Conclusive Presumption of Total Dependency in a Workers Compensation Case

Under LC3601, certain dependents are entitled to a presumption of total dependency. The presumption applies to minor children. SCIF v. WCAB (Asher) (1993) 58 CCC 760,762. It ensures that a child or spouse who is entitled to the presumption will be considered a total dependent regardless of the extent of actual dependency. Hubbell v. Thatcher Glass Company (1982) 47 CCC 764, 766. If an applicant satisfies the conditions of LC 3501, he or she is entitled to a conclusive presumption of total dependency, even if he or she was not, in fact, dependent on the decedent. Douglas Aircraft Co. Inc. v. IAC (Meehan) (1944) 9 CCC 182, 184. Stated otherwise, an award of compensation under the statute on account of the death of an employee is made to a child as a total dependent when the acts giving rise to the presumption exist, regardless of actual dependency. Smith v. WCAB (1966) 31 CCC 307, 309.

The benefit of establishing a presumption of total dependency is that you do not have to prove or produce evidence of dependency, it is basically automatic. Meeting the presumption helps establish and ensure that the dependent or dependents of a deceased workers obtain the death benefits that they are entitled to.

<a href="http://law.onecle.com/california/labor/3601.html">California Labor Code Section 3601</a> States the following

3601. (a) Where the conditions of compensation set forth in Section
3600 concur, the right to recover such compensation, pursuant to the
provisions of this division is, except as specifically provided in
this section, the exclusive remedy for injury or death of an employee
against any other employee of the employer acting within the scope
of his or her employment, except that an employee, or his or her
dependents in the event of his or her death, shall, in addition to
the right to compensation against the employer, have a right to bring
an action at law for damages against the other employee, as if this
division did not apply, in either of the following cases:
(1) When the injury or death is proximately caused by the willful
and unprovoked physical act of aggression of the other employee.
(2) When the injury or death is proximately caused by the
intoxication of the other employee.
(b) In no event, either by legal action or by agreement whether
entered into by the other employee or on his or her behalf, shall the
employer be held liable, directly or indirectly, for damages awarded
against, or for a liability incurred by the other employee under
paragraph (1) or (2) of subdivision (a).
(c) No employee shall be held liable, directly or indirectly, to
his or her employer, for injury or death of a coemployee except where
the injured employee or his or her dependents obtain a recovery
under subdivision (a).


Original article posted at http://the-workers-compensation-attorney.com/conclusive-presumption-total-dependency-workers-compensation-case

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