West Virginia: No Dependency Established Where Daughter Had not Lived With Employee for 25 Years

In a memorandum decision that illustrates one of the several important distinctions between the tort law world, which tends to emphasize property rights (converting, if you will, even pain and suffering into a property interest), and the world of workers’ compensation law, which emphasizes income loss and dependency, the Supreme Court of Appeals of West Virginia affirmed a decision of the Workers’ Compensation Board of Review that denied dependent’s benefits and fatal dependent’s benefits to the daughter of aa worker who death was caused, at least in part, by coal workers’ pneumoconiosis [McClung v. Gaiser, 2019 W. Va. LEXIS 455 (Sept. 13, 2019)]. Observing that the claimant had not lived with her father in nearly 25 years and had not received money from him for roughly the same time period, the Court found the Board's decision was not clearly erroneous.

High Court’s Additional Rationale

The high court acknowledged that the claimant had not finished high school, suffered from bipolar disorder with psychosis and obsessive-compulsive disorder with psychosis, but also noted that the claimant was 39 years old, lived with her boyfriend, and had three children, for whom she cared without significant assistance (other than the boyfriend). The Court also observed that although the claimant had not lived with her father in a quarter century, other siblings did live with him. It also observed that, following her father’s death, claimant’s Social Security disability benefits increased under Social Security Law.

The Court agreed that the evidence did not support a finding that the claimant was an invalid. It indicated also that in establishing dependency, there must be a reasonable expectation on the part of the dependent that the decedent would continue to support him or her. The Board had concluded that the claimant did not rely on her father contributing to any part of her income.

Comment

This case illustrates that in most states, at the death of a worker for work-related causes, there is not created a property interest in which survivors share, but rather there is provided for a system of benefits to provide for the loss of income—if such a loss exists, as it did not in the instant case.