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                                 BRB No. 01-0470 

A'SHA BONDS                             )
(Grandchild of SAMUEL WIGGINS)          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
CERES MARINE TERMINALS                  )    DATE ISSUED:   02/14/2002
                                             
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order Denying Death Benefits of Richard K.
     Malamphy, Administrative Law Judge, United States Department of Labor.

     Ralph R. Lorberbaum (Zipperer & Lorberbaum), Savannah, Georgia, for
     claimant.

     Shari S. Miltiades (Shari S. Miltiades, P.C.), Savannah, Georgia, for
     self-insured employer.   

     Before:  DOLDER, Chief Administrative Appeals Judge, SMITH  and HALL,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Death Benefits  (2000-LHC-1379) of Administrative Law Judge Richard K. Malamphy 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. (the Act).  We must affirm the
findings of fact and conclusions of law of the administrative law judge if they 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,  A'sha Bonds, is the stepgrandaughter of Samuel Wiggins (decedent),
who was killed in a work-related accident on November 2, 1999.  Her grandmother,
Matilda Wiggins, was married to Samuel Wiggins for 17 years and lived with him
until his death.[1]   Mrs. Wiggins's daughter,
Angela Bonds, lived with the couple for 17 years prior to Mr. Wiggins's death and
continued to live with her mother after her stepfather's death.  Claimant, Angela's
daughter, was five years old at the time of the hearing, and, since birth, has
lived in the Wiggins's home.  The administrative law judge denied death benefits to both
Angela and A'sha Bonds, finding that neither was dependent upon decedent for over
half of their support  within the meaning of 26 U.S.C. §152(a), as required
by the latter half of Section 9(d) of the Act, 33 U.S.C. §909(d).[2] 

     On appeal, claimant contends that the administrative law judge erred in
finding that she  was not dependent upon decedent, and thus erred in finding that
she is not entitled to death benefits.  Employer responds urging, affirmance of the
denial of death benefits.

     Section 9(d) of the Act states: 

     If . . .  the amount payable to a surviving wife or husband and to
     children shall be less in the aggregate than 662/3 per centum of the
     average wages of the deceased; then for the support of grandchildren or
     brothers and sisters, if dependent upon the deceased at the time of the
     injury, and any other persons who satisfy the definition of the term
     "dependent" in section 152 of title 26, but are not otherwise eligible
     under this section, 20 per centum of such wages for the support of each
     such person during such dependency  . . .  But in no case shall the
     aggregate amount payable under this subdivision exceed the difference
     between 662/3 per centum of such wages and the amount payable as
     hereinbefore provided to widow or widower and for the support of
     surviving child or children.

33 U.S.C. §909(d).   The administrative law judge found that claimant failed to
satisfy the definition of the term "dependent" in 26 U.S.C. §152.   Section
152(a) defines "dependent" as:

     (a) General Definition.  For purposes of this subtitle, the term
      dependent' means any of the following individuals over half of whose
     support, for the calendar year in which the taxable year of the taxpayer
     begins, was received from the taxpayer (or is treated under subsection
     (c) or (e) as received from the  taxpayer).  
                                       ***
          (9)An individual (other than an individual who at any time during
     the taxable year was the spouse, determined without regard to section
     7703, of the taxpayer) who, for the taxable year of the taxpayer, has as
     his principal place of abode the home of the taxpayer and is a member of
     the taxpayer's  household.

26 U.S.C. §152(a); see also Angelle v. Steen Production Co., 34 BRBS
157 (2000).  With respect to claimant, the administrative law judge concluded  she
did not establish that over half of her support came from Mr. Wiggins. The
administrative law judge found that in order to establish that she received over
half of her support from Mr. Wiggins, the entire amount of her support  from all 
sources first would have to be established.   Decision and Order at 6,
citing Turecamo v. C.I.R., 554 F.2d 564 (2d Cir. 1977).  The
administrative law judge found that claimant received $150 per month in child
support from her father.  In addition, her mother testified she that spent $50 per
week on claimant's child care and $18 every two weeks on medical insurance that
covered both of them, and that she paid for claimant's toys and medical expenses. 
The administrative law judge found, however, that Ms. Bonds did not specify how
much of the $250 she retained each month after paying her expenses was spent on
claimant. The administrative law judge then found that even if the expenses
documented by Ms. Bonds constitute her total costs for claimant's support, the
record does not reflect how much support Mr. Wiggins provided for claimant, leaving
him unable to determine whether Mr. Wiggins provided over half of her support
during the applicable period.  Decision and Order at 6, citing Rivers v.
C.I.R., 33 T.C. 935 (1960).    

