| IN RE: STANLEY G. HIRSCH, DEC'D | ) | DOCKET NO. 20,797 |
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| Claim No. C-984453 | ) | DECISION AND ORDER |
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- APPEARANCES
- Petitioner, Martha Hirsch, by
- Springer and Norman, per
- Richard L. Norman
- Employer, Weyerhaeuser Company,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Walter F. Robinson, Jr., Assistant
Appeal filed by the petitioner, on September 24, 1963, from an order of the supervisor of industrial insurance dated September 4, 1963, awarding the petitioner a dependency pension in the sum of $20.89 per month. Reversed and remanded.
DECISION
On June 5, 1964, a hearing examiner of the Board issued a Proposed Decision and Order sustaining the supervisor's order of September 4, 1963, awarding the petitioner a dependency pension in the sum of $20.89 per month. Thereafter, within the time required by law, the claimant filed a statement of exceptions contending, in substance, that the method of determining the amount of the dependency pension was improper in that it was based on computation of the cost of the decedent's maintenance out of contributions made by him to household expenses by dividing the total stated expenses of the household of three adults by three, since upon the son's death, the only expenses of the household that would be reduced by one-third were food and clothing and the rest would remain unchanged. [2]
This matter was submitted for a Proposed Decision and Order to the examiner based upon the contents of the department file and the oral arguments of counsel as they appear in the Board's record of the conference held on December 17, 1963. The record discloses that the petitioner submitted an affidavit itemizing the yearly expenses of the household, which was accepted by the department (after correcting an arithmetical error) as the basis for its computation of the award. This itemized list reads as follows:
Utilities - $7.00 per month $ 84.00
Heating Oil - Averages $ 25.00 per mo. 300.00
Water, Garbage, Sewer -$ 5.00 per mo. 60.00
Food - $35.00 per week 1820.00
Dental & Medical - $20.00 per mo. 240.00
Clothing 300.00
Telephone - $5.00 per mo. 60.00
House Repair 100.00
Taxes - At present per year 32.00
Fire Insurance - at present per year 12.00
$3008.00
The record further reveals that the deceased and his brother lived with their mother (the petitioner herein) in their mother's home and since the mother had no income, the deceased and his brother shared all of the household expenses. In explanation of how the petitioner's award was computed, the department wrote her a letter dated September 4, 1963, which, after referring to the total sum of $3008.00, reads in part as follows:
"This sum was contributed jointly by your deceased son, Stanley, and his brother, LeRoy, and is the amount that was required to maintain the home, including maintenance of the home, food, clothing, heating and so forth for three persons, or $1,002.67 for each person. It therefore is indicated that as far as your support is concerned, both of your sons contributed $1,002.67 for your support per year and that Stanley contributed one half of this, or $501.34 per year, which is equal to $41.78 per month for your support."
"The Industrial Insurance Act provides that a dependency pension shall be paid on the basis of one half of the average monthly support furnished by the deceased workman for the twelve months immediately preceding the [3] injury and death, which then is one half of $41.78, or $20.89 per month pension."
The statute providing for monthly benefits, R.C.W. 51.32.050 (5), reads in part as follows:
"....a monthly payment shall be made to each dependent equal to fifty 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 one hundred dollars per month...."
The statute defining a dependent, R.C.W. 51.08.050, reads in part as follows:
"'Dependent' means any of the following named relatives of a workman whose death results from any injury and who leaves surviving no widow, widower, or child, viz: father, mother, ...., who at the time of the accident are actually and necessarily dependent in whole or in part for their support upon the earn- ings of the workman...."
This is a case of first impression in this state. In the case of McIntire v. Department of Labor and Industries, 125 Wash. 370, the court did construe the then existing statutes defining a dependent, and providing benefits to dependents, which statutes were identical in their controlling terms to our present statutes. The specific issues presented in the McIntire case, supra, were whether or not the father and mother were dependents in whole or in part, on the earnings of their son at the time he was killed, and, if so, what was the actual monthly support during the year preceding his death. With reference to the first issue, the court recognized that "the family could have supported life and gotten along some way without contribution from the deceased son," but stated that it was "pretty clearly certain that contributions from the son through his work were looked to, depended and relied on in substantial part by the family for means of reasonable support." The court further stated that "It would be difficult, if not [4] impossible, to lay down a hard and fast rule in the matter of detail, including a standard of living, by which to apply with unerring precision that idea of dependence contemplated by the statute in question." But, after noting that "the statute itself is a liberal one," the court held that the test to be applied to determine entitlement to benefits thereunder was whether or not the alleged dependents "depended and relied to a substantial extent upon that support for the ordinary necessaries of life for persons in their station socially and financially." (Emphasis added). As to the second issue, after quoting the pertinent statute (which was then the same as R.C.W. 51.32.050 (5) except that the maximum payment was twenty dollars per month, rather than one hundred), the court stated:
"...While in this case, because no account was kept between the parties, it is difficult to determine with certainty the amount of the contributions made by the decedent to his parents during the twelve months preceding his death (which of itself is a rather strong suggestion and argument in favor of the find- ing that the contributions were depended and relied upon by the parties, and made by the son as a member of the family for their necessary support), it does satisfactorily appear that those contributions exceeded $40 per month during the last twelve months, from which it follows that the amount of $20, allowed the parents by the judgment in this case, is fully warranted."
