Filed 11/26/13 Certified for publication 12/18/13 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MARY PORTER,
Plaintiff and Respondent, G047507
v. (Super. Ct. No. 03CC10643)
BOARD OF RETIREMENT OF THE OPINION
ORANGE COUNTY EMPLOYEES’
RETIREMENT SYSTEM,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Gregory
H. Lewis, Judge. Request for judicial notice. Judgment affirmed. Request for judicial
notice granted.
David H. Lantzer for Defendant and Appellant.
Faunce, Singer & Oatman, Edward L. Faunce and Larry J. Roberts for
Plaintiff and Respondent.
This is the third appeal involving payment of disability retirement to
plaintiff Mary Porter by defendant Board of Retirement of the Orange County
Employees’ Retirement System. As with the previous two, this appeal deals with the
effective date of plaintiff’s disability retirement under of Government Code section
31724 (all further statutory references are to this code unless otherwise stated). It arises
out of an amended judgment ordering defendant to find plaintiff entitled to disability
retirement from the day following her last day of regular employment, “without any
offset for sick leave or workers’ compensation temporary disability payments . . . .”
Defendant contends the trial court erred in relying on section 31646.1 to
find workers’ compensation benefits did not qualify as “compensation” within the
meaning of section 31724’s statement that a disabled worker’s retirement becomes
“effective on the expiration date of any leave of absence with compensation to which he
shall become entitled under the provisions of Division 4 (commencing with Section
3201) of the Labor Code” and asserts a variety of reasons why the contrary conclusion is
correct. Finding none of these arguments persuasive, we grant plaintiff’s request for
judicial notice of portions of section 31724’s legislative history and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
We incorporate some of facts from Porter v. Board of Retirement of the
Orange County Employees’ Retirement System (June 18, 2008, G038450) (nonpub. opn.)
(Porter 2) and insert facts relating to this particular appeal where relevant.
“[P]laintiff was injured while driving a bus for the Orange County
Transportation Authority. After she was treated, and received workers’ compensation, it
was determined she was permanently injured and there was no available job for her. She
later filed for disability retirement, which was denied. After appeal, a referee
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recommended defendant be awarded her retirement pay as of the date her application was
filed.
“After losing her petition for writ of mandate in the superior court, plaintiff
appealed to our court, arguing that, under section 31724, the effective date of her
application should have been the day following the last day for which she was paid her
regular salary, not the date her application was filed some 13 months later. We agreed
and reversed and remanded, directing the superior court to determine if plaintiff had
elected to retire on the date of her application, and if so, whether she was required to
repay her workers’ compensation and sick leave payments. . . .
“The trial court found that plaintiff had elected to retire on the day after her
last regular day of compensation. It held that section 31724 directs that retirement is not
to begin until the expiration of a ‘leave of absence with compensation under Division
Four . . . of the Labor Code, or after expiration of any sick leave to which [plaintiff was]
entitled.’ Relying on the definition of compensation in Division Four, which includes
every benefit given to an injured employee under the workers’ compensation scheme, it
held that plaintiff was not entitled to have disability retirement benefits begin until after
her workers’ compensation benefits ended. Because the record contained insufficient
evidence about the period during which plaintiff received workers’ compensation
benefits, the court remanded the matter to defendant to make such a determination and
also decide whether plaintiff could repay any workers’ compensation she had received
after the effective date of her retirement. Before any such hearing occurred, plaintiff
appealed to this court.” (Porter 2, supra, G038450.) We dismissed the appeal as
premature.
Upon remand, the trial court entered a second amended judgment noting
defendant’s concession during oral argument “that the only type of payment that it seeks
to have [plaintiff] repay is temporary disability.” It then returned the matter to defendant
to determine when and how much plaintiff received in temporary disability benefits, and
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plaintiff’s “ability to repay these benefits.” Defendant adopted the hearing officer’s
findings that plaintiff received “workers’ compensation temporary total disability
payments between February 23, 2000 and June 21, 2000” and that she did not believe she
could repay that amount.
Plaintiff filed a motion in the superior court seeking to have her disability
retirement deemed effective date as of the day after she last received regular
compensation, not when her workers’ compensation temporary disability pay expired.
She argued she had not been on a “leave of absence with compensation” as required by
section 31724 because she was not a safety employee who would be entitled to full salary
for a year with contributions made to her retirement plan under Labor Code section 4850.
