Smith v. State of California Subsequent Injuries Fund

SPENCE, J.

Petitioner seeks a writ of mandate to compel respondents to pay him, as special administrator of the estate of Robert J. Kelly, compensation benefits which accrued prior to the death of Kelly.

Kelly was awarded benefits against the State of California, Subsequent Injuries Fund, on January 17, 1955. Thereafter, upon petition of the Fund, the Industrial Accident Commission granted reconsideration. Kelly died in December, 1955. The decision after reconsideration was issued February 2, 1956, affirming the award. Petitioner, as special administrator of Kelly’s estate, then applied to have himself substituted as the party-applicant and prayed that the compensation benefits be assigned to him. Orders granting these requests were filed November 25, 1957. Thereafter, upon petition of the Fund, reconsideration of these November orders was granted. The decision after reconsideration set aside these orders; then ordered petitioner to be substituted as party-applicant; and finally found that Kelly died on December 16, 1955, and “[a]t that time there had accrued to him benefits from the State of California, Subsequent Injuries Fund, in the amount of $2,550, all of which remains due and unpaid.”

It appears that the commission, relying upon

State of California, Subsequent Injuries Fund

v.

Industrial Acc. Com. (Monteverde),

151 Cal.App.2d 147 [311 P.2d 42], refused to order the accrued benefits paid to petitioner upon the assumption that it was without jurisdiction to do so. That case merely held that section 4700 of the Labor Code, providing for the liability of the employer to dependents for payment of benefits accruing to the deceased employee prior to his death, did not extend to awards against the Subsequent Injuries Fund. Accordingly, an award made against the Fund and in

[753]

favor of a dependent of the deceased employee following the employee’s death was annulled. In passing, the court at page 150 noted that if the liability of the Fund “was a debt which survived” the employee’s death, then it would be recoverable by the deceased’s representative as an asset of the estate. Apparently, the commission erroneously interpreted this observation in the Monteverde case to mean that the superior court alone had jurisdiction to order payment of such debt. Upon this premise and to “assist” petitioner in his recovery, the commission declared it was making its “findings of fact as to the date of death and the amount of benefits accrued and unpaid.”