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NO. 1 CONTRACTING CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (THOMAS C. VAN HORN (05/16/83)

decided: May 16, 1983.

NO. 1 CONTRACTING CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (THOMAS C. VAN HORN, DECEASED BY PATRICIA A., MOTHER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas C. Van Horn, deceased; Patricia A., Mother v. No. 1 Contracting Corporation, No. A-80826.

COUNSEL

David E. Heisler, Lenahan & Dempsey, for petitioner.

John J. Hagarty, of counsel: Sherman, Hagarty & Beaver, P.C., for respondent, Patricia A. Van Horn.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 74 Pa. Commw. Page 342]

Thomas Clayton Van Horn, then twenty-one years of age, was, on November 18, 1974, killed in the course of performing his duties as a laborer and mechanic for Number 1 Contracting Corporation of West Pittston (employer). Thomas' mother (claimant) filed a fatal claim petition dated August 29, 1975 in which she avers the facts related to her son's employment and death and that she was financially dependent on her son and is, therefore, entitled to benefits pursuant to Section 307(5) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 561(5). Following a number of evidentiary hearings conducted in the summer and autumn of 1976, a referee, in a lengthy written decision entered January 27, 1977, encompassing detailed factual findings and conclusions of law, denied the claimant's petition. The referee's findings and conclusions include the follow-lowing pertinent to the issue of the claimant's dependency on her deceased son:

8. Claimant and her husband had annual gross earnings in the amount of $12,780.58 for the year 1974, or a weekly average income of $245.78.

11. In a statement given by decedent's father to representatives of decedent's workmen's

[ 74 Pa. Commw. Page 343]

    compensation insurance carrier on November 29, 1974, 11 days following decedent's death, he said . . . that the decedent was contributing $30 a week for board, and that the decedent also contributed otherwise such as helping to buy clothes for the mother and children, and Christmas and birthday presents, for an average contribution of about $50 per week; however, at the hearing conducted on November 1, 1976 decedent's father testified that he really did not know what the decedent gave.

13. To the time of his death, decedent was giving the Claimant between $35 and $40 per week, with no restrictions as to how the money was to be spent.

14. Decedent was contributing less than 20% of his gross wages to the Claimant, and in return was receiving lodging, meals and use of all facilities within the home.

17. Decedent lived in the home owned by his parents, had full use of all the facilities, and was provided board, meals and lodging.

19. Although Claimant submitted a list of weekly expenses indicating said expenses exceeded her and her husband's weekly net income including monies contributed by decedent, Claimant testified that the family did not go into debt.

20. The Referee has considerable difficulty in ascertaining the accuracy of the weekly expense list submitted by the Claimant; for example, the ...


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