California: Dependency Issues in Death Claims

When an employee sustains an industrial injury that results in death, the employee’s dependents are entitled to certain workers’ compensation benefits, including burial expenses and death benefits. In order to qualify as a dependent, the person must have been totally or partially dependent on the decedent for support on the date of injury (Labor Code § 3502). A dependent must also bear a relationship to the decedent that corresponds to one of those listed in Labor Code § 3503. Eligible relationships include spouse, child, posthumous child, adopted child or stepchild, grandchild, father or mother, father-in-law or mother-in-law, grandfather or grandmother, brother or sister, uncle or aunt, brother-in-law or sister-in-law, or nephew or niece. There is, additionally, a catch-all category of good faith member of the decedent’s family or household.

A person that does not fall into one of the statutory categories of dependency cannot be a dependent for purposes of a workers’ compensation death benefit, even if the decedent provided them with support. For example, if the mother or father of the decedent’s minor child was not married to the decedent, did not live with the decedent, and was not a putative spouse of the decedent, the child is eligible to a death benefit, but the parent is not. On the other hand, if the decedent took an unemployed friend into the household and was supporting the friend at the time of the injury, the friend will be eligible for a death benefit as a good faith member of the decedent’s household.

Pursuant to Labor Code § 3501, spouses and minor/disabled children are subject to a conclusive presumption of total dependency if certain conditions are met. If these conditions are not met, or if the alleged dependent bears a relationship to the decedent other than that of spouse or child, establishing dependency will be a matter of proof.

Spouses

The conclusive presumption applies to spouses if their earnings were $30,000 or less in the year preceding the date of injury. Even if a dependent spouse earned more than $30,000, that would only prevent the application of the conclusive presumption so that the spouse would have to prove dependency and the extent thereof. In ARCO v. WCAB (Arvizu) (1982) 31 Cal. 3d 715, 47 Cal. Comp. Cases 500, the Court of Appeal held that if the surviving spouse is considered a partial dependent, the contribution of the deceased employee is calculated by the contribution to the “community” which is the entire income less clearly personal expenses. By this standard, most spouses will qualify for a total dependency benefit.

On the other hand, the conclusive presumption can lead to a windfall for the legal spouse where the spouse and the decedent went their separate ways many years in the past and even found new partners but never legally divorced. In such a case, the separated spouse would get the conclusive presumption, as long as they earned less than $30,000, and the current live in partner would have to prove their entitlement as a good faith member of the decedent’s household unless they qualified as a putative spouse.

Putative Spouses

Putative spouses are treated as if there were a legal marriage. (See Brennfleck v. WCAB (1970) 3 Cal. App. 3d 666, 35 Cal. Comp. Cases 7) However, the status can be hard to prove because the putative spouse must demonstrate a good faith belief that he or she was legally married to the decedent. This generally occurs if the marriage was invalid because, unbeknownst to the putative spouse, the decedent was already married to someone else.

Domestic Partners

In Jacobs v. WCAB (2011) 78 Cal. Comp. Cases 1345 (writ denied), the WCAB found that the same sex partner of the deceased employee did not establish that she should be considered the decedent's "putative domestic partner," because she did not show a good faith belief that she was in a valid registered domestic partnership. Presumably, if there had been a registered domestic partnership, the WCAB would have interpreted the law to give the domestic partner the same death benefit rights as a spouse.

Children

Minor children, or children of any age who are physically or mentally incapacitated from earning, get the benefit of a conclusive presumption of dependency if they were either living with the deceased employee or the decedent was legally liable for their maintenance at the time of injury resulting in death. Of course, able bodied adult children can also be entitled to a death benefit if their deceased parent was providing for their support, but there will be no conclusive presumption and they will have to prove their dependency.

Minor Children

What happens if a minor child is not living with the decedent, the parents aren’t married, and there is no determination of paternity or a support order? Where the alleged father’s name appears on the child’s California birth certificate, this may not present a problem.

Under California law, an unmarried mother cannot list the father’s name on the birth certificate unless they both fill out and sign a form called Declaration of Paternity in which the man admits he is the baby’s father and the woman confirms that he is the father. The Declaration is then filed with the local child support agency. This is considered proof of paternity in California and is the equivalent of a finding of paternity by a court. (Family Code § 7570 et seq.) Once paternity is established, California law requires parents to support their minor children (Family Code § 4053) which should be sufficient proof of legal liability for maintenance. For children born outside of California or where the decedent’s name does not appear on the birth certificate, DNA testing may be used to resolve disputes over paternity if the parties agree.

With the conclusive presumption of dependency in Labor Code § 3501 also comes the right to extended benefits conferred by Labor Code § 4703.5 which provides that payment of death benefits will continue until the youngest child attains 18 years of age, or until the death of a child physically or mentally incapacitated from earning. This will result in a much greater liability to the employer than the limitations on death benefits in Labor Code §§ 4702 and 4703. The extended benefits are linked to Labor Code § 3501 and will not apply to dependents who are not eligible for the conclusive presumption of dependency.

Disabled Children

A child of any age, not limited to minors, found by any trier of fact, whether contractual, administrative, regulatory, or judicial, to be physically or mentally incapacitated from earning, is conclusively presumed to be a total dependent, provided the child either lived with the decedent or the decedent was legally liable for their support. For such a dependent, the death benefit is payable for life. However, a disabled child who became an adult prior to their parent’s fatal injury must have lived with the decedent. (Ramirez v. Vista Paint, 2014 Cal. Wrk. Comp. P.D. LEXIS 604 (Board Panel Decision.) Otherwise, although an adult disabled child might qualify as a dependent, they would not be entitled to lifetime benefits which are linked to the conclusive presumption in Labor Code § 3501. A minor disabled child would still qualify for the conclusive presumption and the extended benefits if they didn’t live with the deceased employee but the decedent was legally liable for their support.

