Federico v. Industrial Commission

923 P.2d 848, 186 Ariz. 382, 210 Ariz. Adv. Rep. 48, 1996 Ariz. App. LEXIS 31
CourtCourt of Appeals of Arizona
DecidedFebruary 22, 1996
DocketNo. 1 CA-IC 94-0095
StatusPublished
Cited by1 cases

This text of 923 P.2d 848 (Federico v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federico v. Industrial Commission, 923 P.2d 848, 186 Ariz. 382, 210 Ariz. Adv. Rep. 48, 1996 Ariz. App. LEXIS 31 (Ark. Ct. App. 1996).

Opinion

OPINION

WEISBERG, Judge.

The surviving mother (“Claimant”) of George Federico (“the deceased”) seeks review of an award denying her death benefits. The Administrative Law Judge (“ALJ”) concluded that, although Claimant had been partially dependent upon the deceased on the date of his death, she was not entitled to death benefits because of her subsequent receipt of over $200,000 in life insurance proceeds. Claimant contends this was error. In addition, the deceased’s self-insured employer, Maricopa County, challenges the ALJ’s finding of partial dependency.

We conclude that sufficient evidence existed to establish Claimant’s partial dependency and that the ALJ correctly found that her subsequent change in financial condition affected Claimant’s right to death benefits. But because we conclude that the ALJ erred in denying Claimant death benefits altogether, rather than terminating them on the date she received the insurance proceeds, we set aside the award.

PROCEDURAL AND FACTUAL HISTORY

In July 1993, the deceased died in a com-pensable industrial accident. He was thirty-nine years old, unmarried, and without children. Claimant filed a death benefits claim, Maricopa County denied it, and Claimant timely requested a hearing.

At the ensuing hearing, Claimant, her husband, daughter, and sister-in-law, and a friend of the deceased testified. Their testimony established that the deceased’s natural father had abandoned Claimant before the deceased’s birth, and that Claimant had married the deceased’s stepfather (her “husband”) approximately five years later.

Since remarrying, Claimant has worked as a housewife. Her husband has been regularly employed and has supported Claimant. For example, he qualified for a Veterans Administration loan to purchase the home in which Claimant and he have lived for over twenty years. Since about 1983, he has worked for the State of Arizona which provided benefits including health insurance covering Claimant. His monthly income in 1993 was $1800.00. Her husband, however, is an alcoholic, and his drinking consumed about a third of his wages until he stopped in about 1992. He has had other health problems since then.

The deceased began working and contributing to family expenses when he was a teenager. For at least five years before his death, he had his own home and expenses. In 1990 and 1991, the years for which tax returns are of record, the deceased earned over $30,000.00. He did not list Claimant as his dependent for income tax purposes.

Claimant had no records and provided no estimates of either her living expenses or the amount of the deceased’s support. She testified, however, that her husband gave her only $680.00 a month and that this was often insufficient for household expenses. She also testified that the deceased helped her with cash and work around the house. For example, he paid for Claimant’s groceries about twice a month, sometimes paid her utility bills and her co-payments for doctors and medications, and maintained her car and evaporative cooler. Also, in the two to three years before his death, the decedent had provided materials and labor to replace the roof on Claimant’s house, the carpet in it, and to paint it. The carpeting had been a [385]*385Christmas gift to Claimant, as were a TV and VCR.

The other witnesses generally corroborated Claimant’s testimony concerning the deceased’s support of her. Only one witness, though, provided an estimate of the value of the deceased’s contribution to Claimant. The deceased’s friend and roommate for six years estimated that the deceased gave Claimant at least $50.00 a month.

Finally, although Claimant objected to the relevance of her receipt of life insurance proceeds, she acknowledged being the sole beneficiary of slightly more than $200,000.00 of insurance on the life of the deceased. The record does not disclose when she received these proceeds.

Following the hearing, the ALJ issued an award denying Claimant’s claim for death benefits. He found that Claimant’s evidence, although weak, was sufficient to establish her partial dependency upon the deceased. He concluded, however, that, because a parent is only entitled to death benefits “during dependency,” Claimant’s receipt of life insurance proceeds negated her right to death benefits:

It is found that Mrs. Vega’s partial dependency status ceased as of the time she received the insurance proceeds. In the absence of any evidence as to when this occured [sic], it is presumed that a minimal amount of time elasped [sic] between Mr. Frederico’s [sic] death and the reciept [sic] by his mother of insurance proceeds.

He therefore denied Claimant death benefits altogether.

Claimant requested review. Among other things, she argued that, even if her receipt of life insurance proceeds had affected her right to death benefits, she nevertheless would be entitled to benefits from the date of the deceased’s death until the date she received the life insurance proceeds.

The ALJ summarily affirmed the award. Claimant then brought this special action. This court has jurisdiction under Ariz.Rev. Stat.Ann. (“A.R.S.”) sections 12-120.21(B) and 28-951(A).

DISCUSSION

On review, Claimant asserts that her subsequent receipt of insurance proceeds as a result of the deceased’s death is either immaterial or, at most, terminated her right to death benefits when she actually received the insurance proceeds. Maricopa County, in turn, disputes the sufficiency of the evidence supporting the finding that Claimant had been partially dependent upon the deceased.

A. Statutory Overview

A.R.S. sections 23-1046 and 23-1064 control entitlement to death benefits. Subsection 23-1046(A) in relevant part provides:

A. In case of an injury causing death, the compensation therefor shall be known as a death benefit, and shall be payable in the amount, for the period, and to and for the benefit of the persons following:
2. To the surviving spouse ... to be paid until such spouse’s death or remar-riage____
4. To a single surviving child____ Compensation to any such child shall cease upon death, upon marriage or upon reaching the age of eighteen years, except, if over eighteen years and incapable of self-support, when he becomes capable of self-support.
5. To a parent, if there is no surviving husband, wife or child under the age of eighteen years, if wholly dependent for support upon the deceased employee at the time of his death, twenty-five per cent of the average monthly wage of the deceased during dependency, with an added allowance of fifteen per cent if two dependent parents survive, and, if neither parent is wholly dependent, but one or both partly dependent, fifteen per cent divided between them share and share alike.
6. To brothers or sisters under the age of eighteen years, if there is no surviving husband or wife, dependent children under the age of eighteen years or dependent parent, the following shall govern:
[386]*386(c) If none of the brothers or sisters is wholly dependent, but one or more are partly dependent, fifteen per cent divided among such dependents share and share alike.

(Emphasis added.).

A.R.S.

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Bluebook (online)
923 P.2d 848, 186 Ariz. 382, 210 Ariz. Adv. Rep. 48, 1996 Ariz. App. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federico-v-industrial-commission-arizctapp-1996.