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Court of Appeal, Third District, California.

STATE of California, DEPARTMENT OF CORRECTIONS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California et al., Respondents.

Civ. 17127.

Decided: February 07, 1978

Vonk, Jakob, Hershenson & Evans by Robert LaPorta, San Francisco, for petitioner. Evelle J. Younger, Atty. Gen., by Corinne Lee Murphy, McCallum & McCallum, William D. Heekin, Sacramento, for respondents.

In this proceeding petitioner seeks review of a death benefit award to respondent Deanna M. Antrim by the Workers' Compensation Appeals Board (board).

Decedent, Dale Wesley Antrim, employed as a correctional officer at Chino, California, on May 23, 1975, by the petitioner, State of California, Department of Corrections, suffered a myocardial infarction arising out of, and occurring in the course of his employment, proximately resulting in his death on the same date. He left a surviving widow, Loren Antrim, and a minor child by a prior marriage, respondent Deanna Marie Antrim, born June 14, 1958. Respondent Public Employees' Retirement System (PERS) stipulated that the death was industrial and that such stipulation entitled the widow to special death benefits under Government Code section 21364.

The surviving widow elected to receive the special death benefit award, the entire amount of which is payable directly to her as the surviving spouse.

The board determined that the minor child was entitled to the sum of $22,500, representing one-half of the death benefit of $45,000, although the surviving widow had elected to receive the entire special death benefit award.

Petitioner contends the board exceeded its powers, was unreasonable and its decision is not supported by substantial evidence.

The question of law submitted for determination by the Workers' Compensation Judge was whether the minor child was entitled to workers' compensation death benefits under Labor Code section 4707,1 consisting of some portion of the regular dependent's death benefit (payable under Lab. Code, s 4702), in a case where the employee leaves a surviving widow and a surviving dependent minor child, where the widow is receiving a special death benefit in lieu of the workers' compensation benefits, and where the minor child is not the child of the widow.

In his findings and order, the Workers' Compensation Judge determined that no death benefit was payable to the minor child so long as the special death benefits under Government Code section 21364 are payable. The judge ruled that the interpretation of Labor Code section 4707 in the “closely comparable” case of State Compensation Insurance Fund v. Industrial Accident Commission (Seagrave) (1957) 150 Cal.App.2d 215, 309 P.2d 853, was controlling. The judge further indicated that a constitutional question may well be involved with respect to Labor Code section 4707 in conjunction with Government Code section 21364 since no statutory provision is made for the surviving minor child who is not the child of the surviving widow.

The board granted the petition for reconsideration of the surviving minor child, attempted to distinguish the Seagrave case, and determined that Labor Code section 4707 did not preclude payment of one-half the normal workers' compensation benefits to the surviving minor child where the widow elects to receive the special death benefit award under Government Code section 21364. The board further determined that it need not consider the constitutional issue.

In Seagrave, the court was dealing with Labor Code section 4707 in substantially the same form as it exists today. Minor amendments have been made but none which any party claims is significant. There a decedent member of the State Employees' Retirement System (now PERS) left a widow and an 18-year-old son both totally dependent upon him for support. The widow elected to receive the special death benefit provided by the Government Code. The board (formerly Industrial Accident Commission) nevertheless awarded the 18-year-old dependent minor son one-half of the workers' compensation death benefit.

The essential and controlling language of Labor Code section 4707 then was no different from the present section. The court in Seagrave annulled the award, holding as follows:

“Labor Code, section 4707, clearly provides that there shall be no award under the Workmen's Compensation Law in the event a widow or minor children under 18 years of age will receive an award under the State Employees' Retirement System, which is equal or greater than the award under the compensation law. This section does not merely provide that there shall be no award to the widow but expressly proscribes any award under the Workmen's Compensation Law in the event of an equal or greater award under the Retirement System. The respondent commission in this matter has in effect made two awards; one award under the Workmen's Compensation Law and a second award under the Retirement System which is in direct contravention to the provisions of section 4707. The unambiguous provisions of that section preclude us from holding that the Legislature intended a dependent minor child over the age of 18 years to receive a death benefit award under the compensation law in the event an award is made to the widow under the Retirement System. If the purpose of the Legislature was in accordance with respondents' contention, it was be accomplished by an appropriate amendment to section 4707 and not by judicial legislation.” (150 Cal.App.2d at p. 217, 309 P.2d at p. 855.)

