Brennfleck v. Workmen's Compensation Appeals Bd.

• Decision Date: 16 September 1968
• Citation: 265 Cal.App.2d 738,71 Cal.Rptr. 525
• Court: California Court of Appeals Court of Appeals
• Parties: Isabelle E. BRENNFLECK, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Consolidated Freightways Corporation of Delaware, Respondents. Civ. 11849.

Page 525

71 Cal.Rptr. 525

265 Cal.App.2d 738

Isabelle E. BRENNFLECK, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Consolidated Freightways Corporation of Delaware, Respondents.

Civ. 11849.

Court of Appeal, Third District, California.

Sept. 16, 1968.

Edward C. Pinkus, of Neyhart, Grodin & Beeson, San Francisco, for petitioner.

Everett A. Corten and Marcel Gunther, San Francisco, John A. Thompson, of Mullen & Filippi, San Francisco, for respondents.

PIERCE, Presiding Justice.

The Workmen's Compensation Appeals Board granted reconsideration of a referee's recommendation and thereafter issued an order denying death benefits to petitioner, an allegedly dependent widow of Carl Brennfleck. Petitioner seeks annulment of said order.

The petition raises two contentions. The first contention is that the appeals board was without power to grant the employer's petition for reconsideration. We disallow that contention, but we have concluded that petitioner's second point has merit and that the decision must be annulled for failure of the appeals board to state the evidence relied upon and to detail the reasons for its action as required by section 5908.5 of the Labor Code. ¹

We state the facts in the chronology of the steps taken:

January 3, 1967. Petitioner, signing as 'Isabelle E. Brennfleck,' filed an application for death benefits arising from the death of Carl Brennfleck, alleging his death on November 1, 1966, from injuries arising out of and in the course of employment by Consolidated Freightways Incorporated, a self-insured employer ('Consolidated'). A printed state form of application was used. The blanks of the form were typewritten in by applicant's attorney. In item 7, the space for 'dependents,' the names of three sons were inserted. Through inadvertence applicant's name as widow was not included. She signed, however, as 'applicant.'

January 31, 1967. Consolidated's answer was filed. 'Dependency and identity of dependents' were the stated defenses. The death of Carl arising from his employment was not, and is not, contested.

March 8, 1967. A hearing was held before a referee. Petitioner's attorney put on perfunctory proof of her marriage and dependency, as well as the dependency of the children. There was no cross-examination; no apparent contest of any issue. (Inclusion of a son of petitioner by a previous marriage as a dependent was the subject of most of the questioning. It was shown he had been taken into the home and accepted as a son by Carl.)

March 10, 1967. The referee made his award. It too was perfunctory. It awarded $20,500 as death benefits of which $3,000 was to petitioner as a dependent widow. The balance was to all the children as dependents. The funeral bill was allowed.

March 30, 1967. Consolidated filed a petition for reconsideration. It claimed to have been taken by surprise at the finding in favor of petitioner as a dependent since she had not claimed to be a dependent in the application. It surmised the referee must have so found 'by oversight.' The petition averred: 'Defendant certainly had the right to rely on the pleadings.' Consolidated also alleged 'that by virtue of certain documents in its possession' the fact was that petitioner and Carl 'were never Validly united in marriage and consequently * * * (petitioner) was not and could not have been * * * a dependent.' (Italics ours.) The prayer was for a reduction of the award to $17,500 plus burial expense. Consolidated acknowledged that if petitioner could show herself to be a widow or a dependent she should have a right to prove her case but that as matters stood Consolidated was being deprived of its property without due process. ²

April 6, 1967. Petitioner filed her answer to Consolidated's petition for reconsideration. This answer stated the mistake in pleading (i.e., the failure to name petitioner as a dependent) was 'a technical defect of the kind which courts regularly excuse.' As we have done in the foregoing chronology, her answer pointed out that proof of marriage and dependency had been put on without challenge. It also alleged the undisputable fact that Consolidated had had all the statistical data regarding the marriages and divorces since November 1966. Accompanying this answer was a petition for leave to file an amendment to the application to include petitioner as a dependent nunc pro tunc.

April 11, 1967. The referee filed his report and recommendation on the petition for reconsideration. He stated he viewed the pleading omission as inadvertent and without prejudice to Consolidated. Regarding the latter's attack on the validity of the marriage, he said: 'I can't help but feel (it) is desultory and of no avail.' It was recommended that the petition by Consolidated be denied.