To help define “compensation” as used in section 31724, she cited section 31646.1,
which, among other things, describes an uncompensated leave of absence as one in which
the employee receives temporary disability benefits. Plaintiff asserted her temporary
disability payments could not be deemed a “leave of absence with compensation” in light
of section 31646.1.
The court agreed, reasoning section 31646.1’s reference “to an
‘uncompensated leave of absence . . . for which the member receives temporary disability
benefits’ . . . supports a finding that ‘temporary disability benefits’ do not qualify as
‘compensation.’” It entered a third amended judgment ordering defendant to set aside its
decision denying plaintiff an earlier retirement date and to find her entitled to disability
retirement from February 15, 2000, the day following her last day of regular employment,
with no “offsets for sick leave or workers’ compensation temporary disability payments.”
DISCUSSION
1. Introduction
Under section 31724, the retirement of a permanently disabled member of
the retirement system shall be “effective on the expiration date of any leave of absence
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with compensation to which he shall become entitled under the provisions of Division 4
(commencing with Section 3201) of the Labor Code or effective on the occasion of the
member’s consent to retirement prior to the expiration of such leave of absence with
compensation. . . .” (Italics added.) The parties disagree about the meaning of the
italicized language, with defendant asserting its plain meaning requires plaintiff’s
disability retirement to begin after her workers’ compensation benefits expired on June
22, 2000 and plaintiff responding that the phrase applies only to “leaves that expressly
provide for compensation, e.g., the leave granted public safety officers pursuant to
section 4850[, subdivision] (a) of the Labor Code . . . .”
“‘Pursuant to established principles, our first task in construing a statute is
to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In
determining such intent, a court must look first to the words of the statute themselves,
giving to the language its usual, ordinary import and according significance, if possible,
to every word, phrase and sentence in pursuance of the legislative purpose. A
construction making some words surplusage is to be avoided. The words of the statute
must be construed in context, keeping in mind the statutory purpose, and statutes or
statutory sections relating to the same subject must be harmonized, both internally and
with each other, to the extent possible.’” (Rodarte v. Orange County Fire Authority
(2002) 101 Cal.App.4th 19, 22.) “Any ambiguity or uncertainty in the meaning of
pension legislation must be resolved in favor of the pensioner, but such construction must
be consistent with the clear language and purpose of the statute.” (Ventura County
Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 490.)
2. Plain Meaning
Defendant contends the plain meaning of the phrase “leave of absence with
compensation” in section 31724 shows it applies to plaintiff because “compensation” is
defined broadly under Division 4 of the Labor Code (relating to workers’ compensation)
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to include workers’ compensation benefits (see Lab. Code, § 3207 [“‘[c]ompensation’
means compensation under this division and includes every benefit or payment conferred
by this division upon an injured employee . . . without regard to negligence”]) and the
ordinary meaning of “‘leave of absence’” is “‘permission to be absent from duty or
employment.’” We disagree.
Nothing in section 31724 indicates the above definition of “compensation”
is the one to be used in determining “the expiration date of any leave of absence with
compensation to which he shall become entitled under the provisions of Division 4
(commencing with Section 3201) of the Labor Code . . . .” Section 31724 does not so
state. For example, it does not read “any leave of absence in which the member receives
compensation under the workers’ compensation act.” Nor does it say “any leave of
absence in which the member receives compensation as defined under Division 4 of the
Labor Code.” Rather, it limits the “leave of absence with compensation” to one to which
the member “shall become entitled” under Division 4 of the Labor Code. Moreover, as
plaintiff notes, “‘[t]o seek the meaning of a statute is not simply to look up dictionary
definitions and then stitch together the results. Rather, it is to discern the sense of the
statute, and therefore its words, in the legal and broader culture. Obviously, a statute has
no meaning apart from its words. Similarly, its words have no meaning apart from the
world in which they are spoken.’” (Hodges v. Superior Court (1999) 21 Cal.4th 109,
114.)
