Lynch v. Workers' Compensation Appeals Board

Opinion

NEWSOM, J. Petitioner Kathleen M. Lynch sought and obtained from this court a writ of review for the purpose of reviewing respondent Workers’ Compensation Appeals Board’s calculation of death benefits in the instant case. She seeks annulment of the board’s findings and award relative to herself and recalculation of her death benefits.

[596]Petitioner and her husband, Richard W. Lynch (decedent) were married in 1948. They had four children: Kathleen, Patricia, Theresa and Eileen. Decedent worked as an electrician from 1946 to 1978. This included employment with real party in interest Collins Electric Company beginning in the third quarter of 1967 extending through the third quarter of 1968, and again during a second quarter of 1969. Petitioner worked at EmporiumCapwells. Sometime in 1978, decedent fell terminally ill due to lung cancer. The last day he worked was July 20, 1978. He died February 24, 1979.

On December 13, 1979, petitioner and her two daughters who were living at home at the time of decedent’s death (Theresa and Eileen) filed an “Application for Adjudication of Claim” against Red Top Electric Company and Collins Electric Company with respondent Workers’ Compensation Appeals Board (WCAB), claiming that decedent’s cancer was caused by an inhalation of asbestos fibers while working for said employers. On May 19, 1983, the WCAB issued the following findings: (1) that decedent’s death was proximately caused by exposure to asbestos dust while working; (2) that the “responsible period” of employment exposure as limited and imposed by the provisions of Labor Code section 5500.5 is the three-year period beginning July 28, 1965 through July 27, 1968, during employment by Collins Electric Company; (3) that an award would issue against Collins’ insurer, United States Fidelity & Guaranty Company; (4) that at the time of his death, decedent left surviving and partially dependent upon him petitioner and daughter Eileen, but not daughter Theresa—who was not receiving support from deceased on the date of injury; and (5) that decedent was contributing $5,462 annually toward the support of petitioner and $3,600 annually toward the support of Eileen. Based on these findings, the WCAB awarded death benefits to the parties in the sum of $21,850 to petitioner and $14,400 to Eileen.

On June 10, 1983, petitioner filed with the WCAB a “Petition for Reconsideration” of the matter claiming that respondent board had miscalculated said benefits as to her. On July 11, 1983, the WCAB denied petitioner reconsideration and on July 29, 1983, petitioner filed a petition with this court for a writ of review, which was granted on December 23, 1983.