City & County of San Francisco v. Workmen's Comp. Appeals Bd.

SIMS, J.

I concur in the judgment affirming the award in 1 Civil 25593 (Swall), and in remanding 1 Civil 25592 (Guzzetti), and 1 Civil 25594 (Morey) to the appeals board. For the reasons set forth herein I would curtail the appeal board’s power to set apart or reassign the portion of the compensation death award which presumptively would have gone to the widow at death, because she has received payments under the city’s retirement system. Conversely, I would limit the city’s right to question the right of the appeals board to reapportion the interest, which, but for the statute of limitations, might have passed to some other dependent who has not been the recipient of other payments from the city.

These eases involve a conflict between the power conferred upon the Workmen’s Compensation Appeals Board to “set apart or reassign the death benefit to any one or more of the dependents” of a deceased employee, and the right of an employer to prevent double payment for death resulting in the course of employment by a deduction of compensation death benefits from the amount of death benefits otherwise payable under a retirement system, or by seeking credit "against compensation death benefits for such death benefits which have been already paid. I conclude that the interests of the dependents and the interest of the employer may best be reconciled by requiring the appeals board to recognize the *395share of the compensation benefit payable to a dependent widow who is receiving, or has received, a retirement allowance, when there is no evidence of good cause, other than the right to such allowance, to show that any other dependent had a greater need than the widow. Accordingly, the employer should be given credit for that portion of the compensation death benefit which the widow should have received to the extent that the employer has actually made retirement allowance payments to her.

The powers now found in Labor Code section 47041 have been construed as follows: “. . . the provisions . . . are very broad. In effect they provide that notwithstanding any other provision of the act, but within the maximum liability of the employer as provided by the statute and in the amount found by the Commission to be due to dependents, the Commission may reapportion and reassign the death benefits to such dependents ‘in accordance with their respective needs and as may be just and equitable’, and may order payment to a dependent ‘not otherwise entitled, upon good cause being shown therefor’. ... So long as dependents of the deceased' employee survive it would seem that the employer is in no position to complain provided the discretion of the Commission under the statute be not abused.” (California Cas. Indem. Exchange v. Industrial Acc. Com. (1930) 211 Cal. 218, 221 and 222 [295 P. 34]. See also Rivieccio v. Bothan (1946) 27 Cal.2d 621, 627 [165 P.2d 677]; Granell v. Industrial Acc. Com. (1944) 25 Cal.2d 209, 213-214 [153 P.2d 358]; Perry v. Industrial Acc. Com. (1917) 176 Cal. 706, 709 [169 P. 353]; Pacific Gas & Elec. Co. v. Industrial Acc. Com. (1932) 124 Cal.App. 303, 311-312 [12 P.2d 647]; and cf. Christian v. City of Oakland (1967) 32 Cal. Comp. Cases 201.) Although an award to the dependent surviving wife is barred by failure to file a timely claim (see Ruiz v. Industrial Acc. Com. (1955) 45 Cal.2d 409, 411-414 [289 P.2d 229]; and Glavich v. Industrial Acc. Com. (1941) 44 Cal.App.2d 517, 520 [112 P.2d 774] [disapproved on other grounds, Cross v. Pacific Gas & Elec. *396Co. (1964) 60 Cal.2d 690, 694 [36 Cal.Rptr. 321, 388 P.2d 353] ] and cf. Bianco v. Industrial Acc. Com. (1944) 24 Cal.2d 584, 591 [150 P.2d 806]) an award to the dependent children is proper because limitation provisions are tolled by the provisions of section 5408. (Glavich v. Industrial Acc. Com., supra, 44 Cal.App.2d 517, 521-526. See also City & County of San Francisco v. W.C.A.B. (Long) 33 Cal. Comp. Cases 9 [writ denied 1/17/68, 1 Civ. 24946 (Div. 1)] ; City & County of San Francisco v. W.C.A.B. (Swall) 32 Cal. Comp. Cases 401 [writ denied, 10/23/67, 1 Civ. 24571 (Div. 2) ]; Consolidated Freightways v. W.C.A.B. (Howell) 32 Cal. Comp. Cases 320 [writ denied 8/30/67, 1 Civ. 24462 (Div. 3)]; City of Oakland v. I.A.C. (Barnett) 30 Cal. Comp. Cases 398 [writ denied 12/10/65, 1 Civ. 23063 (Div. 3) ]; City of Los Angeles v. I.A.C. (White) 29 Cal. Comp. Cases 226 [writ denied 10/6/ 64, 2 Civ. 28563 (Div. 3) ]; but cf. Van Pelt v. City & County of San Francisco (1968) 33 Cal. Comp. Cases 138, and City & County of San Francisco v. W.C.A.B. (Van Pelt) 33 Cal. Comp. Cases 254 [writ denied 5/3/68, 1 Civ. 25460 (Div. 3)] ; and Barnett v. Brizee (1968) 258 Cal.App.2d 97, 98 [65 Cal.Rptr. 493].)

