Opinion
October 24, 1967
Appeal by the employer and its carrier from decisions of the Workmen's Compensation Board which made an award of death benefits to the parents of the deceased employee. On August 11, 1965 claimants' son, age 19, died a victim of a fire at the hotel where he was working as a Summer waiter. Decedent's death arose out of and in the course of his employment and the sole issue on this appeal is whether or not his mother and father were dependent on their son for support, and are entitled to an award of $18 per week for each parent. The decedent was a college student at Harpur-College, Binghamton, New York, where he resided during the school year, and during the Summer he worked for the appellant employer. The Referee determined his average weekly wage at $55.13. In addition he received $2,000 yearly from a trust fund established by his grandfather, and had a $400 scholarship at college. His father's take-home pay during the year 1965 was $52.34 per week, and the family's expenditures were $79.32. Claimant's mother testified that during 1965 she had received $500 from her son out of his trust income and $450 from his earnings. "The questions of dependency and contributions are questions of fact for the board and only if there is no substantial 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. ) The record indicates that the claimants were unable to meet their own living expenses from the father's income, and that the decedent made a substantial contribution to them during 1965 for their support. There is substantial evidence from which the board could properly find that decedent's contributions were a necessary part of claimants' income, and that they were both dependents within the meaning of the Workmen's Compensation Law. ( Matter of Telarico v. Conway, 28 A.D.2d 776; Matter of Smith v. Crosson's Serv. Station, 28 A.D.2d 577; Matter of Markidis v. American Airlines, 21 A.D.2d 927.) Decisions affirmed, with costs to the Workmen's Compensation Board. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.