Coleman v. Indiana Veneers, Inc., No. 2-378A72

Docket NºNo. 2-378A72
Citation182 Ind.App. 634, 395 N.E.2d 874
Case DateOctober 30, 1979
CourtCourt of Appeals of Indiana

Page 874

395 N.E.2d 874
182 Ind.App. 634
Lula B. COLEMAN, as Guardian of the Estate and Person of
Frances Lockett, an Incompetent Person, Plaintiff-Appellant,
v.
INDIANA VENEERS, INC., Defendant-Appellee.
No. 2-378A72.
Court of Appeals of Indiana, First District.
Oct. 30, 1979.

Page 875

Stephen M. Coons and William F. Thompson, Compton, Coons, Fetta & Thompson, Indianapolis, for plaintiff-appellant.

[182 Ind.App. 635] Howard J. DeTrude, Jr., Frank I. Magers and Peter G. Tamulonis and Kightlinger, Young, Gray & DeTrude, Indianapolis, for defendant-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

The Full Industrial Board of Indiana (the Board) awarded Frances Lockett the sum of $41.60 per week for 500 weeks after an industrial accident caused the death of her son. Mrs. Lockett contends that the benefits should be in the amount of $104.00 per week.

FACTS

Carl Edward Lockett died on August 2, 1976, as a result of injuries sustained in an industrial accident at Indiana Veneers, Inc. His mother, Frances Lockett, filed a claim seeking benefits and alleged that she had been totally dependent upon her son, Carl Edward Lockett, for support and maintenance.

The Board found that Frances Lockett had independent sources of income but that she also relied upon money provided by Carl in meeting the costs of her care, support, and maintenance. After considering all of the evidence adduced at the hearing, the Board determined that 40% Of Carl's income had been used for the benefit of his mother. Accordingly, the Board awarded benefits in the amount of $41.60, which is 40% Of the amount which would have been payable if Carl had contributed all of his weekly wages for the benefit of his mother.

ISSUE

Did the Board err in determining that the entire amount of Carl Edward Lockett's wages was not contributed by him to his mother?

DISCUSSION AND DECISION

Our legislature has classified dependents for purposes of workmen's compensation benefits as (1) presumptive dependents, (2) total dependents in fact, and (3) partial dependents in fact. IC 1971, 22-3-3-18 (Burns Code Ed.). A parent is not presumed to be dependent upon his child for support. IC 1971, 22-3-3-19 (Burns Code Ed.). Therefore, the parent bears the burden of proving that he or she was dependent upon the earnings of the child and the extent of [182 Ind.App. 636] that dependency at the time of the child's injury. In re Peters, (1917) 65 Ind.App. 174, 116 N.E. 848.

The Board found that Frances Lockett received $158 per month from the Social Security Administration and also received regular monthly contributions from her children other than Carl. These findings are supported by the evidence and warrant the conclusion that Frances Lockett was a partial dependent rather than a total dependent of her son, Carl Edward Lockett.

IC 22-3-3-18 provides the following formula for calculating the amount of benefits available to a partial dependent:

" * * *

The weekly compensation to persons partially dependent in fact shall be in the

Page 876

same proportion to the weekly compensation of persons wholly dependent as the average amount contributed weekly by the deceased to such partial dependent in fact bears to his average weekly wages at the time of the occurrence of the accident. * * * "

Carl's weekly wages averaged $210.31 during the year 1976. The Board entered the following findings concerning the use of Carl's wages:

"It is further found that Carl, along with his mother, and brother David, lived at the residence located at 2347 North Rural Street, Indianapolis, Indiana, at the time of the accident. All residents of such house were over 18 years of age. The decedent held title to the house and real estate in question jointly, with a right of survivorship, with his two sisters, Martha Graves and Lula Coleman.

It is further found that although plaintiff testified that decedent gave to her his pay check every week ever since working at Indiana Veneers, the other evidence indicates that at least the last three of decedent's checks were cashed by him personally.

It is further found that after cashing the pay check, plaintiff would return to decedent $20.00 to $25.00 each week for personal, out-of-pocket expense money. If decedent requested additional funds on...

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1 practice notes
  • Lemond, In re, No. 1-1278A360
    • United States
    • Indiana Court of Appeals of Indiana
    • October 30, 1979
    ...the foregoing reasons, we reverse the decision of the trial court and remand the case with directions to recognize the Hawaiian decree [182 Ind.App. 634] pursuant to sections 13 and 15 of the Act, and for further proceedings not inconsistent with the views stated Reversed and remanded. LOWD......
1 cases
  • Lemond, In re, No. 1-1278A360
    • United States
    • Indiana Court of Appeals of Indiana
    • October 30, 1979
    ...the foregoing reasons, we reverse the decision of the trial court and remand the case with directions to recognize the Hawaiian decree [182 Ind.App. 634] pursuant to sections 13 and 15 of the Act, and for further proceedings not inconsistent with the views stated Reversed and remanded. LOWD......

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