Jordan v. Virginia Intl. Terminals
| Decision Date | 23 March 1998 |
| Docket Number | BRB 97-901 |
| Parties | GWENDOLYN L. JORDAN (Widow of ALVIN JORDAN), Claimant-Respondent v. VIRGINIA INTERNATIONAL TERMINALS, Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Party-in-Interest |
| Court | Court of Appeals of Longshore Complaints |
Appeal of the Decision and Order of Fletcher E. Campbell, Jr. Administrative Law Judge, United States Department of Labor.
Robert E. Walsh and Matthew H. Kraft (Rutter & Montagna L.L.P.), Norfolk, Virginia, for claimant.
R. John Barrett and Kelly O. Stokes (Vandeventer, Black, Meredith & Martin, L.L.P.), Norfolk, Virginia, for self-insured employer.
Before: SMITH, BROWN and DOLDER, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order (96-LHC-645) of Administrative Law Judge Fletcher E. Campbell, Jr., rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C §901 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Decedent sustained a back injury on January 29, 1986, while working for employer. Pursuant to a compensation order, decedent was awarded permanent partial disability benefits, and employer was awarded relief from continuing compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f). Dir. Ex. 4; see also Emp. Ex. A. Due to causes directly related to his back injury, he died on April 27, 1994. Decision and Order at 2; Dir. Ex. 5. After his death, claimant pursued and obtained death benefits under Section 9 of the Act, 33 U.S.C. §909. Dir. Exs. 1, 6. Thereafter, the Director, Office of Workers' Compensation Programs, as administrator of the Special Fund, filed a notice of suspension of payment of death benefits because he determined claimant was not decedent's widow and therefore was not entitled to death benefits. Dir. Ex. 1. These proceedings followed.
The administrative law judge found that the facts of this case are not in dispute, and he found that claimant is not a "widow" under Virginia law. Additionally, he found no common law marriage had been created under the laws of any state to which claimant and decedent had traveled. Decision and Order at 4. However, he held that his inquiry does not end there, and, applying the criteria the Board set forth in Trainer v. Ryan-Walsh Stevedoring Co., 8 BRBS 59 (1978), aff'd in part and rev d in pert. part, 601 F.2d 1306, 10 BRBS 852 (5th Cir. 1979), he found that claimant is a "widow" within the meaning of the Act and is entitled to benefits. Decision and Order at 5. Although the administrative law judge noted that the United States Courts of Appeals for the Fifth, Ninth and District of Columbia Circuits have rejected such an approach, he stated that the United States Court of Appeals for the Fourth Circuit, wherein this case arises, has not done so; therefore, the Board's decision in Trainer is still binding precedent in cases arising in the Fourth Circuit. Id. Employer appeals this decision, and claimant responds, urging affirmance.[1]
Employer's sole contention is that claimant is not a "widow" under the Act and is not entitled to benefits. It argues that the administrative law judge improperly relied on the Board's decision in Trainer to determine claimant's marital status. Rather, it asserts, the administrative law judge should have ceased his analysis after determining that claimant is not a "widow" under Virginia law. Claimant responds, urging affirmance of the decision on the grounds that it is supported by substantial evidence and in accordance with law.[2]
Before addressing the law on this issue, the following facts are pertinent to the resolution of this case. Claimant and decedent were married in Portsmouth, Virginia on March 11, 1969. They resided in Virginia and bore two children together. Because she was being physically abused, claimant moved out of the domicile and filed for divorce in 1978. The state of Virginia granted her a divorce, and custody of the two children, on November 15, 1979. Emp. Ex. D; Tr. at 17-20. While claimant was living with decedent's mother, decedent moved into an apartment. Seven months after the divorce, claimant and decedent reconciled, and she and the children moved in with decedent with the stipulation that he not physically abuse her again. Tr. at 21-27. Decedent kept his promise, and both fulfilled their "marital" obligations.[3] Tr. at 28. With the exception of two periods in 1990, claimant and decedent continued to live together. Both periods, one of approximately five months and one of several weeks, were preceded by non-physical arguments. During these separations, claimant and the children lived with decedent's relatives. Tr. at 29, 44.