Section 31724 is part of the County Employees Retirement Law of 1937
(CERL) as codified in 1947 (§ 31450 et seq.) Under CERL, “compensation” is defined
as “the remuneration paid in cash out of county or district funds, plus any amount
deducted from a member’s wages for participation in a deferred compensation
plan . . . but does not include the monetary value of board, lodging, fuel, laundry, or other
advantages furnished to a member.” (§ 31460; see Ventura, supra, 16 Cal.4th at pp. 490-
491 [citing section 31460] and p. 497 [“[w]hen annual leave is taken as time off, the
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employee simply continues to receive regular salary or wages without the necessity of
performing services. Receipt of that pay is part of the employee’s ‘remuneration’ for past
services and is ‘compensation’”].) This definition is distinct from the one used in the
Workers’ Compensation Act. (Burnelle v. Continental Can Co. (1987) 193 Cal.App.3d
315, 320 [“‘compensation,’ as used in the Workers’ Compensation Act, is a technical
[term] and includes all payments conferred by the act upon an injured employee, and
does not have the same meaning as does compensation with reference to payment to an
employee of wages or salary for services performed. The latter is remuneration for work
done, while the former is indemnification for injury sustained”].)
Defendant asserts CERL recognizes different types of compensation and
that section 31724 in particular references three distinctive forms. The first two are
“regular compensation” [disability retirement allowance effective when application filed
“but not earlier than the day following the last day for which he received regular
compensation” (§ 31724)] and “sick leave with compensation” [retirement not “effective
until the expiration of such sick leave with compensation” (ibid.)]. In Katosh v. Sonoma
County Employees’ Retirement Assn. (2008) 163 Cal.App.4th 56 (Katosh), the court held
“the term ‘regular compensation’ in section 31724 includes compensation received for
sick leave and vacation when taken by [a member of the retirement system] as time off.”
(Id. at p. 78.) Although Katosh also stated “the first sentence of section 31724 [the one
being interpreted here] refers to certain temporary disability benefits under the workers’
compensation law” (id. at p. 66), that was not an issue before it and “‘cases are not
authority for propositions not considered’” (Cottonwood Duplexes, LLC v. Barlow (2012)
210 Cal.App.4th 1501, 1508).
According to defendant, the third type of compensation identified in section
31724 is “compensation to which [a member] shall become entitled to under the
provisions of Division 4 (commencing with Section 3201) of the Labor Code.” But this
construction reads out the phrase “leave of absence,” which is modified by the term
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“compensation,” in violation of the rule of statutory interpretation that significance
should be given whenever possible to every word and phrase in order to avoid making
some words surplusage. (Rodarte v. Orange County Fire Authority, supra, 101
Cal.App.4th at p. 22.)
The legal definition of “leave of absence” is “[a] worker’s temporary
absence from employment or duty with the intention to return.” (Black’s Law Dict. (9th
ed. 2009) p. 910, col. 2; see also Lewis v. Unemployment Ins. Appeals Bd. (1976) 56
Cal.App.3d 729, 739 [“‘“leave of absence” means that the employee is given permission
to be absent from work for a certain time at the end of which the employee will return to
his employment status’”].) When that is modified by section 31460’s definition of
“compensation,” a “leave of absence with compensation” under CERL is an employer-
authorized absence from work for which remuneration for past services is paid.
Nonsafety persons may receive such paid leaves of absences. (See Herrera
v. Workmen’s Comp. App. Bd. (1969) 71 Cal.2d 254, 256, 259 [unspecified injured
employee paid full salary during period of temporary disability not entitled to temporary
total disability payments].) But the only persons “entitled” to them “under the provisions
of Division 4 (commencing with Section 3201) of the Labor Code” (§ 31724) are certain
law enforcement and firefighters, who receive leaves of absences for up to a year with
full pay in lieu of temporary disability payments (see, e.g., Lab. Code, §§ 4800-4810,
4850-4855; see also Hawthorn v. City of Beverly Hills (1952) 111 Cal.App.2d 723, 728,
fn. omitted [“[w]ages and salary may, under some circumstances, be paid as
compensation in lieu of the normal temporary disability payments prescribed by the
[workers’ compensation] act. Such payments do not constitute salary or gratuities, but
are payments of compensation under the act”]). It is undisputed that plaintiff was a bus
driver, not a safety officer, and she received temporary disability payments or
“indemnification for injury sustained” (Burnelle v. Continental Can Co., supra, 193
Cal.App.3d at p. 320) as opposed to remuneration in the form of full “wages or salary”
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(ibid.). The fact these statutes link “leave of absence” with remuneration and distinguish
between full pay and temporary disability pay support a conclusion that temporary
disability payments as indemnification for injuries to a nonsafety officer such as plaintiff
do not constitute a “leave of absence with compensation” under the CERL. (§ 31724.)
3. Legislative Intent, Objects to be Achieved, Evils to be Remedied, and Related Statutes
Our construction of section 31724 is sustained by its legislative history.
