Jenkins v. Workers' Compensation Appeals Board

Opinion

TAYLOR, P. J.

In this proceeding, petitioner, widow of a fireman who succumbed to a myocardial infarction sustained fighting a fire, seeks review and annulment of an order by the Workers’ Compensation Appeals Board which granted the carrier’s petition for reconsideration, rescinded the referee’s order commuting an award of death benefits and substituted its own order of commutation. The matter arose as follows:

Following the death of petitioner’s husband, the carrier, State Compensation Insurance Fund, accepted liability for death benefits and commenced payments to the surviving dependent widow, the payments amounting to $119 per week. Thereafter, the widow petitioned for commutation of the balance of the death benefit, alleging that she was suffering from a terminal illness, had a short life expectancy, and that it would be in her best interest to commute the award in order that she might pay off the balance remaining on the mortgage on her home, have sufficient sums to pay her monthly drug and doctor bills, have sufficient monies available to pay for hospitalization anticipated in the future, and that any monies not required for the aforementioned purposes be permitted to be used by her “so that, she may enjoy the uncertain period of time that she has remaining with respect to her life.”

[573]

In its petition for reconsideration, the fund made no objection to the commutation for purpose of paying the balance of the mortgage nor to the monthly out-of-pocket expenses for drugs, but objected to the commutation of the remainder of the award, contending that a claim of impending death was not a justifiable legal basis for commutation.

In its order granting reconsideration and rescinding the award of the referee, the board noted that the fund had agreed to pay the balance on the mortgage and the estimated cost of medication, and that commutation of these items was proper. The board concluded, however, that “To commute the almost $37,000 remaining on this award to a person whose life expectancy now is considered to be about four months would unjustly enrich the widow’s estate at the Fund’s expense.” The board thereupon substituted its own award of $6,145.91 payable to the holder of the widow’s mortgage, $420 to the widow as an advance on the cost of medication, and $300 to compensate her attorney.