LARKIN v. W.C.A.B. (CITY OF MARYSVILLE)Real Party in Interest, City of Marysville, Answer to Petition for ReviewCal.Mar 24, 2014 S216986 IN THE SUPREME COURTOFTHE STATE OF CALIFORNIA JOHN LARKIN, ) Court of Appeal Case No.: ) C065891 Petitioner, ) ) (WCAB Case No. VS. ) ADJ7191871) ) WORKERS’ COMPENSATION APPEALS_ ) SUPREME COURT BOARD and THE CITY OF MARYSVILLE, ) tc i E ry) a Respondents. ) MAR 24 2014 rrarik A. McGuire Gierk Deputy ANSWERTO PETITION FOR REVIEW LENAHAN,LEE, SLATER & PEARSE, LLP GERALD M. LENAHAN(SBN:105192) PHOEBEM.VU,Esq., (SBN: 291508) 1030 15Street, Suite 300 Sacramento, CA 95814 Telephone: (916) 443-1030 Counselfor Respondent, City ofMarysville TABLE OF CONTENTS Page TABLE OF CONTENTS........ 2... cece eee ee eee ee eee ee eee ence ence i TABLE OF AUTHORITIES ......... 0.0... cee cece eee ee eee eee eeee iii CERTIFICATE OF INTERESTED ENTITIES OR PERSONS ................... iv ANSWERTO PETITION FOR REVIEW ... 126.96.36.199... 2 eee ee cee eee eee eens 1 INTRODUCTION........ 0...eceee eee eet eee nent enenee 1 QUESTION PRESENTED FOR REVIEW ........... 0. ce cece eee ee ee ence nee 1 BACKGROUND .......... 0. cece cece ee tee eee tebe tence teen eeeees 1 ANSWER TO QUESTION PRESENTED ........... 0.06. cece cece eee eens 4 BY PETITION FOR REVIEW ............. 0. ce eee cece ee cece tee eee ee eeeees 4 I. THERE ARE NO GROUNDS UPON WHICH REVIEW MAY BE GRANTED ............ 0: cece ee cee e eee n eee n eee neaee 4 a. The plain language of Sections 4458.2 and 3362 apply only to volunteer peace officers... 188.8.131.52... cece cece cence teen eees 4 b. The 1989 Amendments to Section 4458.2 continuedto limit the scope ofits application to the class of peace officers as defined in Section 3362 0.0.0... cece cece cence ence eens 7 c. The Court ofAppeal did not rely upon Section 4855 in determining the benefits allowed under Section 4458.2 ............ 8 d. There is no manifest prejudice to all regularly employed, active peaceofficers as they are entitled to Section 4850 full salary continuation in lieu oftemporary disability indemnity.............. 8 CONCLUSION ..... 0... cccccete cere eee e ene e ene ee eens 10 CERTIFICATE OF BRIEF LENGTH BY APPELATE COUNSEL ............... 11 VERIFICATION . 0.0... ccc cee cece eee ete e eee ee nee e teenies 12 il TABLE OF AUTHORITIES Page CASES Dickey v. Workers’ Comp. Appeals Bd. (1990) 224 Cal.App.3d 1460 .............. 5 Larkin v. City ofMarysville (2014) 223 Cal.App. Ae 538eee cece ee ees 8 Lundgren v. Deukmejian (1988) 45 Cal.3d 727 2.0... 0c cece nee eee eens 4 Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Ca.2d 599 ...... 7,8 STATUTES Cal. Labor Code 3351... 0... eeeceeteen e nent nee n en enes 6 Cal. Labor Code 3362... 0... cccceteen eee e eee e eens 5-8, 10 Cal. Labor Code 4458.2 2.0...ceeeee eee eee eees 1-3, 5, 7- 10 Cal. Labor Code 4462 2.0.0... ceeccnn e teen ene e ene neas 6 Cal. Labor Code 4850 2.0... 0. ccceceee tee tenn et ee ene e eens 9 Cal. Labor Code 4855 ooo. cccceeerence eee e teen eee 8, 10 Cal. Rules of Court 8.500 0.0... 00.ccee eee ete e teen eens 1,4 iil CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court 8.208 Nameof Interested Entity of Person Nature of Interest Court of Appeal Respondent Court Workers’ Compensation Appeals Board Respondent Court City of Marysville Respondent York Insurance Services Group Respondent Mastagni, Holstedt, Amick, Miller & Johnsen Attorney for Petitioner John Larkin Injured Worker; Petitioner Dated: March 21, 2014 Respectfully submitted, LENAHAN, LEE, SLATER & PEARSE, LLP PHOEBEM.VU,Esq. Attorney for Respondent, City of Marysville, p.s.i. iv ANSWERTO PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA INTRODUCTION On March 6, 2014, JOHN LARKIN, (hereinafter “Petitioner’’), by and through his attorney of record, filed a Petition for Review seeking review of one issue. Respondent CITY OF MARYSVILLE, P.S.I., (hereinafter “Respondent”), by and through its attorney of record, hereby Answers Petitioner’s Petition for Review on the basis that there are no grounds to support review pursuant to California Rule of Court 8.500 because the application of Labor Code' Section 4458.2 is governed by Section 3362 which applies only to volunteer peace officers. QUESTION PRESENTED FOR REVIEW I. Whether the benefits provided by Labor Code section 4458.2 extend to “volunteer” peace officers or whether the statute applies to regularly sworn,salaried officers, as well. BACKGROUND Petitioner, Mr. John Larkin, sustained a specific injury to his neck, right shoulder, left upper thigh, face, right biceps and nose on November 21, 2008, when he was involved in a motor vehicle accident during the course of his employment. At the time of injury, applicant was a regularly ' All statutory references herein specifically refer to the California Labor Code unless otherwise