Opinion
NEWSOM, J.Petitioner Kathleen M. Lynch sought and obtained from this court a writ of review for the purpose of reviewing respondent Workers’ Compensation Appeals Board’s calculation of death benefits in the instant case. She seeks annulment of the board’s findings and award relative to herself and recalculation of her death benefits.
*596Petitioner and her husband, Richard W. Lynch (decedent) were married in 1948. They had four children: Kathleen, Patricia, Theresa and Eileen. Decedent worked as an electrician from 1946 to 1978. This included employment with real party in interest Collins Electric Company beginning in the third quarter of 1967 extending through the third quarter of 1968, and again during a second quarter of 1969. Petitioner worked at EmporiumCapwells. Sometime in 1978, decedent fell terminally ill due to lung cancer. The last day he worked was July 20, 1978. He died February 24, 1979.
On December 13, 1979, petitioner and her two daughters who were living at home at the time of decedent’s death (Theresa and Eileen) filed an “Application for Adjudication of Claim” against Red Top Electric Company and Collins Electric Company with respondent Workers’ Compensation Appeals Board (WCAB), claiming that decedent’s cancer was caused by an inhalation of asbestos fibers while working for said employers. On May 19, 1983, the WCAB issued the following findings: (1) that decedent’s death was proximately caused by exposure to asbestos dust while working; (2) that the “responsible period” of employment exposure as limited and imposed by the provisions of Labor Code section 5500.5 is the three-year period beginning July 28, 1965 through July 27, 1968, during employment by Collins Electric Company; (3) that an award would issue against Collins’ insurer, United States Fidelity & Guaranty Company; (4) that at the time of his death, decedent left surviving and partially dependent upon him petitioner and daughter Eileen, but not daughter Theresa—who was not receiving support from deceased on the date of injury; and (5) that decedent was contributing $5,462 annually toward the support of petitioner and $3,600 annually toward the support of Eileen. Based on these findings, the WCAB awarded death benefits to the parties in the sum of $21,850 to petitioner and $14,400 to Eileen.
On June 10, 1983, petitioner filed with the WCAB a “Petition for Reconsideration” of the matter claiming that respondent board had miscalculated said benefits as to her. On July 11, 1983, the WCAB denied petitioner reconsideration and on July 29, 1983, petitioner filed a petition with this court for a writ of review, which was granted on December 23, 1983.
Petitioner contends that respondent board computed her death benefits incorrectly. Under Labor Code section 4702, subdivision (d), death benefits to partial dependents (including working spouses) are to be computed on the basis of “four times the amount annually devoted to the support of the partial dependents” with a maximum award set at $50,000 for injuries occurring before Januaiy 1, 1983. At the hearing below, petitioner provided evidence of “the amount annually devoted to [her] support” which established the following: that prior to his death, both decedent and petitioner *597worked, decedent earning $16,925 in 1977, petitioner earning $10,117 the same year; that decedent regularly turned his paycheck over to petitioner who deposited it; that but for some “personal consumption” expenditures, decedent’s income was used for family expenses; that said personal consumption expenditures consisted of: (1) decedent’s transportation costs to and from work (approximately $125 monthly), (2) decedent’s purchase of lunch while at work (approximately $50 monthly), and (3) decedent’s purchase and maintenance of clothes for work (approximately $25 monthly); that daughter Theresa who was employed at the time, moved back home in July 1978, upon learning of her father’s illness and thereafter received from her parents free room and board (valued at approximately $200 monthly) and transportation costs (approximately $100 monthly) up to the time of her father’s death; and that daughter Eileen who was also employed and who continuously lived at home received from her parents free room and board (valued again at approximately $200 monthly) and transportation costs (approximately $100 monthly) up to the time of her father’s death.
Based on this evidence, the WCAB judge determined that both petitioner and daughter Eileen had been partially dependent upon decedent. He awarded death benefits to Eileen in the sum of $14,400 based on decedent’s annual contributions to Eileen of approximately $3,600 (i.e., free room and board valued at approximately $200 monthly, plus transportation costs valued at approximately $100 monthly) multiplied by four as provided by section 4702, subdivision (d). And to petitioner he awarded death benefits in the sum of $21,850, which he computed by first deducting from decedent’s salary of $16,925 a total of $6,000 in annual expenses deemed unrelated to petitioner’s support,1 then dividing the remainder ($10,925) in half ($5,462) as a way of approximating the “actual amount” of decedent’s earnings annually devoted to petitioner’s support, and multiplying that figure by four again as provided by statute.
