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Lance Bishop et al v. California Department of Forestry and Fire Protection

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


August 3, 2011

LANCE BISHOP ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, DEFENDANT AND RESPONDENT.

(Super. Ct. No. 34200980000295CUWMGDS)

The opinion of the court was delivered by: Hoch , J.

Bishop v. Cal. Dept. of Forestry

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In June 2006, appellant Lance Bishop was injured while working as a seasonal firefighter for the California Department of Forestry and Fire Protection (the Department).*fn1 Following his injury, Bishop received industrial disability leave benefits until he separated from employment on November 5, 2006, the close of the 2006 fire season. While on industrial disability leave, Bishop received all of the employment benefits to which he would have been entitled while working as a seasonal firefighter. After November 5, 2006, Bishop received temporary disability benefits instead of industrial disability leave benefits.

In 2009, Bishop filed a writ petition seeking reimbursement from the Department for medical insurance premiums he paid during the time he received temporary disability payments. The trial court denied the petition.

On appeal, Bishop contends the trial court erred in denying his petition because (1) he was entitled to 52 weeks of industrial disability leave even though the fire season ended earlier, and (2) the Department failed to pay his medical insurance premiums even when it treated him as an employee during the 2007 fire season.

We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Bishop was hired by the Department on May 22, 2006, to work as a seasonal firefighter in Tehama County. As with other seasonal firefighters, Bishop's appointment to a "Civil Service Temporary" status was made pursuant to a temporary authorization assignment. The Department's report of appointment stated that Bishop's appointment would expire no later than February 21, 2007. During his employment as a seasonal firefighter, Bishop received health and dental benefits as well as contributions to the California Public Employees' Retirement System on his behalf.

On June 23, 2006, Bishop was injured on the job. Bishop received industrial disability leave benefits from June 24, 2006, through November 5, 2006. The Department's personnel exit summary states that Bishop was separated from employment on November 5, 2006. November 5, 2006, marked the conclusion of the fire season in Tehama County.

Beginning on November 6, 2006, Bishop received temporary disability benefits. The temporary disability benefits included monetary compensation at two-thirds of his average weekly wage. On November 6, 2006, Bishop's temporary disability payments were based on his off-season average weekly wage. Bishop's temporary disability payments increased temporarily during the 2007 fire season (June 4 -- October 15) to reflect his on-season average weekly wage. Bishop's eligibility for temporary disability benefits ended on January 14, 2008, when his disability became permanent and stationary.

While Bishop was receiving industrial disability leave benefits, the Department paid Bishop's medical insurance premiums. In December 2006, after Bishop's employment ended, the Department ceased paying Bishop's medical insurance premiums. Bishop's temporary disability benefits did not include medical insurance for non-injury related illnesses or accidents.

In August 2009, Bishop filed a petition for writ of mandate (Code Civ. Proc., § 1085) in superior court to compel the Department to: (1) provide medical insurance benefits to all seasonal firefighters entitled to receive industrial disability leave; and (2) reimburse him for his medical insurance premiums from December 2006 through February 2008.

The trial court denied the petition. The trial court found that industrial disability leave benefits are contingent on continued compensated employment with the state, and concluded that Bishop properly received temporary disability benefits beginning on November 6, 2006. As the court explained, "It is clear that Bishop's employment with the Department was temporary and seasonal and that, on November 5, 2006, at the close of the 2006 fire season, Bishop's employment with the Department terminated. This is confirmed by the fact that neither Bishop nor the Department made contributions to the State Employees' Retirement System on Bishop's behalf after the close of the 2006 fire season. Accordingly, under Bidwell,[*fn2 ] because Bishop was no longer in 'the appropriate retirement system in compensated employment' after the close of the 2006 fire season, Bishop was not thereafter eligible to receive [industrial disability leave] benefits. Instead, Bishop became entitled to receive temporary disability benefits and there is no dispute that Bishop received these benefits."

The trial court found that "[t]he evidence submitted by both the Department and [Bishop] supports the conclusion that seasonal firefighters, such as Bishop, are temporary employees whose employment terminates at the end of each yearly fire season and must be re-hired prior to the start of each new fire season. For instance, [Bishop] note[s] that a 'firefighter has "returnee rights" for the following season unless the exit paperwork contains the notation "not for re-hire" or the firefighter is expressly recommended not for re-hire on the "Seasonal Employee's Performance Record" form' . . .

