SUBGRADE CONSTRUCTION CORP v. WORKERS COMPENSATION APPEALS BOARD (1981)

In this proceeding on writ of review we are asked to construe Labor Code section 4706.5¹ which provides for the payment to the Department of Industrial Relations a sum equal to the total dependency death benefit payable to a surviving spouse with no dependent minor children whenever a compensable death occurs and the deceased employee “does not leave surviving any person entitled to a dependency death benefit, …”² We conclude that the statute is constitutional. Further, we find no ambiguity in the express terms of the statute. Accordingly, we hold that when a deceased employee leaves a person surviving who is entitled to a dependency death benefit no amount is payable to the Department.

We note with appreciation the frank expression at oral argument by the Attorney General that to reach the result respondent desires a legislative amendment will suffice. We commend respondents to the Legislature. It, and not the courts, has the power to legislate.

Despite our respect for the effort by a sister court to interpret this statute within what it perceives to be a larger salutory legislative objective, we cannot agree with its conclusions. Department of Industrial Relations v. Workers' Comp. Appeals Bd. (1979) 94 Cal.App.3d 72, 156 Cal.Rptr. 183, is the only reported case interpreting section 4706.5, subdivision (a). The court held that where a compensable death occurs and the employee leaves surviving dependents entitled to partial death benefits, but the amount of such benefit does not equal or exceed the total death benefit which would be payable to a surviving spouse with no dependent children, then the difference between the benefits paid and the total benefit that would be payable to such a surviving spouse must be paid to the Department. As we explain below, when there is a survivor no amount is payable to the Department regardless of the amount of the death benefit paid to the dependent.

I

The facts are not in dispute. Kurt Danz Basler, an employee of Subgrade Construction Company, died as the result of compensable injuries. Basler's sole dependents, his sister and his niece, applied for dependency benefits. A decision was rendered finding partial dependency and granting an award of $9,600. A supplemental decision was issued awarding the Department the difference between the benefit payable to a surviving spouse with no dependent children and the amount awarded to Basler's dependents, the award being $40,400. Petitioners requested reconsideration of the supplemental decision, but the Workers' Compensation Appeals Board denied reconsideration.

The workers' compensation judge that considered and rendered the supplemental decision in this case indicated that he believed the petitioners had potentially meritorious arguments, but that he felt constrained by stare decisis to hold in favor of respondents. He reiterated these concerns in his discussion of the request for reconsideration. The Workers' Compensation Appeals Board adopted the reasoning of the judge in denying reconsideration. We issued a writ of review in order to consider petitioners' contentions.

II

Labor Code section 4701, subdivision (b) provides that when an injury causes death, with or without disability, the employer shall be liable for a death benefit to be allowed the employee's dependents when the employee leaves any person dependent upon him for support. Labor Code section 4702 provides for the amount of the death benefit. At the relevant times section 4702 provided that the death benefit in cases of total dependency was $50,000, except where the employee left a surviving spouse and one or more minor children in which case the benefit was $55,000. In cases of partial dependency that section provided: “[T]he death benefit shall be a sum equal to four times the amount annually devoted to the support of the dependents of the employee, not to exceed the sum of fifty thousand dollars ($50,000).” (See Stats.1976, ch. 1017, § 6, pp. 4595-4596.)

Sections 4701 and 4702 provide for liability of the employer when an employee dies from a compensable injury and leaves dependents, and set the amount of the employer's liability in accordance with the number of dependents and the extent of their dependency. No provision is made for the payment of such benefits to the estate of a deceased employee that leaves no dependents, nor is provision made for “escheat” to the state in such event. Early attempts by the Legislature to provide for escheat in such event were struck down by the courts as being inconsistent with the constitutional enabling provisions. (See Commercial Cas. Ins. Co. v. Indus. Acc. Com. (1930) 211 Cal. 210, 215, 295 P. 77; Yosemite L. Co. v. Industrial Acc. Com. (1922) 187 Cal. 774, 783, 204 P. 226; People v. Standard Oil Co. (1933) 132 Cal.App. 563, 566-567, 23 P.2d 524.)

In the general election of 1972, the People approved an amendment to article XX, section 21 of the Constitution (now art. XIV, § 4), which provides: “The Legislature shall have power to provide for the payment of an award to the state in the case of the death, arising out of and in the course of the employment, of an employee without dependents, and such awards may be used for the payment of extra compensation for subsequent injuries beyond the liability of a single employer for awards to employees of the employer.” In order to accomplish this result the Legislature enacted Labor Code section 4706.5. The proposed constitutional amendment and the bill enacting Labor Code section 4706.5, were noncontroversial, nonpartisan measures, which passed through the Legislature without significant discussion, neither of which received a single dissenting vote in either house. The ballot argument in favor of the constitutional amendment simply stated that the amendment would “allow payment of Workmen's Compensation accidental death benefits to a state fund when the deceased employee has no dependents.” There was no ballot argument against the amendment.

We reject petitioners' contention that 4706.5 is unconstitutional. Article XIV, section 4 authorizes the Legislature to provide for payment of “an award to the state” in case death of an employee without dependents. The Constitution does not limit the Legislature to a full or a partial award. Rather, it is a broad authorization of legislative power.

Labor Code section 4706.5, subdivision (a) by its express and unambiguous terms applies only where an employee dies and does not leave surviving him “any person” entitled to a dependency death benefit. Since the deceased employee in the case at bench did leave persons entitled to dependency death benefits there is no provision in the statute for the payment to the Department of any amount. Respondents urge, however, that we interpret section 4706.5, subdivision (a) to require payment to the Department of the difference between the benefits that would be payable to a surviving spouse without dependent minor children and the amounts paid to partial dependents in all cases of partial dependency where the entire amount paid to the partial dependents does not equal the amount that would be payable to a surviving spouse without dependent children. Such an interpretation, we have noted, is directly contrary to the plain meaning of the language chosen by the Legislature. Since Kurt Danz Basler did not die without leaving “any person entitled to a dependency death benefit,” Labor Code section 4706.5, subdivision (a) is inapplicable and respondents are not entitled to an award of any amount payable by petitioners.

The supplemental findings and award of $40,400 to the Department of Industrial Relations, Non-Dependent Death Unit, and the order denying reconsideration thereof are annulled. The Workers' Compensation Appeals Board is directed to enter an order denying the claim of the Department of Industrial Relations, Non-Dependent Death Unit.

FOOTNOTES

1.  All references are to the Labor Code.

2.  Labor Code section 4706.5, subdivision (a) provides: “Whenever any fatal injury is suffered by an employee under such circumstances as to entitle the employee to compensation benefits, but for his or her death, and such employee does not leave surviving any person entitled to a dependency death benefit, the employer shall pay a sum to the Department of Industrial Relations equal to the total dependency death benefit that would be payable to a surviving spouse with no dependent minor children.”

REYNOSO, Acting Presiding Justice.

BLEASE and CARR, JJ., concur.