Smith v. Mt. Mitchell clarifies the definition of “child” under the LHWCA.
On February 25, 2014, the Benefits Review Board rendered its decision in Smith v. Mt. Mitchell, LLC, ____BRBS____ (D.O.L. Ben. Rev. Bd. Feb. 25, 2014), which affirmed an Administrative Law Judge’s decision and order, clarifying the meaning of the term “child” under the Longshore and Harbor Workers’ Compensation Act (LHWCA). The inquiry central to the Board’s decision was whether the claimant was “wholly dependent” on his father at the time of his father’s death.
The claimant’s father, the decedent, worked over thirty years as a pipefitter and welder for several maritime employers. During the span of his career, the decedent was exposed to asbestos and eventually contracted lung disease, from which he later died. Following the decedent’s death, the claimant, an adult who suffered from multiple medical conditions including Crohn’s disease, filed a claim for death benefits as a wholly dependent, disabled “child.”
The administrative law judge (ALJ) considered all available evidence regarding the claimant’s dependency and found that he did not qualify as a “child” under Section 2(14) of the LHWCA. Additionally, the ALJ found that the claimant did not qualify as the decedent’s “dependent” under Section 9(d) of the LHWCA. The claimant’s claim for benefits was ultimately denied.
On appeal to the Benefits Review Board, the claimant argued that the ALJ erred in determining that he was ineligible to recover benefits as a “child” under Section 9(b) of the LHWCA. The term “child” is defined in Section 2(14), which provides, in pertinent part, a “child” . . . include[s] only a person who is under eighteen years of age, or who, though eighteen years of age or over, is (1) wholly dependent upon the employee and incapable of self-support by reason of mental or physical disability, or (2) a student . . .” The claimant was over the age of eighteen and not a student. As such, he would only qualify as a “child” under the Act if he was “wholly dependent” on the decedent and incapable of self-support by reason of mental or physical disability.
The Board agreed with the reasoning and findings of the ALJ. Evidence showed that the claimant received Social Security disability benefits at least three times greater than the monthly expenses he received from the decedent. He alleged that he received $200 to $300 per month from his parents, but acknowledged that he received $1,357.80 per month in Social Security benefits. Despite his contention that public benefits should not be included in determining whether or not a disabled relative is “wholly dependent,” he cited no precedent that supported his assertion. To the contrary, however, case law shows that welfare benefits and other forms of government funding have been considered in determining dependency in claims for benefits. See, Doe v. Jarka Corp. of New England, 21 BRBS 142 (1988); Mikell v. Savannah Shipyard Co., 24 BRBS 100 (1990). Thus, the Board found no error in the ALJ’s inclusion of the claimant’s disability benefits in the determination of “wholly dependent” status.
In sum, where a disabled adult child seeks death benefits under Section 9(b) of the Act, one should be cognizant that any income he or she receives, regardless of the source, likely will be considered to determine “wholly dependent” status. This determination is fact specific. Should the additional income the child receives exceed the amount received from the decedent, that “surviving child” may not be considered a “child” at all.
Guest blogger Kourtni Mason is an attorney in the New Orleans office of King, Krebs & Jurgens. She practices primarily in the area of Admiralty & Maritime law. She is admitted to practice law in Louisiana.