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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 January 8, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the sole disputed issue by deciding that (decedent) did not sustain a compensable injury on [date of injury], resulting in his death.
The appellant (claimant beneficiary 1) appealed the hearing officer’s determination individually and as next friend of minor claimant beneficiaries 2, 3, 4, 5, and 6. The respondent (carrier) responded, urging affirmance. The appeal file contains no response from minor claimant beneficiary 7 to the appeal filed by claimant beneficiary 1.
DECISION
Reversed and remanded.
It was undisputed that the decedent was killed in a motor vehicle accident on [date of injury]. The parties stipulated that proper legal beneficiaries are claimant beneficiaries 1, 2, 3, 4, 5, 6, and 7.
Texas Department of Insurance, Division of Workers’ Compensation (Division) records reflect that neither [LP], as next friend of minor claimant beneficiary 7, nor minor claimant beneficiary 7 was duly notified of the Benefit Review Conference held on May 24, 2012, or of the CCH held January 8, 2013. Further, a copy of the hearing officer’s Decision and Order was not mailed to either LP or minor claimant beneficiary 7 by the Division, nor was a copy of the appeal filed by claimant beneficiary 1 sent to LP or minor claimant beneficiary 7. We note that the next friend of a minor claimant beneficiary should be duly notified of the time, date, and place of any hearings in the claim as well as should be mailed any decisions and orders and appellate documents in the claim.
Division records do not reflect that claimant beneficiary 7 has filed a Notice of Fatal Injury or Occupational Disease and Claim for Compensation for Death Benefits (DWC-42) with the Division, and there was nothing in evidence to establish whether or not claimant beneficiary 7 did in fact file a DWC-42. However, the evidence established that claimant beneficiary turned 17 years of age on January 13, 2013.
Section 409.007 provides in pertinent part that:
a. A person must file a claim for death benefits [DWC-42] with the [D]ivision not later than the first anniversary of the date of the employee’s death.
b. Failure to file in the time required by Subsection (a) bars the claim unless:
1. the person is a minor or incompetent; or
2. good cause exists for the failure to file a claim under this section.
Pursuant to Section 409.007(a), a DWC-42 must be filed by the first anniversary of the decedent’s death, which in this case was December 21, 2012. However, the evidence established that as of the first anniversary of the decedent’s death, minor claimant beneficiary 7 was a minor, and that she will be a minor until January 13, 2014. Therefore, pursuant to Section 409.007(b), claimant beneficiary 7’s failure to file a DWC-42 (if she has not in fact filed a DWC-42) does not bar her claim. Further, as previously mentioned, both parties stipulated that minor claimant beneficiary 7 is a proper legal beneficiary.
28 TEX. ADMIN. CODE § 140.1(4) (Rule 140.1(4)) states that a “[p]arty to a proceeding” is defined as “[a] person entitled to take part in a proceeding because of a direct legal interest in the outcome.” Necessary parties have been defined as those persons who have such an interest in the controversy that a final judgment or decree cannot be made without affecting their interests. McDonald v. Alvis, 281 S.W.2d 330 (Tex. 1955). See also Appeals Panel Decision (APD) 121315, decided October 29, 2012.
It is apparent from the evidence that both LP, as the next friend of minor claimant beneficiary 7, and minor claimant beneficiary 7 are necessary parties to this proceeding. That the outcome of this proceeding affects minor claimant beneficiary 7’s interest is certain, as the hearing officer’s decision, if affirmed, will result in the denial of any death benefits to proper legal beneficiaries, which includes minor claimant beneficiary 7. Therefore, LP, as the next friend of minor claimant beneficiary 7, and minor claimant beneficiary 7 are necessary parties to this proceeding and entitled to present evidence on the issue of whether the decedent sustained a compensable injury on [date of injury], resulting in his death. Accordingly, we reverse the hearing officer’s decision and remand this case to the hearing officer. Because of lack of notice to and joinder of all necessary parties, we do not reach the merits of claimant beneficiary 1’s appeal. We remand this case to the hearing officer for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand, the hearing officer is to ensure that proper service and notice of hearings is sent to all necessary and proper parties: claimant beneficiary 1, individually and as next friend of minor claimant beneficiaries 2, 3, 4, 5, and 6; minor claimant beneficiaries 2, 3, 4, 5, and 6; LP, as next friend of minor claimant beneficiary 7; minor claimant beneficiary 7; the carrier; and the Subsequent Injury Fund, in order to allow for due process and fairness of these proceedings for those persons who have such an interest in the controversy that a final judgment or decree cannot be made without affecting their interests.
All parties are to be allowed an opportunity to present evidence on the disputed issues and to respond to evidence admitted by official notice of the hearing officer.
On remand, the hearing officer must consider the evidence and make necessary findings of fact and conclusions of law as required by the 1989 Act and Rules as to whether the decedent sustained a compensable injury on [date of injury], resulting in his death.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.
.
The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Carisa Space-Beam
Appeals Judge
CONCUR:
Thomas A. Knapp
Appeals Judge
Margaret L. Turner
Appeals Judge
This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 6, 2003. The hearing officer determined that appellants (claimant beneficiaries), RoB (the decedent’s surviving spouse), OB, and ReB (the decedent’s sons), are eligible beneficiaries for the payment of death benefits, but that only ReB is entitled to receive death benefits; that ReB is entitled to receive death benefits beginning July 18, 2000, and continuing through January 6, 2003; and that RoB and OB are not entitled to receive death benefits because they failed to file their claim for death benefits within one year of the death of decedent. The claimant beneficiaries appeal, asserting that ReB’s death benefits should continue until September 2003; and that RoB and OB had good cause for failing to file their claim within one year of the decedent’s death. The respondent (carrier) responds, urging affirmance.
DECISION
Affirmed.
The essential facts are not in dispute. The decedent was fatally injured at work on ______________. At that time he was the husband of RoB, and the father of OB, ReB, and a daughter who was 20, married, and not attending school. There is no assertion that the daughter is entitled to any death benefits. OB was then 18, and subsequently graduated from high school on June 1, 2001, but did not pursue further education. ReB was then 16, and attended high school until September 19, 2002, when he withdrew from further attendance. