Kevin Politte v. Arrowhead Contractors

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties, heard oral argument, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated November 29, 2004. The award and decision of Administrative Law Judge Dinwiddie is attached and incorporated to the extent it is not inconsistent with this award and decision.

The parties agreed that the death of the employee, Kevin G. Politte, deceased, was due to an accident arising out of and in the course of his employment. The employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Laws; the employer's liability was insured by American Family Mutual Insurance Company; the employer had notice of the injury and resultant death of the employee; the claim for compensation was filed within the time prescribed by law; and the employee's average weekly wage as of the date of the accident was 465.88 resulting in a compensation rate of 310.59 for any death benefits.

The parties further stipulated that due to the compensability of the death claim, pursuant to section 287.240(1) RSMo the employer/insurer was liable for burial expenses in the amount of $3,818.54.

A Claim for Compensation as well as an Amended Claim for Compensation had been filed due to the death of the deceased employee, alleging there are/were three dependents entitled to workers' compensation death benefits pursuant to the provisions of section 287.240 RSMo. The three alleged dependents are Patricia Politte, mother of the deceased employee; Jazlyn Sheeley, niece of the deceased employee; and Jared Sheeley, nephew of the deceased employee. The answer filed by the employer/insurer denied that any of the three were dependents as defined by section 287.240 RSMo, and consequently were not entitled to death benefits.

The award of the administrative law judge dated November 29, 2004, contained the following conclusions: Patricia Politte, mother of the deceased, was not a dependent as defined by section 287.240 RSMo, and was not entitled to death benefits; Jazlyn Sheeley and Jared Sheeley were both partial dependents as defined by section 287.240 RSMo and were entitled to certain death benefits; and employer/insurer was liable for burial expenses in the amount of $3,818.54 as stipulated.

An Application for Review was timely filed with the Labor Commission by employer/insurer alleging that the award issued by the administrative law judge was erroneous in finding that Jazlyn Sheeley and Jared Sheeley were partial dependents as defined pursuant to section 287.240 RSMo, and entitled to any death benefits.

As of the date of death of the deceased employee, the indisputable and uncontroverted evidence was that the deceased employee had never been married and never had any children. Accordingly none of the three alleged dependents can be conclusively presumed to be totally dependent for support upon the deceased employee, since none of them were either a surviving spouse of the deceased employee or a child of the deceased employee. Section 287.240(4)(a)(b) RSMo.

The applicable statutory provision pertaining to the instant claim is section 287.240 RSMo; and has been interpreted by our appellate courts in the case of Henley v. Tan Company, Inc., 140 S.W.3d 195 (Mo.App. S.D. 2004) as follows:

Pursuant to Section 287.240 of the Workers' Compensation Law, "dependents" of a deceased employee are entitled to certain death benefits and compensation:

(4) The word "dependent" as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his or her wages at the time of injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee, ...

(b) A natural, posthumous, or adopted child or children, whether legitimate or illegitimate, under the age of eighteen years.... In all other cases questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury, and in such other cases if there is more than one person wholly dependent the death benefit shall be divided equally among them.

Section 287.240(4)(b). This section creates two classes of dependents: the first consisting of relatives by blood or marriage who are in fact actually dependent upon the wages of the deceased employee for full or partial support, and the second consisting of those who are conclusively presumed to be totally dependent. Section 287.240.

[7] Where, as here, Claimants are not among those statutorily classified as "conclusively presumed to be totally dependent," Claimants have the burden of proving that (1) they were related to Employee by blood or marriage and (2) they were actually dependent for support, in whole or in part, upon Employee's wages at the time of her injury. ${ }^{6}$ Section 287.240; See Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551, 556 (1935).

[8, 9] The question of actual dependency is a question of fact to be determined in accordance with the facts at the time of the employee's injury. Ricks v. H.K. Porter, Inc., 439 S.W.2d 164, 167 (Mo. 1969); See Ferguson v. Hood, 541 S.W.2d 19, 22 (Mo.App.1976). The word "dependent" ordinarily means in "need of aid or support," "not self-sustaining." Dykes v. Thornton, 282 S.W.2d 451, 454 (Mo.1955). While a "partial dependent" is one who has some means, but not sufficient means for his support, a "total dependent" is one who has no means whatever to support himself. Id. "Dependence within the meaning of the Workmens' Compensation Law does not mean absolute dependency for the necessities of life, but rather that the claimed dependent looked to and relied upon the contributions of the employee, in whole or in part, as a means of supporting and maintaining himself." Craig v. Calvert, 572 S.W.2d 235, 237 (Mo.App.1978) (quoting Dykes at 454). It is not necessary to show that the employee was "legally liable" for the support of the claimant. Stillwell v. Universal Const. Co., 922 S.W.2d 448, 453 (Mo.App. W.D.1996).

