This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 11, 2001. The hearing officer determined that the parents of the decedent, claimant beneficiaries (herein referred to as the claimants), were not legal beneficiaries of the decedent.
The claimants appeal, contending that for a period of time prior to January 2000, the decedent had regularly sent the claimants money on a weekly basis and that he continued to do so when he returned to the United States in 2000. The respondent (carrier) responds, urging that the economic benefit provided by the decedent had not been proven and that the hearing officer’s decision should be affirmed.
DECISION
Affirmed.
Much of the evidence is conflicting and undocumented regarding precise facts and figures. Even the decedent’s age is somewhat in doubt. The decedent apparently came to the United States in 1997 or 1998, and it is relatively undisputed that he sent money to his parents on a regular basis of about $100.00 a week until sometime toward the end of 1999. It is also undisputed that the decedent’s father earned about $60.00 a week, that his mother had no earnings, and that the claimant’s contributions during this time frame (1997 to the end of 1999) exceeded the claimant’s total income. The hearing officer commented that the claimants are the only possible beneficiaries “depending upon whether the parents were dependents of the decedent as defined in the [1989] Act.”
It is also relatively undisputed that the decedent returned to Mexico and lived with the claimants for a period of time in the first part of 2000. (There are various estimates of six months prior to the decedent’s death on ___________, or six months from January 2000.) There is also some testimony that the decedent continued to make regular $100.00 weekly payments in 2000; but, the more credible testimony, as found by the hearing officer, was that during “the six months [the decedent was] in Mexico [he] contributed maybe $5.00 here and there, but the evidence does not indicate regular or recurring payments during that time.”
A key point that is in dispute is when the decedent returned to the United States in 2000 and resumed working. The carrier speculates that it was sometime in June 2000 (based on six months from January 1, 2000), but the claimants point to the Employer’s First Report of Injury or Illness (TWCC-1), Carrier’s Exhibit A, which lists a date of hire of “7-31-00.” The hearing officer recites the mother’s testimony that the “decedent sent them only one payment between his return to the United States in approximately June, 2000 and his death in ___________.” We, however, note that the employer’s wage statement, part of Claimant’s Exhibit No. 13, shows that the decedent had earnings as early as the week of May 12, 2000, to May 17, 2000. It is undisputed that the decedent was a roofer and fell to his death through a skylight on ___________.
Section 408.182 defines who the legal beneficiaries may be. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 132.2(b) and (c) (Rule 132.2(b) and (c)) provide:
(b)A benefit which flowed from a deceased employee, at the time of death, on an established basis in at least monthly intervals to the person claiming to be dependent, is presumed to be a regular or recurring economic benefit. This presumption may be overcome by credible evidence. The burden is on the claimant to prove that benefits, which flowed less frequently than once a month, were regular or recurring at the time of the employee’s death.
(c)It shall be presumed that an economic benefit, whose value was equal to or greater than 20% of the person’s net resources in the period (see subsection (d) of this section) for which the benefit was paid, is an economic benefit which contributed substantially to the person’s welfare and livelihood. This presumption may be overcome by credible evidence. The burden is on the claimant to prove that benefits whose value was less than 20% of the person’s net resources contributed significantly to the person’s welfare and livelihood.
It is relatively undisputed that the decedent’s contribution, whenever it was made, was “an economic benefit which contributed substantially to [the claimants’] welfare and livelihood.” The hearing officer, however, appears to base his decision on the fact that the decedent’s contribution after his return to the United States sometime in the May to July 2000 time frame was not on a “regular or recurring” basis at the time of the decedent’s death. The preponderance of the evidence was that there was only one payment of an undetermined amount after the decedent returned to the United States. The claimants would argue that the decedent returned shortly before his July 31, 2000, “date of hire” and had made one payment between then and his death on ___________. Other evidence would indicate that the decedent may have been in the United States as early as May 12, 2000, or as late as June 2000, based on a sister’s testimony. In any event, we are unable to say that the hearing officer’s determination that the decedent’s “benefits were not regular or recurring at the time of [his] death” is either incorrect as a matter of law or against the great weight and preponderance of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is REALM NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
GERALD DORSEY
8080 N. CENTRAL EXPRESSWAY, SUITE 1450
DALLAS, TEXAS 75206.
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Michael B. McShane – Appeals Judge