WCDefenseCA

As everybody knows, it is international California workers’ compensation death benefits week.  Much like our friends in France, Japan, and, of course, Brazil, WCDefenseCA is also covering various death benefits matters this week.  So, for today’s post, I have the privilege of presenting to you the panel decision of Vicente Zavala v. Sonoma Compost Company, LLC.

In Zavala, applicant sustained an admitted injury which resulted, unfortunately, in his death.  His widow, daughter, and grandson all claimed death benefits.  His widow easily established total dependency based on the presumption of Labor Code section 3501.  But what of his adult daughter and her child?

Labor Code section 3502 allowed the determination that the daughter was a total dependent, and the workers’ compensation Judge rejected the argument that the public assistance income counts as “other income” to negate a total dependency finding.

With the grandson, however, it gets a little tricky.  The grandson is a minor, so is he entitled to benefits until he turns 18 under Labor Code section 4703.5?  He wasn’t, after all, the decedent’s son, and decedent was not acting in loco parentis.  Furthermore, Labor Code section 3501(a) specifically excludes minors from the presumption of total dependency when there is a surviving total dependent parent, such as the child’s mother.

In short, the Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration only as to the benefits to be awarded the grandson – he will not be a presumed total dependent.

Applicant fireman and fire chief filed an application in 2008 for what turned out to be a cancerous lump discovered on his neck in 2004.  The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board promptly handed applicant an award.  But wait – under Labor Code section 5405(a), there is a one-year statute of limitations on filing workers’ compensation claims.

The case is Gary Scholar v. City of Chico, and the defense of statute of limitations was raised – only to be defeated by applicant’s claims of ignorance.  In the panel opinion, the majority went over applicant’s testimony, given at trial, that no one told him the lump was certainly cancer until 2008, at which time he promptly filed a workers’ compensation claim.

Now, your sarcastic and cynical blogger is sure that at least some of his wise and learned readers are wondering why the defense took it this far – this majority opinion presents the facts as a slam-dunk case for the applicant and the litigation dollars were apparently just wasted.  Well, not so much.

One of the first maxims law students learned, at least they did back in my day, is: “if you want to know what really happened, read the dissent.”  And read the dissent your diligent blogger did.

Commissioner Lowe, dissenting from the majority opinion, presented facts that may have otherwise been overlooked.  For example, at his deposition, applicant testified that after a 2004 surgery, the surgeon told applicant that the lump was positive for cancer.  The defense even took the surgeon’s deposition, at which time he testified that applicant was “definitely” aware that the lump was cancerous, and even the type of cancer, in 2004.

“Well, alright,” you may be thinking, as you sip your morning coffee and use this blog to put off work for a few minutes, “assuming he knew the lump was cancer in 2004, how was he to know that it was industrial?”  Well, applicant was a fire chief and testified that he was well aware that cancer found in firemen is generally presumed industrial.  In other words, the evidence shows that in 2004, applicant knew he had cancer and knew that the law would most likely presume that the cancer was industrial.

In all fairness, this ruling does have some reasonableness to it – perhaps it was too close for the WCAB to go against the WCJ.  In the world of WCDefenseCA, however, applicant’s claim should have been barred by the statute of limitations.  This workers’ compensation defense attorney opines so, at least.

What do you think?  Is your dear and loyal blogger over-favoring the defense?  Or did the WCJ get it wrong?