Opinion
May 1, 1967
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board awarding death benefits and which found claimant to be the widow of the deceased employee. Appellants' contention that the claimant had abandoned the deceased prior to his accidental death on March 14, 1964 is without foundation or merit. In 1956, the decedent suffered an industrial accident as a result of which he became permanently and totally disabled and was confined to a wheelchair thereafter. He was then living in an apartment with his wife and daughter. Compensation benefits were paid until his death from a fall. The sole issue here presented is whether the claimant-wife had abandoned deceased within the meaning of subdivision 1-a of section 16 Work. Comp. of the Workmen's Compensation Law. Claimant and deceased were married on March 29, 1937. Until 1961 they and a daughter lived together as a family unit. The record shows that the deceased then asked claimant to leave the house because "He didn't want me in the house", and further that for some time the deceased had abused claimant and their mentally retarded child. Despite her moving out at this time, claimant daily visited her husband and did the cooking, shopping and cleaning for him until his death. From the single fact that they had separate residences, neither an inference can be made nor conclusion be reached that claimant had abandoned him. Subdivision 1-a of section 16 Work. Comp. of the Workmen's Compensation Law, effective at decedent's death, provided in part that: "term abandoned shall be deemed to mean such an abandonment as would be sufficient under section eleven hundred sixty-one of the Civil Practice Act to sustain a judgment of separation on that ground." To justify a judgment for abandonment, it must be found that the departure was voluntary, unjustified and without the consent of the other. None of these are here present. The board properly and factually determined that there was justification for claimant's departure and that there was no abandonment. (See Matter of Harge v. Bell Son, 12 A.D.2d 568.) With this determination we do not and cannot interfere. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.