ADJ11274331 — California WCAB decision

What the panel ordered

Findings and Award issued by WCJ on February 18, 2022 affirmed; Petition for Reconsideration dismissed

Petition for Reconsideration dismissed as it was taken from a non-final order

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Death benefitsApplicant prevailed

The WCJ's credibility determinations were given great weight and supported by multiple witnesses' testimony that the applicant's son was living with the decedent at the time of injury, entitling him to the enhanced death benefit.

From the decision · page 5Bd. (Barry) (1983) 149 Cal.App.3d 915, 926§ 927 [48 Cal.Comp.Cases 904, 912].) We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 254-256 [54 Cal.Comp.Cases 349].) Here, our review of the record shows that testimony by multiple witnesses supported the WCJ's conclusion that applicant's son was a total dependent under Labor Code section 3501(a) and that therefore he was entitled to the enhanced death benefit in Labor Code section 4703.5, and we will not disturb it.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Sean the applicant was living with his father the applicant at the time of the injury.

Favours Applicant prevailed

This fact entitled Sean the applicant to the enhanced death benefit under Labor Code section 4703.5.

From the decision · page 5Bd. (Barry) (1983) 149 Cal.App.3d 915, 926§ 927 [48 Cal.Comp.Cases 904, 912].) We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 254-256 [54 Cal.Comp.Cases 349].) Here, our review of the record shows that testimony by multiple witnesses supported the WCJ's conclusion that applicant's son was a total dependent under Labor Code section 3501(a) and that therefore he was entitled to the enhanced death benefit in Labor Code section 4703.5, and we will not disturb it.

Sean the applicant was ejected from the homeless shelter on October 27, 2017, and returned to live with his father before the accident on November 6, 2017.

Favours Applicant prevailed

This timeline supported the finding that Sean was living with his father at the time of injury.

From the decision · page 9III DISCUSSION The defendant essentially contends that the court incorrectly weighed the evidence. As noted above, and as described by defendant in its Petition for Reconsideration, there are some discrepancies in the evidence. However, the court assessed the testimony of the witnesses to be credible as to the central issue of where Sean was living at the time of the accident. It is basically incontrovertible that Sean was ejected from the Catholic Charities homeless shelter on October 27, 2017. the applicant's motor vehicle accident occurred on November 6, 2017. The court was persuaded by the testimony that following his ejection, he returned to Kevin and Sherrie the applicant's house, where he had been living since early 2017. That being the case, he qualifies for the enhanced death benefit described in Labor Code§ 4703.5(a). The court did not apply liberal construction under Labor Code § 3202 at any point in its assessment of the evidence.

ADJ11274331 · August 8, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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