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LINDSEY CURRIE v. WORKMEN'S COMPENSATION APPEAL BOARD (SHARON STEEL CORPORATION) (12/09/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 9, 1986.

LINDSEY CURRIE, DECEASED, JOSEPHINE ARKWARD, SISTER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SHARON STEEL CORPORATION), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Lindsey Currie, deceased, Josephine Arkward, Sister v. Sharon Steel Corporation, No. A-84533.

COUNSEL

L. Steven Robinson, for petitioner.

Carmen F. Lamancusa, Lamancusa & Cilli, P.C., for respondent, Sharon Steel Corporation.

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

Author: Blatt

[ 102 Pa. Commw. Page 399]

Josephine Arkward (petitioner), sister of Lindsey Currie, deceased, petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which denied her benefits pursuant to Section 307 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยงยง 561(6), 562.

On July 20, 1972, Lindsey Currie died from asphyxiation by carbon-monoxide inhalation in the course of his employment at the Sharon Steel Corporation. He had never been married and had resided with his sister, the petitioner, for a number of years. She performed many of the household duties, while he, in return, contributed financially to her support. In 1965, however, he moved to a new residence which was located a few doors from his sister's home. This move was subsequent to his sister's marriage to Bynard Arkward.

The petitioner, a hairdresser, was diagnosed by Dr. Joseph H. Bolotin in 1964 as being disabled from scalenus anticus syndrome (a condition in which the

[ 102 Pa. Commw. Page 400]

    muscle that connects the neck with the first rib causes pain). She was thereafter unable to work in her profession, but continued to carry out various household duties for her brother until his death in 1972. Likewise, her brother continued to provide some financial assistance, even though the petitioner resided with her aged and ill husband, who had many medical bills. At the time of the decedent's death, however, the petitioner's husband was receiving a pension of $171.52 per month and Social Security benefits of $150.00 per month.

On July 12, 1973, the petitioner filed a fatal claim petition for compensation, as a dependent of a deceased employee, alleging that she was disabled and was also dependent on her brother at the time of his death. The referee dismissed the claim petition, but the Board vacated and remanded the matter for clarification as to the extent of the petitioner's dependency on the decedent. The petitioner thereafter offered new testimony to the effect that she had not worked in her profession since 1964. Her treating physician from 1960 to 1969, Dr. Bolotin, also testified that she was disabled from 1964 until 1969, but could not state whether or not she was disabled at the time of her brother's death in 1972. The referee, therefore, again dismissed the claim petition, stating that "[t]he Claimant has failed to meet her burden of showing that she was actually dependent upon the Decedent. . . . Even assuming that the Claimant was dependent upon the Decedent, she has not proved that she was dependent for support because of disability." The Board then affirmed, finding no unequivocal testimony by the petitioner that she was dependent on her brother.*fn1

[ 102 Pa. Commw. Page 401]

The petitioner contends that the referee erred in finding that she was neither dependent upon her brother nor disabled under Sections 561(6) and 562 of the Act which respectively provide that:

If there be neither widow, widower, children, nor dependent parent, entitled to compensation, then to the . . . sisters, if actually dependent upon the decedent for support at the time of his death. . . .

Compensation shall be payable under this section to or on account of any . . . sister, only if and while such . . . sister is under the age of eighteen unless such . . . sister is dependent because of disability when compensation shall continue to be paid during such disability. . . .

The parties agree here that there were no children, dependent parents, nor a widow entitled to compensation under Section 561(6). The petitioner, therefore, had the burden of proving that she was actually dependent upon her brother at the time of his death, and that due to a disability she could not support herself.

Our review, of course, is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence. Hayden v. Workmen's Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 83 Pa. Commonwealth Ct. 451, 479 A.2d 631 (1984). Whether or not the petitioner was dependent, however, is a question of fact for the referee. Urso v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 184, 394 A.2d 1322 (1978).

The term dependency requires actual dependency,*fn2 which must affirmatively appear in the record as a fact,

[ 102 Pa. Commw. Page 402]

    whether or not she had a dependency due to her own alleged disability.*fn4

Accordingly, we will affirm the order of the Board.

Order

And Now, this 9th day of December, 1986, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.

Disposition

Affirmed.


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