418 1143 v. 1982 1143 418 1143 Terrinoni v. Westward Ho

• Decision Date: 23 August 1982
• Docket Number: No. AG-228,AG-228
• Citation: 418 So.2d 1143
• Parties: Page 1143 418 So.2d 1143 Alfred TERRINONI (deceased) by Ann Terrinoni, Appellants, v. WESTWARD HO! and Kent Insurance Company, Appellees. District Court of Appeal of Florida, First District
• Court: Florida District Court of Appeals

Page 1143

418 So.2d 1143

Alfred TERRINONI (deceased) by Ann Terrinoni, Appellants v WESTWARD HO! and Kent Insurance Company, Appellees.

No. AG-228.

District Court of Appeal of Florida,

First District.

Aug. 23, 1982.

Rehearing Denied Sept. 20, 1982.

Stephen Marc Slepin of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellants.

Kathleen V. McCarthy, Hialeah, for appellees.

ERVIN, Judge.

In this workers' compensation case, the mother of a deceased employee appeals the order of the deputy commissioner finding that her dependency under the Workers' Compensation Act has ended, and that, as a matter of law, she was not entitled to dependency benefits under Section 440.16(1)(b)4, Florida Statutes (1979). We affirm.

In its cross-appeal, the employer, Westward Ho!, and its carrier appeal the deputy's finding that at the time of decedent's death he was an employee of Westward Ho! The employer/carrier argues that decedent was an independent contractor not covered by the Act. We affirm the deputy's order as to decedent's employee status without opinion. ¹

The deceased was a police sergeant for the City of Coral Gables. He was killed on October 11, 1980, in an armed robbery while picking up the receipts in his off-duty job with Westward Ho! restaurant. Appellant is the 63-year-old divorced mother of decedent. The deputy found that appellant was dependent on the deceased at the time of his death, and appellees do not argue otherwise. Such finding is supported by competent, substantial evidence. The record shows the decedent gave his mother $125 in cash each month, helped pay off the mortgage on her house, and helped with her household purchases and expenses. Appellant's former husband is under court order to pay alimony, but she does not receive payments. Although appellant worked at a clothing store and began receiving Social Security benefits in April, 1980, the deputy found that she was unable to support herself.

The deputy's finding that appellant's dependency ended is based on the fact that by December 31, 1980, she had received all benefits due her as her son's sole heir and beneficiary. She received a total of approximately $155,000 from a combination of sources. As to that issue, the deputy concluded: "In order to give any meaning to § 440.16(2)(d), Florida Statutes [The statute is in fact Section 440.16(1)(b)4, Florida Statutes (1979).] ..., it is clear that it is contemplated that the dependency of a parent under the Workers' Compensation Act can end." Section 440.16(1)(b)4 states:

440.16 Compensation for death.--

(1) If death results from the accident within 1 year thereafter ..., the employer shall pay:

* * *

* * *

(b) Compensation ... in the following percentages of the average weekly wages to the following persons entitled thereto on account of dependency upon the deceased, ...:

* * *

* * *

4. To the parents, 25 percent to each, such compensation to be paid during the continuance of dependency.

The deputy ordered the e/c to pay death benefits from the date of accident through December 31, 1980.

Appellant argues that dependency status is fixed on the date of the employee's death; that she qualified for benefits by virtue of her dependency on the employee and his compensable death, and that the policy of workers' compensation is to preclude continuous litigation. Thus, she continues, benefits cannot be terminated, for if a post-mortem event can terminate dependency and one's workers' compensation rights, then another event can reinstate dependency, consequently she concludes that the legislature did not intend to allow this open-ended condition leading to perpetual litigation and unmanageable administration.

Appellant supports this argument with a passage from Professor Larson:

Once rights as a dependent under an award have been acquired, the majority--but by no means unanimous--view is that they are not lost by a subsequent change in the dependent's financial position, nor by any change short of the events, such as remarriage or attainment of a specified age, expressly terminating compensation by statute. Getting a self-supporting job, for example, or an inheritance from the deceased or others, or being adopted, or contracting a marriage later annulled, or living with and being supported by a man without benefit of marriage, will not interrupt the right to benefits as a dependent. While this may produce occasional results inconsistent with the spirit and purpose of compensation protection, the administrative convenience of crystallizing of rights as of some definite date once and for all probably counterbalances this objection.

2 Larson, The Law of Workmen's Compensation § 64.43 at 11-209 (1981).

However, this section is susceptible to another interpretation, especially when bolstered by the plain meaning of the statute. According to Larson, rights as a dependent can be lost by an event expressly terminating compensation by statute. Section 440.16(2) expressly states that the dependence of a spouse of a deceased employee shall terminate with remarriage; the dependence of a child shall terminate with the attainment of eighteen years of age, twenty-two years of age if a full-time student, or upon marriage. Dependency is deemed not to continue past these events. The legislative intent is clearly to allow for termination of dependency.

There is no statutory language limiting termination of a parent's dependency to the happening of a specific event. Perhaps the legislative intent was to allow for flexibility in the individual situations concerning parents.

We consider that the provisions of Section 440.16 should be read in pari materia to achieve the statutory purpose to protect workers' dependents against hardships that arise from workers' deaths arising out of employment and occurring during employment, and to prevent those who depend on workers' wages from becoming charges on the community. See, McCoy v. F.P. & L., 87 So.2d 809 (Fla. 1956). Here, a termination of benefits would not thwart such purpose.

Statutory language is not to be assumed superfluous; a statute must be construed so as to give meaning to all words and phrases contained within that statute. Vocelle v. Knight Brothers Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960). Meaning must be given to the legislature's clear and unambiguous words--" ... such compensation to be paid during the continuance of dependency." "Continuance" is the time during which something exists or lasts;...