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MARGARET EDWARDS v. COMMONWEALTH PENNSYLVANIA (01/23/81)

decided: January 23, 1981.

MARGARET EDWARDS, WIDOW OF ELLIOTT EDWARDS, DECEASED
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND PHILADELPHIA GAS WORKS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Elliott Edwards, deceased, Margaret, widow v. Philadelphia Gas Works, No. A-76620.

COUNSEL

Vincent M. Lorusso, for petitioner.

Nicholas J. Lisi, with him Hal A. Barrow, of counsel, Solo, Padova & Lisi, for respondents.

Judges Craig, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 56 Pa. Commw. Page 288]

Claimant-widow Margaret Edwards appeals an order of the Workmen's Compensation Appeal Board affirming a referee's denial of benefits under Section 307 of The Pennsylvania Workmen's Compensation Act,*fn1 which makes compensation payable to the widow, if living apart from the deceased worker, only if she was "actually dependent" upon him for a substantial portion of her support.

Claimant's husband died as a result of being struck by a truck in the course of his employment with Philadelphia Gas works on December 7, 1976. The decedent and claimant, who were married on November 23, 1942, had been separated since 1968, although they had not obtained a divorce. At the time of his death, decedent was providing claimant with $20 per week support, pursuant to court order. Since early 1962, decedent had lived with another woman, who bore him three children; the youngest of those children was still a minor at decedent's death.

Claimant filed a fatal claim petition pursuant to Section 307 of the Act. At the hearing, she testified that her income as a domestic worker was $100 per week; based on testimony concerning her yearly expenditures, the referee found that claimant's expenses were roughly $83 per week. Because her income exceeded

[ 56 Pa. Commw. Page 289]

    expenses by $17 per week, the referee concluded that claimant was neither actually dependent upon decedent nor did she receive a substantial portion of her support from him.

Claimant raises two issues on this appeal. First, she contends that the referee's conclusion was in error; she claims that the $17 weekly excess of her salary over her calculated expenses should not deprive her of eligibility. In support of her argument that she was actually dependent upon decedent, claimant asserts that the referee should have considered her federal, state and local wage tax liability, and also the potential cost of obtaining medical insurance, in calculating her expenses.

Whether claimant was actually dependent upon decedent and was receiving from him a substantial portion of her support is a question for the factfinder. Workmen's Compensation Appeal Board v. Jones & Laughlin Steel Corp., 23 Pa. Commonwealth Ct. 87, 351 A.2d 333 (1976). The burden was on the claimant to prove all the elements necessary to support an award. Walker v. Heavy, 207 Pa. Superior Ct. 528, 219 A.2d 466 (1966).

Therefore, our review is limited to a determination of whether the referee capriciously disregarded competent evidence. Draco Development Corp. v. Workmen's Compensation Appeal Board, ...


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