dependency in a death case has been
hard to determine for many years.
The California Supreme Court
finally has put this issue to rest. This
case was first determined by the
court of appeal in 1990. It has been
upon appeal since then and reported
previously in this newsletter.
WCAB
asbestos from 1951 through 1975.
He filed a claim for workers'
compensation benefits and was
given an award of 63 per cent for the
asbestosis injury. In 1987 the
applicant died from mesothelioma
and the widow filed a death claim. In
the first appellate case it was
determined that the date of injury
determines benefits not the date of
death. Mesothelioma was considered
a different injury than asbestosis. A
single period of
determine support at the date of death
unless it is the same date as the date
of injury.
income includes all income from
whatever source. Income does not
just include earnings from
employment. Income can include
interest, dividends or rents received.
There is no qualification on the type
of income. Thus, even though some
income may cease at the time of death
this has no bearing, since the income
at the time of injury controls.
determine date of injury on every one
of these cases. It will also require a
deposition of the partial dependent.
There is a dissenting opinion by
Justice Mosk with Justice Chin
concurring.
occupational disease and more than
one date of injury. The case was
remanded for the dependency issue.
partial dependents. Partial dependents
have other means of support other than
relying on the decedent. The issue
revolves around whether the
dependent relied on the decedent for
support.
the time of injury not at the time of
death. Be aware these dates can be
years apart. The time of injury also
controls the statutory rate of the death
benefit. For occupational diseases the
time of injury is the date when the
employee suffered disability and either
knew or should have known the
disability was caused by present or
past employment. Latent diseases can
develop years after retirement.
dependency must prove the actual
dollar amount actually devoted by the
decedent to his or her support. It is the
amount of annual support to the
dependent that controls the calculation
of death benefits. This is to be
calculated by identifying the support at
the time of injury that terminated with
Firm: SAMUELSEN, GONZALEZ,
VALENZUELA AND SORKOW
Phone: 310 831-0872
Address: 350 West 5th Street # 105
SAN PEDRO, CA 90731
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