Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Bessie Gaymon, mother of Rufus Gaymon, deceased v. Hoffer Transport Co., No. A-76793.
Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for petitioner.
Robert Silverman, Silverman and Abramson, for respondent, Bessie Gaymon, mother of Rufus Gaymon, deceased.
President Judge Crumlish, Jr. and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Mencer. Judge Palladino did not participate in the decision in this case.
[ 66 Pa. Commw. Page 311]
Hoffer Transportation Company (Hoffer) appeals*fn1 from a Workmen's Compensation Appeal Board (Board) order which granted partial death benefits to Bessie Gaymon (Claimant) the mother of Rufus Gaymon (Decedent). The facts are not in dispute.
[ 66 Pa. Commw. Page 312]
Decedent was killed December 8, 1973 when the rig which he was operating as Hoffer's employee crashed through a bridge guardrail onto a highway. His mother and two illegitimate children, ages 14 and 5, survived Decedent. Both of the children lived with their respective mothers. Neither of the children lived with the Decedent nor were they supported by him.
The referee found that Decedent was killed while in the scope of his employment and further that Claimant was entitled to workmen's compensation benefits because she was partially dependent upon him.
In its second appeal from the referee's decision to the Board, Hoffer raised for the first time the issue now before this Court, i.e., whether the mere existence of persons entitled to but not claiming benefits will preclude a person later in the distribution line from recovering benefits. The contested issue is one of law subject to our review. Beaver Supermarket v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 505, 424 A.2d 1023 (1981).
The Claimant's petition for benefits was filed by her, apparently on her own behalf although it lists herself and both children of the Decedent as dependents. A line has been drawn through each child's name, however, and the words "Amended to eliminate children not living with Decedent or supported" appear under the children's names. Nothing in the record indicates when or by whose authority the children's names were deleted.*fn2 It is quite evident that such deletion was not authorized by the children or their natural or legal guardian. Under such circumstances, we deem the "amendment" to be ineffective.
[ 66 Pa. Commw. Page 313]
The mother of one of the children appeared at the first hearing and testified that her child at the time of the Decedent's death was not receiving support from the Decedent and that the child was living with her. She was not represented by counsel and she said nothing which would indicate that she was claiming or waiving benefits to which her child might be entitled. The older child testified solely concerning the liability aspect of the case because he ...