"The Returnee Policy section of the CAL FIRE Firefighter I Recruitment and Hiring Guide . . . provides 'Returnee [fire fighters] who want to return for employment from one season to the next need not file a FFI Application for Employment and will receive hiring preference over new applicants.' . . . It further provides: 'The returnee policy does not guarantee employment since the number of returnees may exceed the number of positions available to be filled. Under these conditions, job offers are based on seniority.'"

Bishop timely appealed from the judgment.

DISCUSSION

I

Standard of Review

There are two issues on appeal: (1) whether Bishop was entitled to 52 weeks of industrial disability leave even though the fire season ended earlier; and (2) whether the Department failed to pay his medical insurance premiums even when it treated him as an employee during the 2007 fire season.

In addressing questions of law on appeal from a denial of a writ of mandate, we exercise our independent judgment. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1032 (Kempton).) Bishop's argument that Government Code section 19871 required the Department to pay a year's worth of industrial disability leave benefits presents an issue of statutory interpretation that we review de novo.*fn3 (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) In conducting our review, we are mindful that "basic principles of statutory construction" provide that "[i]f the language is unambiguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls." (People v. Hudson (2006) 38 Cal.4th 1002, 1009.)

With regard to questions of fact, we defer to the trial court's factual determinations if supported by substantial evidence. (Kempton, supra, 40 Cal.4th at p. 1032.) Here, Bishop's claimed status as an employee during the 2007 fire season presents a factual question. In reviewing the record, we view the evidence in the light most favorable to the denial of the writ, drawing all reasonable inferences to sustain the denial. (Sullivan v. Calistoga Joint Unified School Dist. (1991) 228 Cal.App.3d 1313, 1317.) Evidence is substantial when it "is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)

II

Claimed Entitlement to 52 Weeks of Industrial

Disability Leave Benefits

Bishop argues that section 19871, subdivision (a), required the Department to pay industrial disability leave benefits for 52 weeks following his injury, rather than only during the 2006 fire season when he was employed. We disagree.

A. Industrial Disability Leave

Section 19869 confers industrial disability leave eligibility "to state officers and employees who are members of the Public Employees' Retirement System or the State Teachers' Retirement System in compensated employment . . . ." (Italics added.) Section 19871, subdivision (a), provides that "when a state officer or employee is temporarily disabled by illness or injury arising out of and in the course of state employment, he or she shall become entitled, regardless of his or her period of service, to receive industrial disability leave and payments for a period not exceeding 52 weeks within two years from the first day of disability." The payments consist of the employee's full pay (less withholding for taxes) for the first 22 working days following the injury. (Ibid.) For the remainder of the industrial disability leave benefit period, payments are made at two-thirds of the employee's prior full pay. (Ibid.)

Unless an employee is entitled to an "enhanced benefit" due to certain enumerated circumstances not applicable here,*fn4 "A state officer or employee who is receiving industrial disability leave benefits, shall continue to receive all employee benefits which he or she would have received had he or she not incurred disability." (§ 19871.1, subd. (a).) Thus, industrial disability leave includes payments for the injured employee's medical insurance premiums if such insurance was provided during active employment. A state employee's eligibility and level of benefits for industrial disability leave may be negotiated in a memorandum of understanding pursuant to section 3517.5.*fn5 (§ 19871.1, subd. (b).)

Section 19870, subdivision (a), states that industrial disability leave "means temporary disability as defined in Divisions 4 (commencing with Section 3201) and 4.5 (commencing with Section 6100) of the Labor Code and includes any period in which the disability is permanent and stationary and the disabled employee is undergoing vocational rehabilitation." Despite section 19870's reference to the Labor Code, that code does not define what constitutes a temporary disability. "[A]ppellate decisions interpreting the workers' compensation laws have nevertheless established that a 'temporary disability is an impairment reasonably expected to be cured or materially improved with proper medical treatment.' (Signature Fruit [Co. v. Workers' Comp. Appeals Bd. (2006)] 142 Cal.App.4th [790,] 795, citing Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 235.) [Temporary disability] benefits provide 'a substitute for lost wages during a period of temporary incapacity from working.' (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 753.)" (Brooks v. Workers' Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522, 1529-1530 (Brooks).)

