L. B. Price Mercantile Co. v. Industrial Accident Commission

SPENCE, J.

Petitioners seek the annulment of a death benefit award made by the respondent commission in favor of the widow of a deceased employee.

The commission found that the employee sustained injury arising out of and occurring in the course of his employment, resulting in his death on January 5, 1956, and that he left surviving his totally dependent widow who was entitled to the death benefit of $10,000. It awarded that sum to the widow “payable at the rate of $40.00 per week.” Petitioners confine their attack to a challenge of the jurisdiction of the

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commission to fix the weekly installment payments on the total death benefit at the sum specified.

The deceased employee earned less than the minimum average weekly earnings used for the computation of temporary disability payments (Lab. Code, §4453). In the event that he had lived and had been entitled to temporary disability payments, he would have received no more than $15 per week (Lab. Code, § 4653). Petitioners therefore contend that under section 4702 of the Labor Code the commission had no jurisdiction to fix the weekly payments on the total death benefit at any sum greater than $15 per week. In our opinion this-contention cannot be sustained.

Section 4702 of the Labor Code reads in part as follows: “Except as provided in the next paragraph, the death benefit in cases of total dependency, when added to all accrued disability indemnity, shall be the sum of ten thousand dollars ($10,000) except in the case of a surviving widow and one or more dependent minor children, in which case the death benefit shall be increased 25 percent, but not to exceed twelve thousand five hundred dollars ($12,500) and except as otherwise provided in Sections 4553 and 4554. In cases of partial dependency the death benefit shall be a sum equal to four times the amount annually devoted to the support of the dependents by the employee, not to exceed the sum of ten thousand dollars. ($10,000).

The death benefit in all cases shall be paid in installments in the same manner and amounts as temporary disability indemnity, payments to be made at least twice each calendar month, unless the commission otherwise orders.”