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Court of Appeal, Fourth District, Division 1, California.

Chris P. ARP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, etc., et al., Respondents.

Civ. 14730.

Decided: August 18, 1976

Howard J. Scott, San Diego, for petitioner. T. Groezinger, James J. Vonk, George S. Bjornsen and Richard A. Krimen, San Francisco, for respondent State Compensation Ins. Fund. Philip Miyamoto, Deputy Commissioner, San Francisco, for respondent Workers' Compensation Appeals Board.

Petitioner Chris P. Arp is the surviving spouse of Astrid S. Arp who died March 30, 1975 as the result of injuries sustained almost a year earlier while in the course and scope of her employment by the Chris Arp Construction Company Inc. Arp has petitioned this court for a writ of review after the Workers' Compensation Appeals Board denied reconsideration of a Findings and Award which denied him the benefit of the conclusive presumption of dependency afforded widows under similar circumstances by Labor Code section 3501, subdivision (a).1

Petitioner contends section 3501, as applied by the Board, invidiously discriminates on the basis of sex in violation of the equal protection clauses contained in article I, section 7, of the California Constitution and the Fourteenth Amendment of the Constitution of the United States. Unless widowers as well as widows can receive the benefit of the conclusive presumption provided by the section, he argues, the statute is constitutionally infirm as the product of gender-based discrimination. Under the circumstances, he urges the appropriate remedy is not to declare the statute invalid, but rather to extend the benefit of the presumption to the excluded class, i. e., to widowers of female employees who die as the result of industrial injury.

Respondent State Compensation Insurance Fund (the employer's compensation insurance carrier), on the other hand, argues the classification made in the statute rests upon a rational basis, namely that widows, as opposed to widowers, can more often than not be said to have been dependent upon their deceased spouse's earnings. In addition, respondent argues that petitioner has an adequate remedy under section 35022 and 47023 by proving the extent of his actual dependency on Astrid.4


When called upon to review statutory classifications to determine whether equal protection standards are met, California courts have adopted the two-level test employed by the United States Supreme Court (Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 16, 95 Cal.Rptr. 329, 485 P.2d 529). When neither a fundamental interest nor a suspect classification is involved, the traditional test is applied, requiring only that there be a rational relationship between the statutory classification and some conceivable legitimate state purpose (Adams v. Superior Court, 12 Cal.3d 55, 61, 115 Cal.Rptr. 247, 524 P.2d 375; Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 16–17, 95 Cal.Rptr. 329, 485 P.2d 529). When, however, the statute creates a suspect classification, or draws distinctions which impinge upon a fundamental interest, the strict judicial scrutiny standard is imposed, requiring a showing “not only that [the state] has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' (Westbrook v. Mihaly, supra, 2 Cal.3d 765, 784–785, 87 Cal.Rptr. 839, 471 P.2d 487.)' (Sail'er Inn. Inc. v. Kirby, supra, 5 Cal.3d 1, 16–17, 95 Cal.Rptr. 329, 339, 485 P.2d 529, 539.) In short, legislation which classifies on the basis of a suspect category or which draws distinctions touching upon a fundamental interest is not afforded the presumption of constitutionality which courts otherwise accord to acts of the Legislature (see Westbrook v. Mihaly, supra, 2 Cal.3d 765, 784–785, 87 Cal.Rptr. 839, 471 P.2d 487, vacated on other grounds, 403 U.S. 915, 91 S.Ct. 2224, 29 L.Ed.2d 692, People v. Ryser, 40 Cal.App.3d 1, 6, 114 Cal.Rptr. 668).

In Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, the California Supreme Court found suspect legislative classifications based upon sex. After noting the severe legal and social disabilities suffered by women, the court applied the ‘strict scrutiny’ standard of review and struck down a statute greatly limiting the right of women to act as bartenders. The court rested its holding both on the ground the statute limited the fundamental right to pursue employment and on the ground ‘classifications based on sex should be treated as suspect.’ (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 17, 95 Cal.Rptr. 329, 339, 485 P.2d 529, 539.)

