CASE NO. 739 CRD-5-88-6Workers’ Compensation Commission
FEBRUARY 4, 1991
The claimant was represented by James P. Brennan, Esq., Carmody
Torrance.
The respondents were represented by Richard T. Stabnick, Esq., Anne Kelly-Zovas, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the June 10, 1988 Finding [and] Award of the Chairman acting for the Fifth District was heard on August 18, 1989 before a Compensation Review Division panel consisting of Commissioners Robin Waller, Andrew Denuzze, and James Metro.
OPINION
ROBIN WALLER, COMMISSIONER.
The claimant’s son was killed as a result of a compensable injury on June 30, 1987. Thereafter respondents paid the statutory death benefit of $3,000. The claimant then filed a claim for compensation benefits contending that she was a dependent within the meaning of Section 31-306(b)(6) C.G.S.
The trial commissioner found that claimant was a dependent in fact relying partially on the contributions of the decedent for her support. The decedent was 26 years old at the time of death and had lived continuously at home with her. For the last five years he had contributed $30 a week to her support.
At the time claimant was earning approximately $20,000 per year. In addition, her estranged husband paid her $50 per week. However two other children lived at home, neither of which contributed to her support, and one of which she claimed as a dependent on her income tax. She owned the residence with her estranged husband, but she paid the monthly mortgage of $317.
Claimant received the $10,000 proceeds of an insurance policy upon the decedent’s life. However, the trial commissioner found that at the time of the hearing claimant’s house insurance and car insurance payments were in arrears. He concluded therefore that claimant’s economic circumstances had not appreciably changed since the time of death and that she was entitled to receive $30 per week as a dependent in fact pursuant to Section 31-306(b)(6) C.G.S.
“(6) In all cases where there are no presumptive dependents, but where there are one or more persons wholly dependent in fact, the compensation in case of death shall be divided according to the relative degree of their dependence. Compensation payable under this subdivision shall be paid for not more than three hundred and twelve weeks from the date of the death of the employee. Such compensation, if paid to those wholly dependent in fact, shall be paid at the full compensation rate. Such compensation, if paid to those partially dependent in fact upon the deceased employee at the time of his injury, shall not, in total, be more than the full compensation rate nor less than twenty dollars weekly, nor, if the average weekly sum contributed by the deceased at the time of the injury to those partially dependent in fact is more than twenty dollars weekly, not more than the sum so contributed.”
Respondents assign as error the conclusions that claimant was a dependent in fact and that her economic circumstances had not changed appreciably since the decedent’s death. They contend that claimant’s combined income from all sources would put her beyond the category of a dependent in fact for the sums claimant received from the decedent were so small that she could hardly have been said to be dependent on them. However the receipt of a sum smaller than that which the claimant earned does not preclude her from qualifying as a dependent. As early as 1916, the Supreme Court pointed out:
“We agree with the claimant, that mere ability to earn a livelihood will not prevent one from becoming a dependent and even though the person furnishing the support possess less income than the alleged dependent, this will not necessarily prevent the existence of a condition of dependency.” Blanton v. Wheeler Howes Co., 91 Conn. 226, 232 (1916).
The test of whether a claimant is a dependent in fact has been enumerated a number of times by the Supreme Court. The most recent recitation of that criteria appears in Wheat v. Red Star Express Lines, 156 Conn. 245, 251
(1968) quoting Gagliardi v. Downing Perkins, Inc. 152 Conn. 475, 480
(1965):
“The status of a dependent in fact . . . involves three factual elements: (1) reliance on the contribution of the decedent for necessary living expenses, judged by the class and position in life of the claimant; (2) a reasonable expectation that the contributions will continue; (3) an absence of sufficient means at hand for meeting these living expenses.” (citation omitted)
The trial commissioner found facts, borne out by the record which are sufficient to meet the criteria set forth above. He concluded that claimant did rely on the decedent’s payments by virtue of finding that they amounted to approximately seven percent of her income and that they were necessary for her support. Furthermore the Court points out that the test of dependency is not necessity but reliance,
“Moreover the test of dependency is not whether the sums received were necessary for the support of the plaintiff’s life only, but whether the contributions of the decedent were relied upon by her. . . .” O’Dea v. Chicago Bridge
Iron Works, 119 Conn. 37, 40 (1934)
There was evidence, in the form of claimant’s testimony, that she expected the decedent’s payments to continue. By finding that the decedent was dating young women but was not engaged, and that he had made contributions for the previous five years, the commissioner could infer that claimant had a reasonable expectation that the contributions would continue.
The claimant’s testimony reveals that she used decedent’s contributions to meet usual household expenses and that her finances required her to live day to day. From the finding that she was in arrears in home insurance and car insurance payments, the commissioner could infer that she had an absence of sufficient means at hand for meeting living expenses. The transcript also reveals that the statutory burial allowance was not enough to meet the funeral expenses.
There is ample evidence on which the trial commissioner could conclude that claimant was a dependent in fact. In order to reach the respondents’ conclusions, a retrial of the facts and a reevaluation of the testimony would be required. However the role of a reviewing tribunal is not to provide a trial de novo. As long ago set forth in another dependency case, Chief Justice Wheeler stated that
“The court cannot review conclusions of fact made by a commissioner which merely concern the weight of evidence and the credibility of witnesses; and rulings of this character are the only ones involved in this decision of the partial dependency of this claimant.” Powers v. Hotel Bond Co., 89 Conn. 143, 153 (1915)
Unless the commissioner has misapplied the law or found facts without evidence, we cannot review these findings, Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). There is nothing in the record which reveals that facts were found without evidence or that there was a failure to find material facts which were admitted or undisputed, Wheat v. Red Star Express Lines, supra at 248. Therefore the commissioner’s findings and conclusions must stand.
Finally, in the claimant’s brief, a claim is made for cost of living increases. This issue was not raised at the time of trial nor was an appeal taken by the claimant assigning this issue as a source or error. We therefore need not consider this issue. Botelho v. Power Systems, 4 Conn. Workers’ Comp. Rev. Op. 92, 331 CRD-1-84 (1987). See also, Kiernan v. Roadway Express, Inc. 15 Conn. App. 625 (1988); Practice Book Sec. 4185.
We therefore affirm the decision below and dismiss the appeal.
Having concluded that the appeal should be dismissed, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal for which respondent was liable after the trial commissioner’s ruling in this matter.
Commissioners Andrew Denuzze and James Metro concur.