Lynch v. Workers' Compensation Appeals Board

Petitioner Kathleen M. Lynch sought and obtained from this court a writ of review for the purpose of reviewing respondent Workers’ Compensation Appeals Board’s calculation of death benefits in the instant case. She seeks annulment of the board’s findings and award relative to herself and recalculation of her death benefits.

*596 Petitioner and her husband, Richard W. Lynch (decedent) were married in 1948. They had four children: Kathleen, Patricia, Theresa and Eileen. Decedent worked as an electrician from 1946 to 1978. This included employment with real party in interest Collins Electric Company beginning in the third quarter of 1967 extending through the third quarter of 1968, and again during a second quarter of 1969. Petitioner worked at EmporiumCapwells. Sometime in 1978, decedent fell terminally ill due to lung cancer. The last day he worked was July 20, 1978. He died February 24, 1979.

On December 13, 1979, petitioner and her two daughters who were living at home at the time of decedent’s death (Theresa and Eileen) filed an “Application for Adjudication of Claim” against Red Top Electric Company and Collins Electric Company with respondent Workers’ Compensation…

I respectfully dissent.

The majority opinion necessarily implies conclusions that petitioner has failed to meet her burden of proof and also that the trial judge substituted an arbitrary method of computing the death benefit.

The case is, therefore, remanded so petitioner may have a second chance to provide sufficient proof that she is entitled to a larger partial dependency death benefit. A failure of proof usually results in a “take nothing” award or, if the proof is partial and incomplete (as here), in a lesser award (as here). The majority opinion cites no authority for the principle that any party who, perhaps, could have or should have offered more and better evidence should have a second chance so to do. I am aware of no such authority. The majority opinion does not appear to be limited to applicants based upon the “liberal construction” principle. Even if so limited, the *600 holding represents a significant change in existing law. The invitation is now out to any applicant in the future, even though competently represented, 1 to seek a new hearing and a higher award if the WCAB judge, doing the best he can with the evidence submitted to him, issues an award less than…