Claimant testified that she and decedent often traveled together, reserving rooms as husband and wife when they did not stay with relatives. These trips included several prolonged trips to visit family members and several lengthy vacations.[4] Tr. at 31-38, 42. According to claimant, neither of them worked during their time in other states and they always retained their Virginia apartment as their home. Tr. at 41, 43. She also stated that decedent always introduced her as "his wife, " that they received mail as "Mr. and Mrs." and that they filed joint income tax returns until decedent became disabled and no longer had to file. Tr. at 30, 43. Although they never officially remarried, claimant stated that their relationship after 1979 was "totally different from [their] first marriage. . . ." Tr. at 43, 46.
Section 2(16) of the Act defines the terms "widow" and "widower" as including:
only the decedent's wife or husband living with or dependent for support upon him or her at the time of his or her death; or living apart for justifiable cause or by reason of his or her desertion at such time.
33 U.S.C. §902(16). In the instant case, it is undisputed that claimant and decedent lived together at the time of his death. Therefore, at issue is only whether she was decedent's wife at the time of his death. See Griffin v. Bath Iron Works Corp., 25 BRBS 26 (1991) (clauses of Section 2(16) are to be read in the disjunctive, providing alternative conditions for qualifying for benefits). The Act, however, does not define the terms "husband" or "wife;" therefore, we must look to the rules of statutory construction to define these terms. The Supreme Court has held that when Congress does not define a term in a federal statute, the proper course is to look to the law of the relevant state for such definition. Seaboard Air Line Railway v. Kenney, 240 U.S. 489 (1916).[5] In determining whether a claimant qualifies as a "husband" or "wife" in cases arising under the Act, the normal course of action, with the notable exception of the 1978 Board decision in Trainer, has been to follow Kenney and to look to state law for the definition. Ryan-Walsh Stevedoring Co., Inc. v. Trainer, 601 F.2d 1306, 10 BRBS 852 (5th Cir. 1979), revg in pert. part 8 BRBS 59 (1978); Marcus v. Director, OWCP, 548 F.2d 1044, 5 BRBS 307 (D.C. Cir. 1976); Powell v. Rogers, 496 F.2d 1248 (9th Cir.), cert. denied, 419 U.S. 1032 (1974); Albina Engine & Machine Works v. O'Leary, 328 F.2d 877 (9th Cir. 1964), cert. denied, 379 U.S. 817 (1964); E.W. Coslett & Sons, Inc. v. Bowman, 354 F.Supp. 330 (E.D. Pa.), aff'd, 487 F.2d 1394 (3d Cir. 1973); Gibson v. Hughes, 192 F.Supp. 564 (S.D. NY 1961); Keyway Stevedoring Co. v. Clark, 43 F.2d 983 (D. Md. 1930). The Board departed from the norm in its decision in Trainer, 8 BRBS at 59, which was reversed in pertinent part by the Fifth Circuit.
In Trainer, the Board established "new guidelines for construing 'widow and 'widower' as those terms are used in the Act." Trainer, 8 BRBS at 65. Specifically, the Board stated that the new guidelines omit the need to look to state law and that:
[F]or purposes of receiving death benefits under the Act, it shall be conclusively established that a claimant is a 'widow or 'widower' if, at the time of death of the employee, and for at least ten years prior to his or her death, the employee and the claimant had lived together in the same household and held themselves out to their relatives, friends, neighbors and tradespeople in the community in which they resided as husband and wife. Joint ownership of real and personal property, joint bank accounts, and joint tax returns are some factors which may be considered as evidence that the employee and claimant held themselves out as husband and wife. However, where the evidence shows that the employee and the claimant had lived together for a substantial period of time, but for less than ten years, then, based upon the evidence in the record considered as a whole and the purposes of the Act, in the exercise of sound judgment a deputy commissioner or administrative law judge shall decide whether the claimant should be deemed a 'widow or 'widower.' In making that decision, a deputy commissioner or administrative law judge shall take into consideration all of the facts and circumstances in evidence that have a bearing upon the relationship of the employee and the claimant during the time they lived together. Among the circumstances to be considered are those, enumerated above, in regard to 'holding themselves out as husband and wife.' However, any 'widow or 'widower' claim based on living together, as described above, cannot prevail if another claimant proves 'widow or 'widower' status on the basis of (1) a valid ceremonial or common law marriage to the deceased...
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