Phillips v. Sacramento Municipal Utilities District

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WORKERS' COMPENSATION APPEALS BOARD 1 STATE OF CALIFORNIA 2 3 4 5 VINCE PHILLIPS (Deceased); TINA PHILLIPS, individually, and as Guardian ad Litem and Trustee for COLE PHILLIPS and JAKOB PHILLIPS, Case No. RDG 57899 6 Applicants, 7 8 9 vs. OPINION AND DECISION AFTER RECONSIDERATION (En Banc) SACRAMENTO MUNICIPAL UTILITIES DISTRICT, Permissibly self-insured, 10 Defendant. 11 The issue presented in this case involves the rate at which 12 death benefits are payable to a decedent's dependents. 13 Because of the significant legal issue presented, and in order to secure 14 uniformity 15 pursuant to a majority vote of the Board, reassigned this case to 16 the Appeals Board as a whole for an en banc decision. 17 reconsideration in order to allow sufficient opportunity to study 18 of decision, the Chairman the factual and legal issues presented. of the Appeals Board, We granted We sought amicus curiae briefs in order to ensure that all points of view were considered. 19 For the reasons expressed below, we conclude that the decision of 20 the workers' 21 section 22 compensation referee (WCR) applying Labor Code affirmed. 23 24 4661.5 to the death benefit rate should be The decedent, Vince Phillips, was employed as a tree trimmer by the Sacramento Municipal Utilities District. 25 PHILLIPS, VINCENT 26 indemnity - 1 - On June 30, 1993, 1 2 he died as a result of being electrocuted in the course of his employment. On November 30, 1993, based on the stipulations of the parties, a WCR awarded applicants, the decedent's dependents, 3 death benefits of $277,824.96 payable at the rate of $336 per 4 week. On January 23, 1997, another WCR issued a corrected award 5 which awarded applicants death benefits of $115,000 payable at 6 various rates up to $441.40 per week, consistent with Labor Code 7 section 4661.5, and thereafter benefits pursuant to Labor Code 8 section 4703.5 payable at the rate of $441.40 per week until 9 decedent's younger child reached the age of 18. Defendant filed a timely petition for reconsideration contending that Labor Code 10 section 4661.5 is inapplicable to death benefits and to benefits 11 under section 4703.5. Defendant contends that benefits should 12 have been awarded at the rate of $336, rather than $441.40, per 13 week. 14 The issue is before us because of legislative changes in 15 1990, which created a new type of workers' compensation death 16 benefits. Originally, there was only one type of death benefit — a fixed amount which was determined by the date of the injury, the 17 number 18 of dependency. decedent's dependents, and the extent of their In this case, the fixed amount under Labor Code 19 section 20 addition 21 thereafter, 22 continuation of death benefit payments, after the fixed death 23 4702(a)(1) to this Labor is $115,000, amount, Code for payable injuries section in installments. occurring 4703.5 in provides In 1990 and for the benefit amount has been paid, until the youngest dependent child reaches the age of 18. This is generally referred to as the PHILLIPS, VINCENT - 2 - 24 25 26 1 2 special minors' death benefit. The issue in this case is the weekly rate at which the fixed death benefit and the special minors' death benefit are to be paid. 3 THE PLAIN LANGUAGE OF LABOR CODE SECTIONS 4702(b), 4703.5 AND 4661.5 REQUIRES THAT RATES OF DEATH BENEFITS BE INCREASED 4 5 The statutes which establish the weekly rates for the fixed 6 death benefit and the special minors' death benefit are similar, 7 but 8 not identical. 9 4702(b) provides that For the fixed death benefit, Labor Code section "The death benefit in all cases shall be paid in installments in the same manner and amounts as temporary total disability indemnity would have to be made to the employee, unless the appeals board otherwise orders. However, no payment shall be made at a weekly rate of less than two hundred twenty-four dollars ($224)." 10 11 12 13 With regard to the special minors' 14 death benefit, Labor Code section 4703.5 provides, in part, that 17 ". . . payment of death benefits shall continue until the youngest child attains age 18 in the same manner and amount as temporary total disability indemnity would have been paid to the employee, except that no payment shall be made at a weekly rate of less than two hundred twenty-four dollars ($224)." 