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The Workers’ Compensation Act is unfair with regard to distributing benefits to children who do not live with the widow of an employee killed on the job, the Pennsylvania Commonwealth Court intimated in a recent opinion. The act gives the majority of potential benefits to the widow of a deceased employee and provides for that widow to receive even more money if there is a child in the family. But the statute ignores a situation like the one presented in Snader v. Workers’ Compensation Appeal Board, where the child and the widow are part of separate households. The court was therefore constrained to deny the petition of a decedent’s son who requested a bigger portion of his father’s benefits. But the court acknowledged the detriments of its decision and seemed to be asking the Legislature to look at remedying the current state of the law. “We would be remiss … if we did not point out that, under certain circumstances, such as those presented here, application of Section 307 of the act will result in inequitable treatment for dependents of a deceased employee,” Commonwealth Court Judge Rochelle Friedman said in the opinion. “Indeed, we can easily envision a variety of situations where adherence to the distribution scheme devised by the Legislature will lead to outcomes even more troublesome than the one we consider today. Although we recognize that such inequities are a matter for the Legislature, not this court, to cure, we appreciate that facts such as these create a legislative imperative to do just that.” The father, Wayne Kenneth Snader, died during the course and scope of his employment with Arthur A. Brenize Trucking Services in a motor vehicle accident. In addition to his son, Luke, who lived with his birth mother since the time she and Snader separated, Snader was survived by his widow, Tracy Snader. Wayne was earning $378 per week at the time of his death. The employer’s workers’ compensation carrier, State Workmen’s Insurance Fund (SWIF), agreed to pay Tracy Snader $193, or 51 percent of Wayne’s earnings, in benefits. Luke also filed a fatal claim petition. SWIF contested his eligibility at first because Luke did not live with Wayne at the time of his death. During a hearing on the petition, however, SWIF was persuaded by the testimony of Luke’s mother about the degree of dependence Luke had on Wayne to find that the son was partially dependent on his father. SWIF agreed to pay Luke survivors’ benefits at the rate of nine percent of Wayne’s average weekly wage. SWIF had therefore agreed to pay a total of 60 percent of Wayne’s average weekly wage. Luke filed a review petition, finding that the division of workers’ compensation benefits between himself and Tracy Snader, considering the 60 percent cap, was wrong. He wanted modification of the agreement so he would receive 32 percent of Wayne’s benefits and Tracy Snader would receive 29 percent. Luke also filed a petition seeking to join Tracy Snader as an indispensable party to the proceedings. The workers’ compensation judge consolidated the petitions. The WCJ ultimately granted the fatal claim petition and the joinder petition. However, the review petition was denied. The WCJ cited Section 302(2) and (3) of the Workers’ Compensation Act and 77 P.S. Section 561(2) and (3), which state that a widow or widower will receive 51 percent of the decedent’s wages if “there be no children.” If there is one child, the statutes say, the widow will receive a maximum of 60 percent of wages. Luke appealed to the WCAB, but the board affirmed the WCJ’s decision. On appeal to the Commonwealth Court, Luke argued neither of the lower tribunals addressed his “unique” issue: “how should workers’ compensation fatal claim benefits be distributed when a decedent is survived by a widow and minor child, but the child is unrelated to the surviving widow and does not live with her.” He claimed they dismissed his review petition without explaining why. In a footnote, the court said that was not true, that both the WCJ and WCAB found the relevant statutes precluded a ruling in Luke’s favor. The court also disagreed that the allocation of benefits was done in error. Luke argued that the statutes assumed that the widow and child live together and does not address a situation like his. “[Luke] contends that, under these circumstances, the payment schedule is patently unfair and extremely deficient with respect to [his] needs,” Friedman said. As proof, Luke argued that the $34 per week SWIF paid in benefits did not even cover the $50 Wayne had paid in child support, let alone the amount Wayne had paid in insurance coverage and additional financial support. “Thus, [Luke] suggests that a far more equitable distribution of the maximum 60 percent allotment would provide half of that amount to each party, entitling each to receive 30 percent of [Wayne's] average weekly wage,” Friedman said. “However, even assuming the merit of [Luke's] equity argument, we must agree with the WCAB that [Luke's] contention that the WCJ improperly denied his petition for increased survivors’ benefits has no basis in the act or in case law.” The WCAB had relied on a 1971 state Supreme Court case, Anderson v. Borough of Greenville, in which the justices said that under Section 561, children are entitled to compensation in their own right only when the deceased is not survived by an eligible widow. Friedman said the Commonwealth Court agreed that the section indicates that the surviving spouse should be compensated first and the surviving children serve to increase that compensation to the widow. Luke was also asking the court to disregard case law regarding Section 307, Friedman said, although she seemed sympathetic to his plight. “We understand [Luke's] frustration. Although the fact pattern does not seem particularly extraordinary in these times, and despite the many amendments to the act since its enactment in 1915, Section 307 appears to make no provision for a situation where a decedent is survived by a spouse and minor child who are not related and do not live together,” Friedman said. “Seemingly, the Legislature fails to recognize the changes to Pennsylvania divorce law that made divorce a more realistic and, thus, more frequently sought, option for couples; a situation that, in turn, makes family arrangements once thought unique almost commonplace.” There is simply no language in the statutes giving surviving children the right to half of the available 60 percent of wages, Friedman said. Friedman also pointed out that the action was not a true case of first impression. The 1937 case Cole v. Keystone Public Service Co., from the Superior Court, presented the same issue. “In Cole, the sole question before the court involved the division of compensation payable under the provisions of Section 307 of the act as between the widow of the decedent and the decedent’s son by a former marriage who lived with his grandmother,” Friedman said. “Interestingly, the arguments made on behalf of the son in Cole duplicate those made here by [Luke] and the result reached in Cole, which was affirmed by the court, is identical to the one provided by the WCJ and the WCAB in this case.”

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