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Grimm v. Workers' Compensation Appeal Board (Federal Express Corp.)

Commonwealth Court of Pennsylvania

January 4, 2018

Gerard Grimm, on behalf of Katherine A. Grimm, Deceased, Petitioner
v.
Workers' Compensation Appeal Board (Federal Express Corporation), Respondent

          Argued: November 15, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JOSEPH M. COSGROVE, Judge [1]

          OPINION

          ROBERT SIMPSON, Judge

         This appeal involving a fatal claim petition implicates only benefits for a surviving spouse; there is no dispute as to benefits for surviving children.

         In particular, Petitioner Gerard Grimm (Claimant), on behalf of Katherine A. Grimm (Decedent), petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed a Workers' Compensation Judge's (WCJ) denial of his fatal claim petition. Claimant raises substantial evidence and capricious disregard challenges to the WCJ's critical findings of fact. In addition, Claimant contends the WCJ erred by misinterpreting the spousal dependency requirements in Section 307(7) of Workers' Compensation Act (Act)[2]and the applicable case law construing those provisions. For the reasons that follow, we affirm.

         I. Background

         Claimant and Decedent were married in November 1988. They had three children. Claimant and Decedent separated in August or September of 2010. On February 2, 2012, Decedent suffered a heart attack while delivering packages in the course of her employment as a truck driver/delivery person for the Federal Express Corporation (Employer).

         In April 2012, Claimant filed a fatal claim petition on behalf of himself as widower/husband and the couple's children as dependents. Reproduced Record (R.R.) at 3a-4a. Employer initially filed an answer denying the material allegations of the petition. R.R. at 5a-7a. However, during the proceedings, Employer acknowledged Decedent's work-related death and her children's entitlement to benefits. In July 2013, the parties executed an agreement for compensation for death (compensation agreement). See R.R. at 61a-63a. Pursuant to the compensation agreement, Employer agreed to pay dependency benefits to Decedent's children in accord with Section 307(1) of the Act, 77 P.S. §561(1). Pursuant to Section 307(7) of the Act, 77 P.S. §561(7), Employer agreed to pay Claimant up to $3, 000 for Decedent's burial expenses. R.R. at 63a.

          However, the parties were unable to settle the issue of whether Claimant was entitled to dependency benefits as a widower because he had been separated and living apart from Decedent, although they were not divorced. Nonetheless, Claimant maintained he was substantially dependent on Decedent at the time of her death. See WCJ's Op., 6/12/15, Finding of Fact (F.F.) No. 1.

         Before the WCJ, Claimant testified on his own behalf and submitted joint tax returns he filed with Decedent and other documentary evidence showing the health insurance benefits Decedent provided to Claimant and the children. Claimant testified that at the time of her death, Decedent resided in the family home with her three children. F.F. No. 2b. The home had no mortgage at the time Claimant and Decedent separated. Id. Decedent paid for the home insurance. Id. Claimant, however, acknowledged that he paid the utilities, which included water, gas and electric. Id. Claimant also paid most of the children's expenses. Id. In particular, Claimant admitted he contributed to Decedent's and the children's monthly expenses, and not the other way around. Id.

         Claimant further testified that following his separation from Decedent, he rented a townhouse. F.F. No. 2c. After moving out of the marital residence, Claimant was solely responsible for his rent, utilities and food. Claimant owned a car with no payment. Id. Claimant also paid for his car insurance. Id. Claimant and Decedent continued to have a joint checking account, which Claimant basically used as his personal account. Id. Claimant also acknowledged that Decedent did not provide him with any monetary support or contribute to any of his daily living expenses. Id.

          Further, Claimant testified that he is self-employed and that health insurance is expensive. F.F. No. 2d. However, Decedent continued to provide her family, including Claimant, with health insurance through Employer, even after their separation. Id.

         Claimant also submitted joint income tax returns for himself and Decedent for the years of 2009 through 2013. F.F. No. 3. For the years 2009 and 2010, Claimant and Decedent had negative adjusted gross income because of Claimant's business losses. Id. However, for 2011, the year prior to Decedent's death, Claimant and Decedent had an adjusted gross income of $80, 600. Claimant's total wages were $50, 527 and Decedent's total wages were $18, 690. Id.

         In addition, Claimant submitted documentation showing Decedent paid for health insurance coverage through payroll deductions by Employer from November 13, 2010 through January 28, 2012. F.F. No. 4. Id. Employer's health insurance covered not only her children, but also Claimant. Id.

         Based on the evidence presented, the WCJ found that Claimant was not living with Decedent and that he was not dependent on her or receiving a substantial portion of support from her at the time of her death. F.F. No. 5a. In reaching this conclusion, the WCJ observed that the only support Decedent provided to Claimant was the health care benefits she obtained through Employer. Id.