The provision at issue was initially introduced as part of a packet of changes to CERL
proposed by the Professional Peace Officers Association. (Assem. Retired Com.
Analysis of Assem. Bill No. 1131 (1973-1974 Reg. Sess.) Jan. 8, 1973, p. 1.) Among
other things, the proposed bill “would provide that a retirement board shall retire a
member for a permanent disability effective on the expiration date of any disability leave,
or upon consent of the member, prior to such expiration.” (Ibid.) This language
thereafter appeared in the first draft of the bill (see Assem. Bill No. 1131 (1973-1974
Reg. Sess.) Apr. 9, 1973, p. 2) and was then enacted essentially into its current form
(Stats. 1974, ch. 9, § 3).
As it then read, section 31724 required that “a member be ‘forthwith’
retired upon qualification for disability requirement.” (Agric. & Services, Dept. of Public
Employees’ Retirement System, Enrolled Bill Rep. of Assem. Bill No. 1131 (1973-1974
Reg. Sess.) Jan. 25, 1974, p. 2 (Enrolled Bill Report).) The amendment was necessary to
“elaborate[] the effective date of retirement as the date the individual uses up accrued
compensable leave of absence to which he becomes entitled or on the date the individual
consents to retirement before such leave is exhausted.” (Dept. of Finance, Analysis of
Assem. Bill No. 1131 (1973-1974 Reg. Sess.) June 18, 1974, p. 1.) According to the
Department of Finance analysis, the bill provides that the disability retirement “of certain
safety members . . . shall be effective on expiration date of disability leave of absence or
upon consent prior to such expiration” and “allows a ‘safety member, a fireman member,
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or a member in active law enforcement’ . . . to treat such problem as job-related for the
purpose of receiving a compensable disability retirement due to permanent physical or
mental incapacity.” (Ibid.) A letter to a member of the California Legislature by a
representative of the peace officer organizations confirms “[t]he purpose of striking the
word ‘forthwith’ is to prevent the counties from retiring a member as soon as he is
determined to be incapacitated and thus depriving him of the year’s salary under [Labor
Code s]ection 4850, which some agencies will do. . . .” (May 9, 1973, letter from
William T. Hays to Ronald Kaldor of the California Legislature, p. 2.) The proposed
amendment would “make a disability retirement effective on the expiration of injury
leave benefits under [Labor Code s]ection 4850 . . . [and] defer the date until he has
received a full year of injury leave under [that statute] . . . unless the member consents to
retirement prior to the expiration of those benefits.”
Defendant argues the Enrolled Bill Report by the Agriculture and Services
Agency shows the purpose of amending section 31724 was to make CERL “more
consistent with the Public Employees’ Retirement Law (‘PERL’).” The report states,
“[p]resent [s]ection 31724 compares with [s]ection 21025 in [PERL] . . . [and] contains
no equivalent of [former s]ection 21025.5 which prohibits the establishment of an
effective date for disability retirement until after disability leave has been paid and/or
exhausted. [¶] This bill would provide for county systems what [former s]ection 21025.5
has provided for the Public Employees’ Retirement System [PERS] since 1953.”
(Enrolled Bill Report, p. 2.) Section 21025.5 has been renumbered to section 21165,
which reads: “Notwithstanding any other provision of this article, the retirement for
disability of a member, other than a local safety member, with the exception of a school
safety member, who has been granted or is entitled to a leave of absence with
compensation, which shall include nonindustrial disability insurance benefits payable
pursuant to Article 5 (commencing with Section 19878) of Chapter 2.5 of Part 2.6, shall
not become effective prior to the expiration of the leave of absence with compensation,
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unless the member applies for or consents to his or her retirement as of an earlier date.”
(Italics added.)
The italicized language demonstrates the Legislature knows how to include
disability benefits within the definition of “leave of absence with compensation” had that
been its intent. Although defendant acknowledges “the terminology used in PERL is
somewhat different” from CERL in this respect, it asserts “the intent is the same. An
employee should not be retired for disability until the expiration of any temporary total
disability benefits to which the employee is entitled.” It fails, however, to cite any
supporting authority, forfeiting the issue. (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.)
Moreover, “‘it is a well recognized principle of statutory construction that
when the Legislature has carefully employed a term in one place and has excluded it in
another, it should not be implied where excluded.’” (Brown v. Kelly Broadcasting Co.
