Lavoie v. International Paper Co.

• Decision Date: 13 July 1979
• Citation: 403 A.2d 1186
• Parties: Richard A. LAVOIE et al., (Deceased). v. INTERNATIONAL PAPER COMPANY.
• Court: Maine Supreme Court

Page 1186

403 A.2d 1186

Richard A. LAVOIE et al., (Deceased). v. INTERNATIONAL PAPER COMPANY.

Supreme Judicial Court of Maine.

July 13, 1979.

Cloutier & Joyce by Patrick E. Joyce, Livermore Falls (orally), Holman & Cullenberg by Ronald J. Cullenberg, Farmington (orally), for plaintiffs.

Pierce, Atwood, Scribner, Allen, Smith & Lancaster by Albert G. Ayre, Portland (orally), for defendant.

Before POMEROY, ARCHIBALD, GODFREY, and NICHOLS, JJ.

POMEROY, Justice.

Decedent, Richard A. Lavoie, was electrocuted on February 2, 1977 while working as an electrician for the International Paper Company. The death concededly arose out of, and occurred within, the scope of decedent's employment. The employer recognizes its responsibility to compensate such surviving dependents of its employee as may qualify under our Workers' Compensation Act. The appeal in this case arises from a decision of the Workers' Compensation Commission and a subsequent Pro forma affirmation of the Commissioner's decree by the Superior Court.

We sustain the appeal.

39 M.R.S.A. §§ 58 and 59 provide for the payment of either a "Death benefit " or "Burial expenses " or both, to the family or dependents of the deceased worker, in accordance with the Act's provisions.

Section 58 provides that where death follows an industrial injury,

The employer shall pay the dependents of the employer, dependent upon his earnings for support at the time of his injury, a weekly payment equal to 2/3 his gross weekly wages . . . until such time as provided for in the following paragraph.

If the dependent of the employee to whom compensation will be payable upon his death is the widow of such employee, upon her death or at such time as she becomes a dependent of another, compensation to her shall cease and . . . shall be paid to the child or children, if any, of the deceased employee, including adopted and step-children, under the age of 18 years . . . who are dependent upon the widow at the time of her death or dependency.

In case there is more than one child thus dependent, the compensation shall be divided equally among them. Except in the case of dependents who are physically or mentally incapacitated from earning, compensation payable to any dependent child under the age of 18 years shall cease upon such child's reaching the age of 18 years or upon marriage.

If the employee leaves dependents only partly dependent upon his earnings for support at the time of his injury, the employer shall pay such dependents a weekly compensation equal to the same proportion of the weekly payments provided in this section for the benefit of persons dependent, as the total amount contributed by the employee to such partial dependents for their support during the year prior to his injury, bears to the earnings of the employee during said period.

Section 59 of the Act provides for the payment of "Incidental " benefits:

If the employee dies as a result of the injury, the employer shall pay in addition to any compensation and medical benefits provided for in this Act, the reasonable expense of burial, not to exceed $1,000 and in addition thereto a payment in the sum of $1,000 to the widow and if no widow, to the children and if no children to the next of kin as incidental compensation.

Following decedent's death, Steven R. Lavoie and Nita Vanzant as mother and natural guardian of Donna K. Lavoie and Terry Lee Lavoie petitioned for compensation as children and dependents of the deceased. Subsequently a similar petition was filed by Louise York, for herself and as mother and natural guardian of Jeffrey Lee York. At the time of his death decedent was living with the Yorks, and had been since approximately 1969.

Following testimonial hearings and further presentation of evidence, the Commissioner ruled that none of the petitioners was actually dependent ¹ upon the earnings of the decedent at the time of death. None he wrote, was entitled to compensation under § 58 of the Workmen's Compensation Act, and only Donna K. Lavoie (as decedent's only minor child) was entitled to incidental compensation under § 59 of the Act. This appeal followed a Pro forma Superior Court affirmation of the Commission decree.

The factual background of this case is critical to an appreciation of the issues raised. Decedent, as previously noted, lived with claimant Louise York and her son Jeffrey from approximately 1969 until his death in 1977. Ms. York had divorced her husband in 1969 and had been receiving $20 per week in child support since 1975. A nominal alimony payment of $1.00 annually was also required by the decree.