          The WCJ further found the record established that Claimant provided the majority of support for Decedent's and the children's household. F.F. No. 5a. Claimant continued to pay the utilities for the marital residence, the children's expenses and half of the real estate taxes. Id.

         The WCJ also rejected Claimant's argument that his 2009 and 2010 tax returns show that he relied on Decedent for substantial support during those years. F.F. No. 5b. Although their joint tax returns show negative income, they reflect numerous deductions based on Claimant's business losses. Id. Also, Claimant and Decedent's joint tax return for 2011 shows that Claimant's income recovered and that he earned substantially more than Decedent at the time of her death. Id.

         Most importantly, the WCJ emphasized that Decedent's payment of her family's health coverage through Employer did not by itself establish that she substantially contributed to Claimant's support. F.F. No. 5c. Rather, the evidence shows Claimant provided substantial support for Decedent and the children. Id.

         The WCJ also rejected Claimant's argument that he was living with Decedent for purposes of receiving compensation under Section 307(7) of the Act, 77 P.S. §561(7) ("[n]o compensation shall be payable under this section to a widow[er], unless he was living with his deceased [spouse] at the time of [her] death, or was then actually dependent upon [her] and receiving from [her] a substantial portion of [his] support").[3] F.F. No. 5d. The WCJ reasoned that Section 307(7)'s concept of "living with" could not be construed in any way to find that Claimant and Decedent were living together at the time of Decedent's death. Id. Rather, the WCJ found the evidence clearly established that Claimant and Decedent lived in separate residences for over a year-and-a-half at the time of Decedent's death. Id.

         Further, although Decedent never obtained a final decree in her divorce action against Claimant, the WCJ found that the evidence did not show that the couple continued in a marital relationship. F.F. No. 5d. To the contrary, Claimant and Decedent clearly lived separate lives. Id. Further, the WCJ found the fact that the couple continued to file joint tax returns of little significance because the joint filing benefited both of them. Id. Therefore, the WCJ determined the record lacked sufficient evidence to establish "that the parties remained in a marital relationship other than in name." Id. Consequently, the WCJ denied Claimant's fatal claim petition.

         On appeal, the Board affirmed. The Board observed that the test for establishing dependency for widows and widowers has two prongs. Where the spouses were separated at the time of the decedent's death, in order to be eligible for benefits, the claimant/widower must establish (1) that he was actually dependent upon the decedent, and (2) that he received a substantial portion of support from the decedent. Canton Plumbing and Heating v. Workmen's Comp. Appeal Bd. (Robbins), 582 A.2d 90 (Pa. Cmwlth. 1990). To that end, the Board observed, the issue of dependency "is peculiarly one of fact for the compensation authorities to determine." Urso v. Workmen's Comp. Appeal Bd. (LeRoy), 394 A.2d 1322, 1323 (Pa. Cmwlth. 1978).

         Here, the Board ultimately reasoned (with emphasis added):

After reviewing the evidence, we determine that the WCJ did not err in her analysis of the support Decedent was providing. Initially, we note that Claimant's focus on Decedent's financial contribution to the entire family is misplaced. It is undisputed that Decedent provided health benefits and contributed to expenses for the children. At issue is the dependency of Claimant himself. The only benefit Decedent provided for Claimant was health insurance coverage. This was undoubtedly a valuable benefit. However, Claimant failed to show that he was 'actually dependent' on Decedent in this regard because Claimant did not testify that he could not have afforded health insurance for himself, only that he could not get coverage that was as good for the price Decedent was paying. Further, this case differs from the others dealing with a substantial portion of support in one critical aspect, namely, Claimant was actually providing financial support to Decedent, more so than she was providing a financial benefit to him. Claimant's evidence shows that at the time of Decedent's death, Claimant was solely supporting his own household and was largely supporting Decedent and the children. This is in contrast with cases such as Canton Plumbing and Heating, and Urso, where both wives received money from their husbands, albeit in a small amount, which they used to procure necessities of life, but there was no evidence that the wives provided any money or other financial benefit for their husbands. Given Claimant's financial self-support and substantial amount of support he provided for Decedent, as well as a lack of evidence such as a household accounting to further demonstrate that Decedent provided a substantial proportion of Claimant's living expenses, we determine that Decedent's provisions of health insurance coverage for Claimant, although a 'necessity of life, ' does not rise to the level of Claimant being 'actually dependent' and receiving a 'substantial portion of support' from Decedent as contemplated by the Act. Therefore, the WCJ did not err in denying the Fatal Claim Petition.

Bd. Op., 11/10 16, at 8-9. Claimant petitions for review.[4]

         II. ...


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