In the case of an adult child who was living with the decedent, the fact that she was awarded Social Security Disability benefits, prior to the date of injury was clear proof that she was “physically or mentally incapacitated from earning,” as found by a trier of fact. (See City & County of San Francisco v. WCAB (Campbell/Xelowski) (2013) 78 Cal. Comp. Cases 1141 (writ denied). However, the issue becomes much more complicated in the case of a minor disabled child and especially a very young child, for whom there has been no official determination of disability.

In Davis v. WCAB (2012) 77 Cal. Comp. Cases 722 (writ denied), the WCJ deferred the question of whether the minor child was incapacitated from earning until he reached 18. The WCAB disagreed with this solution to the problem, stating that Labor Code § 3502 made it clear that all questions regarding the extent of dependency should be determined in accordance with the facts as they existed at the time of the employee’s injury. Thus, the issue of whether a physical or mental incapacity would have rendered the minor child dependent on the decedent, beyond his 18th birthday, must be determined in accordance with facts in existence at the time of the injury.

Fortunately, when presented with the same issue several years later, the WCAB admitted that there were serious problems inherent in their prior pronouncement. The panel noted that if it would be difficult to predict the future employability of a young child, it would be impossible for one that was unborn at the time of injury. The Board also cited Labor Code §4704 which provides:

“The appeals board may set apart or reassign the death benefit to any one or more of the dependents in accordance with their respective needs and in a just and equitable manner, and may order payment to a dependent subsequent in right, or not otherwise entitled thereto, upon good cause being shown therefor.”

While emphasizing that it was not making a final determination, the Board “tentatively concluded that the WCJ did not err in reserving jurisdiction.” (See Douglas v. CA Dept. of Forestry, 2019 Cal. Wrk. Comp. P.D. LEXIS 188 (Board Panel Decision))

Dependency for Relationships Other than Spouses and Children

All other dependents derive their entitlement to a death benefit from the list of permissible relationships to the decedent in Labor Code § 3503. After establishing one of the statutory relationships, it is simply a matter of proving total or partial financial support by means of testimony or documentary proof. Normally, a claim brought by someone who does not fit into one of the statutory categories will be doomed to failure, even if the claimant was financially dependent on the decedent. In Grimes v. State of California, 2009 Cal. Wrk. Comp. P.D. LEXIS 112 (Board Panel Decision), a claim brought by the dependent daughter of the decedent’s cousin was rejected.

In Woolever v. City of Long Beach, 2016 Cal. Wrk. Comp. P.D. LEXIS 605 (Board Panel Decision), the decedent was paying alimony to his ex-wife from whom his divorce was final. She testified that in addition to the alimony, he loaned her money and forgave the loans, paid for other things, and she was totally dependent on him for support. Nonetheless, the WCAB found that she was not a dependent and not entitled to death benefits because her relationship with her ex-husband did not fall into one of the statutory categories for dependents.

On the other hand, there are some cases where the technical requirements of dependency have not been met, but the WCAB has found dependency in order to promote the interests of justice.

In Skubitz v. Hanford, 2016 Cal. Wrk. Comp. P.D. LEXIS 168 (Board Panel Decision), a majority of the WCAB panel found that a baby, born 12 hours before the decedent’s death in an automobile accident, and her mother, the decedent’s daughter, were dependents even though they moved into the decedent’s home after his death and the support was to be provided in the future. A dissenting Commissioner would have found no dependency since the decedent had not supported them before his injury and death.

In another case, the WCAB found that a dependent doesn’t have to live in the decedent's household on the date of death as long as the evidence supports a finding that the individual was a good faith member of the decedent's family. Here, the decedent and his wife took care of their step-grandchildren while the childrens’ mother attended school five days a week and this was sufficient to establish that the step-grandchildren were good faith members of the family. (See Dickinson v. State of California, 2014 Cal. Wrk. Comp. P.D. LEXIS 15 (Board Panel Decision))

Other Benefits for Dependents

Labor Code § 4700 provides:

The death of an injured employee does not affect the liability of the employer under Articles 2 (commencing with Section 4600) and 3 (commencing with Section 4650). Neither temporary nor permanent disability payments shall be made for any period of time subsequent to the death of the employee. Any accrued and unpaid compensation shall be paid to the dependents, or, if there are no dependents, to the personal representative of the deceased employee or heirs or other persons entitled thereto, without administration.

In a case of disputed liability, if the medical record contains the favorable opinion of an AME or QME, a dependent may be able to obtain an award of indemnity benefits. The same applies to a case of admitted liability where there was a dispute concerning whether the decedent was partially or totally permanently disabled. Any unpaid and accrued benefits that would have been owing to the decedent absent his death, would be payable to the dependents in addition to the death benefits.

PRACTICE TIP: All potential dependency claims should be scrutinized with great care, both with respect to the issue of dependency itself, and the types of available benefits. It should be kept in mind that there are situations where the spirit as opposed to the letter of the law might dictate a finding of dependency. It is also important to determine where there are or might be accrued benefits that would be payable to the dependents.

Caution: Board Panel Decisions are not binding precedent.

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