Arp v. Workers' Comp. Appeals Bd.

• Decision Date: 05 May 1977
• Citation: 138 Cal.Rptr. 293,563 P.2d 849,19 Cal.3d 395
• Court: California Supreme Court
• Parties: , 563 P.2d 849 Chris P. ARP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Chris Arp Construction Company, Inc., et al., Respondents. L.A. 30685.

Page 293

138 Cal.Rptr. 293

19 Cal.3d 395, 563 P.2d 849

Chris P. ARP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Chris Arp Construction Company, Inc., et al., Respondents.

L.A. 30685.

Supreme Court of California, In Bank.

May 5, 1977.

As Modified on Denial of Rehearing June 2, 1977

Howard J. Scott and Scott & Myles, San Diego, for petitioner.

Alfred Lombardo, Sacramento, as amicus curiae on behalf of petitioner.

T. Groezinger, James J. Vonk, George S. Bjornsen, San Francisco, Arthur Hershenson, Los Angeles, and Richard A. Krimen, San Francisco, for respondents.

Twohy & Brown and Kevin R. Twohy, Sacramento, as amici curiae on behalf of respondents.

RICHARDSON, Justice.

We review a decision of the Workers' Compensation Appeals Board (board) which denied to Chris P. Arp, a widower (hereinafter petitioner), the benefit of the conclusive presumption of total dependency afforded to widows by Labor Code section 3501, subdivision (a). (All statutory references are to that code unless otherwise indicated.)

Section 3501 provides in pertinent part: 'The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee: ( ) (a) A wife upon a husband with whom she was living at the time of his injury, or for whose support such husband was legally liable at the time of his injury.' Section 3502 (with exceptions not relevant here) requires that all other persons, including widowers such as petitioner, establish their entitlement to death benefits by proving the fact and extent of their dependency upon the deceased employee.

Petitioner contends that section 3501, subdivision (a), violates the equal protection clauses of both the federal and the state Constitutions, and that the section results in gender-based discrimination in the 'terms, conditions, or privileges of employment' of a type prohibited by title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e--2(a)). We will elect not to resolve the latter question, however, since we will determine, for reasons hereinafter developed, that section 3501, subdivision (a), denies the equal protection of the laws to both widowers and employed women. We will also conclude that it would be inappropriate and unwise to attempt to fashion a makeshift judicial cure by adopting an interpretation which extends the benefit of the provision to widowers as well as widows, thereby anticipating a legislative response to our constitutional conclusion.

Astrid Arp, petitioner's deceased wife, was an employee of Chris Arp Construction Company, Inc. She was fatally injured in an industrial accident and petitioner applied for and received temporary disability payments accrued by Astrid before her death, and expenses for Astrid's medical care. He also sought for himself a death benefit under section 4702, which, at that time, provided as follows: '. . . the death benefit in cases of total dependency, when added to all accrued disability indemnity, shall be the sum of forty thousand dollars ($40,000) except in the case of a surviving widow and one or more dependent minor children, in which case the death benefit shall be forty-five thousand dollars ($45,000) . . . In cases of partial dependency the death benefit shall be a sum equal to four times the amount annually devoted to the support of the dependents by the employee, not to exceed the sum of forty thousand dollars ($40,000).' (The death benefit has since been increased to $50,000 and $55,000, respectively. Stats.1976, ch. 1017, § 6, pp. --- - ---.)

If section 4702 is read in conjunction with sections 3501 and 3502, it is clear that a surviving widow, being conclusively presumed totally dependent upon her deceased husband (§ 3501, subd. (a)), is automatically entitled to the maximum death benefit, even if she was entirely self-supporting at the time her husband suffered fatal injury. Surviving husbands, however, like adult children, relatives, and unrelated dependents, bear the burden of proving the extent of their actual financial dependency in order to receive any death benefit at all upon death of the wife. Petitioner challenges this disparity in treatment based on the sex of the surviving spouse.

Astrid Arp earned $6,000 per year as an employee of the construction company wholly owned by her husband. Petitioner asserted a claim for maximum death benefits founded upon the conclusive presumption of section 3501, subdivision (a). The workers' compensation judge ruled, however, that the presumption in favor of widows does not apply to widowers, and deferred the issue of actual dependency for later hearing. Petitioner filed a timely petition for reconsideration with the board, challenging the constitutionality of section 3501's gender-based classification. Reconsideration was denied and petitioner has sought review of the board's decision in this court.

