John Larkin, a police officer for the City of Marysville, sustained injuries to his neck, right shoulder, left upper thigh, face, right biceps, and nose. He had less than maximum earnings.

At an expedited hearing on the issue of his appropriate earnings rate and his claim for temporary disability, he claimed that he should be entitled to the benefit of the earnings rates established by Labor Code sections 4458.2 and 3362 which specify maximum earning for volunteer police officers. He claimed that the “plain language” of these statutes supported this conclusion. As relevant to this case, 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 earnings for the purposes of determining temporary disability indemnity and permanent disability indemnity shall be taken at the maximum fixed for each, respectively, in Section 4453.” Section 3362 provides: “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 of this division and shall be entitled to receive compensation from such county, city, town or district in accordance with the provisions thereof.”

Following an expedited hearing, the workers’ compensation judge (WCJ) found that sections 4458.2 and 3362 applied only to active volunteer peace officers, not regularly sworn, salaried peace officers, and therefore did not apply to Larkin. Larkin petitioned the Board for reconsideration of the decision, contending the plain language of the statutes entitled industrially injured peace officers to temporary disability payments at the maximum rate. The Board agreed with the reasoning of the WCJ and denied the petition for reconsideration.

The Court of Appeal affirmed the WCAB in the published case of John Larkin v WCAB and the City of Marysville. In doing so, the Court stated that the outcome of Larkin’s interpretation “would be an absurd result..”

The policy underlying these statutes is to encourage public service to these agencies by providing maximum benefits to volunteers injured in providing such service. With respect to volunteer firefighters, the Supreme Court recognized these fictitious earnings were created by the Legislature as it was ” ‘[c]ognizant of the public service provided by the volunteer civilian firefighter and the potential loss of his earnings from other employment [and] determined that the usual benefit schedules should not apply but that a fictitious earnings component should be used. The liberal disability compensation program not only serves to counterbalance any sacrifice of earning power made to engage in firefighting activity, but also provides an incentive to engage in an important public service.’ ” The same policy considerations apply to providing these fictitious earnings for volunteer peace officers.

The Court of Appeal concluded “to give effect to the statutory policy underlying these statutes, we find that sections 4458.2 and 3362 apply to volunteer peace officers only.”