(1989) 48 Cal.3d 711, 725; see also Los Angeles Unified School Dist. v. Workers’ Comp.
Appeals Bd. (Matthews) (1984) 150 Cal.App.3d 823, 825, 828 [because Labor Code
“section 4850 . . . is clearly limited to safety employees,” court “decline[d] to insert the
additional classification of nonsafety PERS members in the statutory language” of Labor
Code section 4853, precluding concurrent payments of temporary disability and PERS
retirement to safety officers, and affirmed school custodian’s entitlement to
“simultaneous recovery of temporary disability benefits for vocational rehabilitation and
a disability retirement pension through . . . PERS”]; Pennington v. Workmen’s Comp.
Appeals Bd. (1971) 20 Cal.App.3d 55, 59 (Pennington) [because court must assume
Legislature intended differences in PERL and CERL, including that “under [PERS] an
amount equal to workmen’s compensation benefits paid is deducted from benefits
payable,” with “[n]o similar provision . . . found in [CERL],” deputy sheriff not barred
from receiving temporary disability after retiring under CERL, even if would have been
barred under PERS].)
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We decline to read “disability benefits” into section 31724. Its absence in
section 31724 supports our conclusion that the Legislature did not intend to include
disability benefits within its definition of “leave of absence with compensation.” For the
same reason we reject defendant’s attempt to equate section 31724 with Education Code
section 24109, which reduces the retirement amount received by a teacher retiring due to
service connected disability “by an amount equal to the unmodified benefits paid or
payable under a workers’ compensation program for the same impairment or impairments
that qualify the member for a disability retirement allowance under this part. For
purposes of this section, unmodified benefits are limited to benefits for temporary
disability, permanent disability, and for vocational rehabilitation paid or payable under
the Workers’ Compensation Act.” Nothing in section 31724 or legislative history of
section 31724 mentions temporary disability benefits, in contrast to section 21165 and
Education Code section 24109.
Defendant claims the fact section 21165 specifically “excludes local safety
members who would receive salary replacement pay” (bold omitted) means that under
section 31724 no “employee should . . . be retired for disability until the expiration of any
temporary total disability benefits to which the employee is entitled.” It relies on the rule
that “[s]tatutes are not to be read in isolation, but must be construed with related statutes.
[Citation.] When legislation has been judicially construed and a subsequent statute on a
similar subject uses identical or substantially similar language, the usual presumption is
that the Legislature intended the same construction, unless a contrary intent clearly
appears.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437.) But PERS is different from
the retirement system under CERL. (See Ritchie v. Workers’ Comp. Appeals Bd. (1994)
24 Cal.App.4th 1174, 1189; State Compensation Ins. Fund v. Workmen’s Comp. Appeals
Bd. (1972) 26 Cal.App.3d 200, 202, fn. 3; Pennington, supra, 20 Cal.App.3d at pp. 59-
60.) Additionally, the legislative intent underlying the language added to section 31724
was to protect safety members from being forced into retirement and depriving them
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from receiving the year’s salary authorized under Labor Code section 4850, which
defendant acknowledges agencies had sought to do “in order to save money by moving
liability to the retirement systems and reducing the amount the county paid the injured
worker.”
Defendant maintains the revisions to section 31724 “protect[s] both safety
and general employees’ disability benefits by preventing counties from engaging in the
practice of pushing employees into the retirement systems prior to expiration of
temporary disability benefits” given “that temporary total disability payments are two-
thirds of the employee’s pay” under Labor Code section 4653, which is “significantly
greater than the 50% pay many workers receive in service connected disability retirement
benefits” under section 31727.4. That may be but plaintiff chose to retire prior to the
expiration of those benefits. Whether she has to repay those benefits is a separate issue,
which we need not decide because defendant stated during oral argument it was not
asking plaintiff to do so.