It is not clear from the above-quoted holding of the court whether the "contributions" of the decedent therein referred to, were contributions made toward the support of the entire family or contributions computed after deducting therefrom the cost of maintenance of the decedent who lived at home as a member of the family. However, as no accounts were maintained, it is quite obvious that the amount of contributions of the decedent to his parent's support was not computed on the theory used by the department in the instant case. [5]
The statutes of the state of Oregon defining dependency, and benefits to dependents, are identical to the Washington statutes in their controlling provisions. In Paul v. Industrial Accident Commission, 272 Pac. 267 (Oregon 1928) the court stated:
"Dependents are not required to live on the bare necessities of life. The rule as stated by most of the authorities is that the surviving dependents are entitled to continue to live as they had been living prior to the accident, the basic idea of the statute is compensation. Surviving relatives within the class named in the statute, to whose living decedent contributed, and upon whom they relied partially or wholly for support, are beneficiaries. The statute does not require destitution in order to be dependents. The statute should not be so construed as to encourage extravagance. In order for relatives to be dependents to an unmarried decedent, they must be dependent in fact on his contribution in order to continue to live in comfort according to the manner of living of people in their class and condition in life." (Emphasis supplied). Citing the McIntire case, supra.
Admittedly, as in the McIntire case, supra, the primary issue presented in the Paul case, supra, was whether certain relatives, otherwise qualified, were wholly or partially dependent upon the deceased workman. However, the rationale of the case, and the rationale implicit in the language of the court in the McIntire case, supra, is that the purpose of the statute providing for compensation to dependents is (within the limits of the statutory benefits) that the dependents may continue to live in their same station in life socially and financially.
The only case in any other jurisdiction which we have been able to find directly in point concerning the specific issue as to the correctness of the method of computation used by the depart- ment in the case here under consideration, is Delanoy v. New Jersey Dairy Laboratories, 33 A. (2d) 348, 130 N.J.L 407 (1943) where the sole question involved was the extent of the dependency of the petitioner, the mother of the deceased employee. In that [6] case, the particular household consisted of three persons, the decedent, and his father and mother. The father earned $30.00 a week, $26.00 of which he contributed to the common fund for the support of the household. The decedent earned $18.00 a week and contributed a minimum of $16.00 each week to the petitioner for household expenses. The Workmen's Compensation Bureau found that the cost of maintaining the decedent just prior to his death was $6.00 per week, that the petitioner therefore had a contribution from him for the balance of $10.00 a week and allowed compensation to the mother on that basis. This determination was affirmed by the Court of Common Pleas and the employer, on review by writ of certiorari to the Supreme Court, contended that this method of computation was erroneous on the ground that the total stated expenses of the household each week amounted to $45.05 and reasoned (as did the department in this case) that this amount was used in common for the general well-being of the three members of the household; that the decedent's salary should bear one-third of this expense or $15.00, and on this premise, the decedent's contribution to the mother was one, or at the most, two dollars each week, and compensation to the petitioner should be estimated on that figure. In answering this contention, the court stated:
"We think otherwise, there are items in the weekly budget that should not be charged against the decedent. It is patent that upon the son's death, the expenses of the household each week would not be reduced one-third. It costs just as much for rent and heat, charities, medicines, household expenses after his death as it did before. The testimony supports the inferences as found by the Bureau and the Pleas."
We find the reasoning of the Delanoy case, supra, to be persuasive. It is our opinion that to apply the rationale of the case to the facts herein would be in accord with the construction given by the court to the controlling statutes in the McIntire [7] case, supra, and in accord with the long established rule of statutory construction that the Industrial Insurance Act should be liberally construed in favor of those who came within its terms, Olympia Brewing Company v. Department of Labor and Industries, 34 Wn. (2d) 498.
