| IN RE: LOREN SNAVELY, DEC'D | ) | DOCKET NO. 95 7778 |
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| CLAIM NO. P-026610 | ) | DECISION AND ORDER |
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- APPEARANCES
- Petitioner/Beneficiary, Valarie J. Snavely, by
- Law Offices of Stephen J. Henderson, per
- Stephen J. Henderson
- Employer, Leisure Time Loggers, Inc.,
- None
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Peter J. Helmberger, Assistant
Loren L. Snavely's widow, Valarie J. Snavely, filed an appeal with the Board of Industrial Insurance Appeals on December 22, 1995, from an order of the Department of Labor and Industries dated December 12, 1995. The order affirmed an order dated November 7, 1995, that denied Valarie Snavely's application for survivor's benefits on the ground that she is not a beneficiary within the meaning of RCW 51.08.020. REVERSED AND REMANDED.
PROCEDURAL AND EVIDENTIARY MATTERS
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the petitioner/beneficiary, Valarie J. Snavely, to a Proposed Decision and Order issued on March 14, 1997, in which the order of the Department dated December 12, 1995, was affirmed.
At 12/9/96 Tr., page 34, line 5, the industrial appeals judge sustained the Department's hearsay objection to Joan Amell's testimony concerning the deceased worker, Loren L. Snavely: "his concept was that he thought that they would regain their marriage eventually, was his feelings, as far as he communicated to me." We reverse that ruling and overrule the objection. The testimony relates a [2] statement of the deceased declarant's, Loren L. Snavely's, then existing state of mind such as intent, plan, motive or mental feeling. The testimony is therefore within an exception to the hearsay rule. ER 803(a)(3).
Joan Amell testified that she witnessed Loren L. Snavely giving money to Valarie Snavely repeatedly during the Snavely's separation. When asked about the context within which this occurred, Joan Amell recounted a time when Valarie Snavely was living in Joan Amell's home during the Snavely's separation. Joan Amell explained she had made clear that she could not support anyone other than her own family. Within this context, at 12/9/96 Tr. at page 35, lines 41-45, she testified she witnessed Valarie Snavely asking Loren L. Snavely for money for various purposes such as cigarettes, to help buy groceries, or to put towards anything that Joan Amell might need such as utilities and laundry soap. Our industrial appeals judge sustained the Department's hearsay objection to that portion of Joan Amell's testimony that described Valarie Snavely's request.
We reverse that ruling and overrule the objection. Under ER 801(d)(1)(ii), the testimony is not hearsay because it is consistent with the declarant Valarie Snavely's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. The Department later presented the testimony of it's investigator, Britt Scott, and offered Exhibit No. 2, a statement signed by Valarie Snavely. The purpose of Britt Scott's testimony, and of Exhibit No. 2, was to establish that Valarie Snavely, contrary to her later testimony, had informed the investigator that she did not receive funds for maintenance from Loren L. Snavely during their separation. Joan Amell's testimony, along with other testimony that Valarie Snavely did receive funds for maintenance from Loren L. Snavely, rebuts the implied charge that Valarie Snavely recently fabricated her testimony. Joan Amell's testimony is also admissible as an exception to the hearsay rule under ER 803(a)(3), as a statement of the declarant's, Valarie Snavely's, state of mind (such as intent, plan, motive or design) in [3] receiving money from Loren L. Snavely. It is likewise a statement of Loren L. Snavely's state of mind in providing money.
We also remove from colloquy the testimony of Joan Amell and Valarie Snavely at 1/8/97 Tr. at pages 37-43. Valarie Snavely rested her case subject to possible presentation of rebuttal testimony, for which time was set aside. The requested rebuttal testimony on behalf of Valarie Snavely was later denied by a substituted industrial appeals judge who had not had the opportunity to review the testimony given in Valarie Snavely's case-in-chief. The further testimony is proper rebuttal to the testimony of the Department's investigator. Valarie Snavely provided some testimony during her case-in-chief concerning her interaction with investigator Britt Scott. However, the relative entirety of his testimony could not have been reasonably anticipated. He did not make substantial notes or a recording of his interview of Valarie Snavely. We further note our state Supreme Court has held the burden of proof to show abandonment lies with the Department in a case such as this. Johnson v. Department of Labor & Indus., 3 Wn.2d 257, 259 (1940). Nevertheless, Valarie Snavely presented the major portion of her case first in order. In these circumstances, she should have been allowed the requested rebuttal to the Department's evidence.
