Zenith Ins. Co. v. WORKERS'COMP. APP. BD.

124 Cal. App. 3d 176, 176 Cal. Rptr. 920
CourtCalifornia Court of Appeal
DecidedOctober 1, 1981
Docket25606
StatusPublished

This text of 124 Cal. App. 3d 176 (Zenith Ins. Co. v. WORKERS'COMP. APP. BD.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zenith Ins. Co. v. WORKERS'COMP. APP. BD., 124 Cal. App. 3d 176, 176 Cal. Rptr. 920 (Cal. Ct. App. 1981).

Opinion

124 Cal.App.3d 176 (1981)
176 Cal. Rptr. 920

ZENITH INSURANCE COMPANY, Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD and DOROTHY THWEATT, Respondents.

Docket No. 25606.

Court of Appeals of California, Fourth District, Division Two.

October 1, 1981.

*178 COUNSEL

Chernow & Lieb and Alex S. Chernow for Petitioner.

Banks, Leviton, Kelley, Drass & Kelsey and Seth J. Kelsey for Respondents.

OPINION

TAMURA, J.

Petitioner Zenith Insurance Company (Zenith), a workers' compensation carrier, seeks review and annulment of a Workers' Compensation Appeals Board decision awarding full death benefits, medical benefits, and burial expenses to the widow of an employee who died of work-induced congestive heart failure. Zenith maintains that 50 percent of the contributing cause of death was a cumulative heart injury sustained by the employee during an earlier period of employment and that therefore the board should have permitted the widow to recover only 50 percent of the death and other benefits from its insured.

In Pacific Gas & Elec. Co. v. Ind. Acc. Com. (1961) 56 Cal.2d 219 [14 Cal. Rptr. 548, 363 P.2d 596], our Supreme Court held that the Legislature made no provision for apportionment of death benefits and that absent express legislative direction, such benefits are not apportionable. *179 Zenith contends that Labor Code section 3208.2 which was added in 1968 nullified the Pacific Gas & Elec. decision and mandates apportionment of the death and other benefits awarded in this case.[1] The section provides in pertinent part that when "death results from the combined effects of two or more injuries... all questions of fact and law shall be separately determined with respect to each such injury, including ... the apportionment between such injuries of liability for ... any death benefit." (1a) For reasons stated below, we hold that the high court's decision has not been abrogated by section 3208.2 and that under our workers' compensation law, death benefits, medical benefits and burial expenses are not apportionable.

The pertinent facts are not in dispute. From July 1963 to July 1967, the decedent was employed by D.N., Inc. In July 1967, while so employed decedent suffered a myocardial infarction necessitating hospitalization for two weeks. He suffered a second attack in 1968 while employed by an insurance company. In 1970 or 1971 he underwent coronary artery bypass surgery. About a month after the surgery decedent was able to resume most of his normal activities. In May or June 1976, he was employed by Grove Gunite Corporation (Grove) in a management capacity. In August 1976, he was again hospitalized for two or three weeks because of his heart condition. In November 1977, he suffered a major attack while on his way to a bank to arrange financing for Grove. Between December 1977 and January 1978, he worked for a few hours a day but after January he ceased working.

In February 1978, the employee filed two separate applications for workers' compensation benefits for cumulative injuries to his heart, one for the period of employment with Grove and the other for the period of employment with D.N., Inc. Following a consolidated hearing on the applications, the judge issued findings and award in the Grove case in which he apportioned 50 percent of the employee's permanent disability to the cumulative heart injury suffered during his employment with Grove. In the D.N., Inc. case, the judge decided he lacked jurisdiction to award benefits because more than five years had elapsed from the date of the injury to the filing of the application. On the employee's petition for reconsideration in the D.N., Inc. case, the board remanded the matter to the trial judge for further proceedings and findings on the *180 statute of limitations issue, particularly as to whether the claim was barred under section 5412 because applicant knew or should have known at the time of his 1967 heart attack that it may have been industrially caused.[2] Before further proceedings could be had in the D.N., Inc. matter, the employee died. His widow then amended the Grove application to one for death benefits and settled the D.N., Inc. case by a compromise and release agreement.[3]

