| IN RE: OWEN E. RAINES, DEC'D | ) | DOCKET NO. 8542 |
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| Claim No. C-349561 | ) | DECISION AND ORDER |
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- APPEARANCES
- Petitioner, Hope Peterson, by
- Walthew, Warner and Keefe, per
- Thomas Keefe
- Employer, George A. Schaut Construction & Logging Co., by
- George A. Schaut
- Department of Labor and Industries, by
- The Attorney General, per
- Fred R. Butterworth, Assistant
Appeal filed by the petitioner, Hope Peterson, mother of the deceased workman, Owen E. Raines, on March 14, 1957, from an order of the supervisor of industrial insurance dated January 14, 1957, finding that there were no beneficiaries or dependents of the deceased workman and approving the petitioner's claim for payment of certain statutory allowances. Sustained.
DECISION
Owen E. Raines was fatally injured on August 16, 1956, while employed by the George A. Schaut Construction & Logging Co. He was 23 years old at the time of his death and left no widow or children. Subsequently a form "CLAIM FOR PENSION BY DEPENDENTS OTHER THAN WIDOW OR CHILDREN" signed by the petitioner on January 4, 1957, was filed with the department of labor and industries. The record discloses that Mrs. Peterson signed this claim (exhibit two) at the request of the undertaker, who had conducted her son's funeral in order that he might receive payment for the burial expenses. It further appears that the word "None" was typewritten on the claim form following the heading "(2) Persons [2] claiming dependency --" and all other portions of the claim per taining to proof of dependency were unanswered. On January 14, 1957, the supervisor of industrial insurance entered the follow ing order:
"This claim coming on for adjudication and the Supervisor of Industrial Insurance having carefully considered all of the evidence, "THE DEPARTMENT FINDS that Owen E. Raines sustained a fatal injury on August 16th, 1956 while engaged in an employment which was subject to the provisions of the Compensation Act and there being no surviving beneficiaries or dependents
"IT IS ORDERED that the claim filed by Mrs. Hope Peterson, the surviving mother, be approved for the payment of the statutory allowance of $300.00 and that in addition thereto the statutory allowance for burial expense shall be paid and the claim there- upon closed."
Petitioner thereafter, on January 28, 1957, informed the depart- ment by letter that her son, prior to his death, was contributing to her support and on March 14, 1957, filed an appeal to this board from the supervisor's order of January 14, 1957, alleging that she was entitled to compensation under the act as a dependent of the deceased workman.
By agreement of all interested parties the sole issue to be determined by this appeal is whether or not the petitioner was, in fact, a dependent of her son at the time of his death.
R.C.W. 51.08.050, defines dependent to mean certain specified relatives of the deceased workman "who at the time of the accident are actually and necessarily dependent in whole or part for their support upon the earnings of the workman." R.C.W. 51.32.050(6) provides in part that:
"If the workman leaves no widow, widower or child, but leaves a dependent or dependents, a monthly payment shall be made to each dependent equal to fifty [3] percent of the average monthly support actually received by such dependent from the workman during the twelve months next preceding the occurrence of the injury, but the total payment to all dependents in any case shall not exceed seventy- five dollars per month... The payment to any dependent shall cease if and when, under the same circumstances, the necessity creating the dependency would have ceased if the injury had not happened."
R.C.W. 51.28.060 provides in part as follows:
"A dependent shall at all times furnish the Department with proof satisfactory to the Director of the nature, amount and extent of the contribution made by such deceased work-man..." (emphasis added)
The claimant in this case did not comply, nor did she attempt to comply with the last statute above quoted. In fact, she made no claim for an allowance as a dependent of the deceased workman. Presumably the first knowledge the department had of any such contention by the petitioner was when she filed her notice of appeal. However, the question of whether or not this appellate board may properly consider a claim made for the first time in an appeal to the board and the question of the claimant's failure to comply with R.C.W. 51.28.060 with reference to proof of dependency, were not raised by the department and, as hereto- fore noted, its counsel stipulated and agreed that the issue to be determined on this appeal was whether or not the petitioner was, in fact, a dependent of her son at the time of his death. The board will therefore consider the issue presented by stipulation of the parties.
The only evidence in this record was submitted on behalf of the petitioner and the material facts established thereby are essentially as follows: The petitioner was divorced in 1945 from the father of her son, Owen E. Raines, and his sister Gloria. [4]
Gloria married in 1946 and since that time she and her husband have maintained their own home in North Bend, Washington. She has never contributed anything toward the living expenses of the petitioner and her present husband, Charles A. Peterson. The petitioner married Mr. Peterson in 1946 and since then they have maintained a home (rent free) for themselves and Mrs. Peter- son's son, Owen, in one of two houses located on a small acreage near Snoqualmie, Washington, owned by Mrs. Peterson's parents who live in the other house. Mr. Peterson, who is 62 years old, was employed steadily from about 1948 until December 12, 1955. He did no work after that time, except work around the home, including the cultivation of a garden. When he worked prior to December 12, 1955, Mr. Peterson earned $16.00 per day and there- after he received unemployment compensation in the sum of $35.00 a week until January, 1957.
The deceased, Owen Raines, enlisted in the army in 1948 when he was only 15 years old. However, he was discharged the following year because he was under age. He again entered the army in January, 1953, and served until August, 1954. After his last discharge from the army, Owen worked for a time for the Weyerhaeuser Timber Company and he then drew unemployment compensation from approximately January through May, 1955. He then obtained employment near his home from about June until December, 1955, and then again drew unemployment compensation from December, 1955, through February, 1956, when he was no longer eligible. He lived at home with his mother and stepfather during this entire period after he was discharged from the army and during this period paid his mother $15.00 per week when he was employed and $10.00 out of his unemployment compensation when he was unemployed. After February, 1956, he continued to live at home for two or three months although unemployed and not drawing any [5] unemployment compensation. In April or May, 1956, he went to Oregon, where he obtained work in the logging industry. Owen returned home about the middle of July, 1956, and then obtained employment with the George A. Schaut Construction and Logging Co., a little over two weeks prior to his fatal injury.
When asked approximately how much her son contributed to her support after he was released from the army, Mrs. Peterson answered:
"A When he first got out of the service he had to pay his way and he gave me some, at that time, but during the time he was on unemployment he gave me $10.00 a week."
As heretofore stated, Owen gave his mother $15.00 per week while he was employed, but she testified that during the six-month period prior to his death, the only contribution he made was the sum of $30.00 which he sent to her from Oregon. However, she stated that he also gave her the sum of $100.00 from his soldier's bonus check in January, 1956, and bought two suits of underwear for this stepfather in the fall of 1955. She also stated that while her son was living at home she "did his washing - made his lunch and things like that."
In the board's opinion, the evidence in this case as above summarized is insufficient to establish that the petitioner was dependent upon her son for support at the time of his death or the twelve-month period immediately preceding his death. It seems to the board that the only reasonable inference which may be drawn from the petitioner's testimony that after her son got out of the service "he had to pay his way," is that the money which he thereafter gave his mother was considered as payment for his own board, room and laundry. The burden was on the petitioner to establish that at the time of her son's fatal injury she was "actually and necessarily dependent in whole or [6] in part" upon her son's earnings for her support, and she pre sented no evidence to establish that the sums of money she received from her son during the 12-month period immediately prior to his death exceeded the value of the board and room furnished to her son.
The necessary elements which must be shown to establish dependency are stated as follows in 58 Am. Jur. Workmen's Compensation, Sec. 162:
"As a very general proposition, it may be said that a dependent is one who looked to or relied on the decedent for support and maintenance. Reliance must have been placed upon the deceased employee to provide the applicant for compensation, in some measure or to some extent, with his or her future living expenses. And where this is the case, it is not material that the contributions were made at irregular intervals, or in differing amounts, nor that the money was paid in accordance with the provisions of a contract. The purpose of the statute is to provide the workman's dependent in future with something in substitution for what has been lost by the workman's death, and, consequently, to establish dependency the applicant for compensation must show that he or she had reasonable grounds to anticipate future support from the decedent. This reasonable expectation of continuing or future support and maintenance seems to be the true criterion as to who are dependents."
