The Death Benefit In Partial Dependency Cases Reviewed

An appellate court has recently reviewed the correct manner to determine the calculation of partial dependency. The court looked at the actual annual amount of money the decedent contributed to the spouse and the community that would no longer be contributed due to the decedents death.

The decedent worked for Chevron from 1951 to 1975. He filed an asbestos claim and received a permanent disability award for 63 % in 1981, four years after his retirement. In 1987 the decedent was diagnosed with mesothelioma and died shortly thereafter. The spouse filed for the statutory death benefit.  The date of injury was determined to be 1987.

The spouse contended she was due the maximum death benefit and the employer argued it was a partial dependency case. The Board determined the spouse was partially, not totally, dependent on the decedent at the time of injury. This was not appealed. The Board then calculated the death benefit according to the statute. The family income included social security benefits, an army pension received in decedent’s name, and investment income.

The court cited Oropeza v. Newman Seed Company. 45CCC 1148, in determining that you use the “actual amount which the deceased spouse devoted to the community and to the surviving spouse “ to determine partial dependency.

In this case the widow had to substantiate her partial dependency. It was the widows’ burden to prove the actual dollar amount contributed by the decedent to the widow, “including maintenance of the accustomed standard of living of the community household.” The Court determined that decedent’s social security and army pensions were the only contributions to be used in the calculation of death benefits. Four times this amount determines the benefit.

In this case the decedent had investments which did not terminate upon the decedents death. The court indicated that those investments could not be used to determine dependency.  These investments continued after the decedents death. The death benefit is to be determined only by the benefits that are terminated at the decedents death. “Whether one is retired or employed at the time of industrial injury is not pertinent.” The only money used in the calculation is the loss to the widow and the community of actual monetary support at the date of death. The death benefit is calculated on the rate of contribution to the widow and community at the date of death and does not discriminate against retirees.

Therefore, in handling these cases, where there is no presumption, discovery becomes a very important issue as to the amount of the death benefit. A deposition is the first essential tool in gathering the information that will formulate the correct death benefit.


Subrogation Credit After Proposition 51 Is Tough

So you thought taking credit for workers’ compensation payments was easy. Have you been under the mistaken belief that you could take credit for every dollar paid in workers’ compensation benefits? The law actually changed in 1986 with the passage of Proposition 51.

An employee has the right to sue a third party for damages resulting from a work injury. The employer has the right to claim reimbursement in the third party action for workers’ compensation benefits paid to the employee. However, in Witt v.  Jackson, the court stated that a negligent employer was barred from obtaining reimbursement from the third party for benefits paid by the employer to the injured worker. The court in Witt was also concerned with preventing the employee from obtaining a double recovery. This case was decided in 1961.

Proposition 51 was enacted in f986\ Proposition 51 slates “each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.” The Court indicated that “the proper allocation of workers’ compensation credit after Proposition 51 depends upon the characterization of the benefits as economic or non-economic damages.” Workers’ compensation benefits were determined not to be economic damages as defined in Proposition 51.

This Court then analyzed the decision of Espinoza v. Machonca. The Espinoza case dealt with the allocation of pre-verdict settlement proceeds under Proposition 51. In that case the plaintiff settled with one defendant before trial and obtained a jury verdict against the non settling defendants. The question was how to determine liability among the nonsettling defendants… “the court looked into the relationship of the jury’s award of economic damages to the total verdict and determined that the economic portion of the settlement proceeds should bear the same ratio to the total settlement as the jury had determined the economic damages bore to the total judgement.” Do you understand that?  Well, the Court adopted this rule for apportioning the credit in the Scalice case.

In this case, the jury’s verdict was for $677,000, with $274,000 allocated to economic damages and $ 403,000 to noneconomic damages. $162,008.53 was paid to the injured worker in workers’ compensation benefits. The injured worker was found not negligent.  The employer was found 30% negligent.  If you thought that the $162,008.53 was to be deducted from either the total award or the economic damages then you are incorrect. You will have to look at the formula used in the case.


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