*** UPDATE*** Court of Appeal has denied a petition for a writ of review.

An interesting panel decision sided with the defense on the issue of death benefits, and your ever-informative blogger is eager to share it with his ever-informed readership.  (The case is Devon Davis (Dec’d) v. Harrison & Nichols Trucking).

Employee-driver dies in as a result of an industrial injury, and his widow and minor son petition the Workers’ Compensation Appeals Board for death benefits.  Following a trial, the workers’ compensation Judge awards $250,000 to the decedent’s son and $25,000 to the widow.  The WCJ, however, reserves jurisdiction to determine if the son will be considered mentally incapacitated at age 18.

Both sides petition for reconsideration.  The widow claims that Labor Code section 4702(a)(2) allows, in cases of one total dependent and one or more partial dependents, a death benefit of $290,000, with $250,000 going to the total dependent.  Under her theory, she gets the remainder of the pot, which is $40,000.  The Judge, however, rightly rejected this argument in favor of Labor Code section 4703, which caps the recovery of partial dependents at $25,000.  The WCAB affirmed this decision and denied applicant’s petition for reconsideration.

Defendant’s petition for reconsideration, however, had to do with the WCJ reserving jurisdiction to determine the son’s dependency when he should join the age of majority.  The WCJ reasoned that it would be premature to make a determination as to the son’s capacity to work.  Here, the WCJ ran afoul of Labor Code section 3502, which requires determinations of dependency to be made at the time of injury of the employee.

Of interest here is that the WCAB, in dicta, noted that there was no evidence in the record to establish the widow’s dependency, but that the issue was not raised by the defense.  There are explanations for this – prior agreements between the parties, defects in the record, or simply an administrative gap between the record and the documents delivered to the WCAB.

In any case, it serves to point out that the issue of dependency should not be taken for granted – the Death without Dependents unit certainly yields no ground on this point lightly – nickels, dimes, and dead men’s shoes are all fair targets.  Well, neither should you – there is no reason why the defense should presume dependency, even if the Board and the applicant’s attorney are rushing to do so – there are all sorts of living arrangements with secondary income, cash jobs, etc.  A little snooping can go a long way.