County of Nevada v. Workers' Compensation Appeals Board

Filed 1/29/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada) ----

COUNTY OF NEVADA, C074133

Petitioner, (Super. Ct. No. ADJ8213231)

v.

WORKERS’ COMPENSATION APPEALS BOARD and DAVID LADE,

Respondents.

ORIGINAL PROCEEDING: Petition for writ of review. Decision annulled. Remanded for further proceedings. Lenahan, Lee, Slater & Pearse and Ira G. Clary, for Petitioner.

Mastagni, Holstedt, Amick, Miller & Johnsen and John R. Holstedt, for Respondent, David Lade.

No appearance on behalf of Respondent, Workers’ Compensation Appeals Board.

1

Labor Code section 4850 guarantees certain public safety employees who are disabled from an on-the-job injury “a leave of absence while so disabled without loss of salary in lieu of temporary disability payments.” (Lab. Code,1 § 4850, subd. (a).) The question here is whether this section applies to guarantee no loss of salary to an employee who has returned to work, albeit on modified duty. We conclude that it does not. A “leave of absence” is a foundational prerequisite to the application of section 4850’s no- loss-of-salary guarantee, and a person who has returned to work, even on modified duty, is not on a leave of absence. Accordingly, we will annul the decision of the Workers’ Compensation Appeals Board (the board) and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND While working as a deputy sheriff for the Nevada County Sheriff’s Department in mid-August 2011, David Lade injured his right shoulder. At the time of his injury, Lade was working a night shift schedule that entitled him to 5 percent shift differential pay.2 He had been earning the shift differential since 2004, and the differential was paid regardless of whether he worked, took vacation, used sick leave, or received holiday pay. Due to his injury, Lade was off work until late September, when he returned to work at full duty with no restrictions. In late January 2012, however, Lade was placed on modified duty at the direction of his physician. From then until he had surgery in early March, Lade worked light duty on the day shift. From the date of his surgery until late April, Lade was again off work. In late April, he returned to work full time but remained