Coleman v. Indiana Veneers, Inc.
| Citation | 182 Ind.App. 634,395 N.E.2d 874 |
| Decision Date | 30 October 1979 |
| Docket Number | No. 2-378A72,2-378A72 |
| Parties | Lula B. COLEMAN, as Guardian of the Estate and Person of Frances Lockett, an Incompetent Person, Plaintiff-Appellant, v. INDIANA VENEERS, INC., Defendant-Appellee. |
| Court | Indiana Appellate Court |
Stephen M. Coons and William F. Thompson, Compton, Coons, Fetta & Thompson, Indianapolis, for plaintiff-appellant.
Howard J. DeTrude, Jr., Frank I. Magers and Peter G. Tamulonis and Kightlinger, Young, Gray & DeTrude, Indianapolis, for defendant-appellee.
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.
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.
Did the Board err in determining that the entire amount of Carl Edward Lockett's wages was not contributed by him to his mother?
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 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:
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 special occasions, such typically would be provided. Although the remainder of decedent's pay check proceeds were not allocated for particular purposes, most of such proceeds were used for three primary purposes; (1) payment for household living expenses (e. g., real estate taxes, utility bills, groceries, etc.); (2) payment for home improvements (e. g., $33.00 per month for new roof); (3) payment for other living expenses of decedent (e. g., approximately $80.00 per month for drugs during an illness of decedent prior to his death, Blue-Cross/Blue-Shield insurance for decedent and plaintiff at $30.00 per month.)"
The Board found that the evidence provided by Frances Lockett was insufficient to enable the Board to determine that any specific portion of Carl's wages had been allocated to the Exclusive use and benefit of Frances Lockett. Nevertheless, the Board carefully considered all of the evidence and ascertained that 40% Of Carl's income had benefitted Frances Lockett. In light of the substantial medical expenses which Carl had incurred prior to the industrial accident, the presence of David Lockett was well as Frances Lockett in Carl's home, and the conflicting evidence concerning the amount of money which Carl retained in his personal possession, the Board, as the finder of fact, reasonably calculated that only 40% Of Carl's wages benefitted his mother. The findings of the Board are not clearly erroneous.
If Frances Lockett had been wholly dependent upon the earnings of Carl, her award would have been $104.00 per week. Because Carl contributed only 40% Of his wages to his mother, the Board properly applied the formula appearing in IC 22-3-3-18 and awarded Frances Lockett a weekly benefit amounting to 40% Of $104.00: $41.60.
Mrs. Lockett places emphasis upon the following findings of fact entered by the Board:
She then presents argument based upon a series of cases which address the subject of a family fund or common fund.
In each of those cases cited by Frances Lockett, a Minor, unemancipated son was killed and claim for benefits was filed by one or both parents. The minor had...
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