Opinion
May 1, 1967
Appeal by an employer and its insurance carrier from a decision awarding death benefits to the decedent employee's mother and four minor brothers and sisters, found by the board to have been partially dependent upon him; the appeal presenting the question of dependency as the sole issue. Appellants' argument is directed principally to a list prepared by decedent's mother of the monthly household expenses of her family of seven, which included her husband and five children; but it is apparent that the total of $393 represents, as respondents contend, minimal survival standards upon which, in the absence of emergency or misfortune, the family could if necessary exist. The family's actual standard of living, as constituted by decedent's and his father's contributions, was somewhat higher. The actual contributions made by the decedent's grandmother and aunt to the food bill, in excess of the cost of the food that these two consumed, does not appear. The father's wages as reported for withholding tax purposes amounted to $1,560 for a year and he had, also, an uncertain income from automobile repair work of "about" $40 or $50 per week, some weeks being better than others and some weeks yielding nothing, all as against undisclosed costs. Even the regular earnings of the father fluctuated and his outside work, described by one witness as "hit or miss", was intermittent and at best uncertain. The proof was that the father and the decedent contributed all of their earnings to the support of the family, those of decedent being found by the board to have been "no less than $25 a week and probably as high as $75 a week"; that all their contributions were used solely for support and were fully consumed for that purpose. The board properly found, "taking into consideration the size of the family and the income of the father, that support for the family was meager, and financial dependency is established". As was the case in Matter of Holloway v. Camp Hatikvah ( 14 A.D.2d 638), the proof "established a pattern of contributions to the family on the part of the decedent from his earnings" and, as we held there, "it was reasonable for the board to infer that the family was detrimentally affected by the loss of decedent's modest contributions." (And see, also, Matter of Virkler v. B.R. De Witt, Inc., 24 A.D.2d 669; Matter of Markidis v. American Airlines, 21 A.D.2d 927.) "The questions of dependency and contributions are questions of fact for the board and only if there is no substatial evidence to support the decision of the board can the board's determination be reversed". ( Matter of Holloway v. Camp Hatikvah, 14 A.D.2d 638, supra.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P.J.