In City of Los Angeles v. Industrial Acc. Com. (Fraide) (1965) 63 Cal.2d 242 [46 Cal.Rptr. 97, 404 P.2d 801], the court stated, “. . . we cannot properly sanction ‘double recovery’ for the employee” (id., p. 253) under provisions of the Los Angeles City Charter governing disability pensions for retirement following work-incurred disability, and under the Workmen’s Compensation Act. It permitted the city a partial credit against workmen’s compensation to the extent that the disability retirement pension payments represented contributions by the city. (Id., p. 254. See also Healy v. Industrial Acc. Com. (1953) 41 Cal.2d 118, 122 [258 P.2d 1] ; and City of Oakland v. Workmen’s Comp. App. Bd. (1968) 259 Cal.App.2d 163, 166-168 [66 Cal.Rptr. 283]; Gallagher v. City & County of San Francisco (1968) 33 Cal. Comp. Cases 145, and Gallagher v. W.C.A.B. (City & County of San Francisco) 33 Cal. Comp. Cases 445 [writ denied 8/1/68, 1 Civ. 25466 (Div. 2), hearing in S.Ct. denied 8/28/68] ; and cf. Stafford v. Los Angeles etc. Retirement Board (1954) 42 Cal.2d 795, 797-800 [270 P.2d 12] ; Lyons v. Hoover (1953) 41 Cal.2d 145, 148-149 [258 P.2d 4] ; Barnett v. Brizee, supra (1968) 258 Cal.App.2d 97, 98-100 [65 Cal.Rptr. 493]; O’Brien v. City of San Jose (1960) 180 Cal.App.2d 609, 614 *397615 [4 Cal.Rptr. 744]; Holt v. Board of Police etc. Comrs. (1948) 86 Cal.App.2d 714, 719-720 [196 P.2d 94]; and Lopez v. City of Los Angeles (1968) 33 Cal. Comp. Cases 595 [9/16/68, 2 Civ. 31612 (Div. 5)].)

In City of Los Angeles v. Industrial Acc. Com. (Morse) (1965) 63 Cal.2d 263 [46 Cal.Rptr. 110, 404 P.2d 814], the court recognized that it might be unreasonable (see Lab. Code, § 5952, subd. (c)) to commute the compensation death benefits (See Lab. Code, § 5100, subd. (a)) when the employer city would otherwise be entitled to a credit against the compensation award for payments on the widow’s payment under the city charter. The court observed: ‘ ‘ The order of commutation does not purport to, nor could it, directly adjudicate the city’s liability under the pension plan. The commission did, however, look to the practical effect of commutation on the pension liability. The commission’s order essentially rests on the theory that the employee should receive both full compensation and pension payments. We have held in Fraide that this theory is erroneous: that the city is entitled to a partial credit against workmen’s compensation. The city, therefore, may be entitled to a credit on future compensation liability or may be entitled to reduce future pensions which it may pay to Mrs. Morse.” (63 Cal.2d at p. 264. See also Christian v. City of Oakland, supra, 32 Cal. Comp. Cases 201.)

In Van Pelt v. City & County of San Francisco, supra, 33 Cal. Comp. Cases 138, the employer waived the statute of limitations and the appeals board allowed the employer credit against the share of the compensation death benefit which would have gone to the widow for death allowances which had been made to her under the city’s retirement system, and denied any credit as against the share of the compensation death benefits awarded to a minor dependent. (Cf. Lyons v. Hoover, supra, 41 Cal.2d 145, 148-149.)

As a general proposition it may be said that in the above eases the deceased employee rendered his services to the employer with the understanding that there would be no double payment to his surviving widow. The employer for its part undertook to pay the widow the difference between ‘ ‘ any benefits other than medical benefits, payable to or on account of such person under the Workmen’s Compensation Insurance and Safety Law of the State of California ...” and the total allowance otherwise payable under the city charter. The present decisions of the appeals board subject the city to a *398new and further liability. It has been called upon to pay the full death allowance payable to the widow under the charter provisions, and in addition, to pay the full benefits payable under the Workmen’s Compensation Act.

