Posthumous child's lack of support from decedent stalls claim for benefits

The Arkansas Court of Appeals held that a deceased employee's minor child was not entitled to dependency benefits because the child, who was a frozen embryo when his father died, was not "wholly and actually dependent" upon him at the time of the injury.

Case name: Finley v. Farm Cat, Inc., et al., No. CA08-222 (Ark. Ct. App. 10/22/08).

What it means: Under Arkansas law, death benefits are payable to "those persons who were wholly and actually dependent upon the deceased employee" as of the time the injury occurred. Paying storage fees for frozen embryos is not the type of actual support or reasonable expectation of support contemplated by the statute. As a result, a child who was not born until two years after his father's death was not wholly and actually dependent upon him and is not entitled to dependency benefits.

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Summary: An employee and his wife froze four of their embryos as part of an in vitro fertilization program. A few weeks later, the employee was fatally electrocuted in a work-related accident. Approximately 11 months after the employee died, his wife had two of the embryos implanted into her uterus. After giving birth to a son, she sought workers' compensation benefits on the child's behalf, claiming that he was the decedent's dependent child. The Workers' Compensation Commission denied the claim, finding that the wife was the only person wholly and actually dependent upon the decedent at the time of his death. The Court of Appeals found that there was substantial evidence to support the commission's denial of the claim.

The court explained that when a child who was not living with the employee at the time of the employee's death seeks dependency benefits, there must be "some showing of actual dependency." The child does not have to demonstrate that he was totally dependent upon the decedent, but must show that he was actually supported or had a reasonable expectation of support.

The court rejected the wife's argument that paying to store the frozen embryos amounted to the kind of actual support contemplated by the law, stating that "though storage fees are akin to housing, we decline to adopt this creative reading of the statute."

November 17, 2008

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