As noted by the Brooks court, "A state employee may not receive [temporary disability benefits] or accrued leave benefits while also receiving [industrial disability leave]. ([] § 19872; Cal. Code Regs., tit. 2, § 599.759.)" (Brooks, supra, 161 Cal.App.4th at p. 1530.) The benefits provided by the Government Code for industrial disability leave are greater than the temporary disability benefits specified in the Labor Code. Industrial disability leave payments include an initial 22-day period of full salary and are not subject to the same average weekly earnings cap as the temporary disability benefit. (§ 19871, subd. (a); Brooks, supra, 161 Cal.App.4th at pp. 1529-1530.) With the temporary disability benefit, "the Legislature has artificially restricted an injured worker's 'average weekly earnings' for purposes of calculating [temporary disability benefits] to statutorily defined minimum and maximum levels." (Brooks, supra, at pp. 1529-1530.) At the time Bishop became injured in 2006, the statutory weekly maximum for temporary disability payments was either $1,260 or 1.5 times the state average wage, whichever was greater. (Labor Code, § 4453, subd. (a)(10).)

Most important for purposes of this appeal, an employee receiving temporary disability payments is not entitled to receive "all employee benefits which he or she would have received had he or she not incurred disability" as is the case for an industrial disability leave beneficiary. (§ 19871.1, subd. (a).) Thus, Bishop's claim for reimbursement of his medical insurance premiums depends upon his entitlement to industrial disability leave.

B. Bishop was Not "in Compensated Employment" After

November 2006

Bishop argues that he was entitled to receive industrial disability leave benefits, including payment of his medical insurance premiums, for the 52-week maximum even after he separated from employment at the end of the 2006 fire season. He asserts that seasonal firefighters must receive a full year of industrial disability leave benefits to avoid an "absurd" construction of sections 19871 and 19871.1. We disagree.

An employee loses his or her eligibility for industrial disability leave upon separation from employment that qualifies for the benefit under section 19869. (Bidwell, supra, 164 Cal.App.3d at pp. 220-222.) In Bidwell, a former employee of the California Youth Authority filed a lawsuit in which she claimed continuing entitlement to industrial disability leave benefits even after she resigned from state service. (Id. at p. 216-217.) The trial court ruled that the employee forfeited her right to industrial disability leave upon her resignation from employment. (Id. at p. 217) The employee appealed and argued that section 19996.1, subdivision (a), provides that resignation "does not jeopardize any rights and privileges of the employee except those pertaining to the position from which he or she resigns." (Id. at p. 222.)

This court rejected the argument, and explained: "The point missed by [the employee] is her erroneous assumption that [industrial disability leave] benefits do not pertain to the position from which she resigned. In actuality, [industrial disability leave] benefits are contingent upon continued membership in the appropriate retirement system in compensated state employment. We are compelled to conclude that [industrial disability leave] benefits pertain to state employment and are forfeited upon resignation from state service.

"[¶] . . . [¶]

"In the final analysis, entitlement to [industrial disability leave] benefits in lieu of workers' compensation temporary disability payments arises solely by virtue of the fact that the employee is a member of the appropriate retirement system in compensated employment at the time of injury or illness. By the same token, the right to continuing [industrial disability leave] benefits is contingent upon continued state employment status." (Bidwell, supra, 164 Cal.App.3d at pp. 222-223.)

Here, Bishop was not eligible to receive industrial disability leave after the close of the 2006 fire season because he was not "in compensated employment" as required by section 19869. As the trial court noted, seasonal firefighters are separated from state employment at the conclusion of each fire season. (§ 19869.) When the fire season closed on November 5, 2006, Bishop was separated from employment as a seasonal firefighter and thus no longer entitled to industrial disability leave. (Bidwell, supra, 164 Cal.App.3d at pp. 222-223.)

Bishop attempts to distinguish Bidwell by pointing out that the employee in that case voluntarily resigned from employment. Bishop emphasizes that he did not resign but was separated by the Department's declaring the 2006 fire season closed. The distinction is inconsequential.

The Government Code conditions entitlement to industrial disability leave upon the requirement that a claimant be "in compensated employment." (§ 19869.) Regardless of whether separated from employment by voluntary resignation or by the end of a temporary work assignment, the result is the same. Although a former employee may remain entitled to temporary disability benefits, the end of qualifying employment marks the conclusion of industrial disability leave eligibility. (Ibid.)