It is recognized that the benefits under theWorkmen’s Compensation Act are nonassignable. Therefore, the employer cannot be recognized as an assignee of the widow’s rights. (See Lab. Code, § 4900; and Fireman’s Fund Indem. Co. v. Industrial Acc. Com. (1959) 170 Cal.App.2d 412, 422-423 [339 P.2d 225].) Moreover, “If . . . there is any conflict between charter provisions and the compensation provisions of the Labor Code, the latter must prevail.” (Healy v. Industrial Acc. Com., supra, 41 Cal.2d 118, 122.) Nevertheless, Healy recognizes that benefits received from the employer to which the employee has not contributed may be credited against compensation payments where provision is made for such credit under local law (41 Cal.2d at pp. 121-122); and Fraide (63 Cal.2d at pp. 253-254) and Morse (63 Cal.2d at p. 264) indicate that such credit must be given. In Fraide the court observed, “. . . we cannot overlook the fact that the city’s tax monies constitute an important source for the pension fund. To permit the city a partial credit ... [in the same ratio as its contributions bear to the total contributions to the pension fund] is to dispose of the case upon the basis of the exact equities of the contending parties.” (63 Cal.2d at p. 254.) It would appear, therefore, that the provisions of the general law and the local law must be reconciled where it is possible to do so without doing violence to the former.

In the light of the foregoing, it is concluded that the employer-city who has made pension payments to a surviving widow is entitled to assert that, in the absence of evidence to the contrary, the widow at the time of death was entitled to the share of the benefits provided by section 4703 of the Labor Code, and that it is entitled to a credit against the total fund to the extent it has made pension payments on account of the death of its employee. The appeals board cannot shift the incidence of the benefits on the sole ground that the family of the decedent should receive both full compensation and pension payments. (See City of Los Angeles v. Industrial Acc. Com. (Morse) supra, 63 Cal.2d at p. 264; and Hallisy v. W.C.A.B. (City & County of Sam Francisco) 33 Cal. Comp. Cases 317 [writ denied 6/5/68, 1 Civ. 25349 (Div. 2)].) The failure of the widow to claim her share of the compensation *399benefits should not deprive the employer of his right to prevent double recovery, any more than should the widow’s attempt to commute the death benefits.

The foregoing permits the appeals board to consider other evidence of the respective needs of the dependents recognized in section 4703, as is expressly provided in section 4704. Without performing a labored analysis of the general law and the local law, it is possible to envision circumstances where the widow entitled to a pension may not be entitled to compensation (See Granell v. Industrial Acc. Com., supra, 25 Cal.2d 209, 214-215; and State Comp. Ins. Fund v. Industrial Acc. Com. (1950) 95 Cal.App.2d 671, 673 [213 P.2d 518].) There may also be circumstances under which it would not be “just or equitable” to grant the surviving wife any portion of the compensation benefits. (See Perry v. Industrial Acc. Com., supra, 176 Cal. 706, 709; and Rivieccio v. Bothan, supra, 27 Cal.2d 621, 627.) In the instant cases there is no evidence to show good cause at death to distribute the death benefits other than is provided in section 4703. It is also noted that the rule herein promulgated does not prevent reassignment of the benefit with consequent loss of credit to the employer where there would be good cause for such reassignment, such as the death of the surviving widow. (See California Cas. Indem. Exchange v. Industrial Acc. Com., supra, 211 Cal. 218, 221-222.)

There remains for consideration the disposition of the shares of the death compensation benefit which, under the provisions of section 4703 would have gone to any of several children whose claims are barred by limitations. At first blush consistency would appear to indicate that these shares should be apportioned at the time of death and be lost unless claimed. There are, however, no equitable circumstances arising by virtue of the relationship between the employer and the employee which require such a result in order to reconcile general and local law. 11 So far as the employer was concerned, its liability to dependents was fixed at a definite amount by the Commission within the statutory maximum. This amount became a fund for the benefit of the dependents of the deceased, to be administered according to their needs, and within the wise discretion of the Commission.” (California Cas. Indem. Exchange v. Industrial Acc. Com., supra, 211 Cal. 218, 221; see Lab. Code, §§ 4701-4706.) The city is protected against double payment by allowing the employer an *400offset against amounts which would have been payable to the surviving widow. Recognizing the appeals board’s discretion to shift the benefits from one child to another does not increase the burden on the employer. To the contrary, the denial of such a right not only restricts the discretion conferred upon the appeals board by the general law, but also confers a windfall on the employer by relieving it of a portion of the obligation it incurred in connection with the deceased employee’s employment. Section 5409 of the Labor Code provides in part as follows: “The running of the period of limitations prescribed by this chapter is an affirmative defense and operates to bar the remedy and not to extinguish the right of the employee.” (See also Glavich v. Industrial Acc. Com., supra, 44 Cal.App.2d 517, 521-522.) The employer by virtue of the provisions of local law has a legitimate interest in preventing a setting apart or a reassignment without good cause in derogation of the rights of the surviving widow. It has no such interest in the setting apart or reassignment of the share of a death compensation benefit as between the children of the employee.

