Blood Is Thicker Than Water: Industrially Related Death With or Without Dependents

By Hon. Robert G. Rassp

Disclaimer: The opinions expressed in this article are those of the author and are not the opinions of the State of California Department of Industrial Relations, the Division of Workers’ Compensation, or of the Workers’ Compensation Appeals Board.

This article was inspired by a true story that raises issues of public policy, fairness, and equity. It is a tragic story with a bitter-sweet ending. The story calls for a discussion about a change in the law to correct what may be an inequity. This is especially true since the California Constitution, Article XIV, Section 4 mandates that substantial justice occurs in every workers’ compensation case.

The Facts

Johnny Doe was born on October 17, 2012 in a suburb of the City of Los Angeles. During the first three months of his life, Johnny and his mother Teri Doe lived in a residential treatment facility. Thereafter, the child lived with his father, Robert Doe for about one year. In 2014, the child’s biological father[fn1] Robert Doe was incarcerated in the State of California prison system.

On or about August 12, 2015 the County of Los Angeles Department of Children and Family Services (DCFS) initiated an action in Los Angeles Superior Court a Juvenile Dependency Petition pursuant to California Welfare and Institutions Code Section 300(b). That section refers to an unfit parent that requires County intervention. It was alleged in that Petition that the minor child’s mother was unfit due to chronic drug use. After 2015, Johnny’s biological mother, Teri Doe, disappeared from this picture and fell out of this story due to chronic methamphetamine abuse.

On or about October 8, 2015, a First Amended Petition was filed with the Superior Court under the same case number and alleged that the minor child’s father “Robert Doe, has a longstanding history of unresolved illicit substance abuse and related convictions for which the father is currently incarcerated and unable to arrange for care of the child. The father’s convictions include battery, possession of unlawful paraphernalia, theft, grand theft and felony burglary. The father’s criminal history and unresolved illicit substance abuse history endanger the child’s physical safety and emotional well-being and place the child at risk of serious physical and emotional harm.”

Despite this allegation in October 2015, the child had lived with his father from when the baby was three months old until his father’s incarceration in 2014. On October 14, 2015 a hearing was held in juvenile court on the DCFS petition. Robert was allowed to make a personal appearance at that hearing and pursuant to California Welfare and Institutions Code Section 366.26(f)(2) the Superior Court appointed legal counsel for Robert from the Public Defender’s office. The Court ordered Robert to stay in local custody until October 16, 2015 in order to be interviewed by DCFS personnel. The matter was continued to November 20, 2015, Robert’s appearance at the next hearing was waived and his counsel was allowed to make an offer of proof of Robert’s testimony at the next hearing. Robert was returned to state prison in northern California.

At the Superior Court hearing on November 20, 2015 Robert’s mother, Jane Doe, appeared and the Court appointed her as the child’s guardian ad litem and further granted her temporary legal and physical custody since she is the child’s paternal grandmother. On February 23, 2017, the Superior Court judge terminated Robert’s and Teri’s parental rights as follows:

“The court finds that it will be detrimental for minor(s) to be returned to the parents and parental rights are terminated. The minor is declared free from the custody and control of his mother, Teri Doe, and father,…Robert Doe, and as to any and all other person or persons presently known or unknown who shall hereafter claims or allege maternity or paternity of the minor, and pursuant to WIC 366.26, the care, custody and control of the minor is transferred to DCFS for the purposes of adoption planning and placement. The Court finds by clear and convincing evidence that it is likely that the Minor will be adopted.”

Robert Doe was represented by legal counsel at this hearing. This Superior Court Order became final by operation of law on or about April 24, 2017 and pursuant to California Rules of Court Section 8.406. This court Order means that the child became the ward of the State of California and is deemed eligible for adoption.

On May 24, 2017 Robert Doe died while performing his duties as an inmate firefighter when a 160-foot tree fell on him in Klamath National Forest. He had been scheduled to be released from state prison in October 2017. Robert Doe is now referred to as the “Decedent.”

