Time of Injury and Date of Injury Control in Death

The recently decided State of California v.WCAB (Sills) is an interesting death case issue. The WCJ initially ruled that dependency could be determined by the last industrial exposure instead, of the “date of injury”. The facts are somewhat convoluted for this short of an article Suffice it to say that under these particular facts the WCJ found an adult non-dependent entitled to total dependency benefits because the adult was a minor when the decedent quit working in 1979. The death application was not filed until 1988. The initial application was filed in 1986, more than six years after retirement. The decedent was not symptomatic while working and never lost time from work.

The issue became whether Labor Code Section 3502 or Labor Code Section 5412 was controlling. The court stated that dependency for death benefits are determined “…at the time of injury, rather than death.”… The decision looked to the definition of cumulative injury. The date of the cumulative injury should be determined by Labor Code Section 5412. That section has been interpreted to mean the date the applicant first suffered disability and either knew or should have known that the disability was caused by his or her present or prior employment. It also may mean that “date of injury” is only at such time as the employee suffers an impairment of bodily functions which results in the impairment of earning capacity.

The Court further indicated that there is authority to use “date of injury” in death cases. The Court also looked at Labor Code 5406 stating that death could not occur more than 240 weeks from the date of injury. Since the death application was filed in 1988, it meant the date of injury under these facts would have been in late 1983 or 1984.  Therefore, if the date of injury was determined to be when the applicant last worked in 1979, there could be no death claim at all.

The Court resolved the “time of injury under 3502 and the “date of injury” under 5412 by holding that in cumulative injury cases both phrases have the same meaning as set forth in 5412, irrespective of where death benefit provisions are located in the labor code. The Court remanded this case back to the trial level to determine the “time of injury” using the labor Code section 5412 definition of “date of injury”. The intent is to harmonize the two statutes so that they can be read consistently.

In death cases, one must be very cognizant of the applicable dates and dependents. In this case, they are attempting to make an adult nondependent a minor dependent by using the last date worked.

Case: State of California V. W.C.A.B. (Sills)

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

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