Since the opinion of the California Supreme Court in Sail'er Inn, Inc. v. Kirby, supra, the Supreme Court of the United States has decided two cases which are persuasive and pertinent to the issue presented here. In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, a married woman Air Force officer sought increased benefits for her husband under federal statutes which provided that spouses of male members of the uniformed services were dependents for purposes of obtaining increased quarters allowance and medical and dental benefits, but that spouses of service women were not dependents unless they were in fact dependent for over one-half of their support. When her application was denied for failure to satisfy the statutory dependency standards, she and her husband brought suit in the district court, contending the statutes were unconstitutional. On appeal from the district court's adverse ruling, the Supreme Court reversed.

In Frontiero, supra, the plurality opinion, signed by four Justices, flatly held:

‘. . . that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.’ (Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771.)

After concluding that the sole basis of the classification established in the challenged statute was the sex of the individuals involved, the plurality opinion in Frontiero emphasized:

‘Thus, under [the statute], a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command ‘dissimilar treatment for men and women who are . . . similarly situated.’ Reed v. Reed, U.S. 71 at 77, 92 S.Ct. 251, at 254, 30 L.Ed.2d 225.' (Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771.)

Eight of the Justices agreed that the challenged statutes unconstitutionally discriminated against servicewomen. The decision invalidated that part of the statutory scheme which required a female member of the armed services to prove the dependency of her spouse to obtain the additional benefits (Frontiero v. Richardson, supra, 411 U.S. 677, 690, fn. 25, 93 S.Ct. 1764, 1772, fn. 25, 36 L.Ed.2d 583).

In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514, the United States Supreme Court affirmed a judgment striking down as violating equal protection a provision of the Social Security Act denying to a widower benefits a similarly situated widow would have been entitled to receive. The court found the statute dependent upon a ‘gender-based distinction . . . indistinguishable from that invalidated in Frontiero v. Richardson,’ and held the statute an unconstitutional deprivation of the right of women to receive for their families the same protection men received from their employment (Weinberger v. Wiesenfeld, supra, 420 U.S. 636, 641, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514).

‘[T]he Constitution . . . forbids the gender-based differentiation that results in the efforts of women workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men.’ (Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct. 1225, 1232, 43 L.Ed.2d 514.)5

The instant case is strikingly similar to both Frontiero and Wiesenfeld. Astrid was an employee covered by a government mandated and stringently regulated insurance plan. She was injured during the course of her employment and later died as a result of the injury. Had her husband been the victim, Astrid would have been entitled to a $40,000 death benefit pursuant to the conclusive presumption of section 3501, without proving her dependency in fact.

Under the statute, the surviving spouse of a female employee who dies as the result of an industrial injury must establish dependency in fact to obtain benefits. No such burden is imposed upon the surviving spouse of a male employee. Moreover, the statute denies to a female employee the protection for her surviving spouse that a male worker receives for his spouse. Thus the statute commands ‘dissimilar treatment for men and women who are . . . similarly situated.’ (Reed v. Reed, supra, 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Frontiero v. Richardson, supra, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771, 36 L.Ed.2d 583.) Absent a compelling state interest, sex cannot form the basis for the legislative classification provided by section 3501.

Citing Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189, respondent State Compensation Insurance Fund argues statutory sex preferences are not per se invalid. Further, respondent argues petitioner in fact was not dependent upon Astrid and, in any event, petitioner has available a remedy under Labor Code section 4702, allowing petitioner to receive up to four times the amount Astrid annually provided toward his support. Finally, respondent argues there is a ‘rational basis' for the conclusive presumption of dependency in Labor Code section 3501 in favor of widows.

Respondents' latter argument is misplaced. First of all, use of sex as the basis for the legislative classification in Labor Code section 3501 triggers the strict scrutiny standard of legislative review (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 17, 95 Cal.Rptr. 329, 485 P.2d 529; Adams v. Superior Court, supra, 12 Cal.3d 55, 60–61, 115 Cal.Rptr. 247, 524 P.2d 375). Respondents thus must show a compelling interest to justify the classification in Labor Code section 3501. Respondents nowhere show such a compelling state interest. Respondents only assert, without statistical support, there is a ‘rational basis' for conclusively presuming a widow—but not a widower—to be wholly dependent for support upon the husband with whom she was living at the time of his injury.

Nor is Kahn apposite. The Supreme Court there upheld a statute granting widows but not widowers an annual property tax exemption. The court relied on disparities in male-female income figures in deciding the favorable treatment for widows was justified.