April 28, 1967. The appeals board ordered a 30-day extension of the time within which it could act on the petition. (Labor Code, sec. 5909.)

May 22, 1967. Reconsideration was granted by the appeals board. Another hearing was ordered.

August 3, 1967. The hearing was held before another referee. There were only two witnesses, both produced by petitioner. Petitioner herself testified. We summarize her testimony. She related again her marriage to Carl in Nogales, Mexico. The marriage had been preceded by the following events: Carl and his former wife had separated. The wife had obtained a 'consent' divorce in March 1960 in San Joaquin County, California. After the interlocutory decree of divorce Carl had asked petitioner to marry him. He had consulted a lawyer friend in Stockton. It is implicit in petitioner's testimony that it was upon the basis of advice received that she consented to a marriage in Mexico. Carl and petitioner went to Nogales, Mexico, together. There on April 12, 1960, they met a lawyer, Espinosa, whom they told about the California decree. They were advised by the Mexican lawyer that under the laws of the State of Sonora (in which Nogales is located) they could be legally married, in fact that they could have been married the day following Carl's divorce. On April 14, 1960, they were married in Nogales. A marriage certificate was produced at the hearing. The couple spent 15 days in Mexico on a honeymoon. They had lived as man and wife ever since.

During those seven years, in addition to living as Mr. and Mrs. Brennfleck, they had, as man and wife, bought real property together. They had had two children and Carl had accepted petitioner's child by her previous marriage into his family as his own. The child had taken the name Brennfleck, had been baptized as such, and at the time of Brennfleck's injury formal adoption proceedings were pending. ³ Insurance listing the petitioner, his 'wife,' as beneficiary was taken out by Carl. They had filed joint income tax returns. The couple had attended parent teachers' meetings together, and Joe Brennfleck, the only other witness who testified at the hearing, averred that all the friends and acquaintances of the Brennflecks had known of them as husband and wife. Petitioner had paid Carl's funeral expenses. There was no testimony produced by Consolidated to show that petitioner did not in good faith believe her marriage to Carl to be valid.

Consolidated did offer the documentary proof referred to in its petition for reconsideration. It showed the Nogales marriage had taken place less than a month after the interlocutory decree obtained by Carl's former wife in San Joaquin County. It also showed that Carl had obtained a Mexican divorce in Chihuahua, Mexico, in August 1960. A final decree had been entered in the San Joaquin County divorce in July 1964.

THE APPEALS BOARD HAD POWER TO GRANT CONSOLIDATED'S PETITION FOR RECONSIDERATION

At the time of the referee's original findings the application had not pleaded that petitioner was either a widow or a dependent of Carl. Those facts had been proved (prima facie) but not pleaded. The pleading deficiency had been inadvertent. The employer knew it was inadvertent. That is proved by the correspondence between opposing counsel. Stated bluntly, on the one hand petitioner's attorney had drawn the application carelessly, and on the other hand Consolidated, knowing of the mistake, had been playing 'cat and mouse' in a move aptly characterized by the referee as 'dilatory,' although it was somewhat purposeless.

If workmen's compensation proceedings were altogether adversary in nature, it might be proper to weigh the one fault against the other to determine whether a penalty should be imposed and, if so, against whom. Traditionally and historically, however, the adversary aspects of proceedings before the board are muted, and properly so if the constitutional aims of workmen's compensation (Calif.Const., art. XX, sec. 21) are to be achieved. That aim, applied to this proceeding, is to determine the issue: Is petitioner a person entitled under the pertinent Labor Code, section (sec. 3503, fn. 5) to receive death benefits? That aim will not be accomplished here by playing games because of pleading defects.

Petitioner's entitlement to benefits, however, could only be determined after a hearing with all proper issues properly joined. Petitioner cites no authority for her contention to the contrary. We hold that the appeals board properly granted the employer's petition for reconsideration. (Lab.Code, sec. 5903, subd. (c).)

THE APPEALS BOARD FAILED TO MAKE APPROPRIATE FINDINGS ON THE QUESTION OF WHETHER PETITIONER WAS A PUTATIVE WIFE

The issue after the documentary proof had been introduced showing that a couple domiciled in California had shortcut the interlocutory waiting period after a California divorce by a Mexican marriage was not whether the marriage was Actually legal. We may assume that it was not. ⁴ (Civ.Code, sec. 61, subd. 1; Civ.Code, sec. 132.) The question then became: Was there a putative marriage? A putative spouse is one who believes in good faith that she is a party to a valid...