stated. employed, full-time salaried police officer for the City of Marysville. He voluntarily resigned his position with the City following the motor vehicle accident. Workers’ compensation benefits were furnished. This matter was set for an Expedited Trial on May 25, 2010 before the Honorable Workers’ Compensation Judge, (hereinafter “WCJ”), Dudley Phenix. Prior to the Expedited Trial, the parties submitted a Pre-Trial Conference Statementstipulating that the only issue for determination was applicant’s claim to temporary disability (“TD”), the appropriate earnings rate, and the applicability of Labor Code § 4458.2. TD benefits had been furnished at the rate of $672.31 per week. His indemnity rate was based on the statutorily defined two-thirds of his average weekly wage. Petitioner sought temporary disability indemnity benefits payable at the maximum statutory temporary disability rate. His actual weekly income of $1,008.47 was not high enough to justify the maximum TD rate of $916.33 (to qualify, he would need to earn $1,374.46 per week; two-thirds of $1,374.46 is the maximum TDrate of $916.33). On July 12, 2010, WCJ Phenix issued a Findings and Award concluding that applicant was not entitled to the maximum TD rate under Section 4458.2; applicant’s rate was to be based upon his actual income. Applicant’s average weekly earnings were determined to be $1,008.47, resulting in a TD rate of $672.31 per week. These facts are not in dispute and are not contested by Petitioner. Petitioner filed a Petition for Reconsideration before the WCAB on July 21, 2010 alleging that WCJ Phenixerred in finding that Section 4458.2 did not apply to applicant. WCJ Phenix filed his Report and Recommendation on Petition for Reconsideration on July 27, 2010, recommending that the WCAB denythe Petition for Reconsideration as submitted by Applicant. Defendant filed an Answerto Applicant’s Petition for Reconsideration on July 29, 2010 supporting the WCJ’s findings and correct interpretation of the law. The WCAB issued its Order Denying Reconsideration on August 11, 2010, and adopted and incorporated WCJ Phenix’s Report on Petition for Reconsideration, thereby affirming that applicant was not entitled to the maximum TD rate under Labor Code Section 4458.2. From that Order Denying Reconsideration, Petitioner then submitted his Petition for Writ of Review to the Third District Court of Appeal on August 26, 2010. Respondent timely Answered on September 14, 2010. The Third District Court of Appeal granted the Petition for Writ of Review. The matter was set for oral argument on December 18, 2013. Thereafter, the Third District Court of Appeal issued its Opinion on January 28, 2014 affirming the Board’s order denying reconsideration. Petitioner filed the instant Petition for Review on March 6, 2014 (hereinafter “Petition”). The following is Respondent’s timely filed Answerto that Petition for Review. / ANSWERTO QUESTION PRESENTED BY PETITION FOR REVIEW I. THERE ARE NO GROUNDS UPON WHICH REVIEW MAY BE GRANTED. Review should be denied in this case because the statutory grounds for review are absent. Review is not “necessary” to “settle an important issue of law” or to “secure uniformity of decision.” Cal. R. Ct. 8.500(b)(1). Petitioner suggests that the “important issues of law” pertain to the proper statewide administration of benefits to eligible sworn peace officers and prevention of “manifest prejudice” thereof. (Petition 2.) However, when read in conjunction with the Labor Code statutory scheme, the decision of the Third District Court of Appeal preserves the full statutorily-granted rights of both regularly employed and volunteer peaceofficers. a) Theplain language of Sections 4458.2 and 3362 apply only to volunteer peaceofficers. “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.) “It is well established that contemporaneous construction of a statue by the controlling 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.” (Dickey v. Workers’ Comp. Appeals Bd. (1990) 224 Cal.App.3d 1460, 1463-1464.) 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 earings for the purposes of determining temporary disability indemnity and permanent disability indemnity shall be taken at the maximum for each, respectively, in Section 4453. (Cal. Lab. Code § 4458.2 (2014) (emphasis added).) Section 4458.2 expressly confines its application to the class of peace officers discussed in Section 3362 which provides,in part: 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 ofthis division and shall be entitled to receive compensation from such county, city, town, or district in accordance with the provision thereof. (Cal. Lab. Code § 3362 (2014) (emphasis added).) The express language of Section 4458.2 confines the applicability of maximum TD rates to those peace officers “as described” in