Opinion

Larkin v. WCAB

Court
California Court of Appeal
Filed
Jan 28, 2014
Status
Published
Cited by
0 cases
Authority
More cited than 31.1%

The opinion

Filed 1/28/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

----

JOHN LARKIN, C065891

Petitioner, (WCAB Case No.

ADJ7191871)

v.

WORKERS’ COMPENSATION APPEALS BOARD

and THE CITY OF MARYSVILLE,

Respondents.

ORIGINAL PROCEEDING: petition for writ of review. Writ of review issued

and order denying reconsideration affirmed.

Mastagni, Holstedt, Amick, Miller & Johnsen, Gabriel R. Ullrich and Brian A.

Dixon for Petitioner.

No appearance for Respondent Workers’ Compensation Appeals Board.

Lenahan, Lee, Slater & Pearse and Gerald M. Lenahan for Respondent City of

Marysville.

1

The sole issue raised in this writ of review proceeding is whether the Workers’

Compensation Appeals Board (the Board) correctly determined that the benefits provided

under Labor Code section 4458.2 extend only to volunteer peace officers and not to

regularly sworn, salaried peace officers. (Further statutory references are to the Labor

Code unless otherwise designated.) We conclude the Board correctly determined that the

language of section 4458.2, when considered in light of the legislative scheme of which it

is a part and, in particular, section 3362, was intended to establish benefits for a discrete

group, volunteer peace officers, and cannot be applied to enhance benefits for peace

officers generally. We reject petitioner’s arguments to the contrary and affirm the

Board’s order.

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In the course of his employment as a police officer for the City of Marysville,

petitioner John Larkin sustained injuries to his neck, right shoulder, left upper thigh, face,

right biceps, and nose. The only issues at trial were Larkin’s claim to temporary

disability payments, the appropriate earnings rate, and the applicability of section 4458.2.

Following an expedited hearing, the workers’ compensation judge (WCJ) found

that sections 4458.2 and 3362 applied only to active volunteer peace officers, not

regularly sworn, salaried peace officers, and therefore did not apply to Larkin.

Larkin petitioned the Board for reconsideration of the decision, contending the

plain language of the statutes entitled industrially injured peace officers to temporary

disability payments at the maximum rate. The Board agreed with the reasoning of the

WCJ and denied the petition for reconsideration. Defendant’s petition for writ of review

followed. We granted review and now affirm the Board’s decision.

2

DISCUSSION

In this case, there are no material facts in dispute; the issue presents a pure

question of law. Statutory interpretation claims are reviewable by this court de novo.

However, “[i]t is well established that contemporaneous construction of a statute by the

agency charged with its enforcement and interpretation, while not necessarily controlling,

is of great weight; and courts will not depart from such construction unless it is clearly

erroneous or unauthorized. [Citations.]” (Dickey v. Workers’ Comp. Appeals Bd. (1990)

224 Cal.App.3d 1460, 1463-1464 (Dickey).)

“In interpreting statutes, if the ‘language is clear and unambiguous there is no need

for construction, nor is it necessary to resort to indicia of the intent of the

Legislature . . . .’ (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115,

755 P.2d 299].) However, this ‘ “plain meaning” rule does not prohibit a court from

determining whether the literal meaning of a statute comports with its purpose or whether

such a construction of one provision is consistent with other provisions of the statute.’

(Ibid.) We must strive to harmonize ‘provisions relating to the same subject matter . . . to

the extent possible.’ (Ibid.) Therefore, ‘[t]he intent prevails over the letter, and the letter

will, if possible, be so read as to conform to the spirit of the act.’ (Ibid.)” (Rehman v.

Department of Motor Vehicles (2009) 178 Cal.App.4th 581, 586 (Rehman).)

“ ‘The literal meaning of the words of a statute may be disregarded to avoid

absurd results or to give effect to manifest purposes that, in light of the statute’s

legislative history, appear from its provisions considered as a whole.’ (Silver v. Brown

(1966) 63 Cal.2d 841, 845 [48 Cal.Rptr. 609, 409 P.2d 689].)” (Rehman, supra,

178 Cal.App.4th at p. 587.) In such circumstances, “we apply reason and practicality,

and interpret the statute in accord with common sense and justice, and to avoid an absurd

result. [Citations.]” (Kono v. Meeker (2011) 196 Cal.App.4th 81, 87-88.) “Such a result

is appropriate here, particularly when we look to the legislative purposes of these

statutes.” (Rehman, at p. 587.)

