Arp v. Workers' Compensation Appeals Bd.

• Decision Date: 18 August 1976
• Citation: 132 Cal.Rptr. 112,61 Cal.App.3d 296
• Court: California Court of Appeals Court of Appeals
• Parties: Chris P. ARP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, etc., et al., Respondents. Civ. 14730.

Page 112

132 Cal.Rptr. 112

61 Cal.App.3d 296

Chris P. ARP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, etc., et al., Respondents.

Civ. 14730.

Court of Appeal, Fourth District, Division 1, California.

Aug. 18, 1976.

As Corrected Sept. 13, 1976.

For Opinion on Hearing, see 138 Cal.Rptr. 293, 563P.2d849.

Howard J. Scott, San Diego, for petitioner.

T. Groezinger, James J. Vonk, George S. Bjornsen and Richard A. Krimen, San Francisco, for respondent State Compensation Ins. Fund.

Philip Miyamoto, Deputy Commissioner, San Francisco, for respondent Workers' Compensation Appeals Board.

AULT, Associate Justice.

Petitioner Chris P. Arp is the surviving spouse of Astrid S. Arp who died March 30, 1975 as the result of injuries sustained almost a year earlier while in the course and scope of her employment by the Chris Arp Construction Company Inc. Arp has petitioned this court for a writ of review after the Workers' Compensation Appeals Board denied reconsideration of a Findings and Award which denied him the benefit of the conclusive presumption of dependency afforded widows under similar circumstances by Labor Code section 3501, subdivision (a). ¹

Petitioner contends section 3501, as applied by the Board, invidiously discriminates on the basis of sex in violation of the equal protection clauses contained in article I, section 7, of the California Constitution and the Fourteenth Amendment of the Constitution of the United States. Unless widowers as well as widows can receive the benefit of the conclusive presumption provided by the section, he argues, the statute is constitutionally infirm as the product of gender-based discrimination. Under the circumstances, he urges the appropriate remedy is not to declare the statute invalid, but rather to extend the benefit of the presumption to the excluded class, i. e., to widowers of female employees who die as the result of industrial injury.

Respondent State Compensation Insurance Fund (the employer's compensation insurance carrier), on the other hand, argues the classification made in the statute rests upon a rational basis, namely that widows, as opposed to widowers, can more often than not be said to have been dependent upon their deceased spouse's earnings. In addition, respondent argues that petitioner has an adequate remedy under section 3502 ² and 4702 ³ by proving the extent of his actual dependency on Astrid. ⁴

DISCUSSION

When called upon to review statutory classifications to determine whether equal protection standards are met, California courts have adopted the two-level test employed by the United States Supreme Court (Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 16, 95 Cal.Rptr. 329, 485 P.2d 529). When neither a fundamental interest nor a suspect classification is involved, the traditional test is applied, requiring only that there be a rational relationship between the statutory classification and some conceivable legitimate state purpose (Adams v. Superior Court, 12 Cal.3d 55, 61, 115 Cal.Rptr. 247, 524 P.2d 375; Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 16-17, 95 Cal.Rptr. 329, 485 P.2d 529). When, however, the statute creates a suspect classification, or draws distinctions which impinge upon a fundamental interest, the strict judicial scrutiny standard is imposed, requiring a showing "not only that [the state] has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' (Westbrook v. Mihaly, supra, 2 Cal.3d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487.)' (Sail'er Inn. Inc. v. Kirby, supra, 5 Cal.3d 1, 16-17, 95 Cal.Rptr. 329, 339, 485 P.2d 529, 539.) In short, legislation which classifies on the basis of a suspect category or which draws distinctions touching upon a fundamental interest is not afforded the presumption of constitutionality which courts otherwise accord to acts of the Legislature (see Westbrook v. Mihaly, supra, 2 Cal.3d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487, vacated on other grounds, 403 U.S. 915, 91 S.Ct. 2224, 29 L.Ed.2d 692, People v. Ryser, 40 Cal.App.3d 1, 6, 114 Cal.Rptr. 668).

In Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, the California Supreme Court found suspect legislative classifications based upon sex. After noting the severe legal and social disabilities suffered by women, the court applied the 'strict scrutiny' standard of review and struck down a statute greatly limiting the right of women to act as bartenders. The court rested its holding both on the ground the statute limited the fundamental right to pursue employment and on the ground 'classifications based on sex should be treated as suspect.' (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 17, 95 Cal.Rptr. 329, 339, 485 P.2d 529, 539.)

Since the opinion of the California Supreme Court in Sail'er Inn, Inc. v. Kirby, supra, the Supreme Court of the United States has decided two cases which are persuasive and pertinent to the issue presented here. In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, a married woman Air Force officer sought increased benefits for her husband under federal statutes which provided that spouses of male members of the uniformed services were dependents for purposes of obtaining increased quarters allowance and medical and dental benefits, but that spouses of service women were not dependents unless they were in fact dependent for over one-half of their support. When her application was denied for failure to satisfy the statutory dependency standards, she and her husband brought suit in the district court, contending the statutes were unconstitutional. On appeal from the district court's adverse ruling, the Supreme Court reversed.

In Frontiero, supra, the plurality opinion, signed by four Justices, flatly held:

'. . . that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.' (Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771.)

After concluding that the sole basis of the classification established in the challenged statute was the sex of the individuals involved, the plurality opinion in Frontiero emphasized:

'Thus, under [the statute], a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command 'dissimilar treatment for men and women who are . . . similarly situated.' Reed v. Reed, U.S. 71 at 77, 92 S.Ct. 251, at 254, 30 L.Ed.2d 225.' (Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771.)

Eight of the Justices agreed that the challenged statutes unconstitutionally discriminated against servicewomen. The decision invalidated that part of the statutory scheme which required a female member of the armed services to prove the dependency of her spouse to obtain the additional benefits (Frontiero v. Richardson, supra, 411 U.S. 677, 690, fn. 25, 93 S.Ct. 1764, 1772, fn. 25, 36 L.Ed.2d 583).

In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514, the United States Supreme Court affirmed a judgment striking down as violating equal protection a provision of the Social Security Act denying to a widower benefits a similarly situated widow would have been entitled to receive. The court found the statute dependent upon a 'gender-based distinction . . . indistinguishable from that invalidated in Frontiero v. Richardson,' and held the statute an unconstitutional deprivation of the right of women to receive for their families the same protection men received from their employment (Weinberger v. Wiesenfeld, supra, 420 U.S. 636, 641, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514).

'[T]he Constitution . . . forbids the gender-based differentiation that results in the efforts of women workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men.' (Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct. 1225, 1232, 43 L.Ed.2d 514.) ⁵

The instant case is strikingly similar to both Frontiero and Wiesenfeld. Astrid was an employee covered by a government mandated and stringently regulated insurance plan. She was injured during the course of her employment and later died as a result of the injury. Had her husband been the victim, Astrid would have been entitled to a $40,000 death benefit pursuant to the conclusive presumption of section 3501, without proving her dependency in fact.

Under the statute, the surviving spouse of a female employee who dies as the result of an industrial injury must establish dependency in fact to obtain benefits. No such burden is imposed upon the surviving spouse of a male employee. Moreover, the statute denies to a female employee the protection for her surviving spouse that a male worker receives for his spouse. Thus the statute commands 'dissimilar treatment for men and women who are . . . similarly situated.' (Reed v. Reed, supra, 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Frontiero v. Richardson, supra, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771, 36 L.Ed.2d 583.) Absent a compelling state interest, sex cannot form the basis for the legislative classification provided by section 3501.

Citing Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189, respondent State Compensation Insurance Fund argues statutory sex preferences are not per se invalid. Further, respondent argues petitioner in fact was not dependent upon Astrid and, in any...