BRB No. 97-1445
DORETHA GILLIAM )
(Widow of LEONARD GILLIAM) )
)
Claimant-Respondent ) DATE ISSUED: 07/15/1998
)
v. )
)
WESTERN UNION TELEGRAPH )
COMPANY )
)
Self-Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Decision and Order of Stuart A. Levin, Administrative Law
Judge, United States Department of Labor.
Judy L. Woodall (Regan Associates, Chartered), Washington, D.C., for
claimant.
Amy L. Epstein (Mell, Brownell & Baker), Washington, D.C., for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (96-DCW-0013) of Administrative Law
Judge Stuart A. Levin rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (1982), as extended by the District of Columbia Workmen's
Compensation Act, 36 D.C.Code §§501, 502 (1973)(the Act). We must affirm
the findings of fact and conclusions of law of the administrative law judge which
are rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965);
33 U.S.C. §921(b)(3).
Claimant is the alleged widow of Leonard Gilliam (decedent), who suffered a
permanent total disability as the result of an injury sustained during the course
of his employment on March 10, 1970, and died on December 5, 1995. The only issue
before the administrative law judge was whether claimant is decedent's "widow"
under Section 2(16), 33 U.S.C. §902(16), and thus entitled to death benefits
under the Act. See 33 U.S.C. §909(1982) (amended 1984). In addressing
this issue, the administrative law judge found the pertinent facts which we
summarize as follows:
1. Claimant and decedent were legally married on October 31,
1949, and remained married until the time of his death;
2. Ten children were born of this union;
3. Decedent suffered a permanent total disability arising from
a work injury in March 1970;
4. Sometime between 1971-1973, decedent left the marital home
of his own volition; claimant has continuously lived in the marital home for
approximately 35 years.
5. Decedent thereafter provided no support for his wife and
their ten children;
6. Decedent was awarded permanent total disability
compensation plus moving expenses on May 11, 1977;
7. Decedent moved to California sometime after the award but
returned to the D.C. area at an unspecified time approximately
four years later;
8. At that time decedent attempted to return to the marital
home, stating "he wanted his home back," but claimant refused
to allow him access;
9. Claimant described decedent as a controlling husband, a
consideration which combined with his abandonment led to her
refusal to condone his desertion and allow him to return to
the home; claimant was afraid of decedent "to some extent;"
10. Claimant twice attempted to obtain a divorce;[1]
11. Claimant never entered into another relationship; and
12. Claimant occasionally cooked meals for decedent, HT at 29,
and socialized with him on family occasions. HT at 41-41.
Decision and Order at 3.
Based upon these facts, the administrative law judge found that decedent had
deserted claimant and their ten children as evidenced by his leaving the marital
home; moreover, the administrative law judge found that decedent's failure to
provide financial support to either claimant or their children, coupled with his
desertion of claimant and his controlling behavior towards her, constituted
justifiable cause for their living apart. Next, the administrative law judge found
that a conjugal nexus was maintained despite the separation as evidenced by
claimant's not obtaining a divorce, by her remaining in the marital home, by her
undertaking no other permanent relationship, by her continuing contacts with
decedent, and by her maintaining all of the "attendant benefits and burdens the
marital status imposed upon her until the date of Decedent's death." See
Decision and Order at 4. Accordingly, the administrative law judge found
claimant to be decedent's statutory widow and entitled to benefits under the Act.
On appeal, employer contends that the administrative law judge erred in
finding claimant to be decedent's widow as defined by the Act; alternatively
employer asserts that claimant did not bear her burden of establishing that she was living apart from decedent for justifiable
cause or by reason of his desertion at the time of his death or that a conjugal nexus remained between herself and decedent.
Claimant responds, urging affirmance.
Section 2(16) of the Act states that the term "widow or widower" includes
"only the decedent's wife or husband living with or dependent for support upon him
or her at the time of his or her death; or living apart for justifiable cause or
by reason of his or her desertion at such time." 33 U.S.C. §902(16). The
plain language of Section 2(16) indicates that its clauses are to be read in the
disjunctive; that is, a widow or widower is a wife or husband who, at the time of
the employee's death, is living with the employee, or is dependent for support upon
the employee, or is living apart from the employee for justifiable cause, or is
living apart by reason of desertion. See 33 U.S.C. §902(16). See
also Griffith v. Bath Iron Works, 25 BRBS 26 (1991); Kennedy v. Container
Stevedoring Co., 23 BRBS 33 (1989).
Employer initially argues that decedent did not desert claimant.
Specifically, employer contends that decedent's move to California was purely
motivated by health reasons. Moreover, employer asserts that, unlike the husband
in Hicks v. Southern Illinois University, 19 BRBS 222 (1987),[2] decedent herein attempted to return to the
marital home and, therefore, had not deserted claimant. General Dynamics Corp.
v. Director, OWCP [Murphy], 585 F.2d 1168 (1st Cir. 1978).[3] We reject employer's contention of error.
Initially, we note that employer does not address the fact that decedent moved out
of the marital home approximately six years prior to his temporary relocation to
California. Moreover, employer does not account for the fact that decedent
initiated no contact with claimant in the years prior to his death. Based upon a
review of the record, we hold that the administrative law judge's finding that
decedent deserted claimant is supported by substantial evidence in the record.
Employer has not identified any error committed by the administrative law judge in
weighing the evidence and in making credibility determinations. See Cordero v.
Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert.
denied, 440 U.S. 911 (1979). Accordingly, we affirm the administrative law
judge's finding that decedent deserted claimant, and his consequent finding that
this desertion constituted justifiable cause for claimant and decedent to be living
apart.
Employer additionally contests the administrative law judge's finding that a
conjugal nexus existed at the time of decedent's death, noting that on two
occasions claimant initiated divorce proceedings against decedent. The
administrative law judge fully considered and rejected this argument, noting that
claimant abandoned her first divorce proceeding at decedent's request, that
claimant never prosecuted the second proceeding to completion, and that there is
no indication that claimant intended to end the legal context of her marriage in
the years immediately preceding decedent's death. See Decision and Order
at 4. Moreover, the administrative law judge specifically found that claimant
demonstrated a conjugal nexus by virtue of her continuing to live in the marital
home and never entering into another permanent relationship. Id. Based upon
the foregoing, we hold that the administrative law judge's finding of a conjugal
nexus is supported by substantial evidence and is in accordance with law. See
Hicks, 19 BRBS at 222. We therefore affirm the administrative law judge's
finding in this regard.
Accordingly, the administrative law judge's Decision and Order Awarding
benefits to claimant as the widow of decedent is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)In the first attempt, claimant discontinued the proceedings at decedent's request. HT
at 24-26. In the second instance, she lacked the financial resources to complete the divorce. HT at 28.
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2)In Hicks, although the wife threw the husband out, it was held that the husband
actually or constructively deserted his pregnant wife by not attempting to come back to the home to live or to
act in a responsible manner toward the wife and child. Hicks, 19 BRBS at 222.
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3)In Murphy, the husband left upon finding his wife in bed with another man, but
would periodically return, conceiving a child during one such period and intermittently contacting the wife, who
received no support. This was held to be a "deserted wife" since she had no relationships with other men, had
not sought support, and was willing to resume the marital relationship. Murphy, 585 F.2d at 1168.
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NOTE: This is an UNPUBLISHED LHCA Document.
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