The Board has reviewed the remaining evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed.
DECISION
Valarie J. Snavely and the deceased worker, Loren L. Snavely, were married, but separated, when Mr. Snavely was fatally injured in a logging accident October 5, 1995. The issue presented by [4] Valarie Snavely's appeal is whether she is a workers' compensation beneficiary under the following statutory provision:
'Beneficiary' means a husband, wife, child, or dependent of a worker in whom shall vest a right to receive payment under this title: PROVIDED, That a husband or wife of an injured worker, living separate and apart in a state of abandonment, regardless of the party responsible therefor, for more than one year at the time of the injury or subsequently, shall not be a beneficiary. A spouse who has lived separate and apart from the other spouse for the period of two years and who has not, during that time, received, or attempted by process of law to collect, funds for maintenance, shall be deemed living in a state of abandonment.
RCW 51.08.020.
The Department determined that, at the time of Loren L. Snavely's fatal industrial accident, his widow, Valarie Snavely, was living separate and apart in a state of abandonment within the meaning of this statute. Valarie Snavely contends that, although she and Loren L. Snavely were separated, she was not living in a state of abandonment within the meaning of the statute. We agree with Valarie Snavely. We find that she is a beneficiary under the Workers' Compensation Act.
The statute, RCW 51.08.020, deems that an individual was living in a state of abandonment if "funds for maintenance" were not provided or sought by legal process during the two years of separation preceding a worker's death. The statute also permits proof of "abandonment" by other means. See, Johnson, at 258-259. Our judgment in such a case is necessarily strictly limited to each unique set of facts. Also, the testimony in the case before us presents issues of witness credibility. We, therefore, set forth the testimony of the three witnesses in considerable detail.
Valarie Snavely was 35 years old and Loren L. Snavely was 19 years old when they married December 7, 1989. They did not have any children. Although Valarie Snavely has children from a prior marriage, none of her children lived with the Snavelys. Valarie Snavely testified that she and Loren L. Snavely lived in Morton, Washington, after they were married. They next lived in Tacoma for [5] three or four months and then moved back to Morton. They separated in May or June of 1992. As reason for the separation, Valarie Snavely explained, "[H]e had a girlfriend." 12/9/96 Tr. at 13. The Snavelys did not live together again after the separation. Neither filed for dissolution of their marriage.
Valarie Snavely continued to live in Morton following their separation. Loren L. Snavely lived in neighboring Glenoma for two months and then moved back to Morton. Valarie Snavely testified that Loren L. Snavely also went to vocational school in Tacoma for about one year, and also that he would stay with other people for a while, and that he lived in a tent by a river for a couple of months. The vocational schooling was provided to Loren L. Snavely under a prior workers' compensation claim that arose from a logging accident. According to Valarie Snavely, Loren L. Snavely was not working during their separation before or during vocational school in Tacoma. He did not begin work after graduating from vocational school until three weeks before he was fatally injured.
Valarie Snavely testified that, from the time they were separated to Loren L. Snavely's death, Loren L. Snavely came to visit: "Three or four times a month. Sometimes maybe more." 12/9/96 Tr. at 15. They visited and sometimes ate together. They continued a sexual relationship. "We would still be together as man and wife. We were friends and he talked to me." 12/9/96 Tr. at 15. Valarie Snavely further testified:
We got along. We were man and wife but we were also friends. If he needed somebody to talk to he could always talk to me because I was the one person that understood what was going on. He always came to me if his heart was sad or . . . He was a lost soul for a while. And if he needed to shower or something like that he was--he could always come to my house and do that if need be.
