Sacramento, CA - Michael Ayala sustained an injury in 2002 while employed as a correctional officer by the Department of Corrections & Rehabilitation/Lancaster State Prison as a result of an attack on prison staff by the inmates. The parties entered into Stipulations with Request for Award that the injury caused 85% permanent disability. The Award was approved on July 31, 2012.

Ayala filed a petition alleging that the injury occurred as a result of serious and willful misconduct by defendant per Labor Code section 4553. The WCJ found in a 2018 Finding of Fact that the employer did not engage in serious and willful misconduct.

However reconsideration was granted in April 2020 and the Appeals Board issued a decision finding that he sustained an injury as a result of serious and willful misconduct by defendant. The decision included an award for a 50% increase in compensation.

The case proceeded to trial again on July 29, 2021 to calculate the 50% increase in benefits. One of the issues was to determine if the computation of the S & W award applies to all the benefits Ayala received, including or the Enhanced Industrial Disability Leave. He was paid enhanced IDL at the rate of his full salary for 845 days, valued at $155,000, 50% of which would be $77,500.

WCJ found that the Appeals Board lacks jurisdiction to award industrial disability leave (IDL) benefits, However, reconsideration was again granted, and the WCAB panel issued another new decision finding that Ayala was entitled to a 50% increase in compensation per section 4553 to be calculated based on the enhanced IDL he received, in the WCAB panel decision of Ayala v Department of Corrections ADJ1360597 (April 2022).

The panel stated that "there is no dispute that the Appeals Board does not have jurisdiction to award IDL, enhanced or otherwise." However "the Appeals Board unquestionably has jurisdiction to issue and calculate applicant's serious and willful award that he is entitled to under section 4553."

Government Code section 19871 provides for state employees to receive IDL (full pay less withholding for taxes and certain deductions/contributions) for 52 weeks when they are temporarily disabled due to an industrial injury. Certain employees receive "enhanced" IDL pursuant to Government Code section 19871.2

Section 4553 provides that the "amount of compensation otherwise recoverable shall be increased one-half." Ayala contends that "compensation otherwise recoverable" includes enhanced IDL. He argues that the language "otherwise recoverable" extends to compensation beyond what is contained in the definition of compensation in Labor Code section 3207. He further argues that Government Code section 19870 provides that IDL "means temporary disability as defined in" division 4 of the Labor Code, which is why IDL payments have been considered in calculating aggregate disability payments under section 4656 per Brooks v. Workers' Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522 [73 Cal.Comp.Cases 447].

The WCAB panel essentially agreed with these arguments. And it went on to discuss the purpose of 4553 since the fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.

In Ferguson v. Workers' Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1621 [60 Cal.Comp.Cases 275], the Court of Appeal held "that an award for increased compensation due to the serious and willful misconduct of an employer under section 4553 must be calculated with reference to 'every benefit or payment conferred by Division 4 upon an injured employee' as broadly defined in section 3207." The Court in Ferguson acknowledged that section 4553 is not quite consistent with the no-fault principle applicable to the workers' compensation system.

Applying the interpretation principles, in this case the panel concluded that "the purpose of an award under section 4553 is to more fully compensate the employee for an injury caused by the employer's serious and willful misconduct. This purpose is best served by interpreting 'compensation otherwise recoverable' as including applicant's enhanced IDL payments, which provides for a greater amount of compensation than calculating the section 4553 award based on his temporary disability rate."

Source: WorkCompAcademy.com

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