     On appeal, claimant contends that Mr. Wiggins's monthly payments of household
expenses should be divided by four, the number of persons in the house, and that
one-fourth should be attributed as his support for claimant.  Claimant argues that
the record establishes that decedent paid a monthly mortgage payment of $262.21,
utility bill ranging between $94 and $140, telephone bill averaging between $40 and
$45, and  the sewer  bill averaging $97.96 for every two months. Mr. Wiggins also
gave his wife approximately $150 per week or every other week to buy groceries for
everyone in the house, and Mrs. Wiggins would add her own money if she needed more
to cover the costs.[3]   Claimant calculates Mr.
Wiggins's total monthly household expenses as $1,166.67, of which one-fourth, or
$291.67, is his monthly support for claimant.

     We reject claimant's contention that this establishes that decedent provided
over one-half of her support.   Assuming, arguendo, that claimant's
calculation is valid, claimant still has not established that over half of her
support came from Mr. Wiggins.  Ms. Bonds spent approximately $200 per month on
child care for claimant, and claimant received $150 per month from her father. 
This is already more than half again as much as Mr. Wiggins "paid" to "support"
claimant.  Moreover, if one is to divide the household expenses by four, then Ms.
Bond's expenses should be divided by two, namely, half her car payments and
insurance payments should be attributed to claimant, or almost an additional $200
per month.[4]   Obviously, then, the money provided
to claimant  by Ms. Bonds and claimant's father for her support is more than half
of claimant's total support. Therefore, we affirm the administrative law judge's
finding that claimant was not "dependent" on Mr. Wiggins within the meaning of 26
U.S.C. §152(a) and is not entitled to death benefits under the latter half of
Section 9(d).[5]  

     Nonetheless, we cannot affirm the administrative law judge's denial of death
benefits, as the administrative law judge did not analyze claimant's "dependency"
status  under  Section 2(14) of the Act, 33 U.S.C. §902(14), and the first
part of Section 9(d).  Section 2(14) states, in relevant part:

     "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.  "Grandchild" means a child as above
     defined of a child as above defined...   "Child", "grandchild",
     "brother", and "sister" include only a person who is under eighteen
     years of age, . . . .

33 U.S.C. §902 (14).  Thus,  as a minor child of decedent's stepchild, as a
matter of law, claimant is decedent's "grandchild" under the Act.   Pursuant
to Section 9(d) a grandchild is entitled to death benefits if she was "dependent"
on the deceased at the time of injury.[6]   See
Myers v. Bethlehem Steel Co., 250 F.2d 615 (4th Cir. 1957).          

     It is well settled that, under the Act,  partial dependency is sufficient to
support an award of death  benefits to a minor child or grandchild, see 
id.; Michigan Transit Corp. v. Brown, 56 F.2d 200 (6th Cir. 1929), which
is a lesser standard than that required under 26 U.S.C. §152(a).    The United
States Court of Appeals for the Fifth Circuit has held that  "dependency" is defined by
its common meaning, i.e., "not self-sustaining,"or "relying on for support."
Standard Dredging Corp. v. Henderson, 150 F.2d 78, 80 (5th Cir. 1945);
see also Texas Employers' Ins. Ass'n v. Sheppeard, 62 F.2d 122 (5th
Cir. 1932); Jones v. St. John Stevedoring Co., Inc., 18 BRBS 68
(1986), aff'd in pert. part and rev'd on other grounds sub nom.  St. John
Stevedoring Co., Inc. v. Wilfred, 818 F.2d 397 (5th Cir. 1987), cert.
denied, 484 U.S. 976 (1987); Bonds v. Smith & Kelly Co., 21 BRBS 240
(1988); Bonds v. Smith & Kelly Co., 17 BRBS  170 (1985).   The United
States Court of Appeals for the Fourth Circuit has stated that the inquiry is whether the
claimant "depended, at least in part, for the maintenance of her accustomed
standard of living upon the contributions of the deceased." Norfolk Shipbuilding
& Dry Dock Co. v. Parker, 154 F.2d 560, 562 (4th Cir. 1946). 