12/9/96 Tr. at 15. In response to the question of whether she considered Loren L. Snavely to have abandoned her, Valarie Snavely testified: "No. . . . Because he didn't. We still had contact. We were still intimate." 12/9/96 Tr. at 17. [6]
When questioned whether Loren L. Snavely financially supported her during their separation, Valarie Snavely testified:
Yes. . . . He first he gave--he would give me cash and then he sent money orders through Western Union and then when he would come to the house to see me he would give me cash in-hand when he would come to my home. . . . To pay bills, buy food. Things that I needed to take care of.
12/9/96 Tr. at 14. Loren L. Snavely sent the money orders while he was in school in Tacoma. Other money was provided in cash. As far as Valarie Snavely knows, Loren L. Snavely did not have a checking account. She stated that support continued "[a]bout three, maybe four months prior to his death." 12/9/96 Tr. at 15.
Valarie Snavely roomed at Joan Amell's house for an approximate seven-month period in 1992 and 1993 during the Snavelys' separation. Joan Amell knew Loren L. Snavely from the time he was 12 or 13 years old. Loren L. Snavely was a friend of Joan Amell's children and stayed with her at times "when things were not good at home for him." 12/9/96 Tr. at 31. Loren L. Snavely otherwise lived with his aunt. Joan Amell characterized herself as a "surrogate mother in a way because he would confide in me quite frequently." 12/9/96 Tr. at 33. Joan Amell has known Valarie Snavely since Loren L. Snavely introduced Valarie Snavely as his wife, apparently soon after they were married. She remained acquainted with them until Loren L. Snavely died.
Joan Amell testified that, while Valarie Snavely was living with her, Loren L. Snavely would come by "frequently and they would talk. Sometimes I would hear them arguing and sometimes they just visited." 12/9/96 Tr. at 33. The Snavelys also visited Joan Amell during their separation at times when Valarie Snavely was not living with Joan Amell. Joan Amell stated that Loren L. Snavely was at her house with Valarie Snavely more than ten times when Joan Amell was present. Joan Amell testified she tried to stay neutral during the Snavelys' separation. She is not aware of either of the Snavelys seeking to terminate their marriage. When asked if she knew why this was the case, she stated: [7]
Well, I am not sure on Valarie's part, but I had talked to Loren a time or two and his concept was that he thought that they would regain their marriage eventually, was his feelings, as far as he communicated to me.
12/9/96 Tr. at 33. Joan Amell holds an opinion that Loren L. Snavely did not abandon Valarie Snavely, "[b]ecause I had personally seen them together and knew that he sought her out on a regular basis." 12/9/96 Tr. at 37.
Joan Amell testified that she was present when Loren L. Snavely gave Valarie Snavely money:
Sometimes a couple of times a month. Sometimes every other month. Sometimes it would be two times in a month. Sometimes two or three months in between, that I knew of.
12/9/96 Tr. at 35. She later indicated she doubted that more than a month passed between times when Loren L. Snavely would provide Valarie Snavely money while Valarie Snavely was staying at her house. When asked about the context within which the money was provided, Joan Amell explained:
[E]specially when she was staying with me . . . I was not in the position to support anybody other than my own family. And so she would ask him for money for cigarettes or to help buy groceries or to put towards anything that I might need as far as utilities and laundry soap and this kind of thing. Because I was quite adamant about not supplying everything for everybody.
12/9/96 Tr. at 35. Joan Amell further testified that Valarie Snavely gave her money received from Loren L. Snavely "on a regular and on a conscientious basis." 12/9/96 Tr. at 38. She also took Valarie Snavely to the grocery store in Morton several times to pick up money orders from Loren L. Snavely.
The Department's case rests upon the admitted three-year separation, its investigator Britt Scott's testimony, and Exhibit No. 2. Exhibit No. 2 is a brief statement, handwritten by Britt Scott reportedly during his interview of Valarie Snavely. Valarie Snavely signed the document. The document is dated October 19, 1995. The relevant portion is,
During their separation (sic) Valarie has stated that Laren (sic) did not provide any means of support. She received no [letter "t" crossed out and initialed] income or had any bills paid by Loren. [8]
Valarie stated she did not attempt thru (sic) legal services to obtain any support from Loren during their seperation (sic).