Kahn, however, involved the issue of taxation:

‘[T]he states have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.’ (Kahn v. Shevin, 416 U.S. 351, 355, 94 S.Ct. 1734, 1737, 40 L.Ed.2d 189.)

The instant case involves not taxation but a law whose purposes are rehabilitative (see Hann, Cal.Law of Employee Injuries and Workmen's Compensation, 2d ed., § 1.05). More important, at issue here is the denial of equal protection to a decedent by leaving her family worse off than the family of a similarly situated male worker. The Supreme Court explicitly dealt with this difference in Wiesenfeld by distinguishing Kahn:

‘Obviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support. [Citation.] But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.’ (Emphasis added.)

(Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514.)

Also without merit is respondents' contention the discriminatory feature of section 3501 is dissipated because petitioner is entitled to compensation benefits up to $40,000 by proving actual dependency under section 4702. The argument begs the question and is premised upon the discriminatory feature of the section itself. The very reason the section unconstitutionally discriminates is because it places an additional burden upon surviving spouses of women workers. The fact it is theoretically possible for the surviving spouse of a woman worker to establish actual dependency does not eliminate the discriminatory aspect of the section.

We conclude Labor Code section 3501 as written is an unconstitutional denial of the right of Astrid to equal protection. Furthermore, by denying petitioner the right to the conclusive presumption of dependency granted to similarly situated widows, the statute perpetuates gender-based discrimination without a compelling reason and constitutes a denial of petitioner's right to equal protection.

Having concluded Labor Code section 3501, subdivision (a), is unconstitutionally discriminatory, we address the problem of determining the appropriate remedy. We confront a dilemma curtly described by Mr. Justice Harlan in another context:

‘Where a statute is defective because of underinclusion there exists two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.’ (Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 1807–1808, 26 L.Ed.2d 308 [Harlan, J., concurring].)

Either alternative abolishes the impermissible classification. Similarly, the California Supreme Court has recognized:

‘A statutory classification which arbitrarily excludes some but not all of those similarly situated in relation to the legitimate purposes of the statute does not necessarily invalidate the entire statute. [Citations.] In light of the purposes and history of a particular statute or an overall statutory scheme a reviewing court may correct a discriminatory classification by invalidating the invidious exemption and thus extending statutory benefits to those whom the Legislature unconstitutionally excluded.’ (Hayes v. Superior Court, 6 Cal.3d 216, 224, 98 Cal.Rptr. 449, 453, 490 P.2d 1137, 1141.)

(See In re Kapperman, 11 Cal.3d 542, 550, 114 Cal.Rptr. 97, 522 P.2d 657; Sykes v. Superior Court, 9 Cal.3d 83, 92–93, 106 Cal.Rptr. 786, 507 P.2d 90); see generally Note, ‘Extension versus Invalidation of Underinclusive Statutes: A Remedial Alternative.’ 12 Colum.J.Law & Soc.Prob. p. 115.

Stating the problem as posed by this case, section 3501, subdivision (a), might, on the one hand, be declared a nullity. We would thus deny the benefit of its conclusive presumption to widows and male workers whom the Legislature intended to benefit. Consequently, widows, like widowers, would have to demonstrate their dependency to receive benefits (see Lab.Code §§ 3503, 4702), and Arp would be no better off for this action. On the other hand, the constitutional defect might be cured by extending the benefits of section 3501, subdivision (a), to widowers and female workers. In our judgment the latter alternative is the correct one.

Our obligation is to enforce, to the limits established by our Constitutions, the intent of the Legislature. We must adopt the solution most consistent with the ‘probable legislative intent’ (see In re Kapperman, supra, 11 Cal.3d 542, 550, 114 Cal.Rptr. 97, 522 P.2d 657).

In this connection we consider significant Labor Code section 24, a broad severability clause which provides:

‘If any provision of this code, or the application thereof to any person or circumstances, is held invalid the remainder of the code, and the application of its provisions to other persons or circumstances, shall not be affected thereby.’ (Emphasis added.)

The conclusive presumption of section 3501, subdivision (a), relieves widows of the burden of proving dependency and affords to male workers the security of knowing their spouses will receive a significant fixed benefit upon their work-related death. Since the application of the statute to such persons is not challenged in this case, we think it is more consistent with section 24 to effect repair of section 3501 by extending its application to widowers and female workers than to foreclose its operation in favor of those whom the Legislature clearly intended to benefit.

