STATE, SUBSEQUENT INJURIES FUND v. Industrial Acc. Com.

DOOLING, J.

The Industrial Accident Commission found that the decedent Monteverde, an employee of the State of California, had suffered an industrial injury which added to a preexisting disability, amounted to a total disability in excess of 70 per cent. It made an award to decedent’s minor child, as his sole dependent, against the employer, State of California, for the proportion of such disability accruing before his death, attributable to the injury incurred in the decedent’s employment, and an award for the balance of the total disability against the Subsequent Injuries Fund. It is the latter award which is attacked in this proceeding.

The award was made in reliance upon Labor Code, section 4700, which reads:

“The death of an injured employee does not affect the liability of the employer under Articles 2 and 3 of this chapter so far as such liability has accrued and become payable at the date of death. Any accrued and unpaid compensation shall

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be paid to the dependents, or, if there are no dependents, to the personal representative of the deceased employee or heirs or other persons entitled thereto, without administration, but such death terminates the disability.”

We may summarily dispose of petitioner’s argument that the “liability had not accrued and become payable” at the time of decedent’s death, within the meaning of this statute, because no award had been made fixing the amount of decedent’s disability prior to decedent’s death. This question was decided in the construction of section 9(b) (3) of the then existing Workmen’s Compensation Act (Stats. 1925, p. 643) in

Fogarty

v.

Department of Industrial Relations,

206 Cal. 102 [273 P. 791]. That provision gave the identical right to dependents of a deceased employee and used the identical language, “so far as such liability has accrued and become payable at the date of the death.” In Fogarty the Supreme Court affirmed an award against the employer to a deceased employee’s dependents for disability payments to which the employee would have been entitled up to the time of his death, although no award had been made therefor prior to such death. The subsequent enactment of section 4700 in identical language indicates a legislative acquiescence in this judicial construction.