Hurtado: Full Workdays Preserved Salary-Continuation Leave

Returning to work after a serious illness can mean rebuilding your schedule one day at a time. If you earn your regular salary on those days, it matters whether the employer also counts them against your disability leave. An incorrect count can bring full-salary benefits to an end too soon.

In Hurtado v. County of Napa, No. ADJ16975645 (WCAB Dec. 16, 2024), the Workers’ Compensation Appeals Board required a new calculation of section 4850 benefits after an employee returned to work three full days each week. The employer had counted entire weeks toward the benefit limit. The Board separated regular salary earned on the workdays from the disability benefits received on the other days.

The return to work changed what the payments represented

Nathalie Hurtado had received full-salary benefits under section 4850 while totally disabled from October 31, 2022 through September 11, 2023. She then returned to work three days per week. Part of her full salary came from the days she worked, and the rest came from section 4850 benefits.

The payment history in Hurtado showed that the County ended salary-continuation benefits on October 27, 2023, treating her entitlement as exhausted after 52 weeks. She then received partial temporary-disability benefits.

The trial judge upheld that calculation and ordered that she receive nothing further under section 4850. Hurtado challenged the credit taken for days she had worked and received regular salary. The dispute concerned how to count the leave used after her return, rather than whether she had received section 4850 benefits during the earlier total-disability period.

Current Labor Code section 4850 provides qualifying employees leave without loss of salary during an industrial disability, for up to one year and subject to its other conditions. The benefit replaces qualifying disability pay. Salary earned by actually working requires its own identification in the record.

Regular salary earned on whole workdays was separate from disability leave

The Board applied Eason v. Riverside, 233 Cal.App.2d 190, 193–194 (1965), which explained that the statutory leave can consist of broken periods. A worker may use disability leave, return to work and later need more leave, with the benefit periods counted cumulatively.

The salary-and-leave discussion in Hurtado read section 4850 together with section 4854, which bars concurrent disability indemnity and wages or salary payments. Regular salary paid for services between periods of disability leave had to be treated as earned salary.

The application of Eason in Hurtado focused on the three days she worked. The employer received her services and paid regular salary for those days. Counting the same days against her disability leave would penalize the attempt to return to work. The Board rejected the County’s practice of charging an entire week when part of that week consisted of paid work.

For an employee reviewing a similar calculation, separate the days paid for actual work from those paid as disability leave. The paycheck’s total may look unchanged while the employer’s leave accounting assigns the days differently. The work schedule, pay codes and benefit ledger need to tell the same story.

Working half of each day presented a different situation

The trial judge had relied on James v. Workers’ Compensation Appeals Board, 79 Cal.Comp.Cases 1548 (2014), a panel decision for which review was denied. As described in Hurtado, that employee worked four hours each day and received section 4850 benefits for the remaining four hours. Each workday therefore still included disability benefits.

The comparison with James in Hurtado distinguished that daily arrangement from Hurtado’s three whole days of regular salary. The Board explained that the benefit was counted in days rather than by adding up lost hours until they equaled a year’s salary.

That distinction makes the actual schedule important. Working a reduced portion of every day and working full days on only some days of the week can produce different leave records. Give counsel the hours, duties, medical restrictions and payment classification for each day, rather than describing both arrangements simply as part-time work.

The Board used a daily count and returned the calculation

Hurtado had proposed a calculation of 52 weeks multiplied by five workdays, or 260 days. The Board instead described an aggregate entitlement of 365 days under section 4850. It explained that one year was not the same as 52 weekly units.

The daily-count conclusion in Hurtado treated her three full-salary workdays separately from the remaining four days of section 4850 benefits each week. Those were broken periods of leave under Eason. The operative calculation therefore followed the Board’s day-based approach, rather than simply using the employee’s proposed five-workday total.

The formal order in Hurtado granted reconsideration, rescinded the September 27, 2024 findings and order, and returned the case for further proceedings. The parties were to adjust the appropriate benefit dates, with the trial judge retaining jurisdiction over a dispute. The decision required correction of the accounting; it left the actual dates to that adjustment.

Ask for a day-by-day account of salary and leave

Request the leave calculation used to declare the benefit exhausted. Compare it with the medical work-status reports, actual attendance, hours worked, payroll codes and dates covered by the benefit payments. Identify any whole days of regular salary that were also charged against section 4850 leave.

If the return involved reduced hours each day, preserve that detail as well. The distinction between a whole workday and a day partly funded by disability benefits was central to the comparison with James. A weekly total alone can conceal it.

Our Guimaraes analysis concerns partially overlapping benefits from two injuries. Hurtado concerns regular salary earned on days worked within a disability-leave period. Bring the actual daily work and payment records so a review can address the reason the employer counted each day and the correction, if any, supported by that record.