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A claim for death benefits, provided for by W. Va. Code § 23-4-10, is separate and distinct from an injured employee's claim for disability benefits. The question of dependency under the Workmen's Compensation Law of West Virginia is not to be determined by ordinary legal or ethical conceptions, but by the classification of dependents made by that law itself.
Louis E. Johnson, Charles' father, worked for Foote Mineral Company as a furnace operator for 31 years. There is voluminous evidence in the record demonstrating that Charles was the dependent invalid child of Louis E. Johnson. Charles suffers from schizophrenia, a chronic disabling disease. In 1989, Louis E. Johnson died of lung cancer. In 1990, Anna R. Johnson, the wife of Louis filed an application for workers' compensation "fatal dependents' death benefits." She contended that her husband's death was materially contributed to by occupational pneumoconiosis, and, therefore, she was entitled to death benefits. Whether by mistake or for reasons unexplained in the record, the word "none" was written on the 1990 application in reference to the identity of any surviving dependent children. Although an order was entered by the Workers' Compensation Commissioner on October 30, 1990, holding the claim compensable on a non-medical basis, the application for dependents' death benefits was subsequently rejected on the ground that Louis E. Johnson's death was not connected to his work-related occupational pneumoconiosis. On June 18, 2002, however, the Board of Review reversed and granted benefits on the basis that occupational pneumoconiosis materially contributed to Louis' death. The employer’s appeal was denied.
Anna R. Johnson died on April 14, 2000, prior to the granting of dependents' death benefits by the Board of Review. In her Will, Anna named her daughter, Lois J. Dudding, Executrix and directed her to hold various assets of the Estate for the use and benefit of Charles and to provide him with the necessities of life. Subsequently, by letter dated July 22, 2002, counsel informed the Workers' Compensation Commissioner that Anna R. Johnson died and that Charles L. Johnson: (1) was a dependent invalid son of Louis E. Johnson, (2) a substitute party under the 1990 application for dependents' death benefits and (3) entitled to payment of benefits, in care of Lois J. Dudding. Attachments to the letter included: (1) a copy of Anna's death certificate and Will, (2) a copy of Charles' birth certificate and (3) a copy of the medical reports of Dr. Salim stating that Charles suffers from a lifelong psychiatric disorder and requires supervision. The employer was also notified. On October 30, 2002, a Workers' Compensation pay order was issued directing the employer to pay Lois J. Dudding $ 277,060.06, representing the period December 14, 1989, (immediately after the death of Louis E. Johnson) through November 30, 2002. Thereafter, pay orders were issued on a monthly basis for the benefit of Charles. On July 22, 2003, Lois J. Dudding completed a Workers' Compensation form concerning the continuation of benefits on which she named Charles as a dependent of Louis E. Johnson. Later, on September 2, 2003, Dr. Spetie completed a Workers' Compensation medical verification form and stated that Charles is diagnosed with schizophrenia and is in need of supervision. Charles continued to receive his monthly benefits.
On February 17, 2006, the employer's third-party administrator, Acordia Employers Service, issued a notification of termination of Charles' dependents' death benefits. The notification, sent to Charles in care of Lois J. Dudding, stated that, since there was no evidence that Charles was a dependent at the time of Louis E. Johnson's death and that the application filed by Anna R. Johnson in 1990 indicated that there were no dependent children, a termination of Charles' benefits would be pursued. Thereafter, on March 14, 2006, the employer's third-party administrator entered an order terminating Charles' dependents' death benefits. A protest was filed, and Charles adduced multiple evidence before the Administrative Law Judge showing that he was in fact a dependent of Lois J. Dudding. Nevertheless, on February 8, 2008, the Administrative Law Judge affirmed the termination of benefits, observing, inter alia, that the order granting dependents' death benefits "was based on the application filed in 1990 which listed only Anna Johnson as a dependent of Louis E. Johnson." The decision of the Administrative Law Judge was affirmed by the Board of Review.
Is Charles entitled to a continuation of the dependents’ death benefits?
The evidence of record demonstrates that Charles L. Johnson was dependent for his support upon the earnings of Louis E. Johnson at the time of Louis E. Johnson's death and continues to be an "invalid child" now cared for by Lois J. Dudding. The medical reports, medical verification, the Wills of Charles' parents, the documentation concerning Social Security dependents' disability benefits, the Mason County guardianship and the deposition of Lois J. Dudding support the fact of Charles' lifelong psychiatric disorder and resulting dependency. Consequently, the question of whether Charles' dependents' death benefits should be reinstated is procedural in nature. As acknowledged by the Insurance Commissioner, the record does not explain why nearly ten years passed between Anna R. Johnson's 1991 protest of the initial rejection of her application and the 2001 decision of the Administrative Law Judge affirming the rejection. During that long delay, Anna died, and it was not until later, on June 18, 2002, that her application for benefits was approved. Thereafter, the Workers' Compensation Commissioner and the employer were informed that Charles is a dependent, a substitute party, and entitled to dependents' death benefits. The employer consistently paid Charles the benefits for a number of years, from October 2002 until his benefits were terminated in 2006. Whether the relevant date is October 30, 2002, when the first pay order was issued on behalf of Charles, or February 11, 2003, when this Court refused the employer's appeal from the June 18, 2002, award of benefits, the applicable statute, W.Va. Code, 23-5-1 , provided for the correction, within 180 days, of orders resulting from a mistake or clerical error. That provision was later amended to permit the correction of "orders or decisions" within two years. Although, as the Insurance Commissioner indicates, a pay order does not ordinarily fall within the context of W.Va. Code, 23-5-1, a decision, apparently not reduced to writing, was necessarily made substituting Charles for Anna R. Johnson. That decision resulted in the issuance of the initial pay order in the substantial amount of $ 277,060.06. That amount and subsequent monthly pay orders were paid by the employer for the benefit of Charles. Thus, this Court finds persuasive the contention of the Insurance Commissioner that the employer, during those years, never sought the remedy provided under W.Va. Code, 23-5-1, when it knew that Charles L. Johnson was a workers' compensation dependent of Louis E. Johnson. After the first pay order in 2002, Lois J. Dudding, on July 22, 2003, completed the Workers' Compensation form concerning the continuation of benefits on which she named Charles as a dependent of Louis E. Johnson. Later, on September 2, 2003, Dr. Spetie completed a Workers' Compensation medical verification form and stated that Charles is diagnosed with schizophrenia and is in need of supervision.