Exhibit No. 2. Britt Scott testified that he prepared the document for Valarie Snavely's signature based upon her reply to his questions.
Britt Scott testified he met with Valarie Snavely in a restaurant in Morton on approximately October 17, 1995, for the purpose of gathering facts relevant to Valarie Snavely's eligibility as a beneficiary. He testified that he, Valarie Snavely, and her mother were present. He did not recognize Joan Amell's name. When questioned specifically regarding his questions, Britt Scott indicated:
I asked Ms. Snavely if the deceased had ever provided any means of support. I explained that to be in any electrical bills, rent, food, any type of money that she was receiving by the deceased to show that he was in some way supporting her.
. . .
Basically, I--the realm of my question was specifically support that the Department would consider support. And that would be money to live on for food, gas, like I said, any utility bills, rent, things of that nature. I did not ask, you know, had he ever given you 20 bucks just to give you $20. I did not go into that specific of details, no.
1/8/97 Tr. at 12. He stated that he read the statement in Exhibit No. 2 to Valarie Snavely and gave her an opportunity to correct the statement prior to her signing the document. He also testified that he did not witness any crying or what he considered to be grieving by Valarie Snavely. He testified they discussed the nature of the Snavelys' relationship "[t]o a degree" and he gained the impression from their conversation that she suffered some abuse and "they did not get along." 1/8/97 Tr. at 13-14.
Upon cross-examination, Britt Scott indicated that he met with Valarie Snavely approximately 30 to 45 minutes, that he did not have a tape recorder with him during the meeting, and his notes are essentially limited to the contents of Exhibit No. 2. He did not ask Valarie Snavely whether she and Loren L. Snavely regularly spent time together up to the time of Loren L. Snavely's death. "Other than [9] he'd abused her there was no real in-depth conversation about what type of relationship they had . . .." 1/8/97 Tr. at 24. When asked whether Valarie Snavely, contrary to her testimony at hearings, had denied to Britt Scott that she received money and cigarettes from her husband periodically up until the time of his death, and that she would use the money to pay for bills and for food, Britt Scott responded:
Yes, she did deny that. She did not--I would say not to that specific answer, but she denied receiving any type of money to pay any types of bills or food, i.e., by the deceased.
1/8/97 Tr. at 20.
When asked if Valarie Snavely told him that she did not receive any money from Loren L. Snavely during their separation, Britt Scott responded: "That's exactly what I'm telling you." 1/8/97 Tr. at 21. When asked if he explained that support included receiving "cash," Britt Scott testified that he explained what the Department meant by support: "I indicated if she'd received any monies to pay bills, for food, rent, utilities. And I did use the word monies." 1/8/97 Tr. at 22. When asked further, he then answered "[y]es" that he did specifically talk to her about receiving ''cash," explaining: "That's exactly what I'm referring to is there was no monies, otherwise you'd have no support." 1/8/97 Tr. at 22. Again, referring to how he derived the response related in Exhibit No. 2, Britt Scott stated his question was whether Valarie Snavely received "[s]upport." 1/8/97 Tr. 28.
Upon redirect examination, Britt Scott stated that he explained what support and income meant and that, "I used the word money." 1/8/97 Tr. at 29. He testified that Valarie Snavely did not indicate she was unclear about what he meant during the interaction. He testified that he did not make any notes concerning what specific questions he asked Valarie Snavely, but he normally asks the same questions in like situations. [10]
On cross-examination during her case-in-chief, Valarie Snavely stated she remembered the interaction with Britt Scott "vaguely," and "I couldn't tell you everything we discussed." 12/9/96 Tr. at 20. She remembered signing a statement, but did not remember telling Britt Scott that she received no income, nor had bills paid by Loren L. Snavely. When questioned about Exhibit No. 2, she stated "that would be kind of stupid for me to even make some kind of comment like that when I have verification from Western Union that he did provide for me." 12/9/96 Tr. at 21-22. She further explained:
I remember some of the conversation with the man from L&I. I was not in--my husband had just been killed, among other things, and I don't--I could not even recall the conversation that we had. Not to mention we are in the middle of a restaurant with all kinds of people trying to talk to everybody and--.