In her petition for writ of review, petitioner claims that the trial judge should have used the $10,925 figure and not $5,462 as the basis for computing her benefits under the statute. The WCAB, on the other hand, maintaining that petitioner failed to meet the section 4702, subdivision (d), burden of establishing the annual amount devoted to her support, upheld the trial judge’s method of computation as a means of resolving the case.
On a review of the present record, we conclude that the trial judge and the board misapplied the pertinent law. Accordingly, we *598annul the board’s findings and award relative to petitioner and remand the case for further proceedings consistent with this opinion.2
In Atlantic Richfield Co. v. Workers’ Comp. Appeals Bd. (1982) 31 Cal.3d 715 [182 Cal.Rptr. 778, 644 P.2d 1257], our Supreme Court grappled with the issue of determining partial dependency death benefits for surviving spouses under Labor Code section 4702, subdivision (d), and, after rejecting the approach used by the WCAB in that case,3 prescribed an approach of its own, saying: “Given the relevant legislative framework, we conclude that the approach which is most consistent with our [Arp v. Worker’s Comp. Appeals Bd., 19 Cal.3d 395 (138 Cal.Rptr. 293, 563 P.2d 849)] analysis and the liberal construction of the payment of benefits mandated by the Legislature (§ 3202) is one which considers the actual amount which the deceased spouse devoted to the community and to the surviving spouse. . . . [1] Commencing with the entire earnings of the decedent, the computation of allowances for actual support should include those fixed expenses which are an integral and reasonable part of the standard of living enjoyed by the community. By way of illustration, we note that expenses incurred for indebtedness and maintenance of the community residence or transportation expenses for the benefit of the community and the spouse may readily be recognized as ‘actual support’ to the survivor. Food, clothing, or incidental expenses incurred for the decedent’s own personal use, however, cannot reasonably be considered as part of ‘the amount annually devoted to the support of the partial dependent.’ ” (Id., at p. 722.) The court added that the surviving spouse had the burden of establishing the actual “amount annually devoted to” his or her support from the earnings of the decedent. “Expenses related to the standard of living of the community are relevant. Expenses which are personal to the decedent are not.” (Id., at p. 723.)
Thus, in Atlantic Richfield Co., supra, the court prescribes a method for computing a surviving spouse’s benefits under section 4702, subdivision (d). According to that method, the deceased spouse’s earnings should be broken down into two parts: (1) that part devoted to maintaining the standard of living of the community and the support of the surviving spouse; and (2) that part devoted to decedent’s “personal use.” Those amounts represented in the first category make up the “actual” amount annually devoted to the support of the surviving spouse for purposes of section 4702, *599subdivision (d), while the amount represented in the second category is left out of the equation.
The court makes clear that any monies spent for the “benefit” of the community are not a personal use expense. Hence, the “personal use” apportionment in most cases will be negligible, since most married couples’ expenditures will be primarily related to the benefit of the community. However, we believe that in the majority of cases there will be some personal use finding, however minimal, since in most marriages spouses periodically step outside the “boundaries” of the community and spend money on themselves, as for example, in the form of recreational food and drink, clothing and transportation.
In the instant case, it is apparent that respondent Board misinterpreted the Atlantic Richfield Co. v. Workers’ Comp. Appeals Bd. formula for determining “personal use” expenditures. (31 Cal.3d 715.) Such expenditures will not include food, clothing and transportation costs related to decedent’s employment, because such expenditures—like the employment itself—are for the “benefit” of the community. Nor should they include that portion of decedent’s earnings devoted to his own support because such expenditures are also for the “benefit” of the community and an inseparable part of the community’s standard of living.
The order or award is annulled and the matter remanded for proceedings consonant with this opinion, including but not limited to the taking of further evidence concerning decedent’s personal use expenses, if any.
Racanelli, P. J., concurred.
I.e., the $3,600 in contributions to Eileen and the $2,400 in decedent’s “personal consumption” expenditures.
Generally, where the issue decided is one of law rather than fact, the rule of conclusiveness of the board’s findings does not apply, and the award may be annulled for an erroneous determination. (2 Witkin, Summary of Cal. Law (8th ed. 1973) Workmen’s Compensation, § 286, p. 1085.)
The approach used by the WCAB was the one which had been adopted by the board en banc in Oropeza v. Newman Seed Company (1980) 45 Cal.Comp.Cases 1148. Partial dependency death benefits were based on the deceased spouse’s total earnings.