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.

Case: Chevron V. W.C.A.B. (Steele)

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

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