On the other hand, section 31646.1, which is part of CERL and on which
the trial court relied to help it determine the meaning of the phrase “any leave of absence
with compensation,” provides: “A member who returns to active service following an
uncompensated leave of absence on account of illness or injury arising out of and in the
course of employment which exceeds 12 consecutive months and for which the member
receives temporary disability benefits pursuant to the Labor Code during the absence
may receive service credit for the full period in excess of 12 consecutive months during
which the member received temporary disability benefits pursuant to the Labor Code
upon the payment of the contributions which the member would have paid during that
period, together with the interest which the contributions would have earned had they
been on deposit, if the member was not absent, provided, that the member has rendered
sufficient service, other than the service for which credit in excess of 12 consecutive
months is to be purchased pursuant to this section, to meet the minimum service credit
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requirements for benefits. The contributions may be paid in a lump sum or may be paid
on a monthly basis for a period of not more than the length of the period for which
service credit is claimed.” (Italics added.) We agree the italicized language supports a
determination that “compensation” does not include “temporary disability benefits” under
section 31724. As defendant acknowledges, “the ‘uncompensated leave of absence’
in . . . [section] 31646.1 is speaking of regular compensation received for work performed
by the employee or leave pay accrued by the employee and taken as time off,” i.e., the
CERL definition of compensation under section 31460.
Defendant argues the court erred in relying upon section 31646.1 because
plaintiff did not cite it until the case was returned to the trial court after remand. But that
“confuse[s] the concepts of new issues not presented below . . . with new legal authority
for the issue . . . .” (Giraldo v. Department of Corrections & Rehabilitation (2008) 168
Cal.App.4th 231, 251.) Because the meaning of the phrase “any leave of absence with
compensation” had been previously raised at the administrative level, plaintiff was not
precluded from citing new authority to support her interpretation of it at the trial court
level, particularly since defendant has cited no authority prohibiting “citation of new
authority in support of an issue that was in fact raised below.” (Ibid.) Moreover, the
issue of whether “any leave of absence with compensation” includes workers’
compensation benefits presents “a question of law for the courts, and it was beyond [an
administrative agency’s] jurisdiction to decide.” (Douda v. California Coastal Com.
(2008) 159 Cal.App.4th 1181, 1199, fn. 7.)
We also reject defendant’s contention the “court erred in applying” section
31646.1 because it “has not been adopted for use in Orange County.” (See § 31646.1
[“[t]his section shall not be operative in any county until such time as the board of
supervisors shall, by resolution adopted by a majority vote, make this section applicable
in the county”].) The court was not “applying” the statute per se, but rather was using it
to help determine the meaning of “any leave of absence with compensation.” For the
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same reason, there is no merit to defendant’s claim the statute does not apply to plaintiff
because it pertains “to retirement system members who take a leave of absence and
receive [temporary total disability] for more than 12 months.”
Nor has defendant persuaded us that the court’s reliance on section 31646.1
was misplaced because it “appears in the service accrual article of CERL and has nothing
to do with disability retirement dates.” That may be but the point is not where it appears
but whether it helps reveal what the Legislature meant by the phrase “leave of absence
with compensation,” which it does.
Finally, defendant asserts section 31646.1 actually supports its position
because it speaks “of regular compensation received for work performed by the employee
or leave pay accrued by the employee and taken as time off,” whereas under section
31724 an injured employee may receive workers’ compensation benefits while “not
receiving any regular compensation in the form of wages or sick leave.” This argument
misses plaintiff’s point in citing the statute, which was to show her receipt of temporary
total disability benefits does not mean she was on a “leave of absence with
compensation.”
4. Public Policy and Double Recovery
Our conclusion is consistent with the public policy of liberally construing
the workers’ compensation provisions of the Labor Code “with the purpose of extending
their benefits for the protection of persons injured in the course of their employment”
(Lab. Code, § 3202) and pension legislation, which “‘should be liberally construed
resolving all ambiguities in favor of the applicant’” (Flint v. Sacramento County
Employees’ Retirement Assn. (1985) 164 Cal.App.3d 659, 666; see also Katosh, supra,
163 Cal.App.4th at p. 76 [“‘pension statutes are to be liberally construed in an applicant’s
favor “to effectuate the purpose of providing benefits to an employee and his family”’”].)
As noted in this case’s first appeal, “[s]ection 31451 provides that the purpose of
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[CERL] . . . ‘is to recognize a public obligation to . . . employees who become
incapacitated by age or long service in public employment and its accompanying physical
disabilities by making provision for retirement compensation . . . as [an] additional
element[] of compensation for future services and to provide a means by which public
employees who become incapacitated may be replaced by more capable employees to the
betterment of the public service without prejudice and without inflicting a hardship upon
the employees removed.’” (Porter v. Board of Retirement of the Orange County
Employees’ Retirement System (Dec. 23, 2005, G034319) [nonpub. opn.], italics added.)
