Summary
In Broadwood Chuckwagon v. Workmen's Compensation Appeal Board (Stovall), 74 Pa. Commw. 426, 459 A.2d 1355 (1983), this Court defined dependency, for purposes of workmen's compensation benefits to a deceased worker's parents, as actual dependency.
Summary of this case from Taynton v. Workmen's Compensation Appeal BoardOpinion
Argued March 4, 1982
May 23, 1983.
Workmen's compensation — Burden of proof — Scope of appellate review — Dependency — The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736 — Tuition — Necessity of life.
1. In a workmen's compensation case in which the party with the burden of proof has prevailed before the Workmen's Compensation Appeal Board, the scope of review of the Commonwealth Court of Pennsylvania is limited to determining whether an error of law was committed or whether the necessary findings of fact were supported by substantial evidence. [428]
2. For purposes of Section 307(5) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, dependency means actual dependency and must affirmatively appear in the record as a fact; the child's earnings must have been necessary to provide the parent with some of the ordinary necessities in keeping with the parent's station in life. [429]
3. For purposes of determining dependency under Section 307(5) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, a college tuition payment for the decedent's sister does, until she reaches the age of eighteen, constitute a necessity of life. [430]
Judge MacPHAIL dissented.
Argued March 4, 1982, before Judges CRAIG, MacPHAIL and DOYLE, sitting as a panel of three. Reargued December 14, 1982, before President Judge CRUMLISH, JR. and Judges ROGERS, BLATT, WILLIAMS, JR., CRAIG, MacPHAIL and DOYLE.
Appeal, No. 363 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in the case of Kenneth Stovall, deceased, Marion, Mother v. Broadwood Chuckwagon, No. A-78996.
Fatal claim petition to the Department of Labor and Industry for dependent's benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Appeal sustained and case remanded. Benefits again awarded. Employer appealed to the Workmen's Compensation Appeal Board. Appeal denied. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Modified and remanded. Application for reargument filed and denied.
Charles W. Craven, with him Jo Marjorie Fineman, Marshall, Dennehey, Warner, Coleman Goggin, for petitioner.
Thomas H. Goldsmith, Goushian, Mooradian, Goldsmith Keller, for respondents.
Broadwood Chuckwagon (employer) appeals a Workmen's Compensation Appeal Board order awarding partial dependency benefits to Marion Stovall. We modify and remand.
This case reargued before the Court en Banc on December 14, 1982. By Order of this Court, reargument was limited to the question of whether, in determining parental dependency, post-secondary school expenses may be considered.
The facts are not in dispute. After her son was killed by a co-employee, Stovall sought benefits under Section 307(5) of The Pennsylvania Workmen's Compensation Act (Act). The decedent had been earning an average weekly wage of $86.00 and, while living with Stovall, contributed $216.67 per month to the household. From this, claimant allocated $115.00 for the decedent's monthly expenses of food, clothing, public transportation and a separate telephone. The balance of the $216.67 was allocated toward claimant's expenses.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 561(5).
Stovall is divorced, is unemployed and her three minor daughters live with her. Her monthly income, apart from the decedent's contribution, was $623.50. After excluding the $115.00 allocated to the decedent, the referee calculated the claimant's monthly expenses to be $633.00. The referee also found that the claimant paid $100.00 per month for the junior college education of one of her daughters. The Board, in awarding partial dependency benefits, concluded that Stovall had met her burden of proving dependency on the decedent and further concluded that the post-secondary expenses of Stovall's daughter were a necessity of life for which the mother was dependent upon her son.
Initially, the referee concluded that the decedent was a minor and invoked the provision of Section 307(5), which creates a presumption that the parents were dependent on the minor child. The Board concluded that the decedent was not a minor, negating this statutory presumption. The Board remanded and, on remand, the the referee reinstated his award of partial disability benefits, concluding that the claimant had met her burden of proving dependency. The Board affirmed and this appeal followed.
