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A father who abandoned his son in infancy and refused to financially or emotionally support him is nonetheless entitled to half the death benefit owed to the son, who was killed in the Sept. 11, 2001, terrorist attacks, a divided appellate panel has held. The Appellate Division, 3rd Department, concluded that the Workers’ Compensation Law describes parent in strictly biological terms. Since the father’s parental rights were never formally severed, he is entitled to the same benefit afforded to the mother, who struggled on public assistance and raised two well-educated and successful sons, the court found. Its decision in Matter of Caldwell v. Alliance Consulting Group Inc., 93704, upholds a determination of the Workers’ Compensation Board. The case involves a 30-year-old man, Kenneth M. Caldwell, who was killed in the attacks on the World Trade Center, where he worked as a senior account manager with Alliance Consulting Group. Caldwell was not married and had no dependents. Caldwell’s mother, Elsie Caldwell, filed a Workers’ Compensation claim on behalf of her son. Her former husband, Leon W. Caldwell, intervened, claiming rights to half the death benefit. The Workers’ Compensation Board decided he was entitled to share equally in the $50,000 award. Thursday, the 3rd Department upheld that finding over a passionate dissent. The majority, led by Justice Robert S. Rose, treated the case as one of pure statutory construction. It said the statute entitling parents to a Workers’ Compensation death benefit defines “parent” solely as a matter of biology. The panel found nothing in the statute to suggest that the state Legislature in any way intended to qualify the definition of parent. “[P]arents who fail to provide for or who abandon their child are expressly disqualified by statute from inheriting from a child who dies intestate and from receiving the proceeds of an action for the wrongful death of the child,” Justice Rose wrote. “However, the Legislature provided no comparable exclusion in Workers’ Compensation Law … and this omission is an indication that no such exclusion was intended.” Justices D. Bruce Crew III, Edward O. Spain and Carl J. Mugglin concurred. Justice John A. Lahtinen dissented. Justice Lahtinen observed that Caldwell abandoned his son as a baby, moved to another state, made no effort to maintain contact with the boy, failed to provide either emotional or financial support and fell $20,000 behind in court-ordered support. In contrast, he said, the mother raised the boys on her own, working a series of jobs but sometimes having to rely on welfare. With her help, the court said, Kenneth graduated from college and maintained a successful career in Manhattan. Another son is a college professor at the University of Nebraska at Lincoln. The mother eventually opened her own tax preparation business. “Justice is not fostered by rewarding in any fashion a parent who purposely fails to provide any emotional, nurturing and/or financial support to a child,” Justice Lahtinen wrote. “It has been the concerted policy of this state — and, indeed, the nation — to attempt to require responsible conduct by individuals who procreate and not to allow a dividend to flow from dereliction.” Mrs. Caldwell’s attorneys, Gary Thompson and Timothy E. Delahunt of Gilbert, Heintz & Randolph in Washington, said they intend to appeal. “If the law doesn’t come to the aid of Elsie Caldwell under these facts, there is something wrong with the law,” Thompson said. Delahunt, who argued the case, noted that the Workers’ Compensation Act clearly bars an abandoning spouse from receiving death benefits. “There is really no basis to treat an abandoning parent different from an abandoning spouse,” he said. “A parent who abandons could not be an intended beneficiary.”

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