18 Thus, the rate of payment of both the fixed death benefit and the 19 special 15 16 20 minors' death benefit is determined by the temporary disability indemnity rate. Pursuant to Labor Code section 4653, the temporary disability 21 indemnity 22 23 earnings." rate is two-thirds a worker's "average weekly But Labor Code section 4453 limits "average weekly earnings" to a maximum amount which depends on the date of injury. 24 25 PHILLIPS, VINCENT 26 of - 3 - 1 2 In this case, the parties stipulated that the decedent's earnings were $662.80 per week. Two-thirds of that amount is $441.87. In 1993, the maximum temporary disability rate was $336 per week so 3 the proper rate to pay death benefits initially in this case was 4 5 6 7 8 9 10 $336 per week. However, Labor Code section 4661.5 provides that "Notwithstanding any other provision of this division, when any temporary total disability indemnity payment is made two years or more from the date of injury, the amount of this payment shall be computed in accordance with the temporary disability indemnity average weekly earnings amount specified in Section 4453 in effect on the date each temporary total disability payment is made unless computing the payment on this basis produces a lower payment because of a reduction in the minimum average weekly earnings applicable under Section 4453." Beginning July 1, 1995, the maximum temporary disability rate was 11 increased to $448 per week. 12 the WCR awarded death benefits at rates of up to $441.40 per week. 13 The plain language of sections 4702(b) and 4703.5 requires 14 that death benefits be paid in the same manner and amount as 15 temporary employee. disability Therefore, Relying on Labor Code section 4461.5, benefits when would the have been temporary paid disability to the rate is 16 increased pursuant to section 4661.5, the death benefit rate must 17 similarly be increased. The words of sections 4702(b) and 4703.5 18 leave no room for any other interpretation. 19 principle of statutory interpretation that where the words of a 20 statute are clear and unambiguous, its plain language should be 21 followed." 22 23 Midas Recovery Services, Inc. v. Workers' Comp. Appeals Bd. (1997) 55 Cal.App.4th 1321, 62 Cal.Comp.Cases 763. THE APPLICATION OF LABOR CODE SECTION 4661.5 TO DEATH BENEFITS IS JUSTIFIED BY CASE LAW AND THE LABOR CODE 24 25 PHILLIPS, VINCENT 26 "It is an established - 4 - In its petition for reconsideration defendant argues that 1 2 section 4661.5 refers only to payment of temporary total disability indemnity and that the Appeals Board has previously 3 refused to apply that section to other species of benefits, citing 4 Duncan v. The Singer Company (1978) 43 Cal.Comp.Cases 467. In 5 that case, the Appeals Board, en banc, held that benefits for 6 total permanent disability, although subject to the same maximum 7 rate as temporary disability benefits, is a separate species of 8 benefits to which Labor Code section 4661.5 does not apply. 9 In reaching this conclusion, the Appeals Board noted that Labor Code section 4659(b) provided that the indemnity rate for permanent 10 total disability was to be determined under Labor Code section 11 4453. Labor Code section 4453 provided that temporary disability 12 indemnity and permanent total disability indemnity were to be 13 calculated based upon the same earnings formula. 14 they are different species of compensation, they are initially to 15 be paid at the same rate under section 4453. 16 section 4661.5, which provides for the Thus, although However, Labor Code increase in refers only to temporary total disability indemnity. benefits, Therefore, 17 by 18 its terms Labor Code section 4661.5 permanent total disability indemnity. is not applicable to The Appeals Board noted 19 that if the Legislature intended for "permanent total disability 20 indemnity" to come within the scope of section 4661.5, that term 21 could have been included within the section's language. 22 23 Following a similar analysis, the present case the application of section 4661.5 to death benefits is justified and consistent with the above rationale. 