In reviewing the record and the itemized household expenses listed therein and accepted by the department as the basis for its computation, in light of the reasoning in the Delanoy case, supra, we note that there is no evidence that the medical and dental expenses itemized were chargeable to the deceased son. On the contrary, it affirmatively appears that the petitioner suffered cancer and arthritis which required regular treatments and that the sons shared these medical expenses equally. We conclude, therefore, that the decedent's death did not reduce the medical and dental expenses of the household. It also appears that the only expenses of maintaining the household that would be reduced by the son's death would be for food and possibly clothing. There is no direct evidence in the record just how much these expenses were reduced. The record reveals that the decedent earned approximately $4600.00 during the twelve months preceding his fatal injury out of which he contributed $1504.00 to his mother. While it would appear unlikely that the $300.00 item for clothing in the list of household expenses included the decedent's own clothing, we note that the statement of exceptions filed by the petitioner concedes that her expenses were reduced by one-third of the food and clothing expense itemized in the list of household expenses. In any event, in the absence of any evidence in the record that the reduction was any less, it is our opinion that it is reasonable and proper to infer that these items of expense were reduced one-third by the son's death.
Therefore, this would reduce the contribution made by the [8] decedent to his mother's support, namely, $1504.00, by one-third of the itemized expenses of the household for food and clothing, namely, $706.67, leaving a net contribution made by the deceased of $797.33 upon which to base an award to the petitioner. This would be equal to $66.44 a month. Pursuant to the provisions of R.C.W. 51.32.050 (5) the petitioner should have been awarded a monthly pension of $33.22 a month.
We conclude, therefore, that the supervisor's order of September 4, 1963, should be reversed and that this claim should be remanded to the department of labor and industries with direction to award the petitioner a dependency pension in the sum of $33.22 per month, effective May 6, 1963, less the amount previously paid.
FINDINGS
After review of the entire record, the Board makes the following findings of fact:
1. On May 17, 1963, the department of labor and industries received a report of fatal injury from the employer, Weyerhaeuser Company, stating that Stanley G. Hirsch had sustained a fatal injury on May 6, 1963, in the course of his employment with the Weyerhaeuser Company. On May 17, 1963, the petitioner, mother of the deceased workman, filed a claim "for any benefits which I might be entitled to as a dependent of my son, Stanley G. Hirsch, who died in an industrial injury on May 6, 1963." Thereafter, on June 10, 1963, the supervisor of industrial insurance entered an order finding that Stanley G. Hirsch sustained a fatal injury on May 6, 1963, while engaged in an employment covered by the act and ordered that the claim be approved and that any payments which may be due thereunder shall be made as provided by statute. On July 1, 1963, the petitioner, at the request of the department, filed a further claim for a dependency pension on a printed form furnished by the department and provided additional information as re-quested. On September 4, 1963, the supervisor entered an order finding that the petitioner was partly dependent on the deceased work-man for support, and awarding her a pension of $20.89 per month. On September 24, 1963, [9] the petitioner filed a notice of appeal to this Board alleging that the supervisor's order of September 4, 1963, was erroneous for the reason that the amount of the monthly pension was incorrectly computed and was not computed according to law.
2. On June 5, 1964, a hearing examiner for this Board issued an order sustaining the super- visor's order of September 4, 1963, and there-after, within the time required by law, the claimant filed a statement of exceptions thereto.
3. The petitioner lived in her own home with the deceased son and another son, and since she had no income, the deceased son and his brother shared equally in all of the household expenses, which totalled $3008.00 during the twelve month period immediately preceding the date of the deceased son's fatal injury.
4. The total amount contributed by the deceased son for household expenses during the twelve months' period immediately preceding the date of his fatal injury, was $1504.00.
5. There is no evidence in the record that the medical and dental expenses, as itemized in the above-mentioned total amount for household expenses, were chargeable to the deceased son. To the contrary, the record discloses that the petitioner suffered from cancer and arthritis, which required regular treatment, and her sons shared these medical expenses equally.
6. The only itemized expenses in the above-mentioned total expenses for maintaining the household which were reduced by the son's death were for food and clothing.
7. In the absence of any evidence in the record that the reduction was any less, the itemized expenses in the record for food and clothing were reduced one-third by the son's death, namely, in the sum of $706.67, leaving a net yearly total for support contributed to the petitioner by the deceased son during the twelve month period immediately preceding the date of his fatal injury of $797.33, or $66.44 per month.
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 supervisor's order of September 4, 1963, should be reversed and this claim [10] should be remanded to the department with direction to award the petitioner a dependency pension of $33.22 per month effective May 6, 1963, pursuant to the provisions of R.C.W. 51.32.050 (5), less the amount previously paid.
ORDER
Now, therefore, it is hereby ORDERED that the order of the supervisor of industrial insurance dated September 4, 1963, be, and the same is hereby, reversed and this claim is remanded to the department of labor and industries with direction to reopen the claim to pay the petitioner a dependency pension of $33.22 per month, effective May 6, 1963, pursuant to the provisions of R.C.W. 51.32.050 (5), less the amount previously paid.
Dated this 23rd day of November, 1964.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
J. HARRIS LYNCHChairperson
/s/
R. H. POWELLMember
/s/
HAROLD J. PETRIEMember