No Limitation On Type Of Income For Death Benefits

The issue of determining partial dependency in a death case has been hard to determine for many years.  The California Supreme Court finally has put this issue to rest. This case was first determined by the court of appeal in 1990. It has been upon appeal since then and reported previously in this newsletter.

The applicant was exposed to asbestos from 1951 through 1975.  He filed a claim for workers’ compensation benefits and was given an award of 63 per cent for the asbestosis injury. In 1987 the applicant died from mesothelioma and the widow filed a death claim. In the first appellate case it was determined that the date of injury determines benefits not the date of death. Mesothelioma was considered a different injury than asbestosis. A single period of exposure can result in more than one occupational disease and more than one date of injury. The case was remanded for the dependency issue.

Death benefits deal with either total or partial dependents. Partial dependents have other means of support other than relying on the decedent. The issue revolves around whether the dependent relied on the decedent for support.

Partial dependents are determined at the time of injury not at the time of death. Be aware these dates can be years apart. The time of injury also controls the statutory rate of the death benefit. For occupational diseases the time of injury is the date when the employee suffered disability and either knew or should have known the disability was caused by present or past employment. Latent diseases can develop years after retirement.

The person claiming partial dependency must prove the actual dollar amount actually devoted by the decedent to his or her support. It is the amount of annual support to the dependent that controls the calculation of death benefits. This is to be calculated by identifying the support at the time of injury that terminated with the death of the decedent. You do not determine support at the date of death unless it is the same date as the date of injury.

The Supreme Court determined that income includes all income from whatever source. Income does not just include earnings from employment. Income can include interest, dividends or rents received.  There is no qualification on the type of income. Thus, even though some income may cease at the time of death this has no bearing, since the income at the time of injury controls.

This will require a thorough history to determine date of injury on every one of these cases. It will also require a deposition of the partial dependent.  There is a dissenting opinion by Justice Mosk with Justice Chin concurring.

Case: Chevron V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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