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."
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