We also reject Bishop's argument that he was entitled to industrial disability leave "despite his temporary status" because he received contributions to the state retirement system on his behalf. Bishop is correct that he received retirement contributions during his employment by the Department. After the 2006 fire season, neither Bishop nor the Department made contributions to the state retirement system on his behalf. Bishop was not entitled to retirement contributions after his separation from employment at the end of the fire season. So too, he was not entitled to industrial disability leave after the close of the 2006 fire season. In short, severance from employment also severs the right to industrial disability leave.

Bishop points out that an affirmance would mean that a seasonal firefighter injured the day before the close of the fire season would receive only a day of industrial disability leave benefits before receiving temporary disability benefits. Such a result would be "absurd" in Bishop's view. Although we strive to construe statutes to avoid absurd consequences (People v. Montes (2003) 31 Cal.4th 350, 356), we do not find it irrational for the Legislature to provide a greater disability benefit during qualifying employment than after the employee has been separated from the position.

As Bidwell noted, industrial disability leave is akin to sick leave insofar is it represents a benefit of current employment. (Bidwell, supra, 164 Cal.App.3d at pp. 222-223.) "In effect, both are designed to provide compensation to an employee who because of illness or injury is unable to perform his assigned work tasks. Generally, upon termination of employment, an employee forfeits unused sick leave. [Citation.] Nothing within the relevant provisions of the Government Code suggests a different result should apply to [industrial disability leave] benefits." (Ibid.) The same reasoning applies here to yield the conclusion that separation from employment at the close of the fire season ends eligibility for industrial disability leave.

The trial court correctly concluded that Bishop was not entitled to industrial disability leave after he separated from employment at the end of the 2006 fire season.

III

Claimed Status as an Employee During the 2007 Fire Season

Anticipating our conclusion that he was entitled to receive industrial disability leave benefits only during his term of employment, Bishop contends the Department treated him as an employee during the 2007 fire season. We are not persuaded.

Substantial evidence supports the trial court's conclusion that Bishop was not an employee of the Department after the close of the 2006 fire season. The Department hired seasonal firefighters by using temporary authorization assignments. Temporary authorization assignments by the Department cannot exceed 1,500 hours of work within any consecutive 12-month period. A temporary employee, such as a seasonal firefighter, does not acquire a right to continued employment or to being rehired. (§ 19059 ["A temporary appointee, as such, shall not acquire any probationary or permanent status or rights"].) Instead, seasonal firefighters are separated from state employment at the end of each fire season. The Department's personnel exit summary confirms that Bishop was separated from employment when the 2006 fire season closed.

Bishop points out that the Department's exit summary did not indicate that he should not be rehired. On this basis, he asserts that he had "returnee rights" to the job as a seasonal firefighter. However, the returnee rights to which Bishop refers conferred only (1) the opportunity to reapply for the seasonal firefighter job without filling out the entire employment application and (2) some preference in hiring for a new fire season based on seniority. The Department's returnee policy clearly indicated that seasonal firefighters must be rehired annually. Whatever returnee rights Bishop may have had, they did not include the right to continued employment or even being rehired.

Bishop further argues that the Department treated him as an employee when his temporary disability payments were raised during the 2007 fire season. Specifically, Bishop refers to a letter in which he was advised: "This rate is being changed to $598.68 per week effective June 4, 2007 because Your employer, Cal Fire, has declared open fire season for your work unit as of June 4, 2007." (Italics added.)

Bishop fails to mention that the letter was not sent by the Department, but by the State Compensation Insurance Fund for purposes of informing him of a rate change in his temporary disability benefit. The Fund's reference to the Department simply identified the context in which Bishop's temporary disability benefits arose. The letter does not purport to be a decision on behalf of the Department to rehire Bishop.

The evidence in the record suffices to establish that Bishop was not an employee of the Department after November 5, 2006. Consequently, Bishop was not entitled to industrial disability leave benefits such as payment of his medical insurance premiums after his separation from employment at the close of the 2006 fire season.

DISPOSITION

The judgment is affirmed. Respondent California Department of Forestry and Fire Protection shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

We concur: HULL , Acting P. J. BUTZ , J.


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