Parker, Kern, Nard & Wenzel
Legal Updates


A Case to Die For?

By
David H. Parker

Death cases are no laughing matter. Liability exposures for dates of death on or after January 1, 2006 can yield as high as $320,000 if an applicant can prove 3 or more dependents. Further exposure in the case of one or more totally dependent minor children can increase the cost even more to include temporary total disability payments until the youngest child attains age 18. These payments also include possible State Average Weekly Wage as well as Cost of Living Adjustment increases.

These potential catastrophic exposures make the aggressive defense of death cases that much more necessary when the cause of death did not clearly arise out of and during the course of employment.

Labor Codes 5706-5707 are rarely discussed but potentially extremely important statutes as they relate to defense of a death case on an AOE/COE basis. These statutes empower the Workers’ Compensation Appeals Board to order an autopsy on the body of a deceased employee where it is represented that the employee died of an industrial injury.

If the coroner is in possession of the body at the time the autopsy is requested, the corner must cooperate with the WCAB by allowing a physician appointed by the WCAB to attend any autopsy ordered. (Labor Code 5706). If the body is not in the custody of the coroner the WCAB may authorize performance of the autopsy and if necessary the exhumation of the body. (Labor Code 5707). If the dependents, or a majority thereof having custody of the body, refuse to allow the autopsy, it shall not be performed. If this is the case, there is a disputable presumption that the injury or death was not due to causes entitling the claimants to benefits.

Any request for action by the Workers’ Compensation Appeals Board requires a petition. (Title 8 California Code of Regulations 10450.) This includes a WCAB autopsy order. However, a skeletal petition will not suffice.

The WCAB has recently held in an Opinion and Order Denying Petition to Compel Autopsy that a defendant’s petition "failed to make an adequate showing of the need for an autopsy." One David Brunk v. Becoming Independent and State Compensation Insurance Fund ADJ7112201. Chairman Joseph M. Miller wrote the following in his January 29, 2010 opinion:

"Defendants petition is deficient in several material respects. Foremost it fails to make an adequate showing of the need for an autopsy. It does not include a medical report substantiating the possible value of an autopsy in providing important relevant information about the cause of death. Second, the petition does not discuss why a medical report or the deposition testimony from the decedent’s treating physician would not be adequate to explain the circumstances of death and any possible relationship to the industrial injury. Third, the petition rails to designate a specific licensed physician to perform the autopsy."

The Chairman concludes as follows before denying defendant’s petition: "Autopsy is an extraordinary procedure with severe emotional consequences and should only be undertaken if absolutely necessary to prove a key issue" in a case.

Death cases expose defendants to some of the highest exposures and liabilities in California’s workers’ compensation system. Autopsy is a remedy which at times may have to be pursued. The above case provides both procedural and cautionary language on when, if and how to do so when and if "absolutely necessary."