Perry v. Workmen's Compensation Appeals Board

Opinion

WEINBERGER, J.* Petitioner, a city fireman, entitled to workmen’s compensation insurance benefits under the provisions of article 7, chapter 2, part 2, division 4 of the Labor Code (§§ 4850-4855) seeks review of an award which granted his employer credit for $630 against the permanent disability award otherwise payable to petitioner. The credit was allowed because during the period from July 7, 1970, when his disability was determined to be permanent through October 5, 1970, the date of petitioner’s retirement for disability under the Public Employees Retirement Act, he had received payment of his full salary pursuant to the provisions of section 4850 of the Labor Code.

The case involves reconciliation of the provisions of Labor Code section 4850 and 4854. Section 4850 provides in pertinent part: “Whenever any . . . city fireman, . . . who is a member of the Public Em[830]playees’ Retirement System ... is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he shall become entitled, regardless of his period of service with the city or county, to leave of absence while so disabled without loss of salary, in lieu of temporary disability payments, if any, which would be payable under this chapter, for the period of such disability but not exceeding one year, or until such earlier date as he is retired on permanent disability pension.”

It is established under the provisions of the foregoing section that unless terminated by disability retirement (see Eason v. City of Riverside (1965) 233 Cal.App.2d 190, 193-194 [43 Cal.Rptr. 408]) the employee is entitled to a full compensation at his existing salary for 52 weeks regardless of whether the disability is temporary or permanent. (See Austin v. City of Santa Monica (1965) 234 Cal.App.2d 841, 844-845 [44 Cal.Rptr. 857]; City of Palo Alto v. Industrial Acc. Com. [Gaudin] (1965) 232 Cal.App.2d 305, 307 [42 Cal.Rptr. 822]; and note Amborn v. Workmen’s Comp. Appeals Bd. (1971) 19 Cal.App.3d 953, 959 [97 Cal.Rptr. 466].)

It is contended by the respondents that because section 4850 expressly provides that the payments thereunder are “in lieu of temporary disability payments, if any, which would be payable ...” that such payments should terminate when permanent disability benefits become payable. The statute does not so state, and cases interpreting it and similar statutes do not so hold. The payment of special compensation measured by salary will not prevent the recovery of permanent benefits without offset. (Dept. of Motor Vehicles v. Ind. Acc. Com. [Cope] (1947) 78 Cal.App.2d 626, 630 [178 P.2d 43], See also Hawthorn v. Industrial Acc. Com. (1951) 101 Cal.App.2d 568, 571 [225 P.2d 966]; and cf. Dept. of Motor Vehicles v. Ind. Acc. Com. [Reed] 83 Cal.App.2d 671, 676 [189 P.2d 730], construing earlier statutes.)