ADJ10349312 · February 17, 2022

The WCAB found that the WCJ failed to apply the correct legal standard from Berkebile regarding the date of injury for death claims and failed to determine which statute of limitations applies, thus rescinding the Findings and remanding for further proceedings.

From the decision · page 1Applicant seeks reconsideration of the Findings of Fact (Findings) issued on September 9, 2021 by a workers' compensation administrative law judge (WCJ). The WCJ found that decedent's date of injury was December 19, 1996, and that applicant's application for adjudication of claim for the death of the applicant is barred by the statute of limitations.

The WCJ failed to apply the legal standard from Berkebile regarding the date of injury for death claims.

Favours Applicant prevailed

This failure led to an incorrect determination of the statute of limitations and barred the claim improperly.

From the decision · page 3Thus, the WCJ chose to apply Massey and Ruiz based on the conclusion that because a death claim is derivative, the "date of injury" is the decedent's "date of injury." The WCJ is mistaken. It is "well settled" that a death claim is "different and distinct" from the injured workers' disability claim. (Berkebile, supra, 144 Cal.App.3d 940, 944 citing Zenith Insurance Co. v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 176 [46 Cal.Comp.Cases 1126]; see also Clark v. Workers' Comp. Appeals Bd. (1991) 230 Cal.App.3d 684 [56 Cal.Comp.Cases 331].) Indeed, the issue was determined in 1941 by the Court in Glavich v. Industrial Acc. Com. (1941) 44 Cal.App.2d 517 [6 Cal.Comp.Cases 123].3 There, the Court held that "[d]eath benefit and burial expenses are different and distinct obligations provided for by statute for the benefit of each and all of the individuals dependent upon the workman," and that "[t]o hold otherwise "would render nugatory the provisions of section 5408, and would apparently defeat the wholesome purpose of section 4701." (Id., p. 521.)

Berkebile v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 940

Date of injury for death claims under Labor Code section 5412 is determined by the death claimant's knowledge, not the decedent's knowledge.

The WCJ failed to apply this binding precedent, which was reiterated by the WCAB in this decision.

From the decision · page 3Thus, the WCJ chose to apply Massey and Ruiz based on the conclusion that because a death claim is derivative, the "date of injury" is the decedent's "date of injury." The WCJ is mistaken. It is "well settled" that a death claim is "different and distinct" from the injured workers' disability claim. (Berkebile, supra, 144 Cal.App.3d 940, 944 citing Zenith Insurance Co. v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 176 [46 Cal.Comp.Cases 1126]; see also Clark v. Workers' Comp. Appeals Bd. (1991) 230 Cal.App.3d 684 [56 Cal.Comp.Cases 331].) Indeed, the issue was determined in 1941 by the Court in Glavich v. Industrial Acc. Com. (1941) 44 Cal.App.2d 517 [6 Cal.Comp.Cases 123].3 There, the Court held that "[d]eath benefit and burial expenses are different and distinct obligations provided for by statute for the benefit of each and all of the individuals dependent upon the workman," and that "[t]o hold otherwise "would render nugatory the provisions of section 5408, and would apparently defeat the wholesome purpose of section 4701." (Id., p. 521.)

Labor Code section 5406(b)

Death claim statute of limitations under Labor Code section 5406(b) requires filing within one year after death or within 240 weeks from the date of injury.

The calculation of the 240-week period depends on the date of injury as determined by the death claimant's knowledge.

From the decision · page 4We also acknowledge and defer to the holding in Ruiz that the 240-week time limitation is "not a normal statute of limitations, but rather...a qualifying condition in the exercise of any right to death benefits." (Ruiz, supra, 45 Cal.2d at p. 414; accord, Massey, supra, 5 Cal.4th at p. 680.)4 However, there is no contradiction between this holding in Ruiz and the holding in Berkebile that a section 5412 "date of injury"5 is determined by reference to the death claim applicant's knowledge, and not to the decedent injured workers' knowledge. (See Berkebile, supra, 144 Cal.App.3d at 945.) Section 5406, subdivision (b), states that death claim proceedings "shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury." (Lab. Code, § 5406(b), emphasis added.)6 Therefore, the calculation of when the 240 weeks runs depends on the date of injury. Thus, the Court in Berkebile did not unlawfully extend the qualifying condition in section 5406, subdivision (b); rather, the Court simply addressed how to determine the section 5412 date of injury in a death claim:

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450

The Appeals Board and WCJs must follow binding precedent from the Court of Appeal and Supreme Court, including Berkebile and Massey.

The WCAB emphasized that panel decisions and writ denied digests are not binding and must follow higher court precedent.

From the decision · page 7Berkebile is a published appellate opinion, and is therefore binding precedent on all Appeals Board panels and all WCJs. (See Gee, supra.) There is no contrary published decision by the Supreme Court or another Court of Appeal. In fact, the California Supreme Court in Massey cited the holding in Berkebile related to the determination of a section 5412 "date of injury" in a death claim. "Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. (citations)" (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [1062 Cal. LEXIS 186].) Thus, Berkebile is controlling authority in this case.