Ryan-walsh Stevedoring Co., Inc. and Employers Nationalinsurance Company, Petitioners, v. Doristine Trainer, Gwendolyn Brown, and Director, Office Ofworkers' Compensation Programs, U. S. Departmentof Labor, Respondents, 601 F.2d 1306 (5th Cir. 1979)

Petitioners, Ryan-Walsh Stevedoring Company, Incorporated and Employers National Insurance Company seek review of a final order entered by the Benefits Review Board ("Board") of the United States Department of Labor awarding death benefits under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950 (1976), to respondents Doristine Trainer and Gwendolyn Brown. In its decision and order the Board found that Doristine Trainer and Gwendolyn Brown were the "widow" and "child", respectively, of the deceased employee, Marion Trainer, and therefore entitled to compensation under 33 U.S.C. § 909 (1976).¹  For the reasons stated hereinafter we affirm the Board's award of benefits to Gwendolyn Brown, but vacate the award to Doristine Trainer and remand to the Board for further findings.

Marion Trainer was an employee of petitioner Ryan-Walsh Stevedoring Company, Incorporated on October 10, 1975 when he sustained an injury resulting in his death on October 18, 1975. The parties stipulated that the injury and resulting death arose out of and in the course of Marion Trainer's employment. Thereafter, Doristine Trainer and Gwendolyn Brown filed claims for death benefits payable under the LHWCA. Petitioners, although stipulating generally that the claim fell under the LHWCA, asserted that benefits were not due because Doristine Trainer was not decedent's "widow" and Gwendolyn Brown was not decedent's "child" within the meaning of the act. See 33 U.S.C. §§ 902(14) ("child"), 902(16) ("widow"). Pursuant to 33 U.S.C. § 919(d) (1976),²  and according to the requirements of 5 U.S.C. §§ 554, 556, 557 (1976), the matter proceeded to a hearing before an administrative law judge ("ALJ"). We summarize the evidence adduced at this hearing as it relates to the respondents' claims.

Doristine Kelker (Trainer), respondent, and Fred Wilson McCreary participated in a marriage ceremony on March 15, 1941, in Pensacola, Florida. The ceremony was performed in the home of Doristine's parents by Millard Fountain, a Purported minister. In attendance were Doristine's father, other members of her family, and several members of McCreary's family, including his mother. At the hearing before the ALJ, Doristine testified that: she went through the marriage ceremony with McCreary because she had become pregnant by him; she did not think she was actually being married because the man who performed the ceremony was not a "preacher"; she did not sign the marriage license or the application for this license; she and McCreary lived together as husband and wife for approximately one week, after which he abandoned her; she bore a child, Harriet McCreary, on July 18, 1941; she ultimately moved to Mobile, Alabama, where she met Marion Trainer; and, She never obtained a divorce from McCreary.

McCreary did not testify at the hearing, but his deposition was admitted into evidence. In his deposition McCreary testified that: he married Doristine Kelker in 1940 ; he was drunk during the marriage ceremony, which was performed by a minister whose name he could not remember; he lived with his wife Doristine for five years; he came home from work one day and found Doristine and their daughter, Harriet, were gone; he had neither seen nor been contacted by Doristine since 1945; he had never been served with any divorce papers nor received any notification that a divorce action had been filed against him.

On September 13, 1952, Doristine participated in a marriage ceremony, conducted in Leaksville, Mississippi, with decedent Marion Trainer. The marriage license, Exhibit C-3, reflects that Doristine was married under her maiden name Kelker. She and Marion Trainer lived together as husband and wife in Mobile, Alabama, from the day they participated in this marriage ceremony until Marion's death, a period covering approximately twenty-three years. During this time they purchased a house as husband and wife, had joint checking and savings accounts, filed joint federal income tax returns, and purchased two cemetery plots for themselves. According to John H. White, the Trainers' next-door neighbor for approximately sixteen years, Doristine and Marion Trainer were generally known in the community as being married.