24 25 PHILLIPS, VINCENT 26 in - 5 - Labor Code sections 4702(b) 1 2 and 4703.5 specifically provide that death benefits are to be paid at the same rate that temporary disability benefits would have been paid to the injured worker. The manner of payment and the 3 temporary disability rate are governed by Labor Code sections 4 4453, 4650(d) and 4653 as well as section 4661.5. Those sections 5 specify the manner and amount that temporary disability indemnity 6 is to be paid. 7 in Duncan, supra, because the statutes specifically require that 8 death benefits are to be paid in the same manner and amount as 9 temporary Accordingly, and using a similar analysis as used disability indemnity, the provisions of not only sections 4453, 4650(d) and 4653, but also the provisions of Labor 10 Code section 4661.5 are applicable and result in the increase in 11 the indemnity rate. We see no basis for applying only the 12 provisions of the first three sections and not the provisions of 13 Labor Code section 4661.5, nor has such a distinguishing basis 14 been provided. 15 Code sections 4702(b) and 4703.5 to make death benefits payable in 16 Moreover, the Legislature could have amended Labor the same manner and amount as permanent total disability and thus, make the provisions of section 4661.5 inapplicable pursuant to the 17 rationale of Duncan, but it did not do so. 18 Or the Legislature could have amended those sections to specifically exclude the 19 application 20 amendments have been made. 21 temporary disability benefits may be a different species, those 22 benefits under the provisions of the Labor Code are to be paid in 23 of the provisions the same manner and amount. 25 PHILLIPS, VINCENT section 4661.5. No such Therefore, while death benefits and 24 26 of - 6 - LABOR CODE SECTION 4661.5 IS A STATUTORY EXCEPTION TO LABOR CODE SECTION 4453.5 1 2 The dissent argues that the death benefits payable in this 3 case should not be increased pursuant to section 4661.5 because 4 Labor Code section 4453.5 provides that 7 "Benefits payable on account of an injury shall not be affected by a subsequent statutory change in amounts of indemnity payable under this division, and shall be continued as authorized, and in the amounts provided for, by the law in effect at the time the injury giving rise to the right to such benefits occurred." 8 This argument overlooks the fact that section 4661.5 begins with 9 the words "Notwithstanding any other provision of this division . 10 . ." 5 6 11 Section 4453.5 was enacted in 1972. Section 4661.5, as originally enacted in 1974, began with the phrase "Notwithstanding any other provision of this chapter . . ." The word "chapter" was 12 later 13 changed to "division." division as section 4661.5. Section 4453.5 is in the same Thus, both the Court of Appeals and 14 the Appeals Board have previously concluded that section 4661.5 15 creates an exception to section 4453.5. 16 Comp. Appeals Bd. (1991) 1 Cal.App.4th 61, 56 Cal.Comp.Cases 682; 17 Diaz v. Borchers Bros., Inc. (1978) 43 Cal.Comp.Cases 800. We therefore to 18 conclude that section See Jimenez v. Workers' 4453.5 is inapplicable increases in benefits pursuant to section 4661.5. 19 The dissent argues that the law in effect at the time of the 20 injury governs all rights and liabilities arising from the injury, 21 citing Harrison v. Workmen's Compensation Appeals Board (1974) 44 22 Cal.App.3d 197, 39 Cal.Comp.Cases 867, and Aetna Casualty & Surety 23 Co. 24 Cal.Comp.Cases v. Industrial 123. Acc. Both Comm. of these 25 PHILLIPS, VINCENT 26 (1947) - 7 - cases 30 Cal.2d were 388, decided 12 before 1 2 section 4661.5 was enacted and before the leading case of Hofmeister v. Workers' Comp. Appeals Bd., (1984) 156 Cal.App.3d 848 at 852, 49 Cal.Comp.Cases 438, was decided. In Hofmeister, 3 the 4 Court held that, pursuant to section 4661.5, temporary disability benefits paid more than two years after the date of 5 injury were payable at the rate in effect on the date of the 6 payment rather than the rate in effect on the date of injury. 7 while it is true that the law in effect at the time of an injury 8 normally governs the rights and liabilities arising out of the 9 And injury, section 4661.5, which was in effect on the date of the injury in this case, provides a specific statutory exception to 10 that general principle. 