3

As relevant to this case, section 4458.2 provides: “If an active peace officer of

any department as described in Section 3362 suffers injury or death while in the

performance of his or her duties as a peace officer, . . . then, irrespective of his or her

remuneration from this or other employment or from both, his or her average weekly

earnings for the purposes of determining temporary disability indemnity and permanent

disability indemnity shall be taken at the maximum fixed for each, respectively, in

Section 4453.” Section 3362 provides: “Each male or female member registered as an

active policeman or policewoman of any regularly organized police department having

official recognition and full or partial support of the government of the county, city, town

or district in which such police department is located, shall, upon the adoption of a

resolution by the governing body of the county, city, town or district so declaring, be

deemed an employee of such county, city, town or district for the purpose of this division

and shall be entitled to receive compensation from such county, city, town or district in

accordance with the provisions thereof.”

Larkin takes the plain language of these statutes and interprets them to mean that

an active police officer is entitled to temporary disability at the maximum rate,

irrespective of his actual wages. This would be an absurd result.

Section 3362 is contained in chapter 2, article 2 of the Labor Code, entitled

“Employees.” This article contains statutory provisions defining employees for purposes

of entitlement to workers’ compensation benefits and setting out excluded categories,

such as volunteers (§ 3352) and independent contractors (§ 3353). An “ ‘[e]mployee’

means every person in the service of an employer under any appointment or contract of

hire . . . .” (§ 3351.) There is no dispute that Larkin, as an active duty peace officer,

came within this definition of employee and was entitled to workers’ compensation

benefits. As such, there is no reason to have a special statute deeming an active duty

peace officer to be an employee.

4

Article 2 goes on to delineate certain workers who would not ordinarily be

considered employees and indicates they shall be deemed employees for purposes of

entitlement to workers’ compensation benefits. These workers include volunteer

firefighters (§ 3361), volunteer members of a sheriff’s reserve (§ 3364), and those who

assist law enforcement and firefighters at the request of a public officer or employee

(§§ 3365, 3366, 3367). Under these statutes, volunteers to public safety agencies are all

treated the same way: they are deemed employees of the agency and awarded temporary

disability at the maximum rate.

The policy underlying these statutes is to encourage public service to these

agencies by providing maximum benefits to volunteers injured in providing such service.

(See Dickey, supra, 224 Cal.App.3d at pp. 1464-1465.) In Meredith v. Workers’ Comp.

Appeals Bd. (1977) 19 Cal.3d 777, 781-782, in the context of an identical statute

regarding volunteer firefighters, the Supreme Court recognized these fictitious earnings

were created by the Legislature as it was “ ‘[c]ognizant of the public service provided by

the volunteer civilian firefighter and the potential loss of his earnings from other

employment [and] determined that the usual benefit schedules should not apply but that a

fictitious earnings component should be used. The liberal disability compensation

program not only serves to counterbalance any sacrifice of earning power made to engage

in firefighting activity, but also provides an incentive to engage in an important public

service.’ ” The same policy considerations apply to providing these fictitious earnings

for volunteer peace officers.

Larkin’s interpretation of the statutes would leave volunteer peace officers without

any recourse should they be injured during their voluntary public service. They would

not be entitled to any workers’ compensation benefits, as they would not be deemed

employees. Not only would this punish them for their service, it would leave such

volunteers in a markedly different position than volunteers of other public safety

agencies. This cannot be what the Legislature intended. Accordingly, to give effect to

5

the statutory policy underlying these statutes, we find that sections 4458.2 and 3362

apply to volunteer peace officers only.

DISPOSITION

The Board’s order denying reconsideration is affirmed. Each party shall bear its

own costs in this original proceeding.

RAYE , P. J.

We concur:

HULL , J.

ROBIE , J.

6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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