Rebecca Gage sustained injury to the lumbar spine through September 14, 2011 while employed as a deputy sheriff by the County of Sacramento. She requested advanced disability pension payments pursuant to Labor Code section 4850.4.
The employer made payments, but the payments were unreasonably delayed and she was awarded LC. 5814 penalties. The WCAB granted reconsideration and reversed the penalty order. It found that because advance disability retirement payments were not equivalent to regular workers’ compensation benefits, and that these benefits were not subject to a section 5814 penalty. The Court of Appeal reversed in the 2016 published case of Gage v WCAB. ( 6 Cal.App.5th 1128 [81 Cal.Comp.Cases 1127].) and concluded that the WCAB does indeed have jurisdiction to impose penalties under Labor Code section 5814. Subsequently the parties resolved all penalties.
Gage received advanced disability pension payments from May 8, 2015 through October 17, 2018 for a total of $120,144.03. Her disability retirement application was denied on October 17, 2018. The employer designated mediation as its independent level of resolution to recover these payments and scheduled a mediation with a retired judge for April 27, 2020. Gage did not attend. The matter proceeded to a status conference to compel her to attend. The WCJ denied the request finding no jurisdiction to do so, despite the Court of Appeal decision.
The WCAB again granted reconsideration on August 9, 2021, finding that the order was issued without creation of a record, and the case was remanded for further proceedings which occurred on December 13, 2021. The sole issue at trial was “[j]urisdiction to enforce Labor Code, section 4850.4.”
The WCJ concluded that initial jurisdiction over a plan to repay advanced disability retirement benefits vests solely with the local agency who issued payment. And that the Appeals Board has non-exclusive jurisdiction over litigation of any repayment plan or applicant may seek a writ of mandate with the Superior Court, but jurisdiction with the Appeals Board only exists after the parties have completed the first two steps outlined in the statute. And the WCJ found that the parties are expected to meet and confer to reach an agreement on a repayment plan per Labor Code section 4850.4(f). Both parties filed a petition for reconsideration which was granted in the newest WCAB panel decision of Gage v County of Sacramento ADJ8010054 (September 2022).
The employer contends that the Appeals Board has jurisdiction over repayment of applicant’s advanced disability pension payments since the Court of Appeal held that the Appeals Board has jurisdiction to “enforce payment” of advances. The panel responded by saying this “construction of the Court’s holding improperly conflates jurisdiction over section 5814 penalties with jurisdiction over section 4850.4 payments” because these payments are “compensation: under section 3207.
The last sentence of section 4850.4(f) permits the local agency to “take reasonable steps, including litigation” to recover the advanced payments “[i]f repayment is not made according to the repayment plan.” At this juncture, there is no repayment plan in place. Defendant may not pursue litigation to recover the advanced payments it made until applicant has failed to make payments per a repayment plan adopted either by an agreement between the parties or following submission of the issue to defendant’s administrative appeals remedy. It is thus premature to address whether “litigation” as that term is used in the statute entails proceedings before the Appeals Board or in civil court, or both.“
The Order was rescinded, and the case taken off calendar with the WCAB concluding that “The Appeals Board does not have jurisdiction to force applicant’s participation to agree on a repayment plan or in the local agency’s administrative appeals remedy.”