Child born after parent dies may be entitled to workers' compensation benefits

Law Reporter, Oct 2004

Keystone Masonry Corp. v. Hernandez, ____ A.2d ____, No. 680, Sept. Term 2003 (Md. Ct. Spec. App. Apr. 19, 2004).

A child born after a parent dies in an industrial accident may be found wholly dependent upon that parent, entitling the child to workers' compensation benefits, a Maryland appellate court held.

Here, Hernandez, a recent immigrant, was killed at work when a wall collapsed on him. He had three minor children living in El Salvador and had been sending diem money regularly. When the childrens' mothers, on behalf of the children, filed claims for benefits, Hernandez's employer contested, arguing the children were not wholly dependent on their father. The state workers' compensation commission agreed and denied the benefits. In a subsequent trial, a jury found that all three children were wholly dependent and were entitled to benefits.

Affirming, the appellate court first held that testimony presented at trial supported die jury's factual finding that the children were wholly dependent even though they received occasional aid from other sources. Although a claimant must not have had consequential sources of income other than that provided by the employee, the claimant need not show destitution to be considered a total dependent, the court said. Here, neither of the mothers received any permanent alternate income and thus the father's support was sufficient to prove total dependence.

In an issue of first impression, the court next determined that the youngest child, who was born after his father died, is wholly dependent even though his father never paid for his direct care. The state workers' compensation statutes provide that the term "child" includes posthumous children and that children who remain wholly dependent on deceased workers are entitled to file claims. Thus, the court determined, children born after their parent dies are entitled to file claims for benefits in the same way that children already born are entitled. In this case, essentially all of die childrcns' support, including the support of the unborn child, came from their father, and die children are endued to his workers' compensation benefits, the court said.