12/9/96 Tr. at 22-23.
Upon redirect examination, Valarie Snavely indicated she remembers speaking with a person from the Department, but does not remember the person specifically. She explained that she thinks Joan Amell had handled the phone call setting the appointment because she did not have a phone, and "like I said, my husband had just been killed. I was upset, among other things, and she kind of was trying to help me through a sad time." 12/9/96 Tr. at 24.
When asked why she would have signed a statement saying Loren L. Snavely did not provide her any means of support, she responded:
The way I took it when he had said something to me was like a paycheck or, you know, a large sum of money weekly or out of every paycheck like a support. In fact, I think that is how he did bring it to me is like a support check. Like a child support check or something like that. Because like I had said earlier, it would be silly for me to make a comment like that when I have statements from Western Union that Loren did send me money and he did give me cash. But times like that you don't think to write it down because you don't think that tomorrow your husband or maybe your wife is going to be dead.
12/9/96 Tr. at 25. [11]
When questioned what she understood to be "income" when signing the statement, she explained, "[L]ike a support payment." 12/9/96 Tr. at 26. Asked if this were different from "cash," she stated:
To me it is because to me a support payment, you would be going to court in front of a judge to get support from your spouse, like a child support payment. That is the only way I know how to explain it. And Loren was sending me money, giving me money and helping me as much as he could. And he was helping me. We were getting along and I saw no need to take him to court. I hadn't filed for divorce. We were not legally separated or any of that.
12/9/96 Tr. at 26.
During Valarie Snavely's rebuttal case, Joan Amell stated she was present during Britt Scott's interview. She stated the interview lasted 10 to 15 minutes. Ms. Amell stated she recalled Valarie Snavely telling Britt Scott that she received cash, money orders, and cigarettes from Loren L. Snavely. "He asked her if she had any receipts. She said no. He basically told her that it basically wasn't important." 1/8/97 Tr. at 38.
On rebuttal, Valarie Snavely also stated the interview lasted 10 or 15 minutes and:
I told the investigator that I did receive cash and that Loren helped me, but I did not have written proof of the money transaction except for my statement from Western Union; that was the only solid proof that I had that I did receive money from Loren.
1/8/97 Tr. at 41-42.
Asked about the investigator's response, Valarie Snavely stated:
That I needed proof of transaction of money and I didn't have any. I didn't have paperwork from Western Union, so it didn't really matter. He needed proof.
1/8/97 Tr. at 42.
As in Johnson, the Department and the industrial appeals judge in the Proposed Decision and Order focus their attention upon the statutorily-posed question of whether Valarie Snavely received [12] funds for maintenance during the two-year period of the Snavelys' separation prior to Loren L. Snavely's death. The Department has not otherwise, at least explicitly, attempted to show that Valarie Snavely was living in a state of abandonment. Lest there be any doubt on the later issue, we readily find that Valarie Snavely was not living in a state of abandonment unless it is legally deemed to be the case solely because she did not receive funds for maintenance during the two-year period prior to Loren L. Snavely's death. The language of the statute, RCW 51.08.020, distinguishes between "living separate and apart" and "abandonment." Living separately does not establish abandonment. The unrefuted evidence presented by Valarie Snavely establishes that, although separated: she did not consider herself abandoned; she and Loren L. Snavely continued a socially and physically intimate relationship; neither had sought to legally terminate their marriage; and, at least Loren L. Snavely had expressed his hope of continuing their marriage. The record before us does not provide any basis to infer other than that this was the condition of their relationship throughout their separation.
