Mannetter v. County of Marin

• Decision Date: 04 October 1976
• Citation: 62 Cal.App.3d 518,133 Cal.Rptr. 119
• Court: California Court of Appeals Court of Appeals
• Parties: Lance MANNETTER, Plaintiff and Appellant, v. COUNTY OF MARIN, Defendant and Respondent. Civ. 37018.

Page 119

133 Cal.Rptr. 119

62 Cal.App.3d 518

Lance MANNETTER, Plaintiff and Appellant, v. COUNTY OF MARIN, Defendant and Respondent.

Civ. 37018.

Court of Appeal, First District, Division 2, California.

Oct. 4, 1976.

Carroll, Burdick & McDonough, David R. Lipson, San Francisco, for plaintiff and appellant.

Douglas J. Maloney, County Counsel, Allen A. Haim, Chief Deputy County Counsel, San Rafael, for defendant and respondent.

BRAY, Associate Justice. ^*

Petitioner and appellant appeals from judgment of the Marin County Superior Court denying his petition for writ of mandamus.

ISSUE PRESENTED

An employee of the sheriff's office is not entitled to compensation under section 4850 of the Labor Code for holiday pay not earned while on disability leave of absence.

RECORD

Appellant filed a petition for writ of mandate to compel respondent to pay him the additional time and one-half overtime pay for the holiday of July 4, 1973. Respondent replied to the alternative writ by way of answer. A hearing was had and both sides submitted briefs. Findings of fact and conclusions of law were filed and the court discharged the alternative writ and denied the petition for writ of mandate. Appellant appeals.

FACTS

Appellant is a deputy sheriff in the office of the sheriff of Marin County. The collective bargaining agreement between the Marin County Deputy Sheriff's Association and the County of Marin provides in pertinent part that: 'Employees shall be entitled to the following holidays with pay: . . . the fourth day of July; . . . ( ) An employee who is required to work on a day celebrated as a holiday as listed above shall be compensated at one and one-half time rates. . . .' Thus, an employee who works on a fourth of July receives his regular pay plus one and one-half time pay.

Appellant was assigned to work a regular shift of duty on July 4, 1973. However, on July 3, appellant suffered an injury to his right ankle resulting in temporary disability. It is not disputed that the injury arose out of and in the course of appellant's duties as a deputy sheriff. As appellant was on disability leave of absence pursuant to section 4850 of the Labor Code on July 4, he was unable to carry out his assignment and work that day. However, although appellant was paid his regular salary for that day, he demanded of respondent additional compensation at time and one-half rate for July 4, although he did not work that day. Respondent refused the demand. Thereupon appellant filed his petition for writ of mandate to compel respondent to pay him the additional time and one-half overtime pay for the holiday of July 4, 1973.

A court hearing in the Marin County Superior Court was held, briefs were filed, and the court denied the petition for the writ.

Appellant is not entitled to pay for work not performed. Section 4850 of the Labor Code provides in pertinent part that an employee of the sheriff's office who is disabled by injury or illness arising out of and in the course of his employment is entitled to leave of absence without loss of salary in lieu of temporary disability payments. The collective bargaining agreement provides for payment of time and one-half for an employee who is Required to work on a holiday. Clearly this phrase means an individual is entitled to time and one-half when he is required to work and does actually work, not when he does not render any service. Appellant's interpretation of 'required to work' as scheduled to work, but does not for a justifiable reason, is unfounded.

