Rebecca Gage sustained industrial injury to her lumbar spine while employed by the County of Sacramento as a deputy sheriff in 2011. A stipulated award as approved by the WCJ in 2014.
On March 6, 2015, Gage applied to the Sacramento County Employees’ Retirement System (SCERS) for a service-connected disability retirement, and the application was acknowledged by SCERS on June 3, 2015. On July 2, 2015, the Count y initiated payment of disability retirement advances to applicant pursuant to section 4850.4.
Applicant claimed that the County’s delay in initiating disability retirement advances entitles her to recover a penalty pursuant to section 5814. The WCJ found that disability retirement advances pursuant to section 4850.4 are “compensation” as described in section 3207, and for that reason an unreasonable delay in making such advances is subject to a penalty under section 5814. The WCAB reversed in the split panel decision of Gage v County of Sacramento.
Section 4850.4 provides for advanced payment of disability retirement benefits to certain public safety employees who are covered by the Public Employees’ Retirement System (PERS), the County Employees Retirement Law of 1937, or the Los Angeles City Employees’ Retirement System. The provision of that special benefit for those public safety employees is similar to the special payments provided for public safety employees under section 4850.
Earlier panels of the Appeals Board found that delayed payment of the special benefits under section 4850 is not subject to a penalty under section 5814. (Citations Omitted) Moreover, the payment of disability retirement advances is not the payment of workers’ compensation benefits. In this way, section 4850.4 differs from the statutory provision for payment of industrial disability leave (IDL) under Government Code section l 9870(a) to certain state workers as “temporary disability” for an industrial injury. This distinction was recognized by the Supreme Court when it held in State of California v. Workers’ Comp. Appeals Bd. (Ellison) (1996) 44 Cal.App.4th 128 [61Cal.Comp.Cases 325] (Ellison) that a section 5814 penalty could be imposed for unreasonable delay in payment of IDL pursuant to Government Code section l 9870(a) because IDL is a form of temporary disability indemnity.
Turning to the facts in this case, the panel majority held that there is no regular workers’ compensation benefit equivalent to the disability retirement advances provided for certain public employees by section 4850.4. To the contrary, entitlement to receive disability retirement benefits is governed by a separate statutory system apart from workers’ compensation, and the retirement system is administered by an independent retirement board outside of the workers’ compensation system.
Commissioner Marguerite Sweeney wrote a dissenting opinion, and would have sustained the penalty. She said section 3207 plainly defines “compensation” as including “every benefit or payment conferred by this [Division 4] upon an injured employee.” Thus, the County is obligated to pay applicant the “compensation” due under section 4850.4 as conferred by Division 4 of the Labor Code, and the WCAB has jurisdiction to enforce that obligation.