We turn then to the issue of whether Loren L. Snavely provided Valarie Snavely "funds for maintenance" within two years prior to his death. The industrial appeals judge placed considerable emphasis upon the fact that payments "were irregular and in uncertain and undetermined amounts." Proposed Decision and Order at page 4. See also Proposed Decision and Order, Finding of Fact No. 5. We do not find any requirement in RCW 51.08.020 that funds be provided with particular regularity or in certain amounts in order to be considered as "funds for maintenance." Neither do we find such particular requirements in the prior and present statutes that we have reviewed concerning provision of maintenance in the context of legal separation or dissolution of marriage, such as RCW 26.09.090, nor in the cases interpreting these statutes. We do, of course, agree that whether the funds are provided "for maintenance" is a materially relevant issue. Evidence of regularity or certainty of amount in some [13] cases might provide indirect evidence of the purpose of the funds; but we perceive no basis upon which to make regularity and certainty of amount legally determinative.
If Valarie Snavely and Joan Amell are believed in the present case, then it is clear that Loren L. Snavely provided funds for maintenance. Both Valarie Snavely and Joan Amell testified that Valarie Snavely's living expenses, such as utility bills and money for food, were a primary motivating factor in requests made to Loren L. Snavely, as well as in his providing the money, and in the use to which Valarie Snavely put the money. There is no evidence to the contrary on this particular point. Likewise, if these two witnesses are believed, the evidence establishes that Loren L. Snavely engaged in a pattern of providing funds for maintenance, albeit not entirely regular, which lasted at least up to three months before his death. Again, there is no evidence to the contrary on this point.
Our determination in this case must then ultimately turn on whether we are convinced by the preponderance of the evidence that Valarie Snavely received the funds from Loren L. Snavely as she and Joan Amell testified, or whether we are convinced of the opposite by the testimony of Britt Scott and by Exhibit No. 2. We only summarize here our reasons for our determination that Loren L. Snavely provided Valarie Snavely funds for maintenance. It is neither possible nor practical to articulate all of the reasons why each of us reach this conclusion.
From this record it appears unlikely to us that any of the three witnesses truly recall Britt Scott's interview of Valarie Snavely in as much exact detail as was eventually stated in each of their respective testimonies. First, the interview occurred well over one year before their testimony. Second, Valarie Snavely and Joan Amell ultimately professed recall of more detail of the interview than their earliest testimony would seem to suggest. During her case-in-chief, Valarie Snavely indicated she had only a vague recollection of the interview. Valarie Snavely and Joan Amell each only professed to recall more detail during Valarie Snavely's rebuttal case. Britt Scott did not take notes any more detailed than what [14] is contained in Exhibit No. 2, nor did he have a list of any of the questions that he asked during the interview. He now professes greater certainty than his notes and Exhibit No. 2 would appear to support on the matter of whether he actually explored the details of all money Valarie Snavely may have received from Loren L. Snavely. Third, the witnesses are adamant in stating polar opposite details about the interview. These three factors suggest that none of the witnesses were able to actually recall the interview in detail objectively. These factors also suggest that it is possible some of the details they provided were unwittingly influenced by the conviction with which each held his or her conclusions as to whether Loren L. Snavely provided money to Valarie Snavely to help with life necessities.
While we note the limitations in the accuracy of each of the witnesses, we are ultimately convinced by the testimony of both Valarie Snavely and Joan Amell on the actual issue of whether Loren L. Snavely provided Valarie Snavely money, in the form of money orders and cash, to assist with utilities, food, and the like. While not so detailed as to strain credulity, the details that were recalled are of the kind that one would reasonably expect a witness to remember, such as: Joan Amell taking Valarie Snavely to the store to pick up money orders; the circumstances of Valarie Snavely living in Joan Amell's home with the expectation conveyed to her and Loren L. Snavely that she contribute financially; and, the recollection of Loren L. Snavely actually giving cash to Valarie Snavely. Moreover, this testimony is consistent with the whole of the testimony characterizing Loren and Valarie Snavely's relationship while separated. Her statement that she believed Loren L. Snavely provided as much as he could and her characterization of the degree of regularity are consistent with the rest of her testimony.
