In 2011 Gregory Thompson, was working at High Desert State Prison as a guard. An inmate stabbed him eight times. He was awarded workers compensation benefits. As a result of his injuries, he accepted a medical demotion to an entry-level computer analyst position in the information technology department of the prison’s medical unit, forfeiting his peace officer status. He had a troubled relationship with his supervisor, who told him he was not passing probation.

In March 2013, he committed suicide by means of a self-inflicted gunshot wound. The widow filed her application for workers’ compensation death benefits in April 2013. The Department did not contest the finding that the death of Gregory Thompson was causally related to the industrial injury.

In August 2013, she petitioned for a finding of fact pursuant to GC 21537 that the death was industrial, qualifying her for a PERS special death benefit for peace officers. Labor Code section 4708 expressly provides that the PERS Board “shall be joined as a defendant, and the [WCAB] shall determine whether the death resulted from injury.A surviving dependent is precluded from seeking the workers’ compensation death benefit in lieu of the PERS special death benefit. (Gov. Code, § 21542). Nevertheless, the WCJ never joined the PERS Board as a defendant.

At the conclusion of the WCAB trial, the widow testified she was indeed receiving PERS death benefits. Yet the decision did not include any findings on the petition for finding of fact pursuant to section 21537. It simply awarded a workers’ compensation death benefit of $250,000 and set legal fees at $30,000. The employer’s petition for reconsideration was denied with the WCAB simply saying the PERS issue “is not before us on reconsideration. CalPERS will determine the issue of any duplicate payments.”

The Court of Appeal had a difficult time determining from the WCAB record exactly what happened to the PERS issue. It nonetheless reversed in the published opinion of Department of Corrections and Rehabilitation v WCAB (Thompson).

The Court of Appeal concluded “These statutory directives would seem to be straightforward. Indeed, we have not found a case, treatise, or encyclopedia on this issue that suggests there is any alternative procedure to the two boards making a joint calculation of workers’ compensation and PERS death benefits in a single proceeding after the WCAB resolves the issue of industrial causation for a death.”

“As a result of the WCAB’s insouciant deferral of the computation issue to the PERS Board, its order awarding the full workers’ compensation death benefit to the widow – without crediting the PERS special death benefit against it – is accordingly unauthorized under Labor Code section 4707 and cannot stand.”