      In Myers, 250 F.2d 615, decedent's married daughter was
separated from her husband and she and her son resided with decedent in  rented
housing. The court held that  decedent's minor grandchild was
dependent on the decedent even though his daughter was employed and able to pay for
her child's room and board. The decedent, however, paid some weekly amounts  toward 
his grandson's support, bought him shoes and clothing, and paid for his medical
expenses at the time of his birth.  The court was not impressed with the argument
that the grandchild should be deemed to have been supported by the small earnings
of the daughter and that the contributions made by the deceased were not necessary
to the child's support and should be considered as "mere gifts" to the daughter. 
As the grandson was  partially dependent upon the decedent, the court reversed the
deputy commissioner's denial of  death benefits.  Similarly, in Bonds, 21
BRBS at 242-243, the Board affirmed the award of death benefits to an acknowledged
illegitimate child, based on the administrative law judge's finding that she was dependent
upon the decedent.  The administrative law judge credited evidence that decedent paid $40
per week toward his daughter's support, and gave her gifts, and sometimes assisted
in paying for her clothes and food.   The Board held that gifts are relevant to the
issue of dependency, and stated that dependency may be found even when monetary
contributions are small.  Bonds, 21 BRBS at 243, citing Texas Employers'
Ins. Ass'n v. Shea, 410 F.2d 56 (5th Cir. 1969) (contributions to family
grocery bill and joint bank account "may be minuscule and minute support in terms
of dollars and cents" but are sufficient to establish dependency).

     As the administrative law judge did not address the issue of claimant's dependency
as a grandchild of the decedent, we must remand this case for further findings of
fact.  The administrative law judge must make the determination of dependency based
on all of the circumstances the case. See Sheppeard, 62 F.2d at 124;
Bonds, 21 BRBS at 242.   If claimant was partially dependent upon decedent,
she is entitled to death benefits.  33 U.S.C. §902(14), 909(d).

     Accordingly, the administrative law judge's Decision and Order Denying Death
Benefits to claimant is vacated, and the case is remanded to the administrative law
judge for further proceedings consistent with this decision.  The administrative law
judge's findings that Ms. Bonds is not entitled to death benefits and that claimant
was not dependent upon decedent within the meaning of 26 U.S.C. §152(a) are
affirmed.

     SO ORDERED.    


                                                                   
                         NANCY S. DOLDER,  Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.


1)The parties stipulated that Matilda Wiggins is presently being paid death benefits in the amount of $607.34 per week based on decedent's average weekly wage of $1,248.68. See 33 U.S.C. §909(b). Back to Text
2)The denial of death benefits to Angela Bonds is not challenged on appeal, and thus is affirmed. Back to Text
3)In addition to occasionally paying for groceries out of her salary, Mrs. Wiggins testified that she paid the monthly cable bill of $50.89. She stated that she never used her own money to pay the mortgage or other household expenses. Ms. Bonds testified that she did not contribute to the household expenses. Back to Text
4)Ms. Bonds's car payment equaled approximately $138 every two weeks. Her automobile insurance was $97 per month. Back to Text
5)The administrative law judge did not address whether claimant had her principal place of abode in Mr. Wiggins's home and was a member of his household. Nonetheless, these requirements would seem to be established as a matter of law. See Angelle v. Steen Production Co., 34 BRBS 157 (2000). In any event, our affirmance of the administrative law judge's finding that claimant did not establish that over half of her support was provided by Mr. Wiggins in the taxable year preceding his death makes the issue moot. Back to Text
6)As Mrs. Wiggins, decedent's widow, is receiving benefits in the amount of 50 percent of decedent's average weekly wage pursuant to Section 9(b), 33 U.S.C. §909(b), claimant, if eligible, would receive 162/3 percent of decedent's average weekly wage. 33 U.S.C. §909(d). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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