Gerard Grimm, on behalf of Katherine A. Grimm, Deceased, Petitioner
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 
appeal involving a fatal claim petition implicates only
benefits for a surviving spouse; there is no dispute as to
benefits for surviving children.
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)and the applicable case law
construing those provisions. For the reasons that follow, we
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).
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.
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.
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
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
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.
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.
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
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.
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.
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.
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"). 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.
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
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).
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
Bd. Op., 11/10 16, at 8-9. Claimant petitions for