Section 3362. Although Section 3362 does not make special reference to “volunteer” peace officers, it references the process by which a volunteer police officer is “activated.” This occurs through 5 an adoption by the governing bodyof a resolution declaring that such peace officer be “deemed an employee” for eligibility of workers’ compensation benefits, and in particular, the benefit of the statutory presumption of maximum earnings, regardless of actual income. To read otherwise would render Section 3362 superfluousas it would grant (or “deem”) employment upon a volunteer peace officer who would otherwise already be eligible for workers’ compensation indemnity. Additionally, the need for including “volunteer” in Section 3362 is further obviated because regularly employed peace officers, such as Petitioner, do not have to go through the “registration” and “resolution adoption” process in order to be “deemed” an employee for workers’ compensation benefits. By virtue of being “in the service of an employer under any appoint or contract of hire,” Petitioner is automatically entitled to workers’ compensation benefits under Section 3351. Therefore, the express language of Section 4462 limits its applicability to those peace officers under Section 3362, which references only volunteer peace officers who must undertake registration process in order to be “deemed” employees for the purposes of obtaining workers’ compensation benefits. Given this statutory scheme, the decision of the Third District Court of Appeal was supported by its clear language. b) The 1989 Amendments to Section 4458.2 continued to limit the scope of its application to the class of peace officers as defined in Section 3362. The pre-1989 version of Section 4458.2 provided, in part: If a male memberregistered as an active police memberof any regularly organized volunteer department as described in Section 3362 suffers injury or death while in the performance of his duty as a policeman. . . (Cal Lab. Code Section 4458.2. (Amend. 1989.) (emphasis added).) The 1989 Amendments to Section 4458.2 replaced the above- emphasized terms with gender-neutral language. The Amendments continued to restrict Section 4458.2’s application to the class of peace officers (male or female) as defined under Section 3362. Petitioner may be correct in stating that the legislature broadened Section 4458.2 to apply to both male and female peace officers with the additional language of “‘his or her’ duty as a peace officer”; however, it did not broaden the scope to include both volunteer and regularly employed peace officers. (Petition 4.) The 1989 Amendments did not reform any provision of Section 3362. Petitioner relies on Williams v. Los Angeles Metropolitan Transit Authority to argue that the 1989 Amendments applied maximum temporary disability benefits to “all police officers, irrespective of gender or volunteer-status, who met the other guidelines outlined in the statute.” (Petition 4.) In Williams, the Court opined that “an unquestioned line of decisions tells us that [statutory interpretation maxims] ‘will not be utilized to contradict or vary a clear expression of legislative intent’. . .” (Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Ca.2d 599, 603.) Here, the legislative intent is clear. The applicability of maximum temporary disability benefits under Section 4458.2 is governed by Section 3362. As discussed above, Section 3362 applies only to the class of volunteer peace officers. As such, the 1989 Amendments did not extend maximum temporary disability rate benefits upon regularly employed peace officers. c) The Court of Appeal did not rely upon Section 4855 in determining the benefits allowed under Section 4458.2. Petitioner also argues that the “Court of Appeal erred in relying on Section 4855 to determine benefits allowed under section 4485.2 by upholding the Board’s decision.” (Petition 5.) Upon a thorough reading of the Court’s Opinion in Larkin, there is no discussion or reliance by the Court of Appeal on Section 4855. (Larkin v. City of Marysville (2014) 223 Cal.App.4" 538.) As such, Petitioner’s argument in this regard fails. d) There is no manifest prejudice to all regularly employed, active peace officers as they are entitled to Section 4850 full salary continuation in lieu of temporary disability indemnity. Contrary to Petitioner’s statement that the Third District Court of Appeal’s decision has “deprived many thousandsofofficers access to their maximum benefits.” However, the law already entitles all regularly employed peace officers to full salary continuation in lieu of temporary disability under Section 4850, thereby preserving the full rights ofall regularly employed active peace officers. (Petition 8.) On the other hand, volunteer peace officers are not entitled to salary continuation