California: Death Benefits for Minors

It’s always tragic when a work injury results in the death of an injured worker. But such a loss is made even more poignant when the worker leaves behind a family with small children. With the paycheck from the deceased injured worker now gone, the primary concern becomes who will provide for injured worker’s children?

The benefit for deaths occurring after January 1, 2006, in the case of 3 or more dependents, is capped at $320,000. (See Lab. Code, § 47029(a)(5)). However, for minor dependent children, once this amount is paid, they are entitled to an additional “special” death benefit until the youngest child reaches the age of 18. (See Lab. Code, § 4703.5(a).) The amount of this “special” benefit is to be paid in the “same manner and amount as temporary disability indemnity would have been paid to the employee…” (See Lab. Code, § 4703.5(a).)

Constitutional Mandate to Provide Death Benefits

This death benefit statutory scheme is consistent with California Constitution Article 14, Sec. 4, which mandates that dependents of a deceased employee should be provided for as follows:

“The Legislature is hereby expressly vested with plenary power… to enforce a complete system of workers' compensation… and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, and their dependents for death incurred… in the course of their employment…. A complete system of workers' compensation includes adequate provisions for…all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death….”

Still, despite this constitutional mandate, amendments to the Labor Code in 2002 have created some ambiguity, providing defendants with an argument for denying the “special” death benefits to minor children, who have a surviving totally dependent parent.

Bailey WCAB Panel Decision

A recent WCAB panel decision, Bailey v. State of California, 2013 Cal. Wrk. Comp. P.D. LEXIS 142 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 142 (Lexis Advance), interpreted the amended sections of the Labor Code to allow for inclusion, rather than exclusion, of a deceased worker’s minor children, in order to award these children death benefits until they reach the age of majority.

In the Bailey case, a state traffic officer died as a result of his industrial injury, leaving behind a totally dependent wife and four minor children. The WCJ found that “death benefits shall continue until the youngest child attains the age of 18 years.” Defense argued that the death benefits should be capped at the statutory $300,000 amount and the “special” death benefit described above should not continue until the youngest child reaches the age of majority.

The basis for defendant’s argument is Lab. Code, § 4702, which limits death benefits to ONLY those minor children who meet that definition as set forth in Lab. Code, § 3501. Lab. Code, § 3501 appears to exclude from the definition of “minor children” those who have a surviving totally dependent parent, as was the situation in the Bailey case.

The WCAB considered defendant’s argument, but upheld the WCJ’s finding in favor of the children, by researching and analyzing the legislative intent behind the Labor Code amendments. The WCAB began with an analysis of AB 749, which amended Lab. Code, § 4703.5(a) to read in pertinent part as follows:

“In the case of one or more totally dependent minor children, as defined in Section 3501… payment of death benefits shall continue until the youngest child attains 18 years of age, or until the death of a child physically or mentally incapacitated from earning, in the same manner and amount as temporary total disability indemnity would have been paid to the employee…” (Editor’s Note: Amended sections in boldface.)

Prior to the amendment, the “special” death benefits to the deceased injured worker’s child ended once the child reached the age of 18, regardless of the child’s mental or physical capacity to earn a living. The Legislative Counsel’s Digest explains the amendment was intended to correct this problem and provide for children who were mentally or physically incapacitated for their entire life, and not just until age 18. This reasoning was set forth as follows:

“Existing law provides for the payment of workers’ compensation death benefits to wholly dependent children… until the youngest child attains 18 years of age.

“This bill would also provide these benefits to children who are physically or mentally incapacitated from earning until the death of these children.”

Intent of Amendment Was to Expand, Not Limit, Death Benefits to Minors

The WCAB noted that there is nothing in the Legislative Digest expressing an intent to limit death benefits in any way to wholly dependent children. In fact, the whole point of amending the Labor was to expand the benefits to wholly dependent children and to extend those benefits for the entire lifetime of a child physically or mental incapacitated from earning. In an effort to be as specific as possible as to the definition of a minor child, the legislature may have created just such an unintended consequence.

As stated above, Lab. Code, § 4703.5(a) was amended to include the definition of “totally dependent minor children,” as that be found in Lab. Code, § 3501(a). It is this definition that provides some ambiguity to how the “special” death benefit is to be distributed. Lab. Code, § 3501(a) provides in pertinent part as follows:

"A child under the age of 18 years, 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 that child is living at the time of injury resulting in death of the parent or for whose maintenance the parent was legally liable at the time of injury resulting in death of the parent, there being no surviving totally dependent parent.” (Editor’s Note: emphasis added.)