In an attempt to explain how she could have married Marion Trainer when She had not obtained a divorce from McCreary, Doristine testified that her minister had told her that she did not have to get a divorce because McCreary was a sinner and Doristine a Christian, "and anybody who married an unbeliever husband, they did not have to get any divorce and that is why I did not get one". R. vol. II, at 1-64. Doristine also testified that her brother had told her that "if anybody left you at least seven years it was an automatic divorce from them". Id.

Gwendolyn Brown is the daughter of Samuel Lewis Brown and Harriet McCreary, Doristine's daughter by Fred McCreary. She was born in Brooklyn, New York, on August 15, 1958. With the exception of one year, when she was in the eighth grade, Gwendolyn lived with her grandmother, Doristine, and Marion Trainer until the latter's death. During his lifetime Marion Trainer provided financial support for Gwendolyn in various forms, E. g., payment for dental expenses, food, musical instrument for the school band, automobile and gasoline and oil for this vehicle. Marion Trainer treated Gwendolyn "just like his own child": taught her how to drive, gave her an allowance, disciplined her when necessary, and took her on social visits and fishing trips with him. Gwendolyn called Marion Trainer "Daddy" and he called her "Niecey".

In 1966 Gwendolyn's natural father, Samuel Brown, died. Thereafter the Social Security Administration has paid a support allowance for Gwendolyn. This allowance started as $55 per month in 1966, and totaled $110 per month at the time the hearing was held before the ALJ.

Gwendolyn Brown is now enrolled in a college in Mobile, Alabama. She never received any financial support from either of her natural parents.

The ALJ denied respondents' claims, finding that Doristine Trainer was not decedent's "widow" and Gwendolyn Brown not decedent's "child" within the meaning of those terms under the LHWCA. With respect to Doristine Trainer's claim, the ALJ found that the March 15, 1941 marriage ceremony between Doristine and McCreary was valid under Florida law. Additionally, the ALJ held that "the evidence presented at the hearing (was) sufficient to establish that the marriage between Doristine Delker (sic) and Fred McCreary has not been legally dissolved by divorce or otherwise". R. vol. I, at 215. He concluded, therefore, that petitioners herein had rebutted the presumption, arising under Alabama law, that Doristine's prior marriage to McCreary had ended in divorce, thereby rendering the more recent marriage to Marion Trainer invalid. Consequently, Doristine Trainer was not Marion Trainer's "widow" because she had never been his lawful wife.

With respect to Gwendolyn Brown's claim the ALJ found that Brown's primary financial support for the year immediately preceding Marion Trainer's death was furnished by monthly support allowances paid by the Social Security Administration. While conceding that "decedent furnished part of (Gwendolyn Brown's) support and treated her as a daughter during that time", the ALJ concluded that she did not qualify as a "dependent child" for death benefits from Marion Trainer because her primary financial support was based upon Social Security allowances accruing by reason of her natural father's death.

Pursuant to 33 U.S.C. § 921(b) (3) (1976),³  the decision and order of the ALJ were appealed to the Board.

The Benefits Review Board reversed the ALJ's denial of benefits. In so doing, the Board held: (1) under "new guidelines" it was then establishing for construing the terms "widow" and "widower" as used in the LHWCA, Doristine Trainer was the widow of Marion Trainer for purposes of receiving death benefits under the Act irrespective of her marital status under state law; and (2) Gwendolyn Brown was entitled to death benefits as decedent's "surviving child" since she was a "child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury".

With regard to Doristine Trainer's claim, the guidelines fashioned by the Board for construing the terms "widow" and "widower" read as follows:

(T)he Board is establishing herein new guidelines for construing "widow" and "widower" as those terms are used in the Act. Under these guidelines we need not refer to or apply the state laws of Florida or Alabama. Rather, for purpose of receiving death benefits under the Act, it shall be conclusively established that a claimant is a "widow" or "widower" if, at the time of the death of the employee, and for at least ten years prior to his or her death, the employee and the claimant had lived together in the same household and held themselves out to their relatives, friends, neighbors and tradespeople in the community in which they resided as husband and wife. Joint ownership of real and personal property, joint bank accounts, and joint tax returns are some factors which may be considered as evidence that the employee and claimant held themselves out as husband and wife. However, where the evidence shows that the employee and the claimant had lived together for a substantial period of time, but for less than ten years, then, based upon the evidence in the record considered as a whole and the purposes of the Act, in the exercise of sound judgment a deputy commissioner or administrative law judge shall decide whether the claimant should be deemed a "widow" or "widower". In making that decision, a deputy commissioner or administrative law judge shall take into consideration all of the facts and circumstances in evidence that have a bearing upon the relationship of the employee and the claimant during the time they lived together. Among the circumstances to be considered are those, enumerated above, in regard to "holding themselves out as husband and wife". However, any "widow" or "widower" claim based on living together, as described above, cannot prevail if another claimant proves "widow" or "widower" status on the basis of (1) a valid ceremonial or common law marriage to the deceased employee, and (2) fulfillment of the other requirements of Section 2(16) that is, by proof that the claimant was dependent for support upon the employee at the time of death, or that the claimant and the employee were living apart at the time of death for justifiable cause or by reason of employee's desertion.

R. vol. I, at 31-33. Applying these "new guidelines", the Board concluded that Doristine Trainer was Marion Trainer's "widow" because: she and decedent had lived together in the same household as husband and wife for more than ten years; they held themselves out as husband and wife and were so recognized in the community; and no other claimant came forward and alleged herself to be the widow of Marion Trainer.⁴ 

With regard to Gwendolyn Brown's claim, the Board concluded that the ALJ erroneously found that a claimant's primary source of financial support was dispositive of the issue of whether she was a "surviving child" within that meaning of the term under the LHWCA. The Board noted that the LHWCA's definition of "child" expressly included a "child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury". See 33 U.S.C. § 902(14) (1976). Since death benefits under the LHWCA are payable to "surviving children", Id. § 909, without regard to financial dependency upon the deceased employee, other than that required by section 902(14), the Board held that the ALJ misconstrued the requirements of the Act in looking to the claimant's primary source of financial support when the claim was based upon "in loco parentis" status and not financial dependency.

"Although the standard of review in this Court is not set out in the statute, it is evident that we are to review only for errors of law, and to make certain that the Board adhered to its statutory standard of review of factual determinations." Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976). Accord Army & Air Force Exchange Service v. Greenwood, 585 F.2d 791, 794-95 (5th Cir. 1978). See generally 33 U.S.C. § 921(c) (1976).⁵ 

In the present context, therefore, we must determine whether the Board erred, as a matter of law: (1) in formulating "new guidelines" for ascertaining whether Doristine Trainer was a "widow" under the LHWCA; and (2) in concluding that the ALJ erred, as a matter of law, in finding that Gwendolyn Brown was not a "child" within the meaning of the LHWCA after he found, as a matter of fact, that Marion Trainer had provided some of her financial support and in other respects treated her as his child.

Under the LHWCA an employee's "widow" is entitled to death benefits under 33 U.S.C. § 909. See note 1 Supra. The term "widow" is defined by the Act.

The terms "widow or widower" includes only the Decedent's wife or husband living with or dependent for support upon him or her at the time of his or her death; or living apart for justifiable cause or by reason of his or her desertion at such time.

33 U.S.C. § 902(16) (1976) (emphasis added). Hence, the claimant must demonstrate that she was decedent's "wife" in order to qualify for death benefits. To determine whether a claimant is decedent's "wife" state law is dispositive because the LHWCA does not define this operative term. See Marcus v. Director, Office of Workers' Compensation Programs, 179 U.S.App.D.C. 89, 92 & n.4, 548 F.2d 1044, 1047 & n.4 (1976) (definition of decedent's "husband", not found in LHWCA, to be determined according to local law of domestic relations); Powell v. Rogers, 496 F.2d 1248, 1250 (9th Cir.), Cert. denied, 419 U.S. 1032, 95 S. Ct. 514, 42 L. Ed. 2d 307 (1974) (in the absence of a statutory definition in LHWCA of surviving "wife" the applicable local law supplies the meaning of that term); Albina Engine & Machine Works v. O'Leary, 328 F.2d 877, 878 (9th Cir.), Cert. denied, 379 U.S. 817, 85 S. Ct. 35, 13 L. Ed. 2d 29 (1964) (although meaning of LHWCA is question of federal law, local law gives meaning to term surviving "wife" when undefined by the Act).⁶  Contrary to the Board's reasoning⁷  and the positions urged by respondent Director, Office of Workers' Compensation Programs,⁸  Thompson v. Lawson, 347 U.S. 334, 74 S. Ct. 555, 98 L. Ed. 733 (1954), does not permit the formulation of a federal common law of marriage or domestic relations to determine whether a claimant is a deceased employee's "widow" or "widower" under the LHWCA.

