Larkin v. WCAB

Filed 1/28/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

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JOHN LARKIN, C065891

Petitioner, (WCAB Case No. ADJ7191871) v.

WORKERS’ COMPENSATION APPEALS BOARD and THE CITY OF MARYSVILLE,

Respondents.

ORIGINAL PROCEEDING: petition for writ of review. Writ of review issued and order denying reconsideration affirmed.

Mastagni, Holstedt, Amick, Miller & Johnsen, Gabriel R. Ullrich and Brian A. Dixon for Petitioner.

No appearance for Respondent Workers’ Compensation Appeals Board.

Lenahan, Lee, Slater & Pearse and Gerald M. Lenahan for Respondent City of Marysville.

1

The sole issue raised in this writ of review proceeding is whether the Workers’ Compensation Appeals Board (the Board) correctly determined that the benefits provided under Labor Code section 4458.2 extend only to volunteer peace officers and not to regularly sworn, salaried peace officers. (Further statutory references are to the Labor Code unless otherwise designated.) We conclude the Board correctly determined that the language of section 4458.2, when considered in light of the legislative scheme of which it is a part and, in particular, section 3362, was intended to establish benefits for a discrete group, volunteer peace officers, and cannot be applied to enhance benefits for peace officers generally. We reject petitioner’s arguments to the contrary and affirm the Board’s order. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY In the course of his employment as a police officer for the City of Marysville, petitioner John Larkin sustained injuries to his neck, right shoulder, left upper thigh, face, right biceps, and nose. The only issues at trial were Larkin’s claim to temporary disability payments, the appropriate earnings rate, and the applicability of section 4458.2. Following an expedited hearing, the workers’ compensation judge (WCJ) found that sections 4458.2 and 3362 applied only to active volunteer peace officers, not regularly sworn, salaried peace officers, and therefore did not apply to Larkin. Larkin petitioned the Board for reconsideration of the decision, contending the plain language of the statutes entitled industrially injured peace officers to temporary disability payments at the maximum rate. The Board agreed with the reasoning of the WCJ and denied the petition for reconsideration. Defendant’s petition for writ of review followed. We granted review and now affirm the Board’s decision.