DEATH BENEFITS - Labor Code §5406-No proceeding for death benefits may be commenced more than one year after the date of death or 240 weeks of the date of injury. (See Massey v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 674.) Christina Gonzales v. Workers' Compensation Appeals Board, K-Mart Corp 10 WCAB Rptr. 10,140 [Writ Denied]
DEATH BENEFITS - Death without dependents–The provision of Labor Code §4702(a)(6)(B) for an award of $250,000 to the decedent's estate is unconstitutional. (See Six Flags, Inc. v. Workers' Compensation Appeals Board, Mac Bunyanuda as administrator to the estate of Bantita Rackchamroom 145 Cal.App.4th 91, 8 WCAB Rptr. 10,358.) State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Bernard Girardot) 9 WCAB Rptr. 10,043 ___Cal.App.4th___
DEATH BENEFIT - Death without dependents–Labor Code §4702–The provisions of Labor Code §4702(a)(6)(B) for an award $250,000 to the decedent's estate, is unconstitutional. Six Flags, Inc. v. Workers' Compensation Appeals Board, Mac Bunyanuda as administrator to the estate of Bantita Rackchamroom 8 WCAB Rptr. 10,358 ___Cal.App.4th___
DEATH BENEFITS-Presumption of dependency–Labor Code §3501–A child under the age of 18 year, or a child of any age found by any trier of fact, to be physically or mentally incapacitated from earning, shall be conclusively presumed to be wholly dependent for support upon a deceased employee-parent with whom the child is living at the time of injury resulting in death of the parent or for whose maintenance the parent is legally liable for at the time of injury resulting in death of the parent. [This statute applies to children living with a deceased employee-parent for whose maintenance the parent was legally liable at the time of injury resulting in death. In this case the deceased employee was a grandfather not a father and the grandfather could not be legally liable for maintenance of a grandchild as a parent might be.] Jalisa Riley v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 8 WCAB Rptr. 10,280 [Writ Denied]
DEATH BENEFIT- Death without dependents–Labor Code §4702–Did the Appeals Board err in awarding $250,000 to the decedent's estate under Labor Code §4702(a)(6)(B), when the decedent died without dependents and, in addition, awarded $125,000 to the Death Without Dependents Unit? Six Flags, Inc. v. Workers' Compensation Appeals Board, Mac Bunyanunda as administrator to the estate of Bantita Rackchamroon 8 WCAB Rptr. 10,081 [Writ Granted]
DEATH BENEFITS– Labor Code §3600(a) – Death benefits are recoverable by dependents in situations where the deceased employee had a preexisting disease that would have ultimately resulted in death, if the evidence establishes that employment hastened or contributed to the death. (See Liberty Mutual Insurance Co. V. Industrial Acc. Comm. (1946) 73 Cal.App.2d 555.) Pacifica Hotel Company v. Workers' Compensation Appeals Board (Catalina Chavez, deceased) 7 WCAB Rptr. 10,287 [Writ Denied]
DEATH BENEFITS– Labor Code §5406– No proceedings for death benefits may be commenced more than one year after the date of death or more than 240 weeks after the date of injury. (See Ruiz v. Industrial Acc. Comm. (1955) 45 Cal.2d 409.) [In this case, the applicant died as a result of treatment for an admitted industrial injury, but the death occurred more than 240 days after the date of the original industrial injury.] Debra Sparrow v. Workers' Compensation Appeals Board, Better Thermal Usage 7 WCAB Rptr. 10,186 [Writ Denied]
DEATH BENEFITS– An employer is not liable for death resulting from a non-industrial condition simply because the physician treating the industrial condition negligently failed to diagnose the unrelated nonindustrial condition. Ignacio Martinez v. Workers' Compensation Appeals Board, Broco Environmental, Inc. 7 WCAB Rptr. 10,150
DEATH BENEFITS– Labor Code §3600(a)– If the employee's death is caused by or hastened by an industrial injury, including industrial aggravation of a pre-existing disease or condition, the death is compensable and death benefits accrue to the employee's dependents. There is no apportionment of the death benefit due to any prior condition. (See Zenith Ins.Co. v. Workers' Comp. Appeals Bd. (Thweatt) (1981) 124 Cal.App.3d 176, Pacific Gas & Electric Co. v. I.A.C. (Drew) (1961) 56 Cal.2d 219.) [In this case, the medical evidence supported a finding that heavy work activities initiated or triggered a fatal heart attack.] County of Los Angeles, Internal Services Department v. Workers' Compensation Appeals Board (Dorothy Williams) 6 WCAB Rptr. 10,106
DEATH BENEFITS– Labor Code §3600(a)– The liability for compensation exists against an employer for the death of an employee, if the injury arises out of the employment and the injury is proximately caused by the employment. The causal connection need not be the sole cause; it is sufficient if it is a contributory cause. (See Maher v. Workers' Comp. Appeals Bd. (1963) 33 Cal.3d 729.) Precision Endoscopy v. Workers' Compensation Appeals Board (Linda Feenan) 6 WCAB Rptr. 10,105
DEATH BENEFITS– Labor Code §3600(a)– When an industrial injury is a contributing factor to the employee's death, the death benefit cannot be diminished or apportioned by reason of a prior nonindustrial injury. (See Pacific Gas & Electric Co. v. I.A.C. (Drew) (1961) 56 Cal.2d 219.) [If, as in this case, an industrial injury (cerebral concussion) hastens the death of an employee suffering from a preexisting underlying condition (cirrhosis), the industrial injury is a proximate cause of death and is compensable.] Precision Endoscopy v. Workers' Compensation Appeals Board (Linda Feenan) 6 WCAB Rptr. 10,105