11 THE WCR DID NOT ABUSE HIS DISCRETION 12 The dissent also argues that the WCR exceeded the limits of 13 his discretion by increasing the weekly death benefit rate beyond 14 the maximum temporary disability indemnity rate of $336 per week 15 in effect at the time of injury, citing L. P. Price Mercantile Co. 16 v. Industrial Acc. Comm.1 (1957) 49 Cal.2d 13, 22 Cal.Comp.Cases 170. However, this argument assumes that section 4661.5 does not 17 increase the rate at which death benefits are paid, and it relies 18 1In 19 20 21 22 23 24 L. P. Price Mercantile Co. v. Industrial Acc. Comm., the Court was interpreting the portion of section 4702 which was the predecessor to the clause "unless the appeals board otherwise orders", which now appears in section 4702(b). The Court held that that language gave the Appeals Board discretion to increase the rate of payment of death benefits to an amount equal to the maximum temporary disability rate, despite the fact that the decedent's earnings would support only the minimum rate. Because section 4661.5 is applicable to death benefit payments made more than two years after the date of injury, the Appeals Board has discretion to increase the weekly rate at which the fixed death benefit is paid to the then-current maximum temporary disability rate. However, we note that such an increase in the rate will accelerate the payment of the fixed death benefit and could increase the employer's liability for the special minor's death benefit, so such increases should be allowed only in limited circumstances after careful consideration. This issue is not presented by this case. 25 PHILLIPS, VINCENT 26 - 8 - 1 2 on a case which was decided before section 4661.5 was enacted. For the reasons explained above, we have concluded that section 4661.5 is applicable to death benefits. Thus, the WCR could not 3 have abused his discretion by following the law. 4 The dissent further argues that the WCR abused his 5 discretion by awarding benefits at a rate other than the rate to 6 which the parties stipulated. 7 stipulations of the parties are not binding on the Appeals Board 8 and may be rejected where notice and opportunity to be heard are 9 given. Labor Code section But it is well-settled that the 5702; Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 52 Cal.Comp.Cases 419; 10 Turner 11 Gas Company Cal.App.3d 286, 40 v. Workmen's Comp. Cal.Comp.Cases 253. Appeals The Bd. (1975) parties and 47 the 12 community at large have had ample opportunity to present their 13 arguments. 14 applicable law are not in dispute, there is good cause to issue an 15 award of benefits payable at the correct rate. In this case, where the underlying facts and We note that there is apparently a clerical error in the 16 WCR's findings and award. The WCR awarded death benefits payable 17 at the rate of $441.40 per week, but his report refers to a rate 18 of $441.87 per week, 19 decedent's earnings. 20 which is the correct rate based upon error. 21 22 For the We will therefore correct that clerical foregoing reasons, the Decision Reconsideration of the Workers' Compensation Appeals Board, 23 24 25 PHILLIPS, VINCENT 26 as - 9 - After IT IS ORDERED that paragraphs 5 and 6 of the findings dated 1 2 January 22, 1997, be CORRECTED by substituting $441.87 for $441.40. 3 /// 4 /// 5 /// 6 /// 7 /// 8 /// 9 /// /// 10 /// 11 12 IT IS FURTHER ORDERED that the Findings & Order and Corrected Award dated January 22, 1997 be AFFIRMED as corrected. 13 14 WORKERS' COMPENSATION APPEALS BOARD 15 /s/ Arlene N. Heath Arlene N. Heath, Commissioner 16 /s/ Richard Gannon Richard Gannon, Commissioner 17 18 /s/ Colleen Casey Colleen Casey, Commissioner 19 20 /s/ Dennis J. Hannigan Dennis J. Hanningan, Deputy Commissioner 21 22 WE DISSENT 23 24 25 PHILLIPS, VINCENT 26 - 10 - 1 /s/ Jane S. Wiegand Jane S. Wiegand, Commissioner 2 /s/ Robert Ruggles Robert Ruggles, Commissioner 3 /s/ Douglas M. Moore, Jr. 4 Douglas M. Moore, Jr., Chairman 5 6 7 DATED AND FILED IN SAN FRANCISCO, CALIFORNIA APRIL 8, 1998 8 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES LISTED ON THE 9 OFFICIAL ADDRESS RECORD EXCEPT LIEN CLAIMANTS 10 11 12 DISSENTING OPINION 13 We dissent. 14 BASIC POSITION 15 16 By its terms, Labor Code section 4661.5 applies only to 17 temporary total disability indemnity payments, and not to death 18 benefits. Labor Code sections 4702(b) and 4703.5 provide for 19 payment of death benefits in the same manner and amount that 20 temporary 21 disability injured worker. indemnity would have been paid to the Thus, death benefits must be paid: (1) every two weeks in accordance with Labor Code section 4650(c) and (2) at 22 the rate of two-thirds of the worker's average weekly earnings 23 pursuant to Labor Code section 4653, subject to the limitations 24 25 PHILLIPS, VINCENT 26 - 11 - 1 2 in Labor Code section 4453.5 -- benefit payments are not affected by subsequent statutory change in amounts and the amounts provided for shall be continued at the statutory rate in effect 3 at the time the injury occurred. 