Although section 4850 of the Labor Code provides that appellant is entitled to leave of absence without loss of salary while disabled, in lieu of temporary disability payments, payments pursuant to this section are not salary but workmen's compensation benefits. (Boyd v. City of Santa Ana (1971) 6 Cal.3d 393, 397, 99 Cal.Rptr. 38, 401 P.2d 830; State Compensation Ins. Fund. v. Workmen's Comp. Appeals Bd. (1972) 26 Cal.App.3d 200, 203, 103 Cal.Rptr. 29.) The Workmen's Compensation Appeals Board has jurisdiction to determine whether the disability arose out of or occurred in the course of duty, but the board has neither the power nor the duty to fix the amount of compensation by an award. (Boyd v. City of Santa Ana, supra, at p. 397, 99 Cal.Rptr. 38, 40 P.2d 830; State Compensation Ins. Fund v. Workmen's Comp. Appeals Bd., supra, at p. 203, fn. 5, 103 Cal.Rptr. 29.) The liability of the county under section 4850 is enforceable in the courts in mandamus proceedings. (Id.) The distinction between salary and workmen's compensation benefits, although the latter may be calculated based upon the former, is well stated in Hawthorn v. City of Beverly Hills (1952) 111 Cal.App.2d 723, 728, 245 P.2d 352, as follows: 'The term 'compensation' is a technical one and includes all payments conferred by the act upon an injured employee. 'Compensation' of an employee in the form of wages or salary for services performed, does not have the same meaning as the word 'compensation' in the Workmen's Compensation Act. The former is remuneration for work done; the latter is indemnification for injury sustained. Wages and salary may, under some circumstances, be paid as compensation in lieu of the normal temporary disability payments prescribed by the act. Such payments do not constitute salary or gratuities, but are payments of compensation under the act.' Thus, the payment of employee's salary is the workmen's compensation benefits he is entitled to under section 4850.

The question for this court to determine is whether the indemnification for the injury sustained by appellant includes additional payments for the holiday of July 4, 1973, at one and one-half time rate. In order to make this determination it is necessary to construe the phrase 'without loss of salary' found in section 4850 of the Labor Code with the following phrase found in the collective bargaining agreement between the Marin County Deputy Sheriff's Association and respondent: 'An employee who is Required to work on a day celebrated as a holiday as listed above shall be compensated at one and one-half time rates. . . .' (Emphasis added.)

Appellant would have this court construe the phrase 'required to work' as scheduled to work or as required to work but does not work for a justifiable reason. Respondent would have this court interpret the phrase 'required to work' in a more reasonable manner. Respondent argues that the phrase means an individual is entitled to time and one-half when he is required to work and does actually work. Appellant recognizes the logic of the interpretation of the phrase suggested by respondent and therefore argues that in order to carry out the strong policy of section 4850 favoring full indemnification of a safety employee for a loss resulting from an industrial injury, he should be deemed for purposes of section 4850 to have constructively worked the July 4 holiday, the reason being that appellant would have worked 'but for' the industrial accident. Appellant states to hold otherwise would result in appellant's paying for part of his own workmen's compensation benefits in direct violation of the policy behind section 4850 as set out in Hawthorn v. City of Beverly Hills, supra; Austin v. City of Santa Monica (1965) 234 Cal.App.2d 841, 44 Cal.Rptr. 857; Johnson v. Contra Costa Fire Protection Dist. (1972) 23 Cal.App.3d 868, 100 Cal.Rptr. 561.

In Hawthorn v. City of Beverly Hills, supra, a fireman suffered an industrial injury and thereupon applied for a leave of absence without loss of salary pursuant to section 4850. During the period of leave, the fireman reached retirement age under the civil service ordinance of the city. The City of Beverly Hills did not pay the fireman a salary after his retirement date. The city based its refusal to pay the fireman his salary during the full period of disability solely on the claim that section 4850 is unconstitutional. Defendants in that case conceded that 'the money is due if section 4850 is constitutional.' (Hawthorn v. City of Beverly Hills, supra, at p. 727, 245 P.2d at p. 354.) Thus, Hawthorn stands for the limited proposition that section 4850 is constitutional and does not stand, as appellant asserts, for the broad proposition that the fireman's change in status from active employment to retirement could not be used by the city as a justification for limiting his right to benefits under section 4850 for an industrial injury that preceded the retirement date. (See Gourley v. City of Napa (1975) 48 Cal.App.3d 156, 121 Cal.Rptr. 290.)

In Austin v....