The reference by the court in Seagrave to the child being 18 years of age is significant only because at that time minority extended to the age of 21 years. (See Civ.Code, s 25, as it read prior to March 4, 1972.) The emphasis the board placed on the difference in ages of the child in this case (under 18) and the child in Seagrave (18) is misplaced. The age of the dependent child is of significance only in the interrelation between Labor Code section 4707 and Government Code section 21364. The latter section provides for payment of benefits under certain circumstances to children under 18 years of age only. It is this provision of the Public Employees' Retirement Law to which Labor Code section 4707 cross-refers. Therefore, the age of a dependent child is significant for purposes of reading the two sections together only if the widow does not qualify for benefits, which is not the case here.

We read Labor Code section 4707 in the same manner as did the court in Seagrave. The word “or” in the phrase “widow or children” must be read in its ordinary meaning as a conjunctive having the connotation of either one or the other, or presenting a choice of either. (See Webster's Third New International Dictionary (1971).) It follows that the plain meaning of Labor Code section 4707 is that no benefits (except reasonable burial expenses not here in dispute) are to be paid under the Workers' Compensation Law when the PERS is providing special death benefits to one or the other, either the widow, or children under 18 years of age. The single exception to this is spelled out in the last clause of section 4707. An additional payment is allowed only when the total death allowance paid to the widow and children by the retirement system is less than the death benefit under the Workers' Compensation Law. Thus, the last clause of Labor Code section 4707 simply recognizes that under some circumstances (not here applicable) a minor child of a deceased public employee may receive an allowance under the Public Employees' Retirement Law. (See Gov.Code, s 21364.) Although this exception is not directly involved in this case, it does indicate a realization and recognition by the Legislature of certain circumstances under which a minor child is to receive an award upon the death of a public employee parent irrespective of custodial relationships.

The board stated (in its opinion and decision after reconsideration) that “We interpret Labor Code section 4707 to insure that, if the special death benefit is paid as per Public Employees' Retirement Law, the children as well as the widow are at least entitled to the Death Benefit in the Labor Code.” This interpretation is directly contrary to the holding in the Seagrave case, and directly contrary to our interpretation of the section.2 Petitioner suggests that perhaps the Legislature by “oversight” failed to provide specifically for the minor child of another marriage where a surviving widow elects to receive a special death benefit. We suggest it is not by oversight at all. The decision in Seagrave was rendered in 1957. The Legislature is presumed to be aware of decisions of the appellate courts, and where a statute which has been construed by the courts is reenacted in the same or substantially the same terms, the Legislature is presumed to be familiar with that construction and to have adopted it as part of the law, unless it provides for a different construction. (Cole v. Rush (1955) 45 Cal.2d 345, 355, 289 P.2d 450; Holmes v. McColgan (1941) 17 Cal.2d 426, 430, 110 P.2d 428; see generally 45 Cal.Jur.2d, Statutes, s 101, pp. 615-616.) The rationale of the Seagrave decision plainly proscribes an interpretation of Labor Code section 4707 to permit a double award to a widow and child, whether the widow be the mother or not. Labor Code section 4707 has been considered and amended in various ways on several occasions since the Seagrave decision; the latest of such amendments being made in 1976. (Stats.1976, c. 341, s 12.5.) The significant provisions with which we are here concerned remain as they did in 1957 at the time of the Seagrave decision. If the Legislature felt that additional death benefits should have been available to a minor child whether or not the widow is the mother of the child, it would have so provided.

Based upon the foregoing, we shall annul the award.

Respondent Deanna M. Antrim raised the issue of constitutionality of Labor Code section 4707 in its application to this case in conjunction with Government Code section 21364. She asserts there is an unconstitutional deprivation of equal protection of the laws if section 4707 is construed to preclude payment to her under the circumstances of this case in which the statutory special death benefits are given to the widow but denied to the child of a former marriage of a “safety member” of PERS. She argues that since in our case, under Labor Code section 4707 and Government Code section 21364, dependents of “safety members” (i. e., decedent who was a correctional officer) of PERS are treated differently than dependents of other employees (in that minor children of employees other than safety members may be entitled to Workers' Compensation Law benefits), an unconstitutional classification is created. She does not contend, however, that the “special death benefit” as such, payable to dependents of safety members is unconstitutional. (See Gov.Code, ss 21363, 21363.3, 21363.5, 21363.6, 21364, 21364.5.)