I. Equal Protection of the Laws

We commence our review of petitioner's equal protection argument by examining federal precedent, and note that since 1971 the United States Supreme Court has rendered decisions in at least ten major sex discrimination cases argued on equal protections grounds. Six have invalidated statutes containing, or practices founded upon, gender-based classifications. (Califano v. Goldfarb (1977), --- U.S. ---, 97 S.Ct. 1021, 51 L.Ed.2d 270; Craig v. Boren (1976) 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397; Stanton v. Stanton (1975) 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688; Weinberger v. Wiesenfeld (1975) 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514; Frontiero v. Richardson (1973) 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Reed v. reed (1971) 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.) Four decisions upheld such classifications. (Califano v. Webster (1977) --- U.S. ---, 97 S.Ct. 1192, 51 L.Ed.2d 360; Schlesinger v. Ballard (1975) 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610; Kahn v. Shevin (1974) 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189; Geduldig v. Aiello (1974) 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256.) The various factors distinguishing the cases are not entirely clear, nor, indeed, even the standards by which the classification is to be judged. While we have held that the strict scrutiny/compelling state interest test must govern sex discrimination challenges under article I, section 7, of the California Constitution (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17, 22, 95 Cal.Rptr. 329, 485 P.2d 529), the standard applicable under the Fourteenth Amendment, as it has evolved in the federal courts, appears as a curious hybrid, variously characterized as 'strict rationality' (Berkelman v. San Francisco Unified School Dist. (9th Cir. 1974) 501 F.2d 1264, 1269), or 'rational scrutiny' (Gunther, The Supreme Court, 1971 Term, 86 Harv.L.Rev. 1, 21.) The most recent pronouncement on the applicable federal standard is contained in Craig v. Boren, supra, 429 U.S. at p. 197, 97 S.Ct. at p. 457, in which the high court announced that statutory sex classifications are acceptable only when they further 'important governmental objectives' and are 'substantially related to achievement of those objectives.' Moreover, neither administrative convenience nor 'outdated misconceptions' and 'loosefitting characterizations' will support gender-based classifications. (Ibid; see Frontiero v. Richardson, supra, 411 U.S. at p. 690, 93 S.Ct. 1764; Stanton v. Stanton, supra, 421 U.S. at pp. 14--15, 95 S.Ct. 373; Schlesinger v. Ballard, supra, 419 U.S. at p. 508, 95 S.Ct. 572.)

Petitioner argues that the present case is governed by the United States Supreme Court holdings in Califano v. Goldfarb, supra, and in Frontiero v. Richardson, supra, the former involving a social security provision nearly identical to the statute at issue herein.

The Supreme Court in Goldfarb, struck down a social security statute which deprived widowers who had received less than half their support from their deceased wives of a stipend available to All widows of covered employees, regardless of dependency status. The court rejected an argument that the gender-based classification was ameliorative, intended to provide an income supplement to a group traditionally victimized by discriminatory employment practices. The court's examination of legislative history indicated that the purpose of the various survivors' benefits provisions was simply to assure economic security for the family as a unit. Although conceding that a legislative allocation of 'noncontractual benefits under a social welfare program' is entitled to great deference (Id., --- U.S. at p. ---, 97 S.Ct. at p. 1028), the plurality held that a gender-based distinction which 'results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the effort of men . . . is forbidden by the Constitution, at least when supported by no more substantial justification than 'archaic and overbroad' generalizations, or . . . 'assumptions as to dependency' . . ..' (Id., at p. ---, 97 S.Ct. at p. 1026, citations omitted.)

Similarly, in Frontiero, the court invalidated a federal statute which had provided an automatic dependents' allowance to married male members of the uniformed services, but required married females to demonstrate the Actual financial dependence of their spouses in order to qualify for the same benefits. Acknowledging both the administrative convenience fostered by the statute, and the existence of empirical data supporting the proposition that women are more likely than men to be financially dependent upon an employed spouse, the high court in Frontiero nevertheless concluded that the law arbitrarily and unfairly penalized servicewomen.

Respondent board, however, contends that, unlike the situations in Goldfarb and Frontiero, the policy underlying section 3501, subdivision (a), is both ameliorative and rehabilitative. The board maintains that to compensate for the continuing consequences of past economic...