From 2014 until his death on May 24, 2017 the minor child Johnny Doe did not live with the Decedent since the Decedent was incarcerated in either one or two state prisons. The Decedent’s mother, Jane Doe, provided the food, clothing, and shelter for the minor child from August 2015 through the date of the Decedent’s death on May 24, 2017. The prison system allowed family visits once every six months at which time, the minor child and paternal grandmother would pay the Decedent an overnight visit at the prison for a full weekend. The prison system also allowed one-day visits every other week that was not over-night.

During the prison visits the Decedent would buy some toys for the child and would pay for some meals from his commissary account. He also received payment for work that totaled about $350.00[fn2] that was used for the benefit of the minor child. At the time of the Decedent’s death, Johnny Doe was four years old.

At the time of the Decedent’s death, his mother, Jane Doe, paid for the child’s food, clothing, and shelter using her earnings as a biology school teacher’s salary and some state assistance, such as Medi-Cal as secondary health coverage for the child. Prior to his death, the plan was upon his release from prison in October 2017, Robert would live with his mother and the minor child at the grandmother’s residence.

Due to the death of her son Robert, Robert’s mother and the child’s grandmother Jane Doe adopted Johnny in November 2017 one month after Robert was to have been released from state prison.

California Death Benefits

When an industrial injury results in the death of an employee, California law provides payment to the deceased employee’s dependents of death benefits and up to $10,000.00 in burial expenses. See California Labor Code Sections 4701 and 4702. For three or more total dependents, the law provides payment of $320,000.00 payable at the temporary total disability rate. If there are two total dependents as of the date of injury then death benefits are payable at $290,000.00. If there is one total dependent at the time of injury then the death benefit is payable at $250,000.00. If there are partial dependents and no more than one total dependent on the date of injury then some payments are made depending on the number of partial dependents and whether or not there are any total dependents. More than two total dependents result in excluding any partial dependents from receiving death benefits. See, in general, California Labor Code Section 4702(b).

If there are minor children, once the death benefit is paid out if any child is still under 18 years of age at the time of final payment, the law requires continuing payments of what is called minor’s benefits until the youngest child turns 18 years of age. If an adult child of a deceased employee is deemed incapacitated from earning on a permanent basis, death benefits can be payable until that adult child dies. See California Labor Code Section 3501.

The determination of financial dependency on a deceased employee is based on the circumstances on the date of injury, not on the date of death. In this case, the date of injury and date of death were the same. The question is what were the circumstances on the date of injury in terms of who lived with the deceased employee or who depended on that person’s earnings as of the date of injury. Ibid.

If Robert Doe was not in prison, did not lose parental rights, was killed on the job having maximum earnings on the date of injury, and living with his son Johnny and his wife Teri Doe who did not work on the date of injury, the family would receive $290,000.00 payable at $1,172.57 per week (for about 248 weeks or 4.8 years from the date of death May 24, 2017). Thereafter, minor’s benefits would continue to be paid for the child at $1,172.57 per week until Johnny Doe turned 18 years of age which would be on October 17, 2030. See California Labor Code Section 4703.5(a). If Johnny was declared permanently incapacitated from earning prior to the death of his father by a judicial determination or medically determined (say for example, from severe autism), the weekly benefits would be paid until Johnny dies. See Labor Code Sections 3501 and 4703.5(a). These cases can be worth millions of dollars in some situations.

Most important to this case, if a person dies from a work-related injury within 240 weeks without any dependents, state law mandates that payment of $250,000.00 is made from the employer’s claims administrator to the State of California Death Without Dependents (DWD). The DWD is a sub-agency of the State of California Department of Industrial Relations. The DWD becomes the “Applicant” in death benefits cases in the event there are no total or partial dependents on the date of injury that results in the death of an employee. See California Labor Code Section 4706.5.

For California Practitioners

In many cases an injured worker sustains a compensable specific or cumulative trauma injury and then passes away while his or her case is pending. The first question is what happens to any accrued but unpaid benefits? California Labor Code Section 4700 mandates that any accrued benefits be paid by the employer’s claims administrator to the “dependents, personal representative, or heirs” of the deceased employee, without administration. What this means for the attorney who represents the injured worker in his or her intervivos case, is that he or she no longer has a client. Any further legal representation by the attorney will be for a dependent (usually a surviving spouse), heir, or personal representative of the deceased employee such as a non-dependent adult child. A separate retainer agreement and attorney disclosure form would need to be filed with the Workers’ Compensation Appeals Board. The WCAB case number remains the same for accrued benefits.

