# City & County of San Francisco v. Workmen's Compensation Appeals Board > California Court of Appeal · December 2, 1968 · 267 Cal. App. 2d 771 URL: https://www.frixlaw.com/law-library/cases/9737247 ## Case - **Full name:** CITY AND COUNTY OF SAN FRANCISCO, Petitioner, v. WORKMEN’S COMPENSATION APPEALS BOARD and GEORGE J. ENGLER, Respondents - **Court:** California Court of Appeal - **Decided:** December 2, 1968 - **Citations:** 267 Cal. App. 2d 771; 73 Cal. Rptr. 429; 33 Cal. Comp. Cases 758; 1968 Cal. App. LEXIS 1450 - **Precedential status:** Published - **Opinion:** Dissent by Sims - **Judges:** Elkington, Sims - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737247 ## Opinion text SIMS, J. I dissent. In its reply to the answer to its petition the City acknowledges : ‘ ‘ Petitioner does not base its claim of credit upon any *786 contention that respondent Engler was not entitled to permanent disability because he had resumed work during the period for which permanent disability indemnity was awarded. Certainly, an injured employee may be entitled to permanent disability indemnity while he is actually working. There is no question of ‘double recovery’ in such circumstances. He receives permanent disability indemnity for the residual effect of his injury; he receives his salary for the services which he performs for his employer. ’ ’ It is established that the award represents an allowance of a rating of 13% percent permanent disability for an injury incurred July 6, 1957, which entitled the employee to 54 weeks of disability payments at the rate of $35 per week in the total sum of $1,890. According to Labor Code section 4650 these payments should have been made “on the eighth day after the injury becomes permanent or the date of last payment for temporary disability, whichever date first occurs.’’ The City’s petition alleges that the injury caused disability which caused the employee to be off work for intermittent periods, that he was compensated by full pay, and that he last received medical treatment, which was furnished by the City, on October 25, 1965. At the hearing it was stipulated that all temporary disability indemnity has been paid in full during some period subsequent to his injury (July 6, 1957), but during the year 1957. On this record it would appear that the employee was entitled to receive 54 weeks of disability payments during a period commencing no later than January 1, 1958. The question is, can this right be taken away from him because it was not adjudicated until November 14, 1966 by the referee’s decision and affirmed until April 2, 1968 by the Appeals Board, and because in the interim the City had paid him a retirement disabiity pension for a period commencing October 1, 1965 ? It appears that if he had been paid the $1,890 in 1957,1958 or 1959, or at any time prior to October 1, 1965, the City could not deduct it from his retirement-allowance commencing October 1, 1965 under the first sentence of charter section 168.1.6 because of the provisions of Municipal Code section 267. On the other hand, if the compensation benefits had outlived his retirement, the retirement allowance would properly have been reduced each month by the amounts received as compensation thereafter, but there would be no offset as to compensation payments already received. *787 Under the second sentence if the retirement allowance had started at the time of the cessation of temporary disability and a determination of the right to permanent disability and the payments therefor were delayed for months or years, the City unquestionably would be entitled to offset the payments made for retirement allowance as a credit against the subsequently adjudicated permanent disability payments. In this case, however, if the partial disability payments had been made when they were supposed to have been made, the first sentence, not the second, would govern. Should this result be thwarted because of the delay in litigation ? The “double payment” here is payment of salary in 1957-1958 or 1959, together with a permanent disability allowance. The City concedes this can be done. (See Smith v. Industrial Acc. Com. (1955) 44 Cal.2d 364, 367 [ 282 P.2d 64 ]; Department of Motor Vehicles v. Industrial Acc. Com. (Dinan) (1939) 14 Cal.2d 189, 191-192 [ 93 P.2d 131 ]; and City of Palo Alto v. Industrial Acc. Com. (Gaudin) (1965) 232 Cal.App.2d 305, 310 [ 42 Cal.Rptr. 822 ].) The retirement allowance for which the City claims credit is that payable under section 168.1.3 of the charter which provides: “Any member of the Police Department who becomes incapacitated for the performance of his duty, by reason