What the panel ordered
Joint Findings of Fact of August 12, 2020 affirmed; petition for reconsideration denied.
Petition for reconsideration filed by applicant and granted; decision after reconsideration issued affirming the WCJ's findings and decision.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The applicant is not entitled to temporary disability benefits for the second injury because Labor Code section 4853 bars temporary disability payments after the effective date of CalPERS industrial disability retirement, even if the injuries are from different dates but with the same governmental entity employer.
From the decision · page 6Labor Code section 4853 provides, "Whenever such disability of any such officer or employee continues for a period beyond one year, such member shall thereafter be subject as to disability indemnity to the provisions of this division other than Section 4850 during the remainder of the period of said disability or until the effective date of his retirement under the Public Employees' Retirement Act, and the leave of absence shall continue."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant received CalPERS industrial disability retirement effective February 15, 2018, which terminated his right to temporary disability benefits under Labor Code section 4853.
Favours Defendant prevailed
This retirement payment provides sustenance and bars further temporary disability benefits from the same employer.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Public Employees' Retirement Act
Public Employees' Retirement Act terminates right to temporary disability benefits upon retirement effective date.
Applied to terminate temporary disability benefits upon retirement.
From the decision · page 6Labor Code section 4853 provides, "Whenever such disability of any such officer or employee continues for a period beyond one year, such member shall thereafter be subject as to disability indemnity to the provisions of this division other than Section 4850 during the remainder of the period of said disability or until the effective date of his retirement under the Public Employees' Retirement Act, and the leave of absence shall continue."
Labor Code section 4853
Labor Code section 4853 bars receipt of temporary disability benefits after effective date of retirement under Public Employees' Retirement Act.
Applied to bar temporary disability benefits after CalPERS retirement.
From the decision · page 6Labor Code section 4853 provides, "Whenever such disability of any such officer or employee continues for a period beyond one year, such member shall thereafter be subject as to disability indemnity to the provisions of this division other than Section 4850 during the remainder of the period of said disability or until the effective date of his retirement under the Public Employees' Retirement Act, and the leave of absence shall continue."
Labor Code section 4850
Labor Code section 4850 provides for temporary disability benefits for up to one year in lieu of temporary disability.
Referenced in context of benefits and retirement.
What proof carried it
The evidence the panel weighed, by kind.
Applicant receiving CalPERS industrial disability retirement benefits precludes temporary disability benefits under Labor Code section 4853.
From the decision · page 7It is true the Applicant in this case was off work due to the industrial knee surgery. However, he is not without sustenance, as he was receiving the CalPERS disability retirement payments. As noted in Gorman, "a safety employee who has retired for disability and is receiving disability retirement payments is not also entitled to continued temporary disability payments. Sustenance is provided the employee during the rehabilitative process by the disability retirement payments being received by him." (Gorman v. WCAB (1992) 133 Cal.App.3d 998 [47 Cal.Comp.Cases 745].)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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