In a recent case for example, an injured accounting department head for a large company passed away during the pendency of her workers’ compensation case. There was over $154,000.00 in accrued benefits and three adult children who were claiming a portion of it. The trial judge had to divide the money between the three children who had separate attorneys and conflicting interests. When the trial judge suggested sending the case to an arbitrator to settle the family feud, the sisters settled for equal parts of the money.

If there is a claim that the deceased employee’s death was due to his or her original work-related injury and the death occurred within 240 weeks from the date of injury, then a separate Application for Adjudication of Claim for Death Benefits needs to be filed along with the other required initiating documents. See California Labor Code Section 5406. Counsel should always attach a death certificate, birth certificate of any children who are claiming dependency, and a marriage license for the deceased employee and his or her current spouse. A death benefits claim is a separate case from the intervivos case. In fact, any agreed medical examiner (AME) or panel qualified examiner (PQME) who examined the employee before his or her death is not necessarily the same evaluating physician used in the death benefits claim. The parties can obtain a new panel QME or AME to determine if the deceased employee’s death was work related. See Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 328 (Appeals Board en banc opinion). The death benefits case is a completely separate case from the intervivos case.

If there are multiple dependents or heirs claiming accrued and/or death benefits, counsel should be mindful of avoiding a conflict of interest if more than one dependent or heir potentially exists since two or more total dependents would eliminate from eligibility any partial dependents. Dependency is a legal and factual issue and each person who claims it has the burden of proving it.

Three Ways to Determine Dependency: A Presumption, Based On the Facts, and Familial Relations:

The Presumption

California Labor Code Section 3501(a) creates a conclusive presumption of total dependency for minor children of a deceased employee. Section 3501(a) states as follows:

A child under the age of 18 years, or a child of any age found by any trier of fact, whether contractual, administrative, regulatory, or judicial, 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 are two parts of Section 3501(a) that creates a presumption of dependency and when a judge divides the section into its two basic components, the statute, excluding non-operative language reads in the context of this case as follows: “A child (Johnny Doe) under the age of 18 years…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.”

It is clear in the record that Johnny was not living with the Decedent “at the time of injury” because the Decedent was in state prison. Since August 2015 the minor child was living with the Decedent’s mother, the child’s paternal grandmother. As of the date of injury, May 24, 2017, the child was still living with Jane Doe, the paternal grandmother.

The second part of Section 3501(a) does not apply in this case because the biological father lost his parental rights. The question in this case boils down to a simple one: Was Robert Doe “legally liable” at the time of injury for Johnny’s “maintenance?”

Removal of parental rights does abrogate the father’s duty to provide support for his biological child. The case law is very clear about termination of parental rights. California Welfare and Institutions Code Section 366.26 provides the exclusive procedures for permanently terminating the parental rights of a child who has been declared a dependent child of the juvenile court. County of Ventura v. Gonzales (2001) 88 Cal. App. 4th 1120, 106 Cal. Rptr. 2d 461. In Gonzales, the California Court of Appeal held that termination of parental rights under Welfare and Institutions Code Section 366.26 also terminates the parent’s permanent obligation to pay child support.

A parent who has had his or her parental rights permanently terminated cannot maintain a wrongful death case for medical malpractice that led to the death of his or her biological child. Fraizer v. Velkura (2001) 91 Cal. App. 4th 942, 110 Cal. Rptr. 2d 918. A wrongful death case is set forth by statute, similarly worded as the dependency statutes in Labor Code Sections 3501, 3502, and 3503. California Code of Civil Procedure, Section 377.60(a) says that a wrongful death action can be asserted by “the decedent’s surviving spouse, domestic partner, children, and issue of deceased children.”

However, once parental rights have been terminated by a Superior Court order, a child becomes a ward of the state and can be adopted. The child no longer has an expectation or right of recovery for the loss of the comfort, society, companionship or support of the biological parent. An order terminating the parental rights terminates the parental duty of support, and it also terminates all rights of the parent in and to the child as well as the rights of the child in and to the parent. See Gonzales, supra at 1123.