It is not necessary, of course, that a person be entirely and absolutely dependent on a workman for the bare necessities of life, in order to qualify as a dependent under the workmen's compensation act, but it is necessary that a deceased workman must have been "looked to, depended and relied on, in substantial part by the family for means of reasonable support." (emphasis added) McIntire v. Department of Labor and Industries, 125 Wash. 370.
In the case here under consideration, the evidence, in the board's opinion, falls far short of establishing that the petitioner looked to, depended and relied on her son in substantial [7] part for her support. The deceased actually lived in his mother's home for a period of approximately two months in the 12-month period prior to his death during which he made no contributions to his own support. It is reasonable to infer that the payment of $100.00 made by the deceased out of his soldier's bonus to his mother, as well as the $30.00 which he sent to her while he was in Oregon, was considered to be for his board and room during the period when he was neither working nor drawing unemployment compensation. Even if this were not true, the courts have generally held that occasional gifts or contributions not relied on for support do not establish dependency. Horne v. Curtis-Wright Corp. 271 App. Div. 1033, 68 N.Y. S. 864 (1947); Betor v. National Biscuit Company, 85 Mont. 481, 180 Pac. 641 (1929); Ind. Comm. v. Likens, 23 Ohio App. 167, 155 N.E. 414 (1926); Pieters v. Drake-Williams-Mount Co. 142 Neb. 315; 6 N.W. (2d) 69 (1942); Rodriguez v. Tex. Emp. Ins. Assn. (Tex. Civ. App.) 35 S.W. (2d) 510 (1931); Pollock Stockton Shipbuilding Company v. Brown, (C.C.A. 7th ) 185 F. (2d) 37 (1950).
FINDINGS
In view of the foregoing, and after reviewing the entire record herein, the board finds as follows:
1. Owen E. Raines, sustained a fatal injury on August 16, 1956, while employed by the George A. Schaut Construction & Logging Co. He was 23 years old at the time of his death and left no widow or children. On or about January 4, 1957, the petitioner, Hope Peterson, mother of the deceased work- man, filed a "CLAIM FOR PENSION BY DEPENDENTS OTHER THAN WIDOW OR CHILDREN" with the department of labor and industries. Said claim, signed by the petitioner, contained the statement that there were no dependents of the deceased workman and the petitioner did not furnish the department with any information or proof as to "the nature, amount and extent of the contributions made by such deceased workman," if any, to the petitioner's support. On January 14, 1957, the supervisor of industrial [8] insurance issued an order finding that there were no "beneficiaries or dependent's" of the deceased workman and approving the petitioner's claim for payment of the statutory allowance of $300.00 and the statutory allowance for burial expense of the deceased workman. In her notice of appeal from the last-mentioned order, filed with this board on March 14, 1957, the petitioner alleged that she was "a beneficiary and dependent" of the deceased workman and entitled to a dependent's benefits under the workmen's compensation act. The appeal was granted by a board order dated March 28, 1957.
2. The payments made by the deceased workman to the petitioner during the 12-month period immediately preceding his fatal injury did not exceed the reasonable value of his board and room during that period when he lived in the home of the petitioner and her husband.
3. The petitioner, Hope Peterson, was not actually and necessarily dependent in whole or in part for her support on the earnings of her son, Owen Raines, at the time of his fatal injury.
CONCLUSIONS
Based on the foregoing findings of fact, the board concludes:
- This board has jurisdiction of the parties and subject matter of this appeal.
- The petitioner, Hope Peterson, was not a dependent within the meaning of the workmen's compensation act at the time of the death of her son, Owen Raines.
- The order of the supervisor of industrial insurance issued herein January 14, 1957, should be sustained.
ORDER
Now, therefore, it is hereby ORDERED that the order of the supervisor of industrial insurance issued herein January 14, 1957, be, and the same is hereby, sustained. [9]
Dated this 14th day of November, 1957.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
J. HARRIS LYNCHChairperson
/s/
ARTHUR BORCHERMember