4 5 DEATH BENEFITS AND TEMPORARY DISABILITY INDEMNITY ARE DIFFERENT SPECIES OF BENEFITS 6 7 Death benefits are a different species of benefits; they are 8 unlike temporary disability indemnity and they serve a different 9 purpose. 10 payable Temporary disability indemnity is the basic benefit to a worker who is temporarily disabled due to an industrial injury;2 it serves as a substitute for wages lost by 11 the employee during the time he or she is incapacitated from 12 working. 13 Ritchie v. Workers' Comp. Appeals Cal.App.4th 1174 at 1179, 59 Cal.Comp.Cases 243. Bd. (1994) 24 Death benefits 14 are 15 financial consequences of his or her death in the course of 16 employment." 17 Bd. (1981) 124 Cal.App.3d 176, 46 Cal.Comp.Cases 1126, 1133. intended to relieve "an employee's dependents of the Zenith Insurance Company v. Workers' Comp. Appeals In Duncan v. The Singer Company (1978) 43 Cal.Comp.Cases 18 467, the applicant was totally and permanently disabled. He 19 asserted that his permanent disability benefits payable more than 20 two years after the date of injury should be increased pursuant 21 22 23 24 2An employee who is considered temporarily totally disabled (unable to work for any wages during the period of healing) is entitled to temporary total disability indemnity which is at the rate of two-thirds of the average weekly earnings during the period of such disability (Lab. Code § 4653). A worker who can return to limited kinds of work before the healing period is over is entitled to temporary partial disability indemnity which is two-thirds of the weekly loss in wages during the period of such disability (Lab. Code §4654). 25 PHILLIPS, VINCENT 26 - 12 - 1 2 to Labor Code section 4661.5. The Appeals Board, en banc, held that, although temporary total disability and permanent total disability benefits are paid at the temporary total disability 3 rate, they are different species of benefits and that section 4 5 4661.5 is not applicable to permanent total disability benefits. As in Duncan, death benefits are a different species of 6 benefits 7 which refers only to temporary total disability payments, is 8 inapplicable to death benefits. 9 Just intended than temporary as the for disability, majority 'permanent argues total therefore that disability "if section the 4661.5, legislature indemnity' to come 10 within the scope of section 4661.5, that term could have been 11 included within the section's language", we would hasten to point 12 out that inclusion of death benefits within the scope of section 13 4661.5 14 amendment to that section. must be accomplished by an appropriate legislative THE LAW IN EFFECT AT THE TIME OF THE INJURY GOVERNS ALL RIGHTS AND LIABILITIES ARISING FROM THE INJURY 15 16 17 In workers compensation cases, it is elemental that the law 18 in effect at the time of injury is the law governing all rights 19 and liabilities arising out of the injury. 20 Comp. 21 Appeals Bd. (1974) 44 Cal.App.3d Harrison v. Workers’ 197, 202 fn. 5, 39 Cal.Comp.Cases 867. In Aetna Casualty & Surety Co. v. Industrial Acc. Comm. 22 (1947) 30 Cal.2d 388, 12 Cal.Comp.Cases 123, the Supreme Court 23 stated: 24 25 PHILLIPS, VINCENT 26 - 13 - 2 “Since the industrial injury is the basis for any compensation award, the law in force at the time of the injury is to be taken as the measure of the injured person's right of recovery.” (at page 392). 3 In Aetna, a case closely on point with the issues in the 4 present case, the Supreme Court considered whether a new statute, 5 increasing workers' compensation benefits, could be applied to 1 6 awards made after the effective date of the statute even though the awards pertained to injuries suffered before the new 7 legislation had been enacted. 8 "a statute changing the The Supreme Court concluded that measure or method of computing 9 compensation for disability or death is not given retrospective 10 effect when applied to disability or death resulting from an 11 injury sustained before the effective date of the statute" and 12 accordingly 13 held that the employee was not entitled to the increased benefits when his injury pre-dated the effective date of the amendment: 14 15 16 17 18 “The prior industrial injury was not a mere antecedent fact relating to the permanent disability ensuing there from; on the contrary, it was the basis of the right to be compensated for such disability. . . Since the industrial injury is the basis of any compensation award, the law in effect at the time of the injury is to be taken as the measure of the injured person's recovery” (at page 392). 