The Benefits Review Board (“BRB”) published a new opinion addressing the definitions of “child” and “dependent,” as used in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). During his employment for a number of employers, Claimant’s father (“Decedent”), was allegedly exposed to asbestos and welding fumes. After Decedent passed away, Claimant’s mother filed a claim for death benefits. Claimant also filed a claim for death benefits as a wholly dependent, disabled “child.” At the time of Decedent’s death, Claimant was an adult.
At the outset, the administrative law judge (“ALJ”) determined that Claimant was not a “child” under Section 9(b) of the LHWCA. Section 9 provides for the payment of benefits to a surviving child, or surviving children, following the work-related death of their parent. But, the claimant must be a “child,” as defined by Section 2 of the LHWCA, 33 U.S.C. § 902(14):
“Child” shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him. . . . “Child” . . . include[s] only a person who is under eighteen years of age, or who, though eighteen years of age or over, is (1) wholly dependent upon the employee and incapable of self-support by reason of mental or physical disability, or (2) a student . . . .
Here, Claimant’s age was not disputed. He was over the age of eighteen at the time of Decedent’s death. Accordingly, the ALJ was tasked with determining whether Claimant, “at the time of the [D]ecedent’s death, was wholly dependent upon the [D]ecedent and incapable of self-support by reason of mental or physical disability.” The ALJ did not think so, and the BRB upheld the ALJ’s determination:
In her decision, the [ALJ] found that, as claimant received monthly Social Security disability benefits at least three times greater than the monthly sums he received from the decedent, claimant “was by no stretch of the imagination ‘wholly’ dependent upon the [decedent] when [the decedent] died.” In challenging the [ALJ’s] finding on this issue, claimant asserts that the decedent gave him between $200 and $400 per month and acknowledges that at the time of the decedent’s death he was receiving monthly Social Security disability benefits of $1,357.80, before deductions. Claimant avers, however, that the [ALJ] erred in taking into account claimant’s monthly Social Security benefits since, he asserts, the “public benefits a disabled relative receives should not affect whether he or she meets the . . . ‘wholly dependent’ criterion” necessary to establish the applicability of Section 9(b) of the [LHWCA]. As noted in the response briefs filed by employers, claimant has cited no statute, case precedent or authority supportive of his argument that public benefits received by a claimant should be excluded from consideration in determining whether that claimant was “wholly dependent” upon the employee for Section 9(b) purposes. . . . Based on claimant’s receipt of these [Social Security] benefits, we affirm the [ALJ’s] determination that claimant was not wholly dependent on the decedent at the time of the decedent’s death . . . .
Finally, the BRB denied Claimant’s attempts to define himself as a “dependent” under the LHWCA. Pursuant to Section 9(d) of the LHWCA, a person who is not otherwise eligible for death benefits may still collect death benefits if they qualify as a “dependent.” The LHWCA uses the Internal Revenue Code’s definition of “dependent,” 26 U.S.C. § 152, which states in pertinent part:
For purposes of this subtitle, the term “dependent” means (1) a qualifying child, or (2) a qualifying relative.
. . .
The term “qualifying child” means, with respect to any taxpayer for any taxable year, an individual–
. . .
(D) who has not provided over one-half of such individual’s own support for the calendar year in which the taxable year of the taxpayer begins . . . .
What does that mean? It means that a potential “dependent” must not have provided over one-half of his own financial support. Here, Claimant received $1,357.80 in monthly Social Security benefits, which was more than four-times greater than the $325 per month he received from decedent. Accordingly, the ALJ determined that Claimant was not a “dependent,” under the Internal Revenue Code or the LHWCA. Further, the ALJ’s and the BRB’s determination was supported by Internal Revenue Service Publication 501, which states: “If a child receives social security benefit and uses them toward his or her own support, the benefits are considered as provided by the child.”
Smith v. MT. Mitchell, LLC, BRB No. 13-0198, 2014 WL 795369 (2014) (published).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)