At the hearing on the application for death benefits, Grove's compensation carrier argued that section 3208.2 required apportionment of 50 percent of the death benefits to the cumulative heart injury sustained by decedent during his employment with D.N., Inc. so that the award against Grove should be for only 50 percent of the benefits. The judge denied the requested apportionment and awarded the widow (the sole dependent) full death benefits of $50,000, reimbursement of medical expenses in the sum of $6,782.92 and burial expenses of $1,500. The board granted the carriers' petition for reconsideration but in its opinion on reconsideration ruled that section 3208.2 did not require apportionment and affirmed the award after reducing the burial expenses to $1,000, the maximum then allowable.[4] First, the board noted that section 3208.2 has been held to operate prospectively only so that an injury occurring before its operative date (Jan. 1, 1969) may be merged into a later cumulative injury. The board added, however, that even if the statute applied and foreclosed the merger, under the Pacific Gas & Elec. decision, an employer is liable for full death benefits upon a showing that the industrial injury hastened or contributed to the employee's death and the benefits are not apportionable by reason of any predisposing or other contributing cause.

Zenith contends that when death results from the combined effects of two or more injuries, section 3208.2 required apportionment of death benefits, costs of medical treatment and burial expenses, so that on the basis of the findings made in the employee's disability applications, *181 Grove should have been liable to the widow for only 50 percent of the benefits awarded.

I

THE PACIFIC GAS & ELEC. DECISION

In Pacific Gas & Elec. Co. v. Ind. Acc. Com., supra, 56 Cal.2d, 219, the commission had awarded full death benefits to the employee's dependents based on a finding that death was the result of a work-related back injury combined with a nonindustrial cancer. The employer contended that when an industrial injury combines with a preexisting disease to cause death, section 4663 requires apportionment of death benefits in the proportion that each factor contributes to the death.[5]

In holding that death benefits were not apportionable, the court pointed out that section 4663 and sections 4750-4755 relating to payments from the Subsequent Injury Fund deal with apportionment of compensation for disability and that the Legislature had made no provision for apportionment of death benefits payable to dependents. The court viewed the absence of such provisions as reflecting a legislative choice to make death benefits nonapportionable.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Flesher v. Workers' Compensation Appeals Board
590 P.2d 35 (California Supreme Court, 1979)
Pacific Gas & Electric Co. v. Industrial Accident Commission
363 P.2d 596 (California Supreme Court, 1961)
Fireman's Fund Indemnity Co. v. Industrial Accident Commission
250 P.2d 148 (California Supreme Court, 1952)
Bianco v. Industrial Accident Commission
150 P.2d 806 (California Supreme Court, 1944)
Pacific Indemnity Co. v. Industrial Accident Commission
195 P.2d 919 (California Court of Appeal, 1948)
Royal Globe Insurance v. Industrial Accident Commission
403 P.2d 129 (California Supreme Court, 1965)
Green v. Green (1944)
151 P.2d 679 (California Court of Appeal, 1944)
Pullman Kellogg v. Workers' Compensation Appeals Board
605 P.2d 422 (California Supreme Court, 1980)
Fruehauf Corp. v. Workmen's Compensation Appeals Board
440 P.2d 236 (California Supreme Court, 1968)
Department of Corrections v. Workers' Compensation Appeals Board
589 P.2d 853 (California Supreme Court, 1979)
Beveridge v. Industrial Accident Commission
346 P.2d 545 (California Court of Appeal, 1959)
Cowell v. Industrial Accident Commission
78 P.2d 1016 (California Supreme Court, 1938)
Judson Steel Corp. v. Workers' Compensation Appeals Board
586 P.2d 564 (California Supreme Court, 1978)
Arndt v. Workers' Compensation Appeals Board
56 Cal. App. 3d 139 (California Court of Appeal, 1976)
Aetna Casualty & Surety Co. v. Workmen's Compensation Appeals Board
35 Cal. App. 3d 329 (California Court of Appeal, 1973)
Munoz v. Workmen's Compensation Appeals Board
19 Cal. App. 3d 144 (California Court of Appeal, 1971)
State Compensation Insurance Fund v. Workmen's Compensation Appeals Board
1 Cal. App. 3d 812 (California Court of Appeal, 1969)
City of Los Angeles v. Workers' Compensation Appeals Board
88 Cal. App. 3d 19 (California Court of Appeal, 1978)
Miller v. Workmen's Compensation Appeals Board
258 Cal. App. 2d 490 (California Court of Appeal, 1968)
De Luna v. Workmen's Compensation Appeals Board
258 Cal. App. 2d 199 (California Court of Appeal, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
124 Cal. App. 3d 176, 176 Cal. Rptr. 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zenith-ins-co-v-workerscomp-app-bd-calctapp-1981.