19 The rate used by the WCR in this case was not the proper 20 rate since the increased rate was not in effect on the date of 21 injury. 22 23 LABOR CODE §4453.5 PRECLUDES INCREASES IN BENEFITS BASED ON STATUTORY CHANGES ENACTED AFTER THE DATE OF INJURY 24 25 PHILLIPS, VINCENT 26 - 14 - The holding in the Aetna case was codified in 1973 as Labor 1 2 Code section 4453.5 which provides: “Benefits payable on account of an injury shall not be affected by a subsequent statutory change in amounts of indemnity payable under this division, and shall be continued as authorized, and in the amounts provided for, by the law in effect at the time the injury giving rise to the right to such benefits occurred.” 3 4 5 6 In this case, the injury occurred on June 30, 1993. At that 7 time the maximum temporary total disability rate was $336 per 8 week. 9 temporary total disability rate to $448 per week beginning July 10 1, 1995, did not become effective until July 16, 1993, after the 11 The amendment to section 4653 which increased the maximum date of injury. Because section 4453.5 precludes increases in benefits based upon statutory changes enacted after the date of 12 injury, the WCR's award which increased the weekly payment rate 13 14 of death benefits to an amount greater than $336 per week was improper. 15 One 16 inconsistent. 17 benefit increases from affecting the amount of benefits to which 18 might argue that Section sections 4453.5 4453.5 forbids and 4661.5 subsequent are statutory an injured worker or his dependents are entitled, while section 4661.5 requires that any payment of temporary total disability 19 indemnity made more than two years after injury shall be paid at 20 the rate in effect at the time of the payment. This perceived 21 contradiction can be easily resolved: 22 4661.5 an injured worker is entitled to increased benefits based 23 on earnings at the time of the 24 25 PHILLIPS, VINCENT 26 - 15 - In accordance with section injury, provided that the 1 2 increases were statutorily enacted and on the books at the time of the injury as required by section 4453.5. 3 THERE WAS AN ABUSE OF DISCRETION IN SETTING THE RATE OF PAYMENT IN EXCESS OF THE MAXIMUM TEMPORARY TOTAL DISABILITY RATE IN EFFECT AT THE TIME OF INJURY 4 5 The WCR has discretion to set the rate of payment of death 6 benefits pursuant to Labor Code section 4702, but that discretion 7 is limited to rates between the minimum and maximum temporary 8 total disability rates in effect at the time of injury.. 9 Price Mercantile Co. v. Industrial Acc. Comm. (1957) 49 Cal.2d 10 13, 22 Cal.Comp.Cases 170; State Compensation Insurance Fund v. 11 L. P. Workers' Comp. Appeals Bd. (Gonzalez) (1992) 57 Cal.Comp.Cases 761, 762 (writ denied). The amount of the death benefit is based 12 on the number of dependents and the extent of their dependency as 13 14 determined at the time of the injury. Granell v. Industrial Acc. Comm. (1944) 25 Cal.2d 209, 9 Cal.Comp.Cases 301. 15 In this case, by setting a rate of payment which exceeded 16 the 17 injury, the WCR abused his discretion. 18 maximum temporary total disability rate at the time of In addition, it was improper to increase the rate at which death benefits were to be paid after the parties stipulated to 19 payment at $336 per week. 20 "Stipulations are designed to expedite trials and hearings and their use in workers' compensation cases 21 should be encouraged." 22 (1987) 194 Cal.App.3d 784, 52 Cal.Comp.Cases 419. 23 Workers' 24 Cal.Comp.Cases 554, the Court stated that Comp. Appeals Robinson v. Workers' Comp. Appeals Bd. Bd. (1996) 25 PHILLIPS, VINCENT 26 - 16 - 46 In Brannen v. Cal.App.4th 377, 61 “... an award based [on] an executed stipulation may be reopened and rescinded if the stipulation ‘has been 'entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, where the facts stipulated have changed or there has been a change in the underlying conditions that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation.'" [Citation omitted.] On the other hand, "'[w]hen there is no mistake but merely a lack of full knowledge of the facts, which ... is due to the failure of a party to exercise due diligence to ascertain them, there is no proper ground for relief.’” 