Decedent and the Yorks lived in a home owned by Ms. York and her former husband as joint tenants, the mortgage on which was being paid by the former husband. Decedent's income paid virtually all other bills and expenses heat, light, food, clothing, taxes with the exception of medical expenses, ² which at various times were paid by the former husband's medical insurance or by Medicaid. The testimony of co-workers established that decedent customarily turned his paycheck over to Ms. York, who handled the household's finances, even to the extent of writing support checks for decedent's children. Ms. York did not work while living with decedent, and testified that health problems have prevented her from doing so since his death.

Decedent's former wife, Nita Vanzant, whom he divorced in 1962, lives in Texas with claimants Stephen R., Donna K., and Terry Lee Lavoie. ³ Ms. Vanzant, having remarried, did not claim dependency. Decedent contributed to the support of his children in Texas, although they made frequent and sustained visits to Maine. During their visits, they resided with their father and the Yorks. Ms. Vanzant estimated that the children spent nearly half of each year with their father, and that his payments provided for some 75% Of their support while they lived with her. These payments were commingled with the family's other income, and were neither designated for, nor restricted to, any particular use.

At decedent's death, Stephen was eighteen years old, Donna was 16 and Terry 12. They claim as dependents of deceased.

Dependency such as will support an award under the Workmen's Compensation Act may be either presumed or actual, partial or total. The law conclusively presumes total dependency on the part of several classes of dependents. In this case we need note only that it includes

A child or children, including adopted and stepchildren, under the age of 18 years, of under the age of 23 years if a student, or over the age of 18 years but physically or mentally incapacitated from earning, upon the parent with whom he is or they are living, or upon whom he is or they are actually dependent in any way at the time of the injury to said parent . . . .

39 M.R.S.A. § 2(4)(c).

The Commission concluded that no petitioner in this case was presumably dependent upon decedent, Supra, n. 1.

In this he erred.

Donna K. Lavoie was not, in the Commissioner's view, to be presumed dependent upon decedent because she "Was not 'living with' The deceased at the time of death." Section 2(4)(C), Supra, provides, however, for the presumption to operate as to children not living with decedent where they are "Actually dependent in any way " at the time of the parent's injury. Decedent in this case was under a court order to support Donna, and did so regularly. Indeed, Donna's mother testified that the payments by decedent accounted for some 75% Of the children's support while they lived with her. ⁴

The Commissioner's findings as to Donna's lack of actual dependency stated:

Although there was an outstanding court order following decedent's divorce to provide child support for Donna Kay Lavoie, a legal obligation to support does not, by itself, establish dependency.

At the time of the decedent's death, Donna Kay Lavoie was living in Texas with her mother. Her mother had remarried, and, in fact, she testified that her present husband was contributing to the support of the children. (Record citation omitted)

Moreover, the children, including Donna, were covered under her present husband's medical insurance plan.

Apparently the Commissioner acted under the erroneous assumption that contribution to Donna's support by her stepfather precluded finding her dependent upon decedent. As Professor Larson has explained it:

Partial dependency may be found when, although the claimant may have other substantial sources of support from his own work, from property, or from other persons on whom claimant is also dependent, the contributions made by decedent were looked to by the claimant for the maintenance of his accustomed standard of living.

2 A. Larson, The Law of Workmen's Compensation, § 63.11 (1976), Citing Ricciardi v. Damar Products Co., 45 N.J. 54, 211 A.2d 347 (1965); Jewell v. Olson Constr. Co., 122 Vt. 434, 175 A.2d 509 (1961); Colby v. Varney, 97 N.H. 130, 82 A.2d 604 (1951).

Dependency under the Workers' Compensation Act requires something greater than a duty to support, as it demands, beyond the mere fact of relationship,

Some evidence of a reasonable probability and expectation that the obligation of the parent will be fulfilled and thereby have some real as well as mere theoretical value.

Drouin v. Ellis C. Snodgrass Co., 138 Me. 145, 150, 23 A.2d 631, 633 (1941). Moreover, as Mr. Justice Dunn observed, citing Chief Justice Cornish,

(t)he mere receiving of assistance . . . does not of itself make the recipient a dependent. Granting that there were contributions, the yet further test for dependency is: Had the accepting one necessity therefore in his life station, and were they counted on by him for his means of livelihood?

Weliska's Case, 125 Me. 147, 148, 131 A. 860, 861 (1926); Citing Henry's Case, 124 Me. 104, 106, 126 A. 286, 287 (1924).

Thus dependency, in these circumstances, consists of three components: relationship, contribution (or probability and expectation) and...