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Grinberg: Subsidizing Rent Sufficient to Establish Partial Dependency

By Gregory Grinberg

Tuesday, September 14, 2021 | 0

We are more than a month away from Halloween, but that doesn’t stop store displays from going all out on spooky decorations, candy and costumes. In that same spirit, I offer a rather grim panel opinion having to do, of course, with the spookiest of aspect to our beloved swamp of California workers’ compensation: the Death Without Dependents unit.

Gregory Grinberg

Gregory Grinberg

The basic gist of this unit is that when there is an industrial death and the worker dies without any dependents, the state comes in to collect the death benefit. In most cases, the defendant is searching high and low for at least one partial dependent to avoid having to pay the max benefit, although it appears that the logic is inverted for COVID-19-related death cases, as Senate Bill 1159 and Gov. Gavin Newsom’s executive order appear to bar the Division of Workers' Compensation recovery in those cases.

The panel decision under the microscope today is that of Tara O’Sullivan v. City of Sacramento. In this instance, the DWD and an alleged partial dependant were at odds about whether the latter qualified as a partial dependent at all.

The deceased was a City of Sacramento police officer who was shot and killed in the line of duty in 2019. As the judge recounted, “[j]ust prior to her death, decedent and [applicant-dependent] agreed to move in together with [the latter’s] fiancé. This would allow [applicant-dependent] to save money for her planned wedding.” The decedent agreed to pay half (not one-third) of utilities.

The judge acknowledged that a mere roommate scenario would not give rise to a dependency relationship. However, in this case, the decedent was paying half of the utilities while representing only one-third of the occupants of the home. The judge reasoned that “[decedent] agreed, in effect, to subsidize applicant’s rent and utilities.”

The Workers' Compensation Appeals Board denied the DWD’s petition for reconsideration. 

So, some takeaways from this decision: Dependency does not require any large sums of money. The standard for a partial dependent can be some level of support, even so little as subsidizing rent and utilities. 

But contrast that with the WCAB’s opinion in the case of Guadalupe Ayon (Deceased), wherein the board held that a deceased worker must have contributed more to the household than his or her own expenses. There, the defendant argued that the surviving family members were benefiting from the economies of scale that they could no longer rely upon. 

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.


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