Mendoza v. Workers' Comp. Appeals Bd.

• Decision Date: 26 January 1976
• Citation: 127 Cal.Rptr. 173,54 Cal.App.3d 820
• Court: California Court of Appeals Court of Appeals
• Parties: Esther Villa de MENDOZA, Individually, and as Guardian ad litem and Trustee for Antonio Mendoza, et al., minors, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD, etc., et al., Respondents. Civ. 14637.

Page 173

127 Cal.Rptr. 173

54 Cal.App.3d 820

Esther Villa de MENDOZA, Individually, and as Guardian ad litem and Trustee for Antonio Mendoza, et al., minors, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD, etc., et al., Respondents.

Civ. 14637.

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

Jan. 26, 1976.

As Modified on Denial of Rehearing Feb. 11, 1976.

Hearing Denied March 24, 1976.

Moreno & Carriedo and Albert F. Moreno, San Diego, Katz & Rosenfeld and Robert D. Katz, Van Nuys, for petitioners.

Philip Miyamoto, Deputy Commissioner, San Francisco, for respondent Workers' Compensation Appeals Board, and Jones, Tellam, Irving & Estes and John W. Mullen, San Diego, for respondent Industrial Indemnity and Jesus Ayala Contracting.

COLOGNE, Associate Justice.

Esther Villa de Mendoza individually and as guardian ad litem of her five living children, seeks review of a decision and order of the Workers' Compensation Appeals Board (Board) with regard to the claims presented as a result of the death of three children, brother and sisters of the minor applicants. The claim for the death of her husband killed at the same time is not a part of this review. ¹

On May 22, 1975, Mrs. Mendoza was awarded a death benefit for the death of her husband. At the same time the Board found her five surviving children to be partially dependent on the income of their deceased brother and sisters and were awarded $728 for each death, or a total of $2,184. Upon reconsideration, the Board affirmed the total award to the wife. It also affirmed the partial dependency status of the surviving children, but fixed the amount granted for the death of each working child at $4,363.68 (or a $13,091.04 total award to be distributed among the partial dependents). It is this award that provides the subject of this review.

Three ² of the nine Mendoza children and their father ³ were killed in a common industrial accident on January 15, 1974, when the bus operated by their employer, Jesus Ayala Contracting Co., left the road and crashed into an irrigation canal. They were in the course of their employment at the time of the accident. The entire family lived in Mexicali, Mexico, and all were Mexican citizens except Mrs. Mendoza who was an American citizen. The oldest son is self-supporting, and is not a claimant in this case.

In its opinion the Board found the children earned between $15 and $17 each day they worked. Each of the three children gave their pay to their father. He placed these earnings, along with his own, into a common fund, out of which the family was stpported. He paid all the bills (rent, food, gas, clothing, electricity, water, etc.), and handled all the money. Each of the working children received approximately $2 a day for spending money, and Mrs. Mendoza was given $12 for daily household expenses. Neither party disputes these facts as found by the trier of fact and affirmed as correct by the Board. Uncontroverted is Mrs. Mendoza's statement to the effect that because the family worked as a unit, the earnings belonged to all of its members.

Under certain circumstances the surviving minor children of a deceased employee are conclusively presumed to be totally dependent for the purpose of fixing death benefits. ⁴ The petitioners, however, are not able to avail themselves of the presumption in this case because they (1) are not 'children' of the employees subject of the application, and (2) were nonresident aliens at the time of the fatal injury to their father (Lab.Code § 3500; Munoz v. Workmen's Comp. Appeals Bd., 19 Cal.App.3d 144, 147, 96 Cal.Rptr. 394). Actual dependency to recover benefits is, however, still available to them and is determined in accordance with the Facts. (Lab.Code § 3502; 2 Hanna, Cal.Law of Emp.Inj. & Workmen's Comp., § 15.02(1), p. 15--4, 2d ed. 1975.) Our review of this issue is limited to a determination of whether the Board's finding is supported by substantial evidence in light of the entire record (Lab.Code § 5952; LeVesque v. Workmen's Comp. App. Bd., 1 Cal.3d 627, 637--640, 83 Cal.Rptr. 208, 463 P.2d 432; see also Lamb v. Workmen's Comp. Appeals Bd., 11 Cal.3d 274, 281, 113 Cal.Rptr. 162, 520 P.2d 978).

The substantial evidence test is not a vehicle for this Court to superimpose its judgment upon that of the Board. Nor does it permit this Court to accept 'any' evidence or 'some' evidence as a basis for the Board's decision. The Supreme Court expressly disapproved such departures from the proper scope of judicial review. (LeVesque v. Workmen's Comp. App. Bd., supra, 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.) Relevant facts which rebut or explain the supportive evidence must be taken into account (LeVesque v. Workmen's Comp. App. Bd., supra, 1 Cal.3d 627, 83 Cal.Rptr. 208, 463 P.2d 432; Garza v. Workmen's Comp. App. Bd., 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 475 P.2d 451; Vela v. Workmen's Comp. Appeals Bd., 22 Cal.App.3d 513, 518, 99 Cal.Rptr. 387). It is the reviewing court's duty to determine from the whole record whether the contradicting and conflicting evidence so discredits the supportive evidence as to render it insubstantial (Vela v. Workmen's Comp. Appeals Bd., supra, 22 Cal.App.3d 513, 520, 99 Cal.Rptr. 387). Thus, the need for substantial evidence and the aspect of using the whole record are two sides of the same coin.

'Dependency may be defined as reliance upon another person for support. Total dependents are those who at the time of injury are Solely supported by the decedent, or who have a legal right to look to him for their entire support. . . . Partial dependents are those who at the time of injury Have means of support other than the deceased's contributions . . ..' (2 Hanna, Law of Emp. Inj. & Workmen's Comp., § 15.02(1), p. 15--4.) (Emphasis added.)

Total dependency exists as a Fact when the dependent has subsisted entirely upon the deceased employee's earnings (Pacific Employers Ins. Co. v. Chavez, 5 Cal.2d 247, 252, 54 P.2d 701; 2 Hanna, § 15.02(3)(b), p. 15--6). Those dependents who receive only part of their support from the deceased employee are partially dependent (2 Hanna, § 15.02(3)(c), p. 15--7). Actual dependency in fact, as opposed to presumptive dependency, is to be determined by support actually given by the deceased. It is a question of the extent of the dependent's reliance on the income of the deceased (Industrial Indem. Co. v. Industrial Acc. Com., supra, 243 Cal.App.2d 770, 705--707, 52 Cal.Rptr. 647). ⁵

In the present case, the Board found the surviving children to be partially dependent on the income of their deceased brother and sisters. The death benefit was awarded accordingly. This determination is supported by substantial evidence in light of the whole record and the facts are not in dispute. The Board found the working children gave their pay to their father who gave them about $2 daily. The rest of their earnings were pooled in the family fund along with Mr. Mendoza's earnings. The facts are clear that though each of the surviving children was Totally dependent upon this accumulated fund, the surviving children were not totally dependent on Each contributing member. The group as a whole was dependent on four workers. No one of the working Mendoza family could be said to be totally supporting any one of the nonworking minors. The existence of the common fund, and the equal income of the other workers makes such a degree of support impossible.

In the present case, All of the contributors to the fund were killed. Thus the argument is raised by petitioners that the total support of each survivor is lost and there should be an award of $40,000, the allowance for total dependency, from each deceased worker. We recognize that had the family used a different accounting system so that each working child totally supported a single nonworking child, and had the funds been kept separate, on the death of that worker it would have been possible to prove the one...