In Thompson v. Lawson two women sought death benefits under the LHWCA; each claimed to be the deceased employee's "widow". Petitioner's claim for death benefits had been denied on the basis that she was living apart from the decedent Not "by reason of his desertion". 33 U.S.C. § 902(16). The findings made by the Deputy Commissioner showed that petitioner had married the decedent and lived with him as husband and wife for several years. Decedent then deserted petitioner: he never lived with her again, and never contributed anything to the support of their two children. Both decedent and petitioner "married" other mates, petitioner's "second marriage" ending in a formal divorce. Shortly before decedent's death he asked petitioner to "take him back". She refused, "having no intention of ever again living with him and resuming the relationship of husband and wife". 347 U.S. at 335, 74 S. Ct. at 556.

The Supreme Court observed that:

The single, unentangled question before us is whether, on these unchallenged facts, (petitioner) was at the time of (decedent's) death in 1951, his statutory "widow", as that term is described by Congress in the Longshoremen's Act. . . .

347 U.S. at 336, 74 S. Ct. at 556. While holding that petitioner was not decedent's statutory widow because at the time of his death she was not living apart from him "by reason of his desertion", the Court said:

We do not reach this conclusion by assessing the marital conduct of the parties. That is an inquiry which may be relevant to legal issues arising under State domestic relations law. Our concern is with the proper interpretation of the Federal Longshoremen's Act. Congress might have provided in that Act that a woman is entitled to compensation so long as she is still deemed to be the lawful wife of the decedent under State law, as, for example, where a foreign divorce obtained by her is without constitutional validity in the forum State. But Congress did not do so. It defined the requirements which every claimant for compensation must meet. Considering the purpose of this federal legislation and the manner in which Congress has expressed that purpose, The essential requirement is a conjugal nexus between the claimant and the decedent subsisting at the time of the latter's death, which, for present purposes, means that she must continue to live as the deserted wife of the latter. That nexus is wholly absent here. Julia herself, by her purported remarriage, severed the bond which was the basis of her right to claim a death benefit as Otis' statutory dependent.

Id. at 336-37, 74 S. Ct. at 556-57 (emphasis added).

The reasoning and result in Thompson v. Lawson, supra, have been followed in cases where the question before the court was whether a claimant was a decedent's statutory "widow" when she was living apart from him at the time of his death allegedly "by reason of his desertion". See General Dynamics Corp. v. Director, Office of Workers' Compensation Programs, 585 F.2d 1168 (1st Cir. 1978); Matthews v. Walter, 168 U.S.App.D.C. 27, 512 F.2d 941 (1975); Liberty Mutual Insurance Co. v. Donovan, 218 F.2d 860 (D.C. Cir. 1955). No court, however, has interpreted Thompson v. Lawson's "conjugal nexus" test as authorizing the creation of a federal common law of marriage to determine whether the claimant, in the first instance, was married to the deceased employee. One court has specifically rejected such an argument. Powell v. Rogers, 496 F.2d 1248, 1251 (9th Cir.), Cert. denied, 419 U.S. 1032, 95 S. Ct. 514, 42 L. Ed. 2d 307 (1974).⁹  We decline to adopt such an expansive reading of the Court's holding in Thompson v. Lawson, supra. If the application of state law to the question of a claimant's status as a deceased employee's wife produces results inconsistent with the remedial nature of the LHWCA, and calls for the formulation of uniform federal standards, the proper forum for reform is legislative, not judicial.