of bodily injury received in, or illness caused by the performance of his duty, shall be retired, ...” (Italics added.) It was stipulated that the “defendant employee was retired on disability retirement by the . . . City . . . for the same injury alleged in the application” which was filed to determine permanent disability and the right of the City to a credit against any award made. The retirement which commenced October 1, 1965 therefore resulted from the compensable injury. It is questionable, however, if the awards were to compensate for the same disability. The compensation award was for a permanent partial disability which apparently did not interfere with the employee’s capacity to perform his duties until some eight years after the accident. The construction urged by the City would deprive the employee of any compensation for the eight-year period in which he was permanently, although only partially disabled from an injury suffered in the course of his employment. Such a construction should be avoided as unreasonable if the reconciliation of the general and local law so permits. The present decision leaves the question of whether the employee gets the “double payment” to be determined by the *788 relationship between the time the award is made and the time of his retirement. The second date, as demonstrated above, is a relevant factor, but the former should not control. In the absence of specific language to the contrary, a payment for a subsequent period should not discharge a payment which accrued and was payable, but withheld, whether wrongfully or in ignorance of liability, for a prior period. There is nothing inconsistent with this conclusion in the cases which have reviewed the allowance of credit for retirement or death benefits paid under a retirement system against a subsequently obtained compensation award. (See City of Los Angeles v. Industrial Acc. Com. (Fraide) (1965) 63 Cal.2d 242 [ 46 Cal.Rptr. 97 , 404 P.2d 801 ]; Healy v. Industrial Acc. Com. (1953) 41 Cal.2d 118 [ 258 P.2d 1 ] ; and City of Oakland v. Workmen’s Comp. App. Bd. (Reimers) (1968) 259 Cal.App.2d 163 [ 66 Cal.Rptr. 283 ].) Nor do the eases, which have discussed a reduction of pension payments because of a compensation award, authorize such a deduction for compensation payments which have accrued and are payable for a period antedating the accrual of the payments under the retirement system. (See Stafford v. Los Angeles etc. Retirement Board (1954) 42 Cal.2d 795 [ 270 P.2d 12 ] ; Lyons v. Hoover (1953) 41 Cal.2d 145 [ 258 P.2d 4 ] ; Barnett v. Brizee (1968) 258 Cal.App.2d 97 [ 65 Cal.Rptr. 493 ] ; O’Brien v. City of San Jose (1960) 180 Cal.App.2d 609 [ 4 Cal.Rptr. 744 ] ; and Holt v. Board of Police etc. Comrs. (1948) 86 Cal.App.2d 714 [ 196 P.2d 94 ].) From all that appears in any of the foregoing cases the compensation and retirement system benefits accrued substantially simultaneously. In any event, in none of the cases, other than O’Brien , is the issue of concurrency raised or discussed. O’Brien , as stated by the majority, turned upon the construction of the provisions of the city charter which limited the disability retirement benefits to such sums as when added to the monthly compensation benefits would produce the total contemplated allowance. The court held that since the compensation benefits arose prior to the time of commencement of the retirement allowance, the City was liable for the full amount of the latter benefits without credit for prior compensation benefits. As an alternative ground of decision the court in O’Brien applied the principle of Lyons v. Hoover, supra, to the effect that retirement system death benefits payable to one dependent could not be reduced by the payment of compensation death benefits to other dependents, and observed: “So, here, we think that, because *789 the Industrial Accident Commission award, on its face, was all payable for a period prior to petitioner’s retirement, no part of it can be used as the measure of any reduction in petitioner’s pension. [Citations.]” ( 180 Cal.App.2d at p. 615 .) So here the City should not be able to claim the contrary credit, that compensation payments awarded for a period which expired before the disability retirement benefits accrued may be reduced by such payments. I would affirm the decision of the Appeals Board. The petition of respondent Workmen’s Compensation Appeals Board for a hearing by the Supreme Court was denied February 19, 1969. McComb, J., and Peters, J., were of the opinion that the petition should be granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737247. Public record. Not legal advice.