Death of Fleming, Matter of

Death of Fleming, Matter of
1995 OK CIV APP 10
890 P.2d 1358
66 OBJ 894
Case Number: 84155
Decided: 01/24/1995

IN THE MATTER OF THE DEATH OF DAVID RAY FLEMING. CAROL JEAN FLEMING, PETITIONER,
v.
SHEFFIELD STEEL CORPORATION, OWN RISK,
AND THE WORKERS' COMPENSATION COURT, RESPONDENTS.

Original Proceeding to Review Order of the Workers' Compensation Court; Ben P. Choate, Jr., Trial Judge.

¶0 Workers' compensation claim by surviving dependents of deceased worker to recover statutory pecuniary loss benefits in addition to income benefits previously awarded. Trial court denied the claim.

ORDER SUSTAINED.

Joseph F. Bufogle, Bufogle & Associates, Tulsa, for petitioner.
J. Ronald Petrikin, Nancy E. Vaughn, Crowe & Dunlevy, Tulsa, for respondents.

OPINION

GOODMAN, Judge.

¶1 This is a review of an order of the Workers' Compensation Court denying the claimants' request to be awarded pecuniary loss benefits in addition to those benefits previously awarded to them as actual dependents of the deceased worker. Based upon our review of the record and applicable law, we sustain the order.

¶2 On March 19, 1994, thirty-three-year-old David Fleming was "[w]orking at a steel furnace" during the course of his employment as a "third helper" at Sheffield Steel Corporation, when "something exploded inside of furnace, causing molten steel to splash out & hit employee." He died in a hospital burn unit five days later from "sepsis and acute renal failure due to thermal burns."

¶3 Claimant Carol Fleming, the deceased workers' widow, filed a Form 3-A "First Notice of Death Claim for Compensation" on behalf of herself and her three minor children. They were awarded "income benefits" under 85 O.S.Supp. 1993

¶4 The claimants also filed a motion seeking additional benefits under

Where some pecuniary loss may be shown by heirs-at-law of the deceased, as defined by the descent and distribution statutes of Oklahoma, who are otherwise not entitled to receive benefits under other provisions of this section, such heirs-at-law shall receive compensation for their pecuniary loss not to exceed an aggregate of Five Thousand Dollars($5,000.00). (Emphasis added).

¶5 The claimants contend that

¶6 The trial court denied the claimants' request and, in an order filed July 29, 1994, found that "neither the widow nor any of the surviving children of the deceased are entitled to any benefits under Title 85 Oklahoma Statute, Section 22(9), in addition to what has heretofore been awarded in the order filed herein on May 24, 1994." The claimants seek our review.

¶7 The parties jointly stipulated that the claimants have been fully compensated under

¶8 We disagree. The Workers' Compensation Act establishes distinct "[b]enefit amounts for particular classes of dependents." Section 22(8)(a). Potential claimants who "may not be eligible for `income benefits'. . . may recover as `heirs-at-law' if they have sustained pecuniary loss under subsection 9." Hughes Drilling Co. v. Crawford, 697 P.2d 525, 528 (Okla. 1985). However:

"Actual dependency" and "pecuniary loss" are totally incompatible concepts. The former requires that a beneficiary's claim be founded solely on pre-death support actually provided by the deceased employee. The latter term affords a measuring device that is essentially prospective in character. Id. at 532 (Opala, J., dissenting).

¶9 In the matter before us, the claimants have been compensated with income benefits under the Act based upon their status as actual dependents of the deceased worker. The statutory limitations imposed on benefits available to members of that class is for the legislature, not this court, to address. Income benefits awarded to the actual dependents of a deceased worker clearly exclude those dependents from eligibility for additional pecuniary loss benefits available to potential "heirs-at-law . . . who are otherwise not entitled to receive benefits" under the Act.

¶10 We hold the statutory mandate that income benefits must be divided equally among three or more dependent children of a deceased worker does not deny benefits to those children or otherwise create a pecuniary loss entitling one or more of the dependent children to additional benefits under

¶11 The trial court did not err as a matter of law in denying the requested relief, and the order under review is therefore SUSTAINED.

¶12 TAYLOR, P.J., and STUBBLEFIELD, J., concur.

Footnotes:

1 The relevant provisions of ' 22(8) state:

Income benefits for death. If the injury . . . causes death, income benefits shall be payable in the amount and for the benefit of the persons following, subject to the maximum limits specified hereafter:

(a) Benefit amounts for particular classes of dependents.

(1) If there is a surviving spouse, to such surviving spouse fifty percent (50%) of the average weekly wages the deceased was earning.

(2) If there is a child or children, to such child or children fifteen percent (15%) of the average weekly wages the deceased was earning for each child. Where there are more than two such children, the income benefits payable for the benefit of all children shall be divided among all children, to share and share alike. . . .

2 Section 22(11) reads:

If there is a surviving spouse and surviving children entitled to receive death benefits herein, such survivors shall be entitled to an immediate lump-sum payment of Ten Thousand Dollars ($10,000.00) to the spouse and Two Thousands Five Hundred Dollars ($2,500.00) to each surviving child not to exceed two children. (Emphasis added).

3 Subject statute reads in relevant part:

(1) "Actually dependent" means:

a. a surviving spouse . . .;

b. a child. . . .

4 The stipulation was offered to explain the absence of an executed order awarding benefits under ' 22(8) and (11). The parties state that an order was approved by the trial judge, but was not executed before the judge left the bench. Neither party contests the accuracy of the terms of the unexecuted order attached to the stipulation, and all agree to be bound by it.

5 The claimants' reliance on Howard v. Lenhart & Bennett, Inc., 663 P.2d 386 (Okla. Ct. App. 1983), is misplaced. The deceased worker in Howard "was single and childless." Unlike the claimants in the present matter, the deceased worker's mother in Howard was not actually dependent upon the deceased worker and thus was not entitled to ' 22(8) income benefits. Instead, she was compensated under ' 22(9) for her demonstrable pecuniary loss.