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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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