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WILLIAM J. LOHR v. WORKMEN'S COMPENSATION APPEAL BOARD (HOFMANN INDUSTRIES (09/11/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 11, 1989.

WILLIAM J. LOHR, DECEASED, MABEL A. LOHR, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HOFMANN INDUSTRIES, INC.), RESPONDENT

PETITION FOR REVIEW, (WORKMEN'S COMPENSATION).

COUNSEL

Charles K. Serine, Miller & Murray, Reading, for petitioner.

Stephen J. Harlen, Philadelphia, for respondent.

Crumlish, Jr., President Judge, Palladino, J. (p.), and Smith, J.

Author: Smith

[ 130 Pa. Commw. Page 537]

Mabel A. Lohr Hersman (Claimant) seeks review of the decision of the Workmen's Compensation Appeal Board (Board) dismissing her appeal and affirming the referee's denial of compensation benefits. The Board's decision is affirmed.

William J. Lohr (Decedent) died from injuries sustained on February 20, 1986 in the course of his employment with Hofmann Industries, Inc. (Employer) while cleaning the inside of a sand mixer which was inadvertently activated. Claimant, Decedent's widow, filed a fatal claim petition on October 27, 1986 on behalf of herself and Decedent's two children.*fn1 The referee awarded fatal claim benefits to Decedent's children but denied Claimant benefits concluding that she had failed to show by substantial competent evidence that at the time of Decedent's death Claimant was actually dependent upon and receiving a substantial portion of her support from Decedent. Claimant appealed this decision to the Board which affirmed the referee.*fn2

The sole issue before this Court is whether Claimant is entitled to dependency benefits pursuant to Section 307(7)

[ 130 Pa. Commw. Page 538]

    of The Pennsylvania Workmen's Compensation Act.*fn3

Claimant had been separated from Decedent for approximately three years at the time of his death. When separated at the time of death, the surviving spouse must prove not only dependency but that decedent provided a substantial portion of her support. Globe Lining, Inc. v. Workmen's Compensation Appeal Board (Johnson), 121 Pa. Commonwealth Ct. 68, 550 A.2d 264 (1988). Whether one is dependent is a factual determination to be adjudged by the compensation authorities. American Mutual Insurance Co. v. Workmen's Compensation Appeal Board (Davenport), 108 Pa. Commonwealth Ct. 345, 530 A.2d 121 (1987). Recognizing that the referee is the ultimate fact finder, this Court must determine whether there is substantial evidence to support the referee's finding that Claimant was not dependent upon Decedent nor receiving from him a substantial portion of her support.

After a review of the record, this Court concludes that the evidence supports the referee's determination that Claimant was not in fact dependent upon Decedent. Decedent never made any spousal support payments to Claimant nor was he obligated to do so pursuant to a court order or decree. The referee found that Claimant began working full time in 1984 earning $240 per week and has continued to work full time through the date of Decedent's death. The total support payments which were made by Decedent occurred some time in 1983 in the amount of sixty dollars for the benefit of Decedent's daughter. Claimant testified that Decedent would occasionally baby-sit for his daughter on weekends while Claimant worked; however, such circumstance does not constitute support obligation. Moreover, Claimant's testimony that Decedent paid a jointly-owned mortgage loan for the mortgaged house in which

[ 130 Pa. Commw. Page 539]

Decedent resided thus providing a benefit to Claimant cannot be construed as support for Claimant. See S and S Associates v. Workmen's Compensation Appeal Board (Hochman), 77 Pa. Commonwealth Ct. 11, 465 A.2d 57 (1983).

Lastly, Claimant contends that Decedent's blue cross/blue shield coverage of Claimant constituted support. It appears from the record that Decedent did not pay additional income for this coverage which further negates Claimant's contention. Accordingly, this Court finds that the decision of the referee is supported by substantial evidence as Claimant was neither dependent upon Decedent nor receiving from him a substantial portion of her support. The Board is therefore affirmed.

Order

AND NOW, this 11th day of September, 1989, the decision of the Workmen's Compensation Appeal Board is affirmed.


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