1 2 3 4 5 6 7 In Brannen, the Court held that the Appeals Board erred in 8 rescinding the original award and disregarding the stipulation of 9 the 10 rescinding the original award, which was based on the stipulation 11 12 parties. In the present case, there is no of the parties to the payment rate of $336 per week. does not mistake, show any inadvertence, change in circumstances, excusable or basis The record neglect, special for fraud, circumstances. 13 Therefore, the WCR erred in rescinding the award and issuing a 14 new award of death benefits at a rate of payment other than the 15 rate to which the parties stipulated. 16 /// 17 /// 18 PRACTICAL RAMIFICATIONS APPLYING LABOR CODE 4661.5 TO SPECIAL MINOR'S DEATH BENEFITS 19 20 21 We would note that the effect of the majority opinion in applying Labor Code 4661.5 to the special minor's death benefit (continuation death benefit payments from the time the fixed 22 death benefit is paid in full until the dependent child reaches 23 18) would, in the last analysis, result in the same type of open- 24 25 PHILLIPS, VINCENT 26 - 17 - 1 2 ended situation recognized in Duncan which would make it impossible for insurance carriers to properly estimate liability for insurance premium purposes. We would also point out that this 3 also 4 inhibits reserves. an employer/insurance carrier from quantifying As pointed out by one of the amicus briefs, there is 5 the additional possible ramification of discouraging settlements 6 due to either party's inability to determine how much a future 7 total temporary disability payment rate might be when attempting 8 to develop a total settlement figure. There is one last practical ramification of the application 9 of section 4661.5 to the payment of death benefits. The majority 10 seems to overlook that the very purpose of 4661.5 (to take into 11 account the effect of inflation) has already been considered when 12 the Legislature periodically raised the death benefit to keep 13 pace 14 with inflation.3 15 has Over the same period of time, the Legislature 16 17 18 19 20 21 22 23 The statutory amount of the death benefit for three total dependents (regardless of the number of partial dependents) (Labor Code section 4702(a)(1)) was increased by the Legislature: 3 Death From Injury On or After 1/1/84 1/1/91 7/1/94 7/1/96 $95,000 $115,000 $150,000 $160,000 24 25 PHILLIPS, VINCENT 26 - 18 - 1 2 raised the basis for the temporary total disability payment rate (two-thirds of the injured worker's "average weekly earnings").4 If one compares the increases of these two benefits, one 3 realizes that the Legislature has made comparable adjustments for 4 inflation in both benefits: 5 Injuries after Average Weekly Earnings Death Benefits 1/1/91 20.8% 17.4% 7/1/94 17.4% 23.3% 7/1/96 9.1% 6.3% 6 7 8 9 Therefore, the practical effect of the majority's decision 10 is 11 to compound this legislative recognition of inflation by increasing the death benefit after two years. 12 CONCLUSION 13 The fixed amount of the death benefit was established by the 14 Legislature without regard to the decedent's earnings. 15 that the Legislature specified that the death benefits were to be 16 The fact paid "in the same manner and amount as temporary total disability payments" simply indicates that the Legislature "intended full 17 death benefits to be made available promptly so that they may 18 The temporary total disability is two-thirds of the average weekly earnings (Labor Code section 4453(a)) with the maximum earnings having been ratcheted up over the years. 4 19 20 Average Weekly Earnings 21 Minimum Maximum Injuries occurring on or after 189 504 1/1/91 22 189 609 1/1/94 23 189 672 1/1/95 189 735 1/1/96 24 25 PHILLIPS, VINCENT 26 - 19 - 1 2 serve as a substitute for lost support." Zenith Insurance Company v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 176, 187, 46 Cal.Comp.Cases 1126, 1134. 3 For all of the foregoing reasons, the findings and award 4 should be amended to provide for payment of death benefits under 5 both Labor Code section 4702(b) and section 4703.5 at the rate of 6 $336 per week. 7 /s/ Jane S. Wiegand Jane S. Wiegand, Commissioner 8 9 /s/ Robert Ruggles Robert Ruggles, Commissioner 10 11 /s/ Douglas M. Moore, Jr. 12 Douglas M. Moore, Jr., Chairman 13 14 DATED AND FILED IN SAN FRANCISCO, CALIFORNIA 15 APRIL 8, 1998 16 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES LISTED ON 17 THE OFFICIAL ADDRESS RECORD EXCEPT LIEN CLAIMANTS 18 ncv 19 20 21 22 23 24 25 PHILLIPS, VINCENT 26 - 20 -

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