Our scope of review, where the party with the burden of proof has prevailed below, is limited to determining whether an error of law was committed or whether the necessary findings of fact were supported by substantial evidence. Bertsch v. Pike County Sand Gravel Co., 27 Pa. Commw. 90, 365 A.2d 886 (1976).
The burden, when the deceased child is not a minor, is on the parent to prove dependency.
Section 307(5) of the Act provides, in pertinent part:
In case of death, compensation shall be computed on the following basis, and distributed to the following persons: . . .
. . . .
(5) If there be neither widow, widower, nor children entitled to compensation, then to the father or mother, if dependent to any extent upon the employe at the time of the injury . . . Provided, however, That in the case of a minor child who has been contributing to his parents, the dependency of said parents shall be presumed. . . .
We need not address the issue of whether the Board incorrectly decided whether the decedent was a minor for purposes of the Act. Neither party has raised this issue on appeal, and such determination is unnecessary for the disposition of this case.
We have, in the past, concluded that the term dependency "contemplates actual dependency and must affirmatively appear in the record as a fact." Leipziger v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 417, 420, 315 A.2d 883, 885 (1974) (citations omitted). Besides the requirement of actual dependency, the child's earnings must have been "necessary to provide the parent with some of the ordinary necessities in keeping with his station in life. . . ." DeGuffroy Associates, Inc. v. Workmen's Compensation Appeal Board, 52 Pa. Commw. 58, 61, 415 A.2d 437, 438 (1980).
Although the claimant can show no dependency to the extent of the amount expended for decedent's upkeep, we find that the claimant was dependent on the decedent to the extent of the difference between the claimant's total monthly obligations (excluding both the decedent's upkeep and her daughter's tuition) and her monthly income, excluding the decedent's contribution.
Since the claimant is obligated to support her minor children, Bucci v. Lincoln Coal Co., 140 Pa. Super. 538, 14 A.2d 359 (1940), any reasonably necessary expenses attributable to these children are properly her expenses for the purpose of determining dependency. Bertch v. Pike County Sand and Gravel Co., 27 Pa. Commw. 90, 365 A.2d 886 (1976).
We now determine whether the rest of the decedent's contribution, which was applied to his sister's college tuition, can be considered as necessary to provide Stovall with one of life's ordinary necessities. We conclude that the tuition payment does constitute a necessity of life, but only until the decedent's sister reaches the age of eighteen years.
We had decided previously that the cost of loans assumed by the parents for the post-secondary education of two children must be excluded when computing the parents' dependency: Cook v. Workmen's Compensation Appeal Board, 64 Pa. Commw. 278, 440 A.2d 652 (1982). In favoring the exclusion, we wrote:
While we recognize the importance of a college education, of course, we cannot say . . . that such an education is one of the "ordinary necessities of life suitable for persons" in the petitioners' class nor that it was "necessary to maintain the parents in an established, reasonable standard of living."
Id. at 282, 440 A.2d at 654 (citations omitted). Cook, however, involved two children over eighteen and, thus, is distinguishable. Until the child attains that age, a parent may reasonably be expected to provide any minor children with the educational foundation necessary to prepare them for the future. Thus, the tuition cost attributable to Stovall's daughter was properly included as part of the claimant's expense, but only until the daughter reached the age of eighteen years.
However, since compensation is due from the date of the fatal injury, we modify the award to allow compensation from that date, to wit, December 16, 1975, instead of from September 16, 1976.
Modified and remanded.
ORDER
The order of the Workmen's Compensation Appeal Board, No. A-78996 dated January 15, 1981, is hereby modified. We remand to the Board for a redetermination of benefits not inconsistent with this Opinion. Jurisdiction relinquished.
AMENDING ORDER
AND NOW, July 1, 1983, the above-captioned Opinion, filed May 23, 1983, is hereby amended as follows:
The first full paragraph on page four should read as follows:
"However, since compensation is due from the date of the fatal injury,fn7 we modify the award to allow compensation from that date, to wit, December 16, 1975, instead of from September 16, 1975."
Judge MacPHAIL dissents.