Defendant argues “the rules of liberal construction do not apply in cases
where an applicant is seeking double recovery for the same injury” and that affirming the
judgment will “sanction” just that. It correctly quotes City Etc. of S.F. v. Workmen’s
Comp. App. Bd. (1968) 267 Cal.App.2d 771, 774 (S.F.) for the proposition that “appellate
courts of this state have repeatedly held that a city may protect itself against paying twice
(through the workmen’s compensation provisions of the Labor Code and its own
retirement system) for the same industrial disability.” But it neglects to note a city or
county does that by enacting an appropriate charter. To that end, S.F. analyzes
authorities from “it will be seen that under appropriate charter provisions a municipality
has broad power to prevent double disability payments to the same person.” (Id. at p.
780, italics added.)
This follows in line with the “general policy against ‘double recovery’ for
permanent disability when charter or statutory provisions expressly so provide.” (Perry
v. Workmen’s Comp. Appeals Bd. (1972) 28 Cal.App.3d 828, 831, italics added.) In S.F.,
a charter “prevent[ed] ‘double recovery’ by a police officer for one duty-incurred
disability through receipt of both disability retirement allowances under [the] charter and
benefits payable under the workmen’s compensation laws.” (S.F., supra, 267 Cal.App.2d
at pp. 773, 783-785.) Similarly, Stafford v. L.A. Etc. Retirement Board (1954) 42 Cal.2d
795, 798, cited by defendant, relied on statutes to hold a deputy sheriff’s “disability
16
pensions shall not be cumulative with workmen’s compensation benefits awarded for the
same disability.” Those statutes, under former State Employees’ Retirement System,
now PERS, have been repealed. (Pennington, supra, 20 Cal.App.3d at pp. 58-59.)
Here, defendant has not cited any applicable charter or statute precluding
plaintiff’s ability to recover both her temporary disability benefits under workers’
compensation and her disability pension under CERL. Had the Legislature intended to
preclude a double recovery, we assume it would have done so as it did by providing in
section 31724 that pension payments may not begin until after sick leave payments have
ended and in Labor Code sections 4850 and 4853 for safety employees who are members
of PERS. (See Matthews, supra, 150 Cal.App.3d at pp. 826-827 [custodian not precluded
from receiving rehabilitation temporary disability indemnity after retirement under PERS
where Labor Code section 4853 applies only to safety members]; Pennington, supra, 20
Cal.App.3d at pp. 59-60 [sheriff’s deputy subject to CERL not barred from receiving
temporary disability indemnity between time of retirement and time disability became
permanent where Labor Code section 4853 applies only to PERS members].)
Defendant maintains plaintiff should be bound by her concession, now
withdrawn, that an employee may not “double dip” by simultaneously collecting
workers’ compensation benefits and retirement income in the form of a pension. But the
interpretation of a statute is a question of law for the court and is not governed by a
litigant’s “concession of its meaning.” (R.J. Land & Associates Constuction Co. v.
Kiewit-Shea (1999) 69 Cal.App.4th 416, 427, fn. 4.)
Moreover, it was defendant’s obligation to direct us to a charter, statutory
provision, or “a contractual provision between the parties specifically affording a credit
to the employer” (Matthews, supra, 150 Cal.App.3d at p. 829) that would “prevent
double disability payments to the same person” (S.F., supra, 267 Cal.App.2d at p. 780).
“‘We are not bound to develop appellants’ argument for them.’” (Cahill v. San Diego
Gas & Electric Co., supra, 194 Cal.App.4th at p. 956.) Because defendant failed to meet
17
its burden in this regard, and we are required to resolve all pension legislation
ambiguities in plaintiff’s favor that are consistent with the language and purpose of
section 31724 (Ventura, supra, 16 Cal.4th at p. 490), we conclude plaintiff is not
precluded in this case from receiving temporary total disability concurrently with her
disability pension under CERL (see Matthews, at pp. 829-830).
DISPOSITION
The request for judicial notice is granted. The judgment is affirmed.
Plaintiff shall recover her costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
18
Filed 12/18/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MARY PORTER,
Plaintiff and Respondent, G047507
v. (Super. Ct. No. 03CC10643)
BOARD OF RETIREMENT OF THE ORDER CERTIFYING OPINION
ORANGE COUNTY EMPLOYEES’ FOR PUBLICATION
RETIREMENT SYSTEM,
Defendant and Appellant.
Plaintiff and Respondent Mary Porter requested that our opinion filed on
November 26, 2013, be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED. The opinion is ordered published in the Official Reports.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.