Thursday, January 30, 2014

Leave of Absence Means "Leave"

California Labor Code section 4850 provides, "(a) Whenever any person listed in subdivision (b), who is employed on a regular, full-time basis, and is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled, regardless of his or her period of service with the city, county, or district, to a leave of absence while so disabled without loss of salary in lieu of temporary disability payments or maintenance allowance payments under Section 139.5, if any, that would be payable under this chapter, for the period of the disability, but not exceeding one year, or until that earlier date as he or she is retired on permanent disability pension, and is actually receiving disability pension payments, or advanced disability pension payments pursuant to Section 4850.3."

The key phrase, according to the 3rd District Court of Appeal yesterday is, "leave of absence."

Turns out that phrase actually means what is says, the court reasoned, in that returning to work in a modified or restricted basis is not the same as "a temporary absence from employment with the intent to return."

David Lade injured his right shoulder while working as a deputy for the Nevada County Sheriff's Department in August 2011.

At the time, Lade was working a night shift, which entitled him to a 5% increase in his base salary.

Lade was unable to return to work until September 2011, when he returned to work at full duty with no restrictions. However, in January 2012, his doctor placed him on modified duty.

From that point until his surgery in March 2012, Lade worked light duty on the day shift. And from the date of his surgery until late April, Lade was again off work.

In late April, Lade returned to work full time but remained on modified duty during the day shift. While Lade was off work, he apparently received his regular full pay, including the 5% "shift differential," but Lade was not paid the differential while he was working day shifts.

That 5% inspired Lade to seek benefits and go up the court chain of appeal.

The initial ruling from the workers' compensation judge was that the 5% was part of Lade's regular salary, and a panel of Workers' Compensation Appeals Board commissioners agreed.

But Nevada County convinced the 3rd DCA that "leave of absence" as used in LC 4850 meant that "Lade could not have been on a leave of absence when he was actually back at work for the sheriff's department, even if he was working light duty on a different shift."

Makes sense to me too, albeit one must distinguish from earlier appellate rulings that might seem to contradict the ruling.

Lade argued Johnson v Contra Costa County Fire Protection District. In that case the 1st Appellate district had ruled a public safety officer’s salary during a leave of absence included holiday pay even though at the time the employee received his LC 4850 benefits he was not available to work holidays due to his disability. Contra Costa had argued the employee should be treated as a non-shift employee because he was not working at the time of the holidays but the Court ruled otherwise.

Instead the court in the Nevada County case was persuaded by Collins v County of Los Angeles. The court in Collins held that a former employee was not entitled to LC 4850 full salary benefits while temporarily disabled because he was no longer employed.

The Nevada County court interpreted the decision more broadly on the issue of how to consider a “leave of absence” as required in the statute:

“…At its narrowest, Collins stands for the proposition that a person who is no longer employed cannot be on a leave of absence from his or her job. More broadly, however, Collins supports the conclusion that a “leave of absence” is a temporary absence from employment with the intent to return. This is the common sense understanding of the term. …Applying this common sense understanding here, Lade could not have been on a leave of absence when he was actually back at work for the sheriff’s department, even if he was working light duty on a different shift.

There is nothing in section 4850 that guarantees a worker anything when he is no longer on a leave of absence and is instead back at work. Moreover, there is nothing in section 4850 that can be reasonably understood to mean that a leave of absence is anything less than being absent from one’s employment.”

The case is County of Nevada v. WCAB (Lade), No. C074133, 01/29/2014, published.

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