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Death benefits may be due when death occurs through a single industrially-related event, or within 240 weeks of an industrial injury as a result of that injury. Benefits that have accrued may be due when a death which is non-industrial occurs during the pendency of an industrial injury case.

A claim that is filed more than one year after knowledge that a death is work-related will be time-barred. See Clark v. WCAB (1991) 230 Cal.App.3d 684. Labor Code §5406 provides: “No such proceedings may be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury.” While Labor Code §5408 appears to toll the statute of limitations for minors and incompetents, the Supreme Court in Massey v. WCAB (1993) 5 Cal.4th 674 held that the tolling provision “was never intended to give minors substantive rights that are not available to any adult....If, upon death, the 240-week period has expired, no claim can arise. But if there then remains an unexpired portion of the 240-week period, that portion begins to “run against” potential claimants and is subject to section 5408's tolling provision.”

Dependents as defined under Labor Code §3501 et seq. may claim death benefits. If there are no dependents, then the benefit goes to the state under Labor Code §4706.5. This is handled by the Death Without Dependents Unit of the Department of Industrial Relations.

The rates are found in Labor Code §§4701 et seq. Benefits are paid in installments “in the same manner and amounts as temporary total disability indemnity would have to be made to the employee, unless the appeals board otherwise orders. However, no payment shall be made at a weekly rate of less than two hundred twenty-four dollars ($224).” Labor Code §4702(b)

Causation has been highly litigated, given the large amount the employer must pay if there is a material contributing factor that is deemed industrial. The benefit cannot be apportioned even if a progressive, non-industrial condition would have caused death awhile later. See PG&E v. IAC (Drew) (1961) 56 Cal.2d 219.

The Court of Appeals in Zenith Ins. Co. v. WCAB (Thweatt) (1981) 124 Cal.App.3d 176 opined: “Apportionment would frustrate the humanitarian purpose death benefits are intended to serve, that of relieving an employee's dependents of the financial consequences of his or her death in the course of employment. The worker's compensation system must be administered to "accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; ....”

The California Supreme Court in South Coast Framing Inc. v. WCAB (Jovelyn Clark) clarified the standard of causation in a workers’ comp death case: "In the workers’ compensation system, the industrial injury need only be a contributing cause to the disability." Death cases do not have a higher standard: "we may not break from long-standing precedent to apply a higher proximate cause standard to death cases when the Legislature has not seen fit to do so."

Label Item Links Comments
Labor Code Labor Code §4700: non-industrial death while workers' compensation case is pending: accrued benefits may go to dependents

or, if none, see below.

Labor Code §4706.5: If no dependents, death benefits go to the Department of Industrial Relations

Civil cause of action under Labor Code §2803: “When death, whether instantaneously or otherwise, results from an injury to an employee caused by the want of ordinary or reasonable care of an employer or of any officer, agent, a servant of the employer, the personal representative of such employee shall have a right of action therefor against such employer....”

LC §4700


LC §4706.5

LC §2803

  Labor Code §5401: notices and claim forms

Labor Code §§5406 et seq.: Statutes of limitations

Labor Code §§4701 et seq.: burial & death benefits

Labor Code §5001: “Compensation is the measure of the responsibility which the employer has assumed for injuries or deaths which occur to employees in his employment when subject to this division. No release of liability or compromise agreement is valid unless it is approved by the appeals board or referee.”

Labor Code §§5003 and 5004: Compromise and Releases in death cases

LC §5401

LC §§5406 et seq.

LC §§4701 et seq.

LC §5001

LC §5003 & LC §5004

Regulations/Rules Notice of Employee Death Death notice regs  
  Evidence in death cases: "the reports of non-examining physicians may be admitted into evidence in lieu of oral testimony." 8 CCR §10606  
Forms Notice of Employee Death

Application for Adjudication of Death Claim

Stipulations with Request for Award (death case)

Compromise and Release (Dependency claim)

Notice of death

Death application

Death Stips

Compromise and Release (death)

Death under mysterious or unexplained circumstances: "In resolving that conflict in order to determine whether there is any causal connection between the employment and the death, the board is bound, as are the courts, "by the fundamental principle that to effectuate the purposes of the compensation statute, all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." Clemmens v. WCAB (1968) 261 Cal. App. 2d 1

In Burnight v. IAC(1960) 181 Cal.App.2d 816, the Court of Appeals held: “Where an employee receives an industrial injury and the resultant pain is such that he believes he cannot continue to stand it, where he becomes so depressed that he feels that there is only one way out, where any condition results which causes him to feel that death will afford him his only relief, his act of suicide is one directly resulting from his injury, unless it appears that he could have resisted the impulse to so act.”

Clemmens v. WCAB






Burnight v. IAC

Websites  DWC Death benefits

Death Without Dependants Unit

DWC death benefits

DWD Unit

Practice Tips     
California: Death Benefits for Minors Benefits for Minors  
Magazine Articles Death Cases: How Structured Settlements Help Maximize Recovery by Stefanie V. Plotkin, CSSC, Steven F. Chapman and Gregg Chapman, Esq. Structured settlements in death cases

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