We hold, therefore, that the Board's order awarding death benefits under the LHWCA to Doristine Trainer must be vacated: the Board's determination that Doristine Trainer was the deceased employee's statutory " widow" was erroneously based upon "new guidelines" rather than the applicable state law of domestic relations,¹⁰  as required by Seaboard Air Line Railway v. Kenney, 240 U.S. 489, 36 S. Ct. 458, 60 L. Ed. 762 (1916). On remand, the Board must decide whether Doristine Trainer was decedent's "wife" under state law notwithstanding her participation in a prior marriage ceremony with McCreary. While expressing no opinion on the ultimate resolution of this issue, we do note that the current record lacks certain requisite findings of fact and conclusions of law and, therefore, does not afford the Board an adequate basis to make such a determination or permit meaningful review in this Court. See Todd Shipyards, Inc. v. Fraley, 592 F.2d 805, 806 (5th Cir. 1979). Hence, the Board, on remand, will find it necessary to remand this matter to the ALJ for the introduction of additional evidence, and further findings of fact and conclusions of law consistent with this opinion so as to enable the Board to determine whether Doristine Trainer was Marion Trainer's wife at the time of the latter's death.¹¹  See 33 U.S.C. § 921(b) (4). In making these findings and entering conclusions of law thereon the ALJ must recognize that in the "absence of Substantial evidence to the contrary" the LHWCA imposes a presumption that the claim comes within the provisions of the Act. 33 U.S.C. § 920 (1976). Additionally, all doubtful factual questions should be resolved in favor of the claimant, Doristine Trainer. Cf. Young & Co. v. Shea, 397 F.2d 185, 188 (5th Cir.), Cert. denied, 395 U.S. 920, 89 S. Ct. 1771, 23 L. Ed. 2d 237 (1969) ("(I)n considering the proof offered by the parties the Commissioner operates under the statutory policy that all doubtful fact questions are to be resolved in favor of the injured employee or his dependent family".).

Gwendolyn Brown sought death benefits under the LHWCA as decedent Marion Trainer's "surviving child". 33 U.S.C. § 909 (1976); see note 1 Supra. The term "child" is defined by 33 U.S.C. § 902(14) (1976):"Child" shall include a posthumous child, a child legally adopted prior to the injury of the employee, a Child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him.

(emphasis added).

The ALJ denied Brown's claim for death benefits, finding that she did not qualify as a "dependent child".¹²  The Board, on review, concluded that the ALJ had misconstrued the LHWCA in regard to Brown's claim based on "in loco parentis" status. The Board held that Brown qualified under section 902(14) as a child in relation to whom Marion Trainer stood in loco parentis for at least one year prior to the injury causing his death. The Board emphasized that the LHWCA provides that death benefits are payable to " 'surviving child or children of the deceased'. (The statute) does not refer to the source of the financial support of the child before the death of the employee." R. vol. I, at 49.

In light of the ALJ's findings that decedent Marion Trainer had furnished part of Gwendolyn Brown's financial support, and in other respects "treated her as a daughter", the Board held that Gwendolyn Brown was a child¹³  in relation to whom Marion Trainer stood in a relation of in loco parentis for at least one year prior to his death. In defining the term "in loco parentis" the Board looked to Texas Employers' Insurance Association v. Shea, 410 F.2d 56 (5th Cir. 1969), and Ingalls Shipbuilding Corp. v. Neuman, 322 F. Supp. 1229 (S.D. Miss. 1970), Aff'd, 448 F.2d 773 (5th Cir. 1971) (per curiam). The Board properly read this Court's opinion in Texas Employers' to mean that the LHWCA's definition of "child", "in accord with the policy of the Act as a whole, must be liberally construed in favor of coverage 'and in a way which avoids harsh and incongruous results.' " 410 F.2d at 59 (citations omitted). Based upon that broad proposition, the Board construed this Court's affirmance in Neuman¹⁴  to compel the finding here that Gwendolyn Brown was a child in relation to whom the decedent Marion Trainer had stood in loco parentis:

