City & County of San Francisco v. Workmen's Compensation Appeals Board

Opinion

MOLINARI, P. J. In this proceeding we issued a writ of review to inquire into and determine the lawfulness of respondent-board’s order denying petitioner’s petition for reconsideration. The issues are whether the board may lawfully award burial expenses directly to a third party who has paid burial expenses for a deceased employee whose death was industrially incurred and whether petitioner is entitled to a credit for such award under the provisions of the San Francisco City Charter.

The subject burial expenses, in excess of $1,000, were paid by Naoma Cyr, the deceased employee’s mother-in-law, who was joined in these proceedings as a party applicant. An award in the sum of $ 1,000 was made by respondent board in favor of Mrs. Cyr for such expenses.

Petitioner contends that Mrs. Cyr was only entitled to a lien against the compensation payable to the widow and that to award the burial expenses to Mrs. Cyr directly was an incorrect application of the Labor Code. The pertinent Labor Code sections are 4701 and 4903. Section 4701, in pertinent part, provides that “Where an injury causes death, ... the employer shall be liable, in addition to any other benefits .... (a) Reasonable expenses of the employee’s burial, not exceeding one thousand dollars ($1,000). . . .” Section 4903, in pertinent part, provides that “The appeals board may determine, and allow as liens against any sum to be paid as [415]compensation, . . . (d) The reasonable burial expenses of the deceased employee, not to exceed the amount provided for by Section 4701.”

We here note that Labor Code section 4706, subdivision (b), provides that the appeals board may order the burial expenses paid directly to the proper person in the event that there are no surviving dependents or heirs.1 In the instant case there are surviving dependents and heirs. Accordingly, respondent board’s order cannot be upheld under subdivision (b) of section 4706.

The proper procedure to be followed with respect to burial expenses paid by a third party when the deceased employee leaves a surviving dependent or a surviving heir is that prescribed in subdivision (d) of section 4903 which permits the appeals board to determine and allow, as a lien, the reasonable expenses, not to exceed $1,000, paid by a third party for the burial. The appeals board failed to follow that procedure. The board should have properly awarded the burial expenses to the widow subject to a lien in favor of Mrs. Cyr.