City of Oakland v. Workers' Compensation Appeals Board

Opinion

ROUSE, J.

This case comes before us again on direction of our Supreme Court to consider the matter in light of

City of Los Angeles

v.

Industrial Acc. Com.

(1965) 63 Cal.2d 263 [46 Cal.Rptr. 110, 404 P.2d 814], and

City etc. of S. F.

v.

Workmen’s Comp. App. Bd.

(1968) 267 Cal.App.2d 771 [73 Cal.Rptr. 429]. The principal question is whether petitioner City of Oakland may offset the total amount of a survivor’s pension paid to respondent widow of an Oakland fireman by reason of the death of her husband in the course of his employment against an award of death benefits made pursuant to section 4701 of the

[256]

Labor Code, and payable in installments pursuant to section 4702 of the Labor Code.

The facts show that upon respondent’s remarriage, the city terminated her pension and also refused to make any payments on the award of death benefits, contending that the total amount paid to respondent as widow’s pension (approximately $13,140) exceeded the total amount payable to her in her individual capacity under the award of death benefits ($10,250) and that there was no amount owing after the offset. Respondent instituted proceedings before the board, contending that since the death benefit was payable in weekly installments, petitioner was entitled to offset only installments accrued to the date of her remarriage, and that respondent was entitled to receive weekly installments until the balance of the death benefit had been paid. The board agreed, and on July 30, 1975, ordered that petitioner pay respondent workers’ compensation benefits at the rate of $35 a week for an additional 207 weeks.

It is not in dispute that a city may prevent double payments to its employees or their dependents by reason of the same disability or death by appropriate charter provisions. Section 249 of article XXVI of the Oakland City Charter contains such a provision.