A claimant who’s separated and living apart from decedent but not divorced is not entitled to dependency benefits under § 307(7) as he could not show he was actually dependent upon and received a substantial portion of support from decedent.

On appeal to the Commonwealth Court, the claimant argued that the Workers’ Compensation Judge erred in denying his fatal claim petition because there was evidence establishing that, although he was separated from the decedent at the time of her death, they could still be considered “living together” under § 307(7) of the Act. Although the decedent filed for divorce and the claimant moved to a townhouse thereafter, the divorce was never finalized, the claimant continued using a joint account for his personal use and the couple continued to file joint tax returns. Additionally, the couple jointly owned the marital residence and the decedent provided health insurance coverage for their children and the claimant.

The Commonwealth Court rejected the claimant’s argument, holding that the Workers’ Compensation Judge was correct in finding that the claimant and the decedent were living separate lives at the time of the decedent’s death and that the marital relationship existed in name only. The court further rejected the claimant’s argument that he received a substantial portion of support from the decedent through the health care benefits she provided through her employer, which in the year preceding the decedent’s death amounted to 25% of the family’s overall monthly expenses. The court concluded that this was considered by the Workers’ Compensation Judge, who correctly found that the benefits alone failed to establish that the decedent substantially contributed to the claimant’s support. The court also dismissed the claimant’s argument that joint tax returns from 2009 and 2010 showing negative income were further evidence of the substantial support he received from the decedent. The court pointed out that the claimant’s 2011 tax return showed that the year prior to the decedent’s death his income recovered following earlier business losses and that he earned significantly more than the decedent.

_{Case Law Alerts, 2^nd Quarter, April 2018}

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