Kamin and Adil: Dependents and Dancing With the DWD

Wednesday, December 21, 2022 | 0

Plotting a path forward on death claims strategy can be full of uncertainty, especially when it’s unclear whether there are any dependents.

John P. Kamin

Dependency is always one of the first issues to come up as all parties evaluate industrial death claims, as the Labor Code mandates that defendants must write a large check to the Death Without Dependents Unit (DWD) in industrial death cases with no dependents.

Why does that rule exist? Well, lawmakers wanted to come up with a public policy reason to incentivize defendants to find dependents and pay them death benefits, as opposed to fighting every case on dependency issues. Thus, when an industrial death claim arises, one can find a dependent, or one can pay the state.

Part of the reason for this public policy is that dependency can be tricky to prove. After all, the key person to the evaluation of the dependency process is unfortunately no longer with us, and locating records to prove who the decedent helped support can be tough after the fact.

Amir F. Adil

But sometimes, there are no obvious dependents, and one has to look much closer.

When that situation arises, a common question is: How long does a defendant have to search for dependents before contacting the DWD?

The answer is quite literally a lawyer’s answer, which is “a reasonable” amount of time. While we are indeed lawyers, it does appear that the relevant statute was written to give defendants some leeway in finding potential dependents. That statute is Labor Code 4706.5(g), which starts out as follows:

(g) When, after a reasonable search, the employer concludes that the deceased employee left no one surviving who is entitled to a dependency death benefit, and concludes that the death was under circumstances that would entitle the employee to compensation benefits, the employer may voluntarily make the payment referred to in subdivision (a). Payments so made shall be construed as payments made pursuant to an appeals board findings and award. Thereafter, if the appeals board finds that the deceased employee did in fact leave a person surviving who is entitled to a dependency death benefit, upon that finding, all payments referred to in subdivision (a) that have been made shall be forthwith returned to the employer, or if insured, to the employer’s workers’ compensation carrier that indemnified the employer for the loss.

The last sentence of that paragraph has great value for defendants, too.

In summary, it says that if a defendant has already paid death benefits to the DWD because he couldn’t find any dependents only to subsequently have a real dependent appear, then the DWD is supposed to return that money to the defendant.

Conclusion

Nobody wants anyone to die at work. But when that worst-case scenario happens and death benefits are definitely owing, it’s good to know that the Labor Code gives defendants plenty of time to search for potential dependents and offer them money.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. Amir F. Adil is an equity and managing partner at Bradford and Barthel’s San Jose office. This entry from Bradford & Barthel's blog appears with permission.