under Section 4850. Becausesalary continuation under Section 4850is limited only to regularly employed peace officers, the application of Section 4458.2 to volunteer peace officers is further underscored. The intent behind Section 4458.2 was to provide some measure of compensation to volunteer peace officers, without extending the full benefit of salary continuation afforded to regularly employed peace officers. This distinction makes sense given that “volunteers” would not normally have a “salary” or sufficient source of income from their duties as a peace officer to sustain themselves while temporarily disabled, if the amountoftheir temporary disability benefit was determined by what the volunteer was “paid” (if anything) at the time of injury. The public policy underlying the special designation for volunteers of public safety agencies is to encourage public service. Therefore, the Court of Appeal’s application of Section 4458.2 ensures that volunteer peace officers are afforded the maximum statutory benefits in the furtherance of their volunteerism. CONCLUSION Petitioner cannot establish any grounds upon which review can be granted. Labor Code Section 4458.2 by its clear terms limits its application to those peace officers defined under Section 3362. Section 3362 describes a class of peace officers who must go through a registration process in order to be deemed eligible for workers’ compensation benefits. This registration process applies only to volunteer peace officers, rather than regularly employed peace officers. Additionally, Section 4458.2 must be construed in conjunction with the entire workers’ compensation statutory scheme whichclearly defines the applicability of Sections 4458.2 and 3362 only to volunteer peace officers to encourage public service. Contrary to Petitioner’s argument, the Court of Appeal made neither reference nor reliance upon Section 4855in its decision. For all these reasons, respondent requests this Court DENY the Petition for Reviewinits entirety. Dated: March 21, 2014 Respectfully submitted, LENAHAN,LEE, SLATER & PEARSE, LLP PHOEBE M.VU,ESQ. ttorxey for Respondent, ty of Marysville, p.s.i. 10 CERTIFICATE OF BRIEF LENGTH BY APPELLATE COUNSEL Pursuant to California Rules of Court, Rule 8.204(c)(1), I, PHOEBE _M. VU , appellate counsel, relying on the word-count ofmy computer program,certify that the length of this Answerto Petition for Writ of Review is: 2140 words. Dated this 21st day of March, 2014 WA PHOEBE M. VU, ESQ. 11 I, l. VERIFICATION PHOEBEM.VU | do hereby declare as follows: I am an attorneyat law, duly admitted and licensed to practice before all courts of this State, and my professionaloffice is located at 1030 15" Street, Suite 300, Sacramento, County of Sacramento, California 95814. I am the attorney of record for Respondent in the above-entitled matter. . [have read the foregoing ANSWER TO PETITION FOR REVIEW and knowthe contents thereof; and I certify that the sameis true of my ownknowledge, except as to those matters which are therein stated upon my information or belief, and as to those matters, I believe it to betrue. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed this 21st day of March 2014, at Sacramento, California. A PHO .VU, ESQ., Atto. for Respondent, CITY OF MARYSVILLE,p.s.i. 12 PROOF OF SERVICE 1013a, 2015 C.C.P. RE: JOHN LARKINv. The City of Marysville, psi, adj. by York I, Jessica Murray, hereby declare and state that | am over the age of eighteen years, employed in the City and County of Sacramento, California, and not a party to the within action. My business addressis 1030 15th Street, Suite 300, Sacramento, California 95814. Onthis day, I served the ANSWER TO PETITION FOR REVIEW,onthe following parties: Originalto: Supreme Court of the State of California 350 McAllister Street, Room 1295 San Francisco, CA 94102 Copiesto: State of California Court of Appeal- Third Appellate District 914 Capitol Mall Sacramento, CA 95814 Workers’ Compensation Appeals Board 160 Promenade Circle, Suite 300 Sacramento, CA 95834 WCAB P.O. Box 429459 San Francisco, CA 94142-9459 Brian Dixon, Esq. Mastagni, Holstedt, et al. 1912 | Street Sacramento, CA 95811 John Larkin 5280 Wise Road Lincoln, CA 95648 Deborah DeMuynck(via email only) York Risk Services Group,Inc. P.O. Box 619058 Roseville, CA 95661 XX_ (BY MAIL)I placed each such sealed envelope, with postage thereon fully prepared for First-class mail, for collection and mailing on the parties in said action. addressee(s) noted above. (BY PERSONAL SERVICE)I personally delivered by hand said documents to the (BY FACSIMILE)I caused the said document(s) to be transmitted by facsimile to the telephone number(s) indicated to the addressee(s) noted above. I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on March 21, 2014, at Sacramento, California.