# Lynch v. Workers' Compensation Appeals Board > California Court of Appeal · February 8, 1985 · 164 Cal. App. 3d 594 URL: https://www.frixlaw.com/law-library/cases/5662202 ## Case - **Full name:** KATHLEEN M. LYNCH v. WORKERS' COMPENSATION APPEALS BOARD, UNITED STATES FIDELITY & GUARANTY COMPANY - **Court:** California Court of Appeal - **Decided:** February 8, 1985 - **Citations:** 164 Cal. App. 3d 594; 210 Cal. Rptr. 589; 50 Cal. Comp. Cases 98; 1985 Cal. App. LEXIS 1623 - **Precedential status:** Published - **Opinion:** Dissent by Holmdahl - **Judges:** Holmdahl, Newsom - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5662202 ## Opinion text HOLMDAHL, J. 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 the applicant thinks he might receive at a later hearing. Presumably an employer or its carrier can seek a similar, second hearing in order to offer more evidence, if it thinks a lower award might result. The majority opinion necessarily implies that, to avoid reversal, the WCAB judge must assume the role and duty of instructing at least the applicant and his attorney as to what the applicant’s burden is and to direct him to present evidence accordingly. I perceive no rational basis for creation of such a requirement. The majority opinion also revises the guidelines set forth in Atlantic Richfield Co. v. Workers’ Comp. Appeals Bd. (1982) 31 Cal.3d 715, 722 [ 182 Cal.Rptr. 778 , 644 P.2d 1257 ], with the result that a decedent’s personal expenses are substantially constricted and his “community” expenditures commensurately enlarged in determination of the death benefit. Thus, while Atlantic Richfield expressly held that a partial dependent’s support “cannot reasonably” include the decedent’s food or clothing for his “own personal use” (id., at p. 722), the majority opinion expands the “community” contribution by excluding only “recreational food and drink, clothing and transportation. ” All other such expenditures, apparently, become “community” expenditures. Under its standard, the majority opinion quite accurately concludes that the “personal use” apportionment in most cases will be negligible inasmuch as “in the majority of cases” any “personal use finding” will be “minimal,” and only occasionally will there be some expenditures outside the community. The resulting rule so constricts the Atlantic Richfield formula as almost to rescind it. That decision, in effect, had nullified the WCAB determination that a decedent’s entire earnings should be used as the measure of dependency when both spouses were employed. In the present case, the majority opinion almost revives that WCAB determination. Left of the Atlantic Rich-field formula, “in the majority of cases,” are only occasional “personal” expenditures, which are likely to be “negligible” and “minimal.” Finally, while the method applied by the WCAB judge and the WCAB somewhat resembles the one rejected by Atlantic Richfield, there is a sig *601 nificant difference. There, the method criticized simply divided the decedent’s income in half, multiplied by four to produce the benefit, and disregarded which expenditures were for the survivor, for the “community,” or for decedent personally. Here, by contrast, the WCAB judge and the WCAB first deducted decedent’s contributions to the spouses’ daughter and his “personal consumption” expenditures and then—after having been provided with no additional evidence as to use of the remainder of decedent’s income-allocated one-half of that remainder to the support of his widow. The resulting award was, therefore, fully individualized as to petitioner, based upon the evidence she submitted. “The major difficulty” in Atlantic Richfield (id., at p. 721) was taken into account and the effect of that difficulty ameliorated by the WCAB to the maximum extent permitted by that evidence. I would affirm the award. The petition of respondent United States Fidelity & Guaranty Company for a hearing by the Supreme Court was denied April 25, 1985. No one has questioned the competency of petitioner’s attorney, who is the same on appeal as in the material proceedings before the WCAB. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5662202. Public record. Not legal advice.