A child cannot maintain an action under the California Probate Code for intestate succession when her parent dies if the parent’s parental rights had been terminated prior to her parent’s death. Probate Code Section 6402 allows intestate succession to include “the issue of the decedent” but a child whose parent had parental rights terminated is no longer an “issue of the decedent.” Jackson v. Fitzgibbons (2005) 127 Cal. App. 4th 329, 25 Cal. Rptr. 3d 478.

In the instant case, as of February 24, 2017, Robert Doe was no longer legally Johnny Doe’s father and the Decedent was no longer “legally liable” for the support of his biological son. Conversely, the minor child, Johnny Doe was no longer dependent on his biological father, Robert Doe, for food, clothing, or shelter. The Decedent was represented by legal counsel at all of the hearings in the juvenile court proceedings that led to the final order of the Superior Court terminating his parental rights as of February 24, 2017. The Decedent’s son was already living with the Decedent’s mother in a stable environment free of methamphetamine abuse and child neglect. There was no reason for Robert Doe to appeal the termination of his parental rights since he was going home to his mother’s house to live with her and his son when he was going to be released from prison in October 2017. It is assumed that since the Decedent was represented by counsel during the juvenile court proceedings his appeals rights were discussed.

Accordingly, the conclusive presumption of dependency of Labor Code Section 3501 does not apply in this case since Johnny Doe was not living with the Decedent on the date of injury and the Decedent was no longer legally liable for the support and maintenance of his minor child since his parental rights were terminated by order of the Superior Court prior to his death.

Dependency Based On the Facts (Labor Code Section 3502)

Labor Code Section 3502 states as follows:

In all other cases, questions of entire or partial dependency and questions as to who are dependents and the extent of their dependency shall be determined in accordance with the facts as they exist at the time of the injury of the employee.

As indicated above, the facts of this case show that prior to his death, the Decedent was regularly visited by his son and the Decedent’s mother at the two prisons he was assigned to, one located in southern California and the other in northern California. The record at trial in the death benefits case indicated the most the Decedent paid on behalf of his son was about $100.00 that included money he had in one prison account that was transferred to the other plus an additional $250.00 that was earned by working on a dam project. We can assume that the Decedent paid for most of the meals that the child had during the bi-weekly prison visits and the once every six-month overnight visits.

This minimal contribution by Robert Doe for his son’s benefit does not give rise to a level of “entire or partial dependency” as defined in Labor Code Section 3502. Paying for toys and food a few times per month during prison visits does not constitute “support” of a dependent. The child’s grandmother provided the necessary food, clothing, and shelter of the child from August 2015 through the date of the Decedent’s fatal injuries on May 24, 2017. The amount of support in the form of food, clothing, and shelter the Decedent provided his child during his incarceration was de minimis and did not amount to even partial dependency.

Dependency Based On Biological Parent-Child Relationship (Labor Code Section 3503).

Labor Code Section 3503 states as follows:

No person is a dependent of any deceased employee unless in good faith a member of the family or household of the employee, or unless the person bears to the employee the relation of spouse, child, posthumous child, adopted child or stepchild, grandchild, father or mother, father-in-law or mother-in-law, grandfather or grandmother, brother or sister, uncle or aunt, brother-in-law or sister-in-law, or nephew or niece.

Labor Code Section 3503 creates a statutory definition of “a dependent” of a deceased employee to include a “child” of that employee. This definition is unconditional. It is one thing to lose parental rights because of being unable to raise a child during incarceration in state prison for four years but it is another thing to permanently relieve a biological parent from paying support for that child while the child is under 18 years of age. But since Robert Doe’s parental rights were terminated by a final order of the Superior Court prior to his death, Labor Code Section 3503 no longer applies since Johnny Doe is no longer the Decedent’s “child” due to the Decedent’s termination of parental rights. See Gonzales, supra.

As Charles Dickens said in Oliver Twist, “...the law is an ass, an idiot.”

