent recovery’ ‘double is agree impermissi- above decisions seem that “[t]he ble, The decisions do what that term means. California they but not explain view was but none proper, that dollar-for-dollar expressed them, and of no prece- had the issue before so their statements are courts Bobbitt Duong “expressed value.” The statement that dential majority’s is benefit . . . economic credit for LHWCA a view full ante, stated, 87) is incorrect. As California (maj. opn., simply proper” industrial injury; does not a double for a permit compensable law is must or fully by category whether credit be extended question No case that question. benefit. relied on addresses majority on of double seem to focusing majority suggest the issue By recovery, law will if the receive a windfall WCAB decision Lopez upheld. facts as it contrary. and the establish the Even if the decision were upheld, $35,677.14 receive—$25,457.14 be, should would for temporary Lopez $10,220 not him compensate permanent disability—would loss, the full even for amount of his much less his wage percent 20V2 *20 outset, wages As stated at actual lost permanent Lopez’s disability. $38,166. for Counsel amicus curiae California approximated Applicants’ that Association at oral Attorneys eloquently argument emphasized here, “[tjhere’s a small but may amount of in that money money dispute make the difference whether or able injured they’re to the as to not worker[s] to make their for their car or medical pay mortgage payment, provide for their is to the treatment children. So the amount of money significant mon- worker. . . been enriched—he’s lost applicant . hasn’t [T]he .. . he received were two recoveries for two separate ey. partial [W]hat for one He received a consequences injury. temporary disability payment work, he was to he a the time unable and then received perma- completely of his because he his for the rest ability nent . . has lost payment. market, to is life to labor and his work compete ability impaired open basis; on a on a his to in our is ability society survive permanent impaired basis. do not to all the Both of those add payments together up to the has lost. addition to lost in addition wages, things applicant market, now has loss of to in the labor ability open compete applicant life, lost future for the rest of his suffering possible earnings pain that, So the be this is worked out. however nothing going paid less than one full when all the benefits are receives put together, applicant, That can’t be constituted as a double recovery.” recovery. is, then, issue an unfortunate distraction. The major
The double recovery law is that there and I basic premise compensation ity recognize “[a] of benefits on account of a or single injury shall be but a single recovery a double would be to a double burden on recovery place disability; permit and encourage malingering; right recovery compensation industry be more than one source is to the rule that a credit shall allowed from subject to the extent that it a double an award any payment permits Cottrell, (Raischell Inc. Workmen’s Bd. Comp. App. & recovery.” 159].) But in this case there is no Cal.Rptr. Cal.App.2d however that term be defined in workers’ compensa double recovery, may that state law entitled the tion law. and his Lopez employer stipulated the LHWCA “for benefits of to credit for made under the same class or in the words of the workers’ compensation judge. species,” Double is not at issue.
Nor, is there a windfall of as amicus curiae at oral argument, explained in his decision kind. As the workers’ noted judge denying credit for disability payments employer permanent disability LHWCA, “it cannot be said that the was the made under applicant windfall, LHWCA benefits were less of a in the sense that except beneficiary than state benefits. him whole for his losses wage inadequate making is not if the LHWCA benefits were so that there was an It as generous benefit to the as a result of his industrial Even the injury. economic applicant full LHWCA benefits did not with loss applicant wage replace- provide (Italics added.) There is no windfall here. ment.” Indeed, the LHWCA in purpose Congress amending prime (Sun of relief laws.” was to alleviate “the under paucity *21 715, 458, 465], deleted.) L.Ed.2d italics A 447 U.S. 723 Ship, supra, confirms House of Education and Labor Committee report Representatives laws Sun statement: State Workmen’s Ship’s provide “[M]ost “even the better State benefits which are the drafters inadequate,” explained; Commission on laws come nowhere close to the National meeting generally of a maxi- Laws recommended standard State Workmen’s Compensation on benefits of not less than 200% of statewide average weekly mum limit 92-1441, Sess., (1972) 10 in 1972 (H.R. No. 2d reprinted wages.” Rep. News, declared: “It is 4707.) The committee U.S. Code & Admin. Cong. not benefits are to note that workmen’s adequate compensation important his family, and essential to the needs of the meeting injured employee only
99 conditions, unsafe but, bears cost of the the by employer assuring the fullest measure incentive to provide the strengthen employer’s serve[] 4699.) (Id. at safety.” of on-the-job sum, the of law that permits employer if California any there source state-mandated Lopez’s
herein to offset its liability award the between his federal temporary difference by law, the majority under state the smaller award for temporary disability and force a longshore If had wanted to Legislature have not identified it. the it could have between federal and state compensation, laborer to choose “ so, ‘No did a statute compensation done so. Louisiana enacting providing, covered the or death any employee shall be respect payable Act, Harbor Longshoremen’s the Federal the Employer’s Liability ” Act, extensions, its or the Jones Act.’ or Worker’s Compensation 1316, 1994) 643 So.2d v. Avondale Inc. (Dempster Shipyards, (La.Ct.App. 1317, law. deleted.) is no in California italics There similar provision workers of all or a recovery
By stripping injured longshore part entitled, which are constructed and “alter they majority carefully fundamental balance between and interests rights employees (Bell v. which is the cornerstone of workers’ laws.” compensation employers 30, 268, (1981) Inc. 637 Vangas, Industrial Cal.3d CaLRptr. Richardson, (dis. J.).) P.2d must be remembered that opn. 266] “[I]t scheme legislative worker’s laws constitute all-pervasive which to effect a between the compromise attempts are . . . laws ba- interests. Worker’s employee’s competing as a matter of sically public economic which regulations by legislature, (Mulder v. has balanced societal interests.” Acme-Cleve- policy, competing 279-280].) (1980) land Wis.2d N.W.2d The Corp. have this basic fact. majority forgotten be understood to that other suggest jurisdic-
Finally, majority may Larson, tions’ in 4 The Law of Workmen’s Compensation cases cited 85.40, Awards, et bolster their conclu- Successive section seq., 16-29 page ante, 88.) (See those other have jurisdictions sion. But unless maj. opn., 4661, such cases would not a statute identical in or effect to section language do not serve as on the before us. majority persuasive authority question such statute. claim that other have jurisdictions *22 issue, Bath Iron v. One out-of-state case that did consider this Bouford from (Me. 1986) A.2d a different conclusion Works 514 reached Corp. available no offset is conclusion that intercategory majority. Bouford's 100 (id.
when
474)
at
law
“superior”
“are
and distinct
separate
from
is,
the benefits . . .
(id.
472)
received under the LHWCA”
at
as
I
shown,
have
correct under California law.
Judicial
Although
Supreme
Court of
relied in
Maine
on Maine law in
this
part
(id.
conclusion
reaching
at
472-473), its
pp.
buttresses the
opinion
articulated in
general principles
this
does
dissent. So
Cross v.
News
Dry
(1996)
&
Dock
Newport
Ship.
598],
S.E.2d
which the
with
Va.App.
employer,
commendable
candor,
to our
contrast,
called
attention
before oral
just
argument. By
out-of-state
on which
authority
majority
McGowan
General
rely,
(1988)
Dynamics
893],
Corp.
A.2d
Conn.App.
affirmed
587],
Kennard, J., J., concurred. Werdegar,