Department of Motor Vehicles v. Industrial Accident Commission

JONES, J. pro tem. This is a proceeding to annul an award of the Industrial Accident Commission against the Department of Motor Vehicles, California Highway Patrol.

On April 2, 1944, Clarence W. Cope, a traffic officer of the California Highway Patrol, sustained an injury to his back while engaged in active law enforcement, resulting in a total permanent disability. The degree of this disability was established at 82 per cent. The commission also found that a total temporary disability resulted which extended over two periods, one from April 2, 1944, to May 17, 1944, and the other from February 2, 1945, to January 20, 1946. Following his injury, Cope took a leave of absence with full pay. This leave commenced on April 2,1944, the date on which he was injured, and continued for 52 weeks.

An award was made on account of the permanent disability in the sum of $6,000, payable at the rate of $25 per week, and commencing as of April 10, 1944, one week after the injury. (Lab. Code, § 4650.) Attorney fees, medical expenses, and a pension allowance were also awarded, but no question is made of these items. In the award for total permanent disability the employer was given credit for all sums paid, on account of temporary disability at the rate of $25 per week. The petitioner claims that it is also entitled to a credit for all payments made on account of the permanent disability allowance while Cope was. drawing full pay on leave of absence. The argument advanced in support of this claim is that the full pay for one year allowed by section 4800 of the Labor Code is, by the terms of the code, substituted for all disability allowance.

With reference to those members of the highway patrol whose principal duties consist of active law enforcement, section 4800 provides that, “Whenever any member of the California Highway Patrol is disabled by injury or illness arising [628]out of and in the course of his duties, he shall become entitled, regardless of his period of service with the patrol to leave of absence while so disabled without loss of salary, in lieu of disability payments under this chapter, for a period of not exceeding one year.” Reading this section with section 4804 which provides that no temporary disability shall be paid concurrently with wages or salaries, and section 4803 which declares that section 4800 refers to temporary disability only, it is clear that no indemnity on account of any temporary disability may be paid to a patrolman who is drawing full pay while on leave of absence on account of injury.