California Casualty Indemnity Exchange v. Industrial Accident Commission

SHENK, J. Petition to review and annul a death benefit award of the Industrial Accident Commission. The petitioner is the insurance carrier of the employer of the deceased employee.

On December 17, 1928, Leroy Billings, an employee of the Union Ice Company, sustained injuries in an industrial accident at San Diego as a result of which he died on the same day. His surviving wife, Violet G. Billings, and his surviving mother, Emma Jennings, as dependents, filed with the Commission an application for an adjustment of their claims for death benefits. The Commission found the wife wholly dependent, and the mother partially dependent by reason of an annual contribution by the deceased toward the mother’s support in the sum of $200. The Commission thereafter awarded to the wife the sum of $4,400, and to the mother the sum of $600 all payable in weekly installments. Thereafter, and on October 6, 1929, the wife died, whereupon, on November 2, 1929, the mother petitioned the Commission for a re-apportionment of the death benefit and for an order for the payment to her of the unpaid portion of the death benefit previously awarded to the wife. After hearing, the Commission granted the petition, made a re-apportionment and ordered that said unpaid portion of the death benefit to the wife be paid to the mother. The original award was not questioned and the only point now presented relates to the power of the Commission to make the subsequent order of re-apportionment and award.

For the purpose of this determination the fact and the extent of dependency must be taken as conclusively established by the findings on the original award. For the purpose of that award the fact and extent of dependency must be ascertained as of the date of the injury under section 14 (b) of the act and “this means that the death benefit must be computed on the rate of contribution at that time”. ■ (Spreckels v. Industrial Acc. Com., 186 Cal. 256, 258 [199 [220]Pac. 8].) The question is then narrowed to this: Was the power of the Commission as to the distribution of the death benefits among dependents exhausted by the original award?

Section 9 of the act, 3 (c) (1), provides: “In case the deceased employee leaves a person or persons wholly dependent upon him for support, such dependents shall be allowed a . . . death benefit equal to three times his average annual earnings, ’ ’ with a maximum of $5,000. This maximum was awarded in this proceeding and was apportioned $4,400 to the wife and $600 to the mother with an additional award in the sum of $150 for burial expenses as authorized by the act.