GQ Corner
Q. I have a compensable fatal claim with a question about beneficiaries. The Deceased, Jack, had been married for 1.5 years and has one child with his current wife, Shelby. Shelby has two minor children from a previous marriage who lived with Jack and Shelby at the time of Jack’s death. There is no child support being paid for these two children but Jack has never adopted the children. It appears Jack was providing financial support for the children because they were living under his roof.
Jack also has two minor children from a previous marriage. He had been paying child support on their behalf but there was a recent Order to stop the support. Apparently, he had moved next door to his ex-wife and was assisting raising the kids so that is why the Order was lifted.
To summarize, we have a total of 5 minor children. One child from Jack and Shelby’s relationship (we would owe), two children from Shelby’s prior relationship (do we owe?) and two children from Jack’s prior relationship (do we owe?).
A. They could all potentially be entitled to Death Benefits. All the biological children are entitled, whether or not the prior marriage kids are still receiving child support payments. The two children from Shelby’s prior marriage are going to need to establish that they are dependent stepchildren under the Act. Rule 132.4(d) states that a person claiming benefits as the dependent stepchild of the deceased shall prove that the deceased was married to their parent and that they were dependent on the deceased (probably your scenario).
Q. A school food service worker was “asking her supervisor a question” while in the kitchen. Her injury happened when she stepped back and stepped on her 6 year old daughter. The claimant explained that her daughter is always with her at work until the bell rings for school to start. We have confirmed that the injury occurred during the claimant’s normal work hours. However, we do not know what the claimant and her supervisor were talking about at the time of the fall.
If the conversation was not about work, would that be enough to determine the claimant was not in course and scope? If not, would the claim be compensable?
Does having the claimant’s child there have any bearing on the compensability of the claim? Would the claimant deviate enough when she was performing duties as a mother rather than an employee?
While the supervisor was aware of the child being there, the Principal was not and is not very happy. Is the claim compensable and the child’s presence is just an employer issue?
A. I am of the opinion that the claim is compensable. The fact they may have been discussing something non-work related doesn’t remove the injury from compensability. The facts are similar to the Yeldell case where the employee was injured while engaged in a personal telephone conversation while at work. The Personal Comfort Doctrine arguably makes the claim compensable. The child’s presence certainly complicates things, and you have to consider whether that fact removes the employee from the course and scope of employment. It is apparent that the claimant was on the job and “on the clock”, and it does not appear that she had engaged in a major deviation from her duties when she was injured. Any potential violation of a work rule would not affect the scope of her employment so as to remove her from coverage. I believe that her child being there is an employer issue, as you say, and not something that would bear on the compensability determination.
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