Tatar by Tatar v. New Millennium, Inc.

RAYMOND L. TATAR, Deceased Employee, by JANICE M. TATAR, Petitioner, v. NEW MILLENNIUM, INC., and ACCIDENT FUND CO., Employer-Insurer/Appellants.

DEPENDENCY BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that three of the employee=s stepchildren were wholly dependent within the meaning of Minn. Stat. ' 176.111, subd. 1, and another stepchild was a partial dependent within the meaning of Minn. Stat. ' 176.111, subds. 2 and 4, and that all were entitled to dependency benefits.

Attorneys: Jay T. Hartman and Tracy M Borash, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants. Louis R. Tilton and Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Respondent.

The employer and insurer appeal from the compensation judge=s determination that at the time of the work injury, the employee=s four stepchildren were his dependents within the meaning of the Minnesota Workers= Compensation Act, and that these children are entitled to dependency benefits. We affirm.

The facts in this case are essentially undisputed. On March 16, 2002, Raymond L. Tatar, the employee, sustained a personal injury while working in Minnesota for New Millennium, Inc., the employer, then insured by Accident Fund Company. The employee died as a result of the work injury on March 17, 2002. The employee=s weekly wage was then $1,186.20.

On the date of injury, the employee lived in Savanna, Illinois, with his wife, the petitioner, Janice M. Tatar, whom he married on March 24, 1997. Living with the employee and the petitioner in their Savanna, Illinois, home were the petitioner=s four children from a prior marriage.^[1]

The employee had two children, Chad and Cassie Tatar, from a prior marriage which ended in divorce. On the date of the employee=s injury, those children resided with their mother, Kathleen, in Dubuque, Iowa. The employee paid $1,096.00 per month in child support for these children.

Tax returns for the year 2000, showed the employee=s gross income was $50,500.00 and the petitioner=s gross income was $11,900.00. In 2001, the employee=s gross income was $40,571.67 while his wife=s income was $14,800.00. In addition, Mrs. Tatar received child support payments from her prior husband in the amount of $720.00 per month.

Prior to his death, Raymond and Janice Tatar maintained a joint checking account into which each of their paychecks was deposited. All household expenses were paid out of this joint checking account. These expenses included rent for their home,^[2] food for the family, utility bills, telephone, automobile and home insurance, transportation, medical expenses and clothing for the two Tatar children and the four Smith children. The four Smith children were covered under a medical and dental insurance plan carried by the employee.

On the date of the employee=s death, Francis, Adrienne and Brittany Smith were attending high school. Nicole Smith had previously attended a community college but was not in school on the date of the employee=s death. Adrienne moved out of the family home on October 21, 2002, when she turned eighteen.

The petitioner filed a claim for dependency benefits. The parties apparently agreed that the petitioner, Janice Tatar, and the employee=s natural children, Cassie and Chad Tatar, would be paid Minnesota dependency benefits. The employer and insurer, however, denied the four Smith children were dependents. That issue was tried before a compensation judge. In a Findings and Order filed August 26, 2003, the compensation judge found Adrienne, Brittany and Francis Smith were totally dependent children of the employee. The judge found Nicole Smith was a partially dependent child and ordered the employer and insurer to pay dependency benefits. The employer and insurer appeal.

Minn. Stat. ' 176.111, subd. 1, provides that children under 18 years of age or a child under the age of 25 years who is regularly attending as a full time student at a high school, college or university is conclusively presumed to be wholly dependent. A child is defined as a stepchild Awho was a member of the family of a deceased employee at the time of injury and dependent upon the employee for support.@ Minn. Stat. ' 176.011, subd. 2. In Langland v. State, Dep=t of Highways, 250 Minn. 544, 85 N.W.2d 736, 739, 20 W.C.D. 66,70-71 (1957), the court held A[t]he test of dependency is not whether the dependants could support life without the employee=s contribution but whether they received contributions, as part of their means of living, with substantial regularity.@

The appellants concede Adrienne, Brittany and Francis Smith were under 18 years of age and members of the employee=s family at the time of his injury. They contend, however, that substantial evidence does not support a conclusion that the employee made contributions to the support of Adrienne, Brittany and Francis Smith. They assert the employee=s net income in 2001 was $30,976.91 from which he paid $13,152.00 in child support payments which left $17, 824.91. From the amount remaining, some additional amount was spent on clothing and medical expenses for the employee=s natural children. In 2001, Mrs. Tatar had a net income of $12,763.87 and received child support of $8,640.00. Thus, the appellant=s argue, Mrs. Tatar=s contribution to the family was more than the employee=s contribution. Further, they contend, there is no evidence that the monies taken out of the joint checking account were used on an equal basis to pay for the children=s expenses. Nor, they argue, is there any evidence of payments from the joint checking account on behalf of the children with any substantial regularity. For these reasons, the employer and insurer contend substantial evidence does not support the decision of the compensation judge and ask that it be reversed. We are not persuaded.

Expenses for the Tatar household were paid out of Mr. and Mrs. Tatar=s joint checking account. Although Mrs. Tatar=s disposable net income may have exceeded that of Mr. Tatar, we cannot conclude this fact requires a determination that the Smith children were not dependent upon the decedent for their support. We find nothing in the statute or case law compelling a comparative income test limiting a child=s dependency to the spouse with the greater income. Rather, under the Langland case, the issue is whether the three Smith children received contributions, as part of their means of living, with substantial regularity. Both Mr. and Mrs. Tatar regularly deposited their paychecks into a joint checking account from which the bills were paid. Mrs. Tatar testified she paid the bills on a weekly basis. She first paid household expenses such as rent, utilities, food, car payments and insurance. Whatever was left over went for clothing or other family expenses. From this testimony, a compensation judge could reasonably conclude the employee regularly contributed to the means of living of the three Smith children. Substantial evidence supports the compensation judge=s finding that Adrienne, Brittany and Francis Smith were wholly supported dependants under Minn. Stat. ' 176.111.

The compensation judge found Nicole Smith was a partial dependant under Minn. Stat. ' 176.111, subd. 4, which provides that any child Awho regularly derived partial support from the wages of a deceased worker at the time of death and for a reasonable time prior thereto is considered a partial dependent.@ The employer and insurer contend this finding is unsupported by substantial evidence. We disagree.

Prior to the employee=s death, Nicole Smith attended Highland Community College. Mr. and Mrs. Tatar paid her tuition. On the date of injury, March 16, 2002, Nicole Smith was 18 years of age and residing with the Tatar family. There is no evidence Nicole Smith was employed or self-supporting prior to or at the time of the employee=s death. The compensation judge could reasonably conclude Nicole was a member of the deceased=s family and dependent upon the employee for support and thus was a child within the meaning of Minn. Stat. ' 176.011, subd. 2. As a member of the Tatar household, Nicole Smith received the same financial benefits as the three minor children with the same substantial regularity. The evidence supports the conclusion that Nicole Smith derived partial support from the wages of the deceased. We must, therefore, affirm the compensation judge=s decision.

^[1] Janice M. Tatar was previously married to Fred Smith. They were divorced in 1988.

^[2] The rent was $150.00 a month payable to Mrs. Tatar=s parents.