[^0]In the award issued by the administrative law judge alleged dependent Patricia Politte was found to have failed to make any case that she was a partial dependent of the deceased employee as of the date of his injury, and the

[^0]: 6 The parties agree that Claimants meet the first criteria of being related to Employee by blood or marriage. The issue here is limited to Claimants' actual dependency on Employee's wages.

Commission affirms all findings and conclusions made by the administrative law judge denying her claim as a partial dependent.

The remainder of the Commission decision will concern itself only with whether or not the remaining two dependents, Jazlyn Sheeley and Jared Sheeley, proved their respective allegations of actual dependency pursuant to section 287.240 RSMo. The remaining two alleged dependents, Jazlyn Sheeley and Jared Sheeley, hereinafter referred to as the minor dependents, attempted to establish their entitlement to death benefits as dependents of the deceased employee through the testimony of Glennon Politte, Linda Dunn, Denise Gonzalez and Patricia Politte; and through three exhibits, i.e., a Decree of Adoption, Exhibit A; a Certificate of Death, Exhibit B; and a Drivers Application for Employment, Exhibit C.

In summary fashion the testimony of Linda Dunn was as follows: she was a friend of Patricia Politte; she testified that during a telephone conversation with Patricia Politte, she heard the deceased employee's voice in the background, and during the telephone conversation Patricia discussed the planned contribution toward the care of the two minor children to be made by the deceased employee; and once, Patricia Politte told her the deceased employee would be making the next house payment. All of this testimony of Linda Dunn was timely objected to by the employer/insurer as based on inadmissible hearsay.

Denise Gonzalez testified to the following: she was a friend of Patricia Politte; she was aware of the adoption efforts of Patricia Politte concerning the two minor children; she was present during a conversation in which the deceased employee indicated he would help raise the two minor children; and the deceased employee indicated that he would split the bills down the middle with Patricia. The employer/insurer timely objected to all this testimony as being based on inadmissible hearsay.

Glennon Politte testified as follows: he is the grandfather of the deceased employee; the deceased employee indicated in conversations with Glennon Politte that the deceased employee wanted to help the two minor children; and the deceased employee indicated in a conversation to Glennon Politte that he was willing to do what it took to help his mother raise the two minor children. Timely hearsay objections were also made concerning the testimony of Glennon Politte.

Mr. Glennon Politte further testified that on at least two occasions Patricia Politte tendered Glennon Politte checks she received from the deceased employee, while the deceased employee was a member of the United States Army. Each check was purportedly in the amount of $\ 200.00. Glennon Politte, at the request of Patricia Politte, cashed these checks (according to his testimony). At trial there were no copies of these checks or any credible documentary evidence to support this testimony.

In summary fashion the testimony of Patricia Politte was as follows: she filed for adoption of the two minor dependents, Jazlyn and Jared, in approximately August, 2001; the adoption decree was entered January 11, 2002; the deceased employee entered the United States Army in March of 1998 and was discharged/returned home in March, 2002; during March of 2002 he was not working; the deceased employee lived in his mother's house from the time of his discharge until his fatal accident of May 14, 2002; prior to her adoption of the two minor children, Patricia Politte testified that she and other family members had discussions as to the caring and upbringing of the two minor dependents; the deceased employee was not involved in these family discussions or conversations; the family eventually decided that Patricia Politte should take custody and in the summer of 2001, Patricia Politte became the foster mother of the two minor dependents; she testified that the deceased employee and her would discuss co-parenting the children in the future at her house; Patricia Politte testified that she estimated that the deceased employee may have given her approximately $\ 2,500.00 while in the service but she did not testify as to any specific purpose for this money; and Patricia Politte testified to one payment of $\ 200.00 the deceased employee made to her after being discharged from the service in March 2002.

Patricia Politte could not provide any copies of checks, statements, or any credible documentary evidence to support her allegations that any actual support was provided by the deceased employee.