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How serious, willful misconduct by an employer adds up to higher workers’ comp

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The CDCR countered that base compensation was only two-thirds of the plaintiff’s salary, to which he would have been entitled if he was on temporary disability.

The workers’ compensation judge agreed with the CDCR. The appeals board reversed this decision. It determined that base compensation was what the plaintiff received while on industrial disability leave and enhanced industrial disability leave.

Compensation not increased

In the case of California Department of Corrections and Rehabilitation v. WCAB and Michael Ayala, the California Court of Appeal for the Fourth District, Second Division annulled the decision of the Workers’ Compensation Appeals Board.

Compensation under section 4553 did not include industrial disability leave and enhanced industrial disability leave, the appellate court ruled. Thus, the compensation in this case involving serious and willful misconduct by the employer could not be increased by 50 percent, the appellate court said.

Section 3207 of the Labor Code, which defined compensation, limited compensation to benefits or payments provided by Division 4 of the Labor Code. Temporary disability payments were considered compensation because Division 4 provided them, the appellate court held. On the other hand, industrial disability leave benefits were not compensation since Division 4 did not provide such benefits, the appellate court said.

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