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A furnace operator died, and his widow filed a claim for workers' compensation death benefits, contending that occupational pneumoconiosis materially contributed the operator's death. On her application, the widow wrote "none" in reference to the identity of any surviving dependent children. However, the operator and the widow had a son who suffered from schizophrenia, which caused him to experience severe thought disorganization, delusion and hallucinations.

The widow's application for benefits was initially denied, but the Workers' Compensation Board of Review reversed the decision, granting death benefits to the widow.

The employer's third-party administrator terminated benefits, reasoning that there was no evidence that the son was a dependent at the time of the operator's death and that the application filled by the widow indicated that there were no dependent children.

A protest was filed, and the evidence in front of the administrative law judge included the son's birth certificate, a medical verification form stating that he suffered from a psychiatric disorder and required supervision, deposition testimony by the daughter that the son was an invalid who lived with the operator and widow until their deaths, a psychiatrist's report, the wills of the operator and the widow providing for the care and support of the son through the daughter, the order appointing the daughter as the guardian for the son, and a Social Security form where the widow listed the son as a dependent.

The administrative judge terminated the benefits, and the board agreed.

Was the board correct in denying death benefits to the son?

A. No. The son had a lifelong psychiatric disorder and resulting dependency.

B. Yes. The son was not named as a dependent child on the workers' compensation application for death benefits.

C. Yes. The widow was entitled to benefits but the son was not.

How the court ruled: A.

The court ruled that the son was entitled to benefits retroactive to the date the benefits were terminated. Johnson v. West Virginia Office of the Insurance Commissioner, No. 35382 (W.Va. 11/18/10).

An invalid child is entitled to death benefits. This includes a child who, at the time of the injury causing death, is dependent for his support upon the earnings of the employee. The court stated that the evidence demonstrated that the son was dependent for his support upon the earnings of the operator at the time of his death and continued to be an "invalid child."

B is incorrect. The court noted that the employer paid benefits to the son and never sought to correct the "mistake" of the substitution of the son for the widow as the party, although it knew that the son was a dependent of the operator.

C is incorrect. The court stated that the son was entitled a continuation of benefits to which he was jointly entitled to with the widow.

CHRISTINA DIFONTE is the legal editor of the WorkersComp Forum.

This feature is not intended as instructional material or to replace legal advice.

Read more at the WorkersComp Forum homepage.

January 6, 2011

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