PERS accurately and succinctly frames the constitutional issue in the following question: “Is the special death benefit provision of section 21364 of the Government Code, a part of the State Retirement Law, unconstitutional as a deprivation of equal protection if section 4707 of the Labor Code is held to preclude any payment under Workers' Compensation provisions when the special death benefit is payable?”

Respondent Deanna Antrim does not assert a “suspect classification”, but claims a “fundamental interest” is involved. She argues that the minor child of decedent was entitled to support until age 21 (the divorce decree being prior to the change in the age of majority on March 4, 1972 see Civ.Code, s 25). She points out that decedent's death terminated that support and that Labor Code section 4704 ordinarily allows the Workers' Compensation Appeals Board to set apart or assign the workers' compensation death benefit to any dependents in a just and equitable manner, but for Labor Code section 4707 as applied to this particular type of case. It is this alleged violation of “fundamental interest” to continued support under workers' compensation that respondent decries as requiring us to apply the “strict scrutiny” test rather than the conventional “rational relationship” standard for testing a classification. (See generally D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17, 112 Cal.Rptr. 786, 520 P.2d 10.) Briefly stated, strict scrutiny is applied to classifications involving race, sex or such other fundamental rights or interests as are either explicitly or implicitly guaranteed by the Constitution. (See, e. g., Adams v. Superior Court (1974) 12 Cal.3d 55, 61, 115 Cal.Rptr. 247, 524 P.2d 375; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16-17, 95 Cal.Rptr. 329, 485 P.2d 529.) When the strict scrutiny test is applied, the state bears the burden of establishing not only that it 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 (1970) 2 Cal.2d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487.)

However, when the courts review economic and social welfare legislation in which there is an asserted discrimination or differentiation of treatment of classes or individuals, the basic and conventional test is applied. It requires merely that distinctions drawn by the Legislature bear some rational relationship to a conceivable legitimate state purpose. (Id. at p. 784, 87 Cal.Rptr. 839, 471 P.2d 487; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 16, 112 Cal.Rptr. 786, 520 P.2d 10.) The burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it. (Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 17, 112 Cal.Rptr. 786, 520 P.2d 10.)

We hold that this case does not involve a suspect classification or fundamental interest in the constitutional sense that requires application of the strict scrutiny test, but rather requires the rational relationship test. We are supported in our conclusion by the recent case of Meredith v. Workers' Compensation Appeals Board (1977) 19 Cal.3d 777, 140 Cal.Rptr. 314, 567 P.2d 746, in which the California Supreme Court applied the “rational relationship” test in assessing the constitutionality of a classification of persons entitled to disability benefits under the Workers' Compensation Law. The court pointed out that wide discretion is vested in the Legislature in benefit classifications and the court would sustain any such classification unless shown to be manifestly without support in reason. (See 19 Cal.3d at p. 781, 140 Cal.Rptr. 314, 567 P.2d 746.)

Respondent Deanna Antrim has not sustained her burden of demonstrating the invalidity of the classification here involved. She has not shown, and we cannot say, that a decision by the Legislature first to pay the surviving spouse is so arbitrary and manifestly unreasonable that it must be voided on equal protection constitutional grounds.

The award is annulled.


1.  Section 4707 of the Labor Code now reads as follows: “No benefits, except reasonable expenses of burial, not exceeding one thousand dollars ($1,000) shall be awarded under this division on account of the death of an employee who is a member of the Public Employees Retirement System unless it shall be determined that a special death benefit, as defined in the Public Employees' Retirement Law, or the benefit provided by Section 21365.6 of the Government Code, will not be paid by the Public Employees Retirement System to the widow or children under 18 years of age, of the deceased, on account of said death, but if the total death allowance paid to said widow and children shall be less than the benefit otherwise payable under this division such widow and children shall be entitled, under this division, to the difference.”

2.  We note in passing, without basing our decision on the point, that the distinction made by the board between this case and Seagrave based on the child being 18 years old in Seagrave and under 18 years of age in this case was factually wrong when made. As recognized by the board on its order correcting opinion and decision, the respondent child in this case was not under 18 years of age at the time the findings and award of the board were issued.

REGAN, Associate Justice.

PUGLIA, P. J., and PARAS, J., concur.

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