Also significant is Labor Code section 3202 which provides:

‘The provisions of Division 4 and Division 5 of this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’

It is more consistent with the liberal policy of workers' compensation law to extend the benefits of section 3501 to those whom the Legislature unconstitutionally excluded than to contract the protection it affords to widows and male workers as drafted.

We also consider:

‘. . . the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.’ (Welsh v. United States, 398 U.S. 333, 365, 90 S.Ct. 1792, 1810, 26 L.Ed.2d 308 [Harlan, J., concurring].)

(See Brown, Emerson, Falk & Freedman, ‘the Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women,’ 80 Yale L.J. 871, 914–915.) Extending the conclusive presumption of section 3501 to widowers will no doubt result in some widowers receiving greater benefits than they would if burdened by the requirement of proof of dependency (Lab.Code § 4702). However, because women still tend to be engaged in less hazardous occupations than men, and fewer women than men may therefore be expected to die in industrial accidents, the economic distortions created by extension are probably less than those which would arise if widows were compelled to establish their dependency.6

We bear in mind the long expressed admonition that, while courts possess the power to excise and interpret words in a statute, they lack the power to add words. (See, e. g., United States v. Reese, 92 U.S. 214, 221, 23 Wall. 563, 566; Marchetti v. United States, 390 U.S. 39, 60, fn. 18, 88 S.Ct. 697, 708, fn. 18, 19 L.Ed.2d 889.) Indeed, both Hayes v. Superior Court, supra, 6 Cal.3d 216, 98 Cal.Rptr. 449, 490 P.2d 1137, and In re Kapperman, supra, 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657, were cases in which beneficial statutes were extended to cover excluded classes by the excision of restrictive language. (Cf. Frontiero v. Richardson, supra, 411 U.S. 677, 691, fn. 25, 93 S.Ct. 1764, 1772, fn. 25, 36 L.Ed.2d 583.)

Some commentators have criticized such a limitation,

‘. . . on the ground that the answer to the question of what the legislature would have wanted to happen is not contingent on whether the result requires the addition or removal of words.’ (Brown, Emerson, Falk & Freedman, op. cit., p. 917.)

(See Stern, ‘Separability and Separability Clauses in the Supreme Court’, 51 Harv. L.Rev. 76, 94–97.) No doubt the extended application of a statute by the addition of language has a greater appearance of ‘judicial legislation.’ But if extension is legislation,, it is ‘none the less so because the operation can be performed by striking out certain words of the act.’ (National Life Ins. Co. v. United States, 277 U.S. 508, 534, 48 S.Ct. 591, 598, 72 L.Ed. 968 [Brandeis, J., dissenting on the ground the Court lacked the power even to excise words].) Rather it is for the purpose of interfering least with legislation that courts invalidate a statute's invidious limitation rather than the statute in its entirety. (See Hayes v. Superior Court, supra, 6 Cal.3d 216, 224–225, 98 Cal.Rptr. 449, 49 L.Ed.2d 1137; see also ‘Developments in the Law—Equal Protection,’ 82 Harv.L.Rev. 1065, 1136–1137.)7

Moreover, the language in Reese and Marchetti which limits the power of courts to fashion a remedy has not been inexorably followed. In Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, the state court had construed the word ‘child’ in a wrongful death statute to mean ‘legitimate child,’ thus barring any recovery by illegitimate children (Levy v. State [La.], 192 So.2d 193, 195). The Supreme Court concluded the statute deprived illegitimates of the equal protection of the law; but, instead of declaring the statute a nullity, the Court implicitly extended the benefit of the wrongful death action to those unconstitutionally excluded.

Nearer to point is Moritz v. Commissioner (10 Cir.) 469 F.2d 466, cert. denied, 412 U.S. 906, 93 S.Ct. 2291, 36 L.Ed.2d 971. In that case the court considered 26 U.S.C.A. section 214(a), which provided a tax deduction to a taxpayer who was ‘a woman or widower, or [was] a husband whose wife [was] incapacitated or [was] institutionalized.’ (Id. p. 468.) Applying equal protection principles as a part of due process under the Fifth Amendment, the court concluded the classification was an invalid, invidious discrimination against a man who had not married. (Id. p. 470.) The court further held ‘the benefit of the deduction generally provided by the statute should be extended to the taxpayer.’ (Id. p. 470.) Extending the coverage of the deduction provision was clearly not achieved by excising exempting language from the statute because there was no such language. Rather, extension was justified by the purpose of the statute and broad separability clause in the Act (id. p. 470) and by consideration of ‘the disruption which the invalidation of the entire section on such deductions would bring about.’ (Id. fn. 5.)