Thus, we do not view Exhibit No. 2 and Britt Scott's testimony sufficient to impeach the credibility of Valarie Snavely and Joan Amell. The terms used in the document are too conclusory to directly rebut the testimony of Valarie Snavely and Joan Amell as to what, in fact, transpired financially between [15] Valarie and Loren L. Snavely during their separation. Valarie Snavely signed the document in strained circumstances soon after her husband's death, after a brief interview in a public restaurant, and without legal advice. We accept Valarie Snavely's view that, when signing the document in Exhibit No. 2, she must have believed a more formal meaning (such as larger sums, a check, or court-ordered payment) was conveyed by "means of support,, "income" or "had any bills paid." The statement immediately following, that she did not attempt through "legal services to obtain any support," could well have contributed to such misunderstanding. Exhibit No. 2.
We have considered the Proposed Decision and Order and Valarie Snavely's Petition for Review. Based upon a thorough review of the record before us, we make the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
- On October 17, 1995, the Department of Labor and Industries received an application for benefits alleging Loren L. Snavely sustained a fatal injury during the course of his employment with Leisure Time Loggers, Inc., on October 5, 1995. The Department allowed the claim for benefits as for a single worker. On November 6, 1995, Valarie Snavely filed an application for benefits with the Department, alleging she was Loren L. Snavely's spouse at the time of the fatal accident. On November 7, 1995, the Department issued an order that denied Valarie Snavely's application on grounds that she did not meet the definition of "beneficiary" as defined under RCW 51.08.020. On November 20, 1995, Valarie Snavely filed a protest and request for reconsideration of the November 7, 1995 order with the Department. On December 12, 1995, the Department issued an order that affirmed the order dated November 7, 1995. On December 22, 1995, Valarie Snavely filed a Notice of Appeal of the December 12, 1995 order with the Board of Industrial Insurance Appeals. She filed an amended appeal on January 17, 1996. The Board assigned the appeal Docket No. 95 7778, and on January 17, 1996, the Board granted the appeal and directed that proceedings be held.
- Valarie Snavely and Loren L. Snavely were married on December 9, 1989. They separated in May or June of 1992. They continued living separately until Loren L. Snavely's death on October 5, 1995. Neither filed for legal divorce or legal separation. Neither sought court-ordered maintenance. [16]
- Loren L. Snavely died in a fatal accident in the course of covered employment with Leisure Time Loggers, Inc., on October 5, 1995.
- During their separation from May or June of 1992 to Loren L. Snavely's death, Loren L. Snavely and Valarie Snavely established and maintained a social relationship consisting of visiting with each other on a regular basis, eating together occasionally, having sexual relations, and intimate conversations. Loren L. Snavely expressed his hope to a close acquaintance, Joan Amell, that he and Valarie Snavely would regain a marriage together. Valarie Snavely did not, in her personal opinion, consider herself abandoned by Loren L. Snavely.
- During their separation and until at least three months before his death, Loren L. Snavely established a pattern of providing sums of money in cash (except for money orders for a period) to Valarie Snavely for the purpose of contributing to her life necessities such as utilities and food. The provision of money for this purpose varied in regularity from between two times each month to every two or three months. Valarie Snavely used these funds to help her with living expenses.
- At the time of Loren L. Snavely's death on October 5, 1995, Loren L. Snavely and Valarie Snavely were married but living separately. Valarie Snavely was not living in a state of abandonment by Loren L. Snavely. Loren L. Snavely provided Valarie Snavely funds for maintenance within the two-year period preceding his death.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this appeal.
- Within the meaning of RCW 51.08.020, Valarie Snavely is a beneficiary because: at the time of Loren L. Snavely's death due to an industrial injury of October 5, 1995, Valarie Snavely was Loren L. Snavely's spouse; she was not "living separate and apart in a state of abandonment"; and, she is not "deemed" to have been living in a state of abandonment by operation of law.
- The order of the Department of Labor and Industries dated December 12, 1995, that affirmed an order dated November 7, 1995, that denied pension benefits to Valarie Snavely on grounds she does not meet the definition of a beneficiary under RCW 51.08.020, is incorrect and is reversed. The matter is remanded to the Department with directions to [17] issue an order that determines Valarie Snavely is a beneficiary and to provide her benefits accordingly.
It is so ORDERED.
Dated this 28th day of August, 1997.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLERChairperson
/s/
FRANK E. FENNERTY, JR.Member