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Grandchildren and Total Dependent Presumptions

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.

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