E-Alert Case Updates

Separated Wife Was “Actually Dependent” On Husband For Death Benefits

Sifford v. Sifford
(Va.) (Oct. 11, 2011)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Gina Sifford, (“Mrs. Sifford”) appealed the decision of the Virginia Workers’ Compensation Commission, which found that she was not an “actual dependent” of her husband, Anthony Sifford (“Mr. Sifford”), deceased, under VA. CODE ANN. § 65.2-515(A)(1), and therefore, was not entitled to death benefits under VA. CODE ANN. § 65.2-512. Mr. and Mrs. Sifford (the “Siffords”) were married September 10, 1988. Two children were born of that union, one now an adult, and one who is a minor. During the marriage, the parties purchased a home that they shared as their marital residence.

Mr. Sifford worked full-time as a truck driver, during the marriage, and Mrs. Sifford worked part-time, earning approximately $600.00 per month. She testified at the Workers’ Compensation Commission hearing that she was dependent on her husband’s income. In January 2008, due to marital difficulties, the Siffords moved into separate bedrooms within their marital home.

On May 5, 2008, the Siffords entered into a written settlement agreement, which stated their intent to resolve their respective rights and duties as to custody in support of the minor child, as well as support for each other. Mrs. Sifford testified that Mr. Sifford paid the following expenses: house payment, health insurance, homeowner’s insurance, life insurance, taxes, utilities, cable bill, and cell phone bill. Mr. Sifford testified that she never reimbursed her husband for any of those payments.

At the time she executed the agreement, Mrs. Sifford testified she could not survive on the $600.00 per month that she earned from her part-time employment. On September 15, 2008, Mrs. Sifford began working 35 hours per week earning $11,000.00 per year. Mr. Sifford died on September 24, 2008 in a work-related accident.

Mrs. Sifford’s claim for death benefits was denied by the deputy commissioner. The commissioner found that there was no evidence that Mr. Sifford paid any additional money to his wife or that her “station in life” required extra money from him. The commissioner found that the couple reached their settlement agreement for the benefit of their minor child, not for the benefit of Mrs. Sifford. Moreover, Mrs. Sifford obtained a better job; although, she was not earning what her husband earned, but that was not something to be considered.

Mrs. Sifford argued that she was entitled to death benefits under VA. CODE ANN. § 65.2-512, because she was “actually dependent” upon her husband at the time of his death, pursuant to VA. CODE ANN. § 65.2-515. The sole issue before the Court of Appeals of Virginia then was whether Mrs. Sifford was “actually dependent” on Mr. Sifford.

Under VA. CODE ANN. § 65.2-512(A)(1), if death results from an accident covered by workers’ compensation, the decedent’s employer must pay death benefits “to those persons presumed to be wholly dependent upon the deceased employee as set forth in sub-division (A)(1), (A)(2), and (A)(3) and VA. CODE ANN. § 65.2-515.” Under VA. CODE ANN. § 65.2-515(A)(1), a wife is conclusively presumed to be dependent “upon a husband whom she had not voluntarily deserted or abandoned at the time of the accident or with whom she lived at the time of his accident, if she is then actually dependent upon him.” To be “actually dependent” under this section, the wife “need only establish partial dependency.” However, she must prove that her husband “contributed with some degree of regularity, and such contributions must have been relied upon by the claimant for reasonable necessaries consistent with . . . her station in life.”

Virginia case law defines dependency under what is now VA. CODE ANN. § 65.2-515 as meaning that, “the claimant looked to and relied on the contributions of the employee, ‘“in whole or in part, as means of support and maintenance in accordance with his or her social position and accustomed mode of life.”’” It is clear from Virginia case law that one need not be destitute or wholly dependent on the decedent to be “actually dependent.”

The effect of the Siffords’ separation agreement was to provide regular support for Mrs. Sifford, as well as to address the benefits of their minor child. The uncontroverted evidence supported Mrs. Sifford’s claim for death benefits. She relied upon her husband to maintain her accustomed standard of living. She lived in the marital home rent-free. Mr. Sifford paid all household expenses, including the mortgage, utilities, and cable bill. He also paid all taxes. Mr. Sifford carried health, dental, and optometric insurance on both Mrs. Sifford and the children. Mr. Sifford also paid for the insurance on Mrs. Sifford’s car and paid her cell phone bills. Mrs. Sifford did not and was not expected to reimburse Mr. Sifford for any of these expenditures. The parties commingled their earnings into a joint checking account. Finally, Mrs. Sifford testified she could not survive on her part-time earnings. This overwhelming, uncontroverted evidence clearly demonstrated that Mrs. Sifford relied on Mr. Sifford for her reasonable necessaries.