California Court of Appeals, Fourth District, Third Division
Certified for publication 12/18/13
Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge.
David H. Lantzer for Defendant and Appellant.
Faunce, Singer & Oatman, Edward L. Faunce and Larry J. Roberts for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
This is the third appeal involving payment of disability retirement to plaintiff Mary Porter by defendant Board of Retirement of the Orange County Employees’ Retirement System. As with the previous two, this appeal deals with the effective date of plaintiff’s disability retirement under of Government Code section 31724 (all further statutory references are to this code unless otherwise stated). It arises out of an amended judgment ordering defendant to find plaintiff entitled to disability retirement from the day following her last day of regular employment, “without any offset for sick leave or workers’ compensation temporary disability payments....”
Defendant contends the trial court erred in relying on section 31646.1 to find workers’ compensation benefits did not qualify as “compensation” within the meaning of section 31724’s statement that a disabled worker’s retirement becomes “effective on the expiration date of any leave of absence with compensation to which he shall become entitled under the provisions of Division 4 (commencing with Section 3201) of the Labor Code” and asserts a variety of reasons why the contrary conclusion is correct. Finding none of these arguments persuasive, we grant plaintiff’s request for judicial notice of portions of section 31724’s legislative history and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
We incorporate some of facts from Porter v. Board of Retirement of the Orange County Employees’ Retirement System (June 18, 2008, G038450) (nonpub. opn.) (Porter 2)and insert facts relating to this particular appeal where relevant.
“[P]laintiff was injured while driving a bus for the Orange County Transportation Authority. After she was treated, and received workers’ compensation, it was determined she was permanently injured and there was no available job for her. She later filed for disability retirement, which was denied. After appeal, a referee recommended defendant be awarded her retirement pay as of the date her application was filed.
“After losing her petition for writ of mandate in the superior court, plaintiff appealed to our court, arguing that, under section 31724, the effective date of her application should have been the day following the last day for which she was paid her regular salary, not the date her application was filed some 13 months later. We agreed and reversed and remanded, directing the superior court to determine if plaintiff had elected to retire on the date of her application, and if so, whether she was required to repay her workers’ compensation and sick leave payments....
“The trial court found that plaintiff had elected to retire on the day after her last regular day of compensation. It held that section 31724 directs that retirement is not to begin until the expiration of a ‘leave of absence with compensation under Division Four... of the Labor Code, or after expiration of any sick leave to which [plaintiff was] entitled.’ Relying on the definition of compensation in Division Four, which includes every benefit given to an injured employee under the workers’ compensation scheme, it held that plaintiff was not entitled to have disability retirement benefits begin until after her workers’ compensation benefits ended. Because the record contained insufficient evidence about the period during which plaintiff received workers’ compensation benefits, the court remanded the matter to defendant to make such a determination and also decide whether plaintiff could repay any workers’ compensation she had received after the effective date of her retirement. Before any such hearing occurred, plaintiff appealed to this court.” (Porter 2, supra, G038450.) We dismissed the appeal as premature.
Upon remand, the trial court entered a second amended judgment noting defendant’s concession during oral argument “that the only type of payment that it seeks to have [plaintiff] repay is temporary disability.” It then returned the matter to defendant to determine when and how much plaintiff received in temporary disability benefits, and plaintiff’s “ability to repay these benefits.” Defendant adopted the hearing officer’s findings that plaintiff received “workers’ compensation temporary total disability payments between February 23, 2000 and June 21, 2000” and that she did not believe she could repay that amount.
Plaintiff filed a motion in the superior court seeking to have her disability retirement deemed effective date as of the day after she last received regular compensation, not when her workers’ compensation temporary disability pay expired. She argued she had not been on a “leave of absence with compensation” as required by section 31724 because she was not a safety employee who would be entitled to full salary for a year with contributions made to her retirement plan under Labor Code section 4850. To help define “compensation” as used in section 31724, she cited section 31646.1, which, among other things, describes an uncompensated leave of absence as one in which the employee receives temporary disability benefits. Plaintiff asserted her temporary disability payments could not be deemed a “leave of absence with compensation” in light of section 31646.1.
The court agreed, reasoning section 31646.1’s reference “to an ‘uncompensated leave of absence... for which the member receives temporary disability benefits’... supports a finding that ‘temporary disability benefits’ do not qualify as ‘compensation.’” It entered a third amended judgment ordering defendant to set aside its decision denying plaintiff an earlier retirement date and to find her entitled to disability retirement from February 15, 2000, the day following her ...