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WILLIAM COOK v. COMMONWEALTH PENNSYLVANIA (01/28/82)

decided: January 28, 1982.

WILLIAM COOK, DECEASED, BY ROBERT AND RUTH COOK, PARENTS, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ST. JOE MINERALS CORPORATION, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of William Cook (deceased), Robert and Ruth Cook, parents v. St. Joe Minerals Corporation, No. A-77104.

COUNSEL

Alexander J. Pentecost, for petitioners.

Bruce E. Woodske, Reed, Luce, Good, Tosh, Kunselman & McGregor, for respondent, St. Joe Minerals Corporation.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.

Author: Blatt

[ 64 Pa. Commw. Page 279]

The petitioners, Robert and Ruth Cook, appeal a decision of the Workmen's Compensation Appeal Board (Board) which denied them benefits on the grounds that they were not dependent upon contributions from their son, now deceased. The Board cited the provisions of Section 307(5) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 561(5).

The petitioners' son, William Cook, was fatally injured in the course of his employment with the St. Joe Minerals Corporation (employer) and the petitioners, with whom he resided, petitioned for benefits claiming that they were partially dependent upon his contributions. Hearings were held and the referee granted benefits, finding that the decedent lived with the petitioners and three of his siblings, aged respectively 20, 16 and 14, that the petitioners' joint gross income was $28,009.44 per year, that their monthly net income was

[ 64 Pa. Commw. Page 280]

$1112, that their monthly expenses totaled $2525, that the decedent contributed $80 per week to the household and on occasion made additional contributions of $200 or $250 each and that, consequently, the petitioners were partially dependent upon the decedent's contributions to the maintenance and support of the household. The employer appealed to the Board and, at that time, the parties stipulated that the petitioners' actual monthly net income was $1802.63, not $1112 as found by the referee. The Board then reversed the referee's grant of benefits, finding that the household in general may have had some dependency upon the decedent but that the petitioners themselves were both gainfully employed and did not share in that dependency.

The petitioners argue that the Board's finding was in error and that the referee was correct in finding that they were partially dependent upon the contributions from their deceased son in that their expenses, including the costs of loans incurred to provide college educations for two of their children, exceeded their income.

[ 64 Pa. Commw. Page 281]

It is true that, as a rule, in workmen's compensation cases, the referee is the factfinder, see, e.g., Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). In this case, however, the Board received additional evidence in the form of the parties' stipulation that the petitioners' monthly net income was $1802.63, not $1112 as the referee had found, and we will therefore treat the Board as the finder of fact on the issue of dependency. And, where, as here, the petitioners, who had the burden of proving dependency, did not prevail below, our scope of review is limited to determining whether or not the Board's findings were made in capricious disregard of competent evidence and whether or not constitutional rights were violated or an error of law was committed. Container Corporation of America v. Workmen's Compensation Page 281} Appeal Board, 59 Pa. Commonwealth Ct. 324, 429 A.2d 1264 (1981); Regent Bottling Co. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 8, 309 A.2d 265 (1973).

Section 307(5) of the Act provides that a "father or mother, if dependent to any extent upon the employe at the time of the injury," may receive benefits. In Leipziger v. Workmen's Compensation Appeal Board, 12 Pa. ...


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