In the case now before the Board, the administrative law judge concluded that decedent furnished part of Gwendolyn Brown's support and treated her as a daughter. He also made findings of fact in accordance with the evidence from the record, stated above, in regard to the relationship between Gwendolyn Brown and Marion Trainer. Therefore, we find that the administrative law judge's denial of benefits, based solely on his finding that Gwendolyn Brown's "primary support was based upon the Social Security allowance" is in error. According to the Texas Employers' and Ingalls Shipbuilding cases, Supra, Gwendolyn Brown clearly was a child in relation to whom Marion Trainer stood in loco parentis for at least one year prior to the time of his injury. She is entitled to death benefits under the Act.

R. vol. I, at 51.

Since there is substantial evidence to support the ALJ's findings that Marion Trainer treated Gwendolyn Brown as his daughter and provided some financial support for her, we affirm the Board's award of benefits because it is in accordance with the applicable law; the Board properly reversed the ALJ, who erroneously held that the source of a child's primary financial support controlled whether benefits were payable under section 909 when the claimant sought benefits as a child in relation to whom the deceased employee stood in loco parentis.

Counsel for respondents Doristine Trainer and Gwendolyn Brown have submitted to this Court a motion to assess the attorneys' fees and expenses of claimants-respondents against decedent's former employer, petitioner Ryan-Walsh Stevedoring Company, Incorporated.

A claimant's reasonable legal expenses are recoverable from an employer who has contested that no compensation is owing under the LHWCA when the claimant ultimately prevails. Ayers Steamship Co. v. Bryant, 544 F.2d 812, 813 (5th Cir. 1977); 33 U.S.C. § 928(a) (1976).¹⁵  The LHWCA also requires that in all cases before this Court on review we must approve the fees of the attorneys representing the prevailing claimant for work of counsel which was directly related to our review. Ayers, 544 F.2d at 814; 33 U.S.C. § 928(c) (1976).¹⁶ 

In accordance with the requirements of this Court's decision in Ayers, Counsel for respondents submitted a sworn and verified list in which they described and itemized all work done and expenses incurred on behalf of respondents. Since we have affirmed the award of benefits to Gwendolyn Brown but have vacated that portion of the Board's order awarding benefits to Doristine Trainer, we directed counsel to supplement their motion by allocating and identifying the fees and expenses attributable to the separate claims of Doristine Trainer and Gwendolyn Brown.

In assessing the amount of fees and expenses recoverable, we have considered those factors enumerated in Ayers, supra, and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), including the hours worked,¹⁷  the reasonable hourly rate for the attorneys involved,¹⁸  the size of the recovery,¹⁹  the quality of the work and the complexity of the issues involved. See also Director, Office of Workers' Compensation Programs v. Black Diamond Coal Mining Co., 598 F.2d 945 at 953 (5th Cir. 1979) (essential elements of application for attorney's fees are disclosure of hours devoted to each category of work in connection with appeal, reasonable hourly rate for the person performing the work, and verification of the hourly itemization). Based on these factors we conclude and hereby order that counsel for respondent Gwendolyn Brown, who has prevailed on her claim, are entitled to recover as reasonable fees, over and above the compensation awarded, the sum of $1331.80 from petitioner Ryan-Walsh Stevedoring Company, Incorporated.

For the reasons stated, that portion of the order entered by the Benefits Review Board awarding compensation to Doristine Trainer is vacated, and the matter remanded to the Board for further proceedings consistent with this opinion. As to that part of the Board's order awarding benefits under the LHWCA to Gwendolyn Brown the petition for review is denied and the order of the Board in that respect is affirmed. Petitioner Ryan-Walsh Stevedoring Company, Incorporated, is also hereby ordered to pay counsel for respondent Gwendolyn Brown, as reasonable attorneys' fees, the sum of $1331.80.²⁰ 

The Clerk of this Court is directed to assess taxable costs²¹  incurred by the parties herein one-half against the petitioners and one-half against the respondent Doristine Trainer.

PETITION FOR REVIEW GRANTED IN PART, AND DENIED AND REMANDED IN PART FOR FURTHER PROCEEDINGS.