DEATH BENEFITS– Dependency of the Surviving Spouse– Labor Code §3501(b)– A spouse to whom a deceased employee is married at the time of death shall be conclusively presumed to be wholly dependent for support upon the deceased employee if the surviving spouse earned $30,000 or less in the 12 months immediately preceding the death. Precision Endoscopy v. Workers' Compensation Appeals Board (Linda Feenan) 6 WCAB Rptr. 10,105
DEATH BENEFITS– Labor Code §5406– A death benefit proceeding is untimely unless commenced within one year after the date of death and within 240 weeks of the date of injury. There is no jurisdiction to hear a claim for death benefits allegedly arising from an industrial injury when the death occurred more than 240 weeks from the date of industrial injury. (See Ruiz v. Industrial Acc. Com. (1955) 45 Cal.3d 409.) [In this case, the injured employee's death occurred more than 240 weeks after his industrial injury. There is no separate date for surviving claimants when the decedent's date of injury was determined during the worker's lifetime.] Joseph M. Earley, II v. Workers' Compensation Appeals Board, Occidental Life Ins. Co. 5 WCAB Rptr.10,325
DEATH BENEFITS– Discretion to award death benefits between minimum and maximum temporary disability rates– The Appeals Board has the discretion to award death benefits to total dependents at a weekly rate between the minimum and maximum temporary disability indemnity rate. (See L.P. Price Mercantile Co. v. I.A.C. (Davis) (1957) 49 Cal.2nd 13.) This discretion allows the award even though it may not only accelerate the death benefit but also greatly increase the overall death benefit payout under the special minor's benefit provided by Labor Code §4703.5. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Gonzalez) (1992) 57 Cal.Comp.Cases 761.) [In this case, the 21 year-old decedent left a totally dependent wife and infant son. There was unrebutted testimony from the widow and a stipulated expert witness in vocational rehabilitation and earning capacity both testifying that decedent's earning capacity was in excess of that necessary to justify maximum rates under the current law.] Auiar-Faria & Sons Dairy v. Workers' Compensation Appeals Board (Jose Alatorre) 4 WCAB Rptr. 10,233
DEATH BENEFITS– The death benefit cannot be diminished or apportioned by reason of any predisposing or contributing cause when it is established that the industrial injury is a contributing cause of death. (See Pacific Gas and Electric Company v. Industrial Acc. Comm. (Blunt) (1961) 26 Cal.Comp.Cases.) San Mateo County Transit District v. Workers' Compensation Appeals Board (Gloria Williams) 4 WCAB Rptr. 10,110
DEATH BENEFITS– Labor Code §4703– Acceleration of death benefits are within the WCJ's discretion, if supported by a showing of good cause and need. The WCJ can order death benefits paid at a rate up to the maximum for temporary disability indemnity, regardless of the decedent's actual earnings (See L.B. Mercantile Co. v. Industrial Acc. Comm. (1957) 49 Cal.2d 13.) This is true even though the increase in the payment rate accelerates the commencement of a minor's allowance under Labor Code §4703.5 and therefore increases the defendant's potential overall liability. (See Foodmaker, Inc. v. Workers' Comp. Appeals Bd. (Castellano) (1995) 60 Cal.Comp.Cases 124 [writ denied].) California Compensation Insurance Co in Liquidation and Administered through California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Michael Del Rio) 4 WCAB Rptr. 10,090
DEATH BENEFITS– Determining partial dependency– Labor Code §4702(a)(4)– Payments by an adult child to assist the family in paying bills, buying its home, or otherwise maintaining its lifestyle qualify as support payments and may be considered in assessing whether the parent is a dependent. The amount of these payments by the deceased adult child must provide a net financial benefit to the household, deducting first the cost of benefits provided by the parents that are attributable solely to the deceased. (See Larsen v. Industrial Acc. Com. (1950) 34 Cal.2d 772.) Stephen J. Smith v. Workers' Compensation Appeals Board, J.R.W. Contemporary, Inc. (Joshua Walker) 4 WCAB Rptr. 10,083
DEATH BENEFIT– Partial dependency– Labor Code §4702(a)(4)– In order to establish partial dependency, is it sufficient that the decedent employee's contributions were relied upon in the maintenance of the dependent's accustomed mode of living and that after the employee's death the dependent could no longer maintain the same standard of living. Stephen J. Smith, Director of Industrial Relations as Administrator of the Death Without Dependents Unit v. Workers' Compensation Appeals Board, J.R.W. Contemporary, Inc., (Joshua Walker) 3 WCAB Rptr. 10,335
DEATH BENEFITS– Labor Code §4702– Partial dependency depends only on whether the dependent looked to the contributions of the decedent for support. (See Chevron USA v. Workers' Comp. Appeals Bd. (Steele) (1999) 19 Cal.4th 1182.) XFT Engineering, Inc., v. workers' Compensation Appeals Board (Christine Holzhauser) 3 WCAB Rptr, 10,071
DEATH BENEFITS– Labor Code §4702(b)– Payment to more than one dependent– The payment of dependency death benefits to both the surviving spouse and the surviving son at the same time at the temporary disability rate is a valid allocation of benefits as long as a commutation is allowed for the advanced payments. (See Briceno v. Omega Landscaping Company (1978) 43 Cal.Comp.Cases 915 (WCAB en banc) XFT Engineering, Inc., v. workers' Compensation Appeals Board (Christine Holzhauser) 3 WCAB Rptr, 10,071
