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Richard: Police Workers' Comp Entitlements Reviewed: [2023-01-20]
Significant public attention is focused on the rights afforded only to police officers under state laws across the country. For example, some laws prohibit the media or the public from inspecting or reviewing police officers' disciplinary records. Others, such as the qualified immunity doctrine, shield officers from personal liability for use of force while on the job.
California law affords police officers some of these entitlements, as well as special workers’ compensation benefits that are unavailable to most employees, including other essential workers and even some other first responders.
The cities and counties that employ police officers typically pay directly for these special benefits. This is significant because the financial strains created by the COVID-19 pandemic have compelled local governments to take a hard look at their budgets. The confluence of these events invites a summary of these California workers’ compensation laws.
Full salary, tax-free
If a police officer claims he was injured on the job, California Labor Code § 4850 provides for up to one year of salary continuation in lieu of temporary disability benefits during the time off work. Unlike regular pay, the salary-equivalent benefit under California Labor Code § 4850 is generally not taxable as income by the state or federal government. This results in police officers receiving an after-tax equivalent of about 150% of regular pay while they are off work.
For most other workers, the maximum benefit for lost time from work, known as temporary disability indemnity (TD), is only about two-thirds of their pay. Although these benefits are also tax-free, they are capped by a statutory maximum rate, which is currently set at a little under $1,300 per week. However, the benefits granted to police officers for lost time from work under Labor Code § 4850 have no capped maximum.
Additionally, unless the police officer returns to work, Labor Code § 4850 benefits can continue beyond the date that the police officer’s workers’ compensation injury becomes stationary (maximum medical improvement or MMI). For other workers, TD stops at the MMI date, regardless of whether the employee has returned to work.
Furthermore, “4850 time” is a protected leave of absence. This means that police officers are entitled to an additional protected leave on top of the Family and Medical Leave Act (FMLA) and other protected leaves they receive.
Police officers and some other public safety officers who are substantially incapacitated from performing the essential functions of the job due to a workers’ compensation injury are entitled to an industrial disability retirement (IDR) under CalPERS, or a service-connected disability retirement under the County Act of 1937. These retirements, also tax-free, are often more lucrative than the disability retirements available to other public employees, such as teachers, who become too injured or sick to continue doing their jobs.
Further, under Labor Code § 4850.3 and § 4850.4, police officers who have pending IDR retirements are granted advanced disability payments once they have stopped working due to their injury, prior to their retirement being finalized. This is another special benefit paid directly by the city or county. Many also receive group health care coverage and other benefits for themselves and their beneficiaries, all while continuing to accrue retirement service credits.
Presumptions of work injuries
Certain police officers, firefighters and other safety officers are entitled to a presumption of work injury for conditions such as cancer, heart trouble, hernia, pneumonia, blood-borne infectious disease and others. These presumptions shift the legal burden of proof onto the employer to disprove the injury, which is often difficult to overcome.
These legal entitlements are usually not available to non-safety workers. The one exception is the recent COVID-19 presumption of injury created by Executive Order N-62-20, which applies to most employees working outside of their residences. (You can read more about the COVID-19 presumption on the RTGR Law Blog.)
Some presumptions are limited to police officers alone and do not cover other public safety workers. For example, Labor Code § 3213.2 provides a special presumption of “low back injury” only to police officers and sheriff's deputies who wear duty belts as a condition of employment. While other first responders — such as firefighters and emergency medical technicians (EMTs), as well as many non-safety workers, such as nurses and farmworkers — may have a high incidence of low back injuries on the job, none of them are entitled to the low back presumption of injury.
Many presumption statutes have anti-attribution clauses, which restrict attribution to preexisting conditions or genetics. For example, if a police officer develops lung cancer, she cannot be denied workers’ compensation benefits based on the risks of smoking under the anti-attribution clause, even if the police officer was a lifelong smoker. Furthermore, apportionment of permanent disability benefits to nonwork causes is usually prohibited under Labor Code § 4663(e) in presumptive injury cases. Thus, even if the medical evidence unanimously concludes that some or all of the cancer was due to smoking, the public agency employer is liable for the full effects of cancer.
Additionally, the presumptions of injury continue to apply after the officer has retired from work or has been terminated, in some cases up to 10 years after leaving the force.
Special death benefits for police officers’ dependents
The families of some police and other safety officers are entitled to special benefits in the event of the death of the officer. In addition to all the regular workers’ compensation death benefits (generally up to $320,000 depending on the number of dependents, plus burial expense), those officers’ dependents may be entitled to:
New benefits in California
California’s list of special workers’ compensation benefits continues to grow. For example, just this year, SB 542 took effect and created a new post-traumatic stress disorder (PTSD) presumption of injury for police and other safety officers. Similar to other presumption statutes, it contains an anti-attribution clause and extends for up to 60 months post-retirement or termination. Under the presumption, once a physician diagnoses a police officer with PTSD, the burden of proof shifts to the employer to prove that the injury does not exist, an already difficult task given the subjective nature of psyche injury claims.
Will these laws be reconsidered?
Some people are questioning the fairness and efficacy of legal entitlements and benefits afforded only to police officers. At the same time, many local governments are taking a hard look at their budgets due to the effects of the pandemic.
Usually, the California cities and counties that employ police officers and deputies pay for their special workers’ compensation benefits out-of-pocket. Whether these benefits should take budgetary priority while other government employees are being laid off may become an issue.
The renewed focus on the role of police in our society, combined with the financial strains placed on governments due to the pandemic, has created an interesting confluence of concerns. It remains to be seen whether the California Legislature and local governments will reconsider these special police officer workers’ compensation benefits in their pursuit of a solution.
Thomas A. Richard is senior counsel at RTGR Law LLP in Oakland who specializes in the defense of cities, counties and school districts in complex workers’ compensation claims and appeals, disability accommodations and the interactive process, and safety officer leaves, retirements, benefits and grievances. His blog posts can be viewed at http://rtgrlaw.com/blog/.