Maria Leon sustained an injury arising out of and occurring in the course of her employment resulting in her death on November 20, 2012, while she was employed as a caregiver by the Department of Social Services (DSS), and as a kitchen helper by Meals on Wheels.

Ms. Leon was survived by two sons, Juan Manuel Vasquez and Julian Vasquez. An Application for Adjudication of Claim was filed and both were claiming a death benefit as dependents of Ms. Leon.

They also filed a civil action for negligence in LA County Superior Court against the operators of Golden West Towers, the senior living center where Ms. Leon was murdered by a tenant of the center.

Julian Vasquez filed a petition dismissing his claim with prejudice on February 29, 2016. On the same date, the attorney for Juan Manuel Vasquez filed a petition to withdraw as attorney, citing Juan Manuel Vasquez’s failure to cooperate with his counsel in the prosecution of the claim.

An order was issued on March 24, 2016, dismissing with prejudice the “potential dependent Julian Vasquez.” The WCJ also issued an order relieving counsel representing Juan Manuel Vasquez.

On March 25, 2016, a settlement check in the sum of $559,311.17, was issued to Juan Manuel Vasquez as a result of third party tort litigation.

In light of the dismissal of the claims of Julian Vasquez and Juan Manuel Vasquez, The Death Without Dependents unit of the Department of Industrial Relations (DWD), sought to proceed as an applicant to claim the statutory death benefit under Labor Code section 4706.5.

The WCJ found that the DWD failed to meet its burden of proof to establish Ms. Leon had no surviving dependents, and that the defendants provided sufficient evidence to prove that at least Juan Vasquez and his three children were the dependents of Ms. Leon prior to her death. The WCJ further held that a credit of $599,31 1.17 for Mr. Vasquez’ civil recovery is applicable and would negate a claim for death benefits. The WCJ denied DWD’s application for death benefits. The DWD petition for reconsideration affirmed the take nothing the panel decision of Mary Leon v DSS.

Dependency is determined as of the time of injury, and may be found to be total or partial, depending on the facts established. “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 . . . . ” (Mendoza v. Workers’ Comp. Appeals Bd. (1976) 54 Cal.App.3d 820 [41 Cal.Comp.Cases 71]. )

However, if the employee dies and leaves no dependents, the death benefit escheats to the State of California and is to be paid to the Death Without Dependents unit of the Department of lndustrial Relations, pursuant to Labor Code section 4706.5(a). This provision has been held to require the DWD to affirmatively establish the absence of any dependents, either total or partial, of the deceased.

DWD argues that because Juan Manuel Vasquez and Julian Vasquez chose not to pursue their claims for death benefits, they must be found not to be entitled to the benefit and therefore DWD should be found to be entitled to receive the benefit.

This, however, is not what the law requires. The law does not provide that the death benefit escheats to DWD if a dependent, either partial or total, has not received the benefit. Rather, the law requires DWD to establish that no “person entitled to a dependency death benefit” exists. DWD has not established that Juan Manuel Vasquez or Julian Vasquez were not dependent upon their mother and had no claim to a death benefit as partial dependents. Since Juan Manuel Vasquez and Julian Vasquez chose to receive a civil settlement in an amount greater than the amount of the death benefit, and withdrew their claims for workers’ compensation death benefits, the WCJ properly found DWD did not meet its burden to establish that “such employee does not leave surviving any person entitled to a dependency death benefit.”