In Sykes v. Superior Court, 9 Cal.3d 83, 92–93, 106 Cal.Rptr. 786, 507 P.2d 90, the California Supreme Court held, as explained in Crockett v. Superior Court, 14 Cal.3d 433, 438, fn. 6, 121 Cal.Rptr. 457, 461, 535 P.2d 321, 325:

‘. . . the mandate of equal protection . . . required the parallel resolution of a speedy trial violation in a situation which, although not specifically provided for by statute, could not be distinguished on reasonable grounds from a situation specifically provided for by statute.’ (Emphasis added.)

The remedy of extension of the benefit of the speedy trial statute to persons in Sykes' position was deemed appropriate in the absence of any specific invidious exemption or exclusion. Such extension was not accomplished by grammatical excision, but in recognition of the purposes and history of the statutory scheme involved.

For these reasons we believe it is within our power and it is appropriate to hold widowers and female workers are entitled to the benefits of the conclusive presumption contained in Labor Code section 3501, subdivision (a).

‘While the necessary remedial operation, extension, is more analogous to a graft than amputation, . . .’ (Welsh v. United States, supra, 398 U.S. 333, 364, 90 S.Ct. 1792, 1809, 26 L.Ed.2d 308 [Harlan, J., concurring]), we reiterate, this is based not upon which remedy we independently believe most wise, but upon which remedy we believe least interferes with the scheme of workers' compensation law.

The decision of the Workers' Compensation Appeals Board is vacated and the cause is remanded to that Board for proceedings consistent with the views expressed in this opinion.


1.  Unless otherwise indicated all statutory references are to the Labor Code. Insofar as pertinent here, section 3501 reads:‘The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee:‘(a) A wife upon a husband with whom she was living at the time of his injury, or for whose support such husband was legally liable at the time of his injury.’

2.  Section 3502 reads: ‘In all other cases [cases in which the conclusive presumption is not applicable], 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.’

3.  The applicable provisions of section 4702 read:‘. . . the death benefit in cases of total dependency, when added to all accrued disability indemnity, shall be the sum of forty thousand dollars ($40,000) . . .. In cases of partial dependency the death benefit shall be a sum equal to four times the amount annually devoted to the support of the dependents by the employee, not to exceed the sum of forty thousand dollars ($40,000).’

4.  While the Board found the conclusive presumption of dependency contained in section 3501 did not apply, the question of actual dependency, in whole or in part, was deferred.

5.  The court took note of Frontiero's observation that in 1971 41.5% of married women were working, and found this fact overcomes any presumption wives are completely dependent upon their husbands (Wiesenfeld, supra, 420 U.S. 636, 643, fn. 11, 95 S.Ct. 1225, 1231, fn. 11, 43 L.Ed.2d 514).

6.  As the United States Supreme Court noted in Frontiero v. Richardson, supra, 411 U.S. 677, 689, fn. 23, 93 S.Ct. 1764, 1772, fn. 23, 36 L.Ed.2d 583, 41.5% of all married women were employed in 1971. If put to the test of section 4702, many widows might fail to establish total dependency. The fixed benefits now available to widows are like insurance proceeds. Workers have indirectly, i. e., through their employers, contributed to a fund from which such benefits are paid.

7.  ‘[T]he consequences of invalidation will be unacceptable if the legislation is necessary to an important public purpose. For example, a state statute requiring licensing of all doctors except those from a certain school could be found to deny equal protection, but a court should be hesitant to choose invalidation of licensing as an appropriate remedy. Though the test is imprecise, a court must weigh the general interest in retaining the statute against the court's own reluctance to extend leigslation to those not previously covered. Such an inquiry may lead a court into examination of legislative purpose, the overall statutory scheme, statutory arrangements in connected fields, and the needs of the public.

AULT, Associate Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.