The running of the limitation period of itself may not constitute good cause for setting aside or reassigning the share of a barred claimant to another. Nevertheless, the attainment of majority accompanied by freedom from dependency by one child may warrant the appeals board, in the exercise of its continuing jurisdiction under section 4704, setting aside or reassigning the death benefits, for which the employer is not entitled to credit, to the then remaining minor child or children.

In Swall (1 Civ. 25593) the original issues presented to the appeals board were “(1) Credit to the defendant, (2) Division of benefits between the applicants, (3) Earnings, (4) Statute of Limitations.” The record of the original hearing, March 2, 1967, indicates: “Submitted, but deferring the issue of credit to the defendant until such time as pending cases on this issue have been determined, either by the Board or by the Court.” On March 6, 1967 the referee made an award of $8,750, the maximum death benefits payable at the time of the employee’s death in 1955, of which sum $2,500 was set aside to an adult daughter who had filed a claim within one year of obtaining her majority and $6,250 to a minor son. Finding on the issue of credit was deferred. In a petition for reconsideration the city contended that the adult daughter was barred by *401failure to file her claim within six months after reaching her twenty-first birthday, and that the referee erred in failing to apportion the benefit pursuant to the provisions of section 4703 among the widow and three children who were the dependents at the date of death. It sought to assert the statute of limitations against the share of those claimants, the wife and a second adult daughter, whose claims were barred. Reconsideration was denied. A writ of review was denied (see City & County of San Francisco v. W.C.A.B., supra, 32 Cal. Comp. Cases 401) and hearing in the Supreme Court was denied November 22, 1967. Thereupon the city petitioned to reopen the proceedings on the issue of credit. The referee and the appeals board denied the credit on the grounds that the pension paid one beneficiary, the widow, could not be used as a credit to compensation benefits payable to other dependents, the children. Application of the principles of offset promulgated above is barred by the finality of the award to the children in the first proceedings. With that factual background the appeals board properly denied the credit. (Lyons v. Hoover, supra, 41 Cal.2d 145, 149; and Barnett v. Brizee, supra, 258 Cal.App. 2d 97, 98-100.)

In Guzzetti (1 Civ. 25592) the employee, who died in 1955, was survived by his wife, stepson and a stepdaughter. Application was filed by the stepdaughter, then age 19, twelve years later. It was stipulated that the statute of limitations barred the claims of the widow and stepson. The issues were: “1. Dependency, 2. Credit for retirement benefits paid by defendants, 3. Statute of Limitations.” The evidence showed that the deceased employee furnished the support for his wife and two stepchildren at the time of Ms death. The referee ruled, “As the minor ... is the only eligible applicant and [sic] all benefits are payable to her guardian on her behalf.” Credit was denied because the retirement pension was paid to the widow not to the children. In its petition for reconsideration the city urged error in failing to apply the statute of limitations to all eligible claimants; in the referee’s failure to apportion the award among the dependents at the time of death (Lab. Code, § 4703) so that the eligible dependent would be limited to recovering one-third of the compensation death benefits; and in the failure to allow the city credit for pension payments made to the employee’s widow. Reconsideration was granted, but the city’s contention was overruled and the award was confirmed. This appeal ensued. Here the award *402to the minor child is not final. The award should be annulled and the proceeding remanded to the appeals board for reconsideration to determine, in the light of the principles expressed herein, the share that should have been set apart to the widow at the time of death, and the credit to which the city is entitled against that share by the payment of death allowances, and to set aside or reassign the balance of the award to the eligible dependent.

In Morey (1 Civ. 25594) the issues are similar to Guzzetti. The deceased employee was survived by his wife and three sons. Applications of the wife and two sons were barred by the statute of limitations. The maximum death benefits, $15,000 under the law in effect on August 3, 1958 when the employee died, were awarded to the minor son without any credit for pension allowances paid the widow. Here again the city contended that the benefits should have been apportioned at the time of death, and that the minor should only recover his share. For the reasons set forth above the award should be annulled and the proceedings should be remanded to the appeals board for reconsideration and determination of the same issues as have been noted in Guzzetti.

Petitioner’s application and the petition of the respondent appeals board for a hearing by the Supreme Court were denied April 2,1969.

Labor Code section. 4704 provides as follows: “The commission may set apart or reassign the death benefit to any one or more of the dependents in accordance with their respective needs and in a just and equitable manner, and may order payment to a dependent subsequent in right, or not otherwise entitled thereto, upon good cause being shown therefor. The death benefit shall be paid to such one or more of the dependents of the deceased or to a trustee appointed by the commission or a commissioner for the benefit of the person entitled thereto, as determined by the commission. ’ ’