Prior panel decisions have interpreted the words, “there being no surviving totally dependent parent” to mean that if a minor child has a surviving totally dependent parent, the minor child is not entitled to the “special” death benefit. How can this be, if the intent of the legislature was to expand death benefits for children, and not reduce them?

Jefferson WCAB Panel Decision

In the case of Jefferson v. Performance Excavators,2009 Cal. Wrk. Comp. P.D. LEXIS 526 (lexis.com), 2009 Cal. Wrk. Comp. P.D. LEXIS 526 (Lexis Advance), the WCJ did, in fact, limit the death benefits awarded to the minor grandchildren of the deceased injured worker. The WCJ explained that these children were, for the most part, totally dependent upon their grandfather, the deceased injured worker. Indeed, they would have qualified for special extended death benefit to age 18, under Lab. Code, § 4703.5(a) prior to its amendment in 2002.

However, since the section had been amended to include the line, “there being no surviving totally dependent parent”, the WCJ held they were not entitled to death benefits since their mother, Tyesha Jefferson, was also totally dependent on the deceased injured worker.

Current Trend of the WCAB – Maxwell Writ Denied Case

However, that was then, and this is now. The recent trend of the WCAB, including the Bailey case, is to hold in favor of providing the “special” death benefits to dependent children who have lost a parent as a result of an industrial incident or injury.

The case of Maxwell v. Firecode Safety Equipment,2012 Cal. Wrk. Comp. P.D. LEXIS 648 (lexis.com), 2012 Cal. Wrk. Comp. P.D. LEXIS 648 (Lexis Advance), writ denied sub nom. Firecode Safety Equipment v. Workers’ Comp. Appeals Bd. (Maxwell) (2013) 78 Cal. Comp. Cases 473, dealt with an injured worker, Mathew Maxwell, who died in a car accident while in the course of his employment. His death entitled his dependents to the maximum death benefit of $320,000. The deceased left a totally dependent surviving spouse, Brandi Maxwell, and their infant son, Mathew Maxwell Jr. The deceased also had another six year old child, Miya Maxwell, from another relationship. Miya Maxwell’s mother was not totally dependent on the deceased.

The issue at trial was whether the infant, Mathew Jr., was entitled to the special death benefit, which would not be limited to the statutory cap, but would continue to be dispersed until his 18th birthday. This was contested by the defense since his mother would seem to fit within the definition of a “surviving totally dependent parent.” The WCAB analyzed the relevant amendments to the Labor Code by AB749 and explained:

“It is readily apparent that these amendments were intended to extend these special death benefits, not limit them. There is no recognition in the relevant legislative history that these amendments should be interpreted to apply in a manner that denies the special death benefit to a totally dependent child who lives with his totally dependent mother, while his sister, who lives separately with a parent who does not qualify as a surviving totally dependent parent, is entitled to the full benefit.”

Allowing the special death benefit for six year old Miya but denying it to the infant, Maxwell, would lead to an “absurd and gravely unjust result”, according to the WCAB, and contrary to the express intent of the legislature.

The WCAB stated, “It is not a rational interpretation to deny the new benefit to the child of a parent who was totally dependent upon the deceased parent, while extending it to a child whose parent is financially secure and was not totally dependent upon the deceased parent.” In addition, the WCAB noted, “There does not appear to be an additional intent to reduce the continuation benefits to minor children in section 4703.5, as they existed prior to the amendment by AB 749.”

Conclusion

The WCAB also found in favor of the dependent, child under similar circumstances, in the case of Will v. State of California, 2012 Cal Wrk. Comp. P.D. LEXIS 164 (lexis.com), 2012 Cal. Wrk. Comp. P.D. LEXIS 164 (Lexis Advance). Therefore, it seems that the current trend by the WCAB appears to be to interpret Lab. Code, § 4703.5(a) consistent with the Constitutional mandate of providing death benefits to wholly dependent minor children of workers whose death is work related.

© Copyright 2013 LexisNexis. All rights reserved. This article originally appeared in California WCAB Noteworthy Panel Decisions Reporter.

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