Since there are no legally recognized dependents of the deceased employee, Robert Doe, the defendant State of California Department of Corrections and Rehabilitation was legally liable to pay the statutory death benefits to the Death Without Dependents (DWD) Unit in the sum of $250,000.00, for deposit into the Subsequent Injuries Benefits Trust Fund (SIBTF) in accordance with California Labor Code Sections 4706.5(a) and 4702(a)(3). This fund provides payments to injured workers who have preexisting disabilities and who have had a subsequent industrial injury. That injury results in most if not total incapacitation from earning a living with a prior work related or nonwork-related disability.

When there are no legal dependents of a deceased employee, the case is treated as if there is a surviving spouse with no earnings for the purpose of calculating the amount of payment to the DWD. Ibid. The State Compensation Insurance Fund as the claims administrator for the California Department of Corrections and Rehabilitation was ordered to make the appropriate payment to the SIBTF with proof of payment filed with the Workers’ Compensation Appeals Board trial court. Johnny Doe and his grandmother, Jane Doe receive nothing.

The Application for death benefits to be paid to and on behalf of the minor child Johnny Doe was denied since his father’s parental rights were terminated as of February 23, 2017, prior to the date of injury. So the outcome of the case is that the baby receives nothing and the state receives $250,000.00. A strict application of the statutory and case law results in the loss of money for an innocent child whose father died while on the job, working for the state fire agency. This case does not pass the smell test for a number of reasons.

First of all, isn’t the purpose of prison to protect the public from criminals and to rehabilitate criminals who pay their dues to society by serving time in prison? What about the Judeo-Christian concepts of rehabilitation and redemption? Robert Doe was to be released from state prison less than five months after he died on the job. He volunteered to serve the People of the State of California as an inmate firefighter while he was incarcerated. He gave back to society while paying his dues for the criminal wrongdoing he was found guilty of. Who are we to say that after spending four years in prison, Robert Doe would not come back to society as a changed man? What if he was rehabilitated? He could have found a job and helped support his son while living with Jane Doe who is his mother and Johnny’s grandmother? Johnny Doe is genetically Robert Doe’s son. No Superior Court order can change that. A 160-foot tall tree changed everything.

The take-away from this case is that there is some equity missing in the legal outcome of this case. It is understandable that a person who loses parental rights cannot sue in tort for the wrongful death of a child, a child cannot sue for the wrongful death of his or her parent, and a parent or child cannot sue for medical malpractice that caused the death of a child or parent if parental rights have been terminated by a court order. A person cannot inherit by intestate succession if parental rights were terminated.

But the result in this case is that Johnny Doe is an innocent bystander – he is not receiving $250,000.00 in death benefits simply because some adults are telling him he can’t because his daddy lost parental rights. Perhaps California law should be changed to include in the definition of a dependent a “biological minor child” of the deceased employee subject to a rebuttable presumption, which could be rebutted if there is evidence that a biological minor child was adopted beyond a first or second degree family member of the deceased employee. After all, blood is thicker than water.

Postscript: A Bitter-Sweet Ending

Within three weeks from the date of the judge’s decision denying Johnny Doe death benefits due to the loss of his father Robert, the State of California DWD voluntarily agreed to have the State pay $30,000.00 out of the $250,000.00 awarded to the DWD to Jane Doe for the benefit of Johnny Doe. The law, as written and as applied, does not allow the entire $250,000.00 to be paid to the child of this deceased employee. Workers’ compensation is based upon enforcement of its laws in a court of equity. In this case there was no equity for the now seven-year-old innocent child and there is a question about whether or not substantial justice occurred.

This case touches the heart. Every judge has a case or two he or she remembers over the years that brings back memories about the outcome of the case and how the judge’s decision ultimately affects a person’s life. This case is one of them.

Footnotes:

1. A DNA test eventually was ordered that confirmed Robert’s paternity for the minor child based on the paternal grandmother’s DNA to a 99.997% level of certainty. All of the names have been changed for obvious reasons.
2. The Court took judicial notice that inmate firefighters for the CDCR receive $1.00 per hour plus $2.00 per day of work.

© Copyright 2019 Robert G. Rassp. All rights reserved. Reprinted with permission.