Fisher v. Workers' Compensation Appeals Board

Opinion

FRIEDMAN, J. Petitioner Kathleen Fisher is the widow and petitioner Donna Fisher the daughter of Donald Fisher. After the Workers’ Compensation Appeals Board denied their claim for death benefits, we issued a writ of review.

The appeals board’s denial was based upon the last paragraph of Labor Code section 5406, that paragraph being italicized in the following excerpt: “The period within which may be commenced proceedings for [926]the collection of the benefit provided by Article 4 of Chapter 2 of Part 2 of this division is one year from:

“(c) The date of death, where death occurs more than one year after the date of injury and compensation benefits have been furnished. ... If No such proceedings may be commenced more than one year after the date of death, nor more than 240 weeks from the daté of injury'.,‘’ (Italics added.)

Mr. Fisher had suffered a work-connected, disabling heart attack on December 5, 1969. The employer’s compensation carrier voluntarily paid disability benefits until July 20, 1974, when Mr. Fisher’s work-connected heart condition resulted in his death. Time elapsed from the heart attack to the date of death was 240 weeks and 1 day. Petitioners filed their application for death benefits on December 2, 1974. The appeals board believed that section 5406 barred any death claim asserted more than 240 weeks after the injury, that is, after the disabling heart attack.1 The board concluded that the last paragraph of section 5406 made no exception arising from a case where the death benefit claim did not arise until 240 weeks had elapsed. At this point the board believed itself bound by Ruiz v. Industrial Acc. Com., 45 Cal.2d 409 [289 P.2d 229].

In Ruiz the employee had been permanently disabled by silicosis and died from it 250 weeks after the disability commenced. His widow sought death benefits. The court held that the last paragraph of section 5406 barred any death claim after one year from death and likewise barred any claim after 240 weeks from the injury; that, concededly, the 240-week limitation barred the widow’s death claim before the claim ever arose; that the statute was plain and permitted no interpretation.

In this case the appeals board correctly applied section 5406 and the rule of Ruiz v. Industrial Acc. Com. to bar the widow’s claim.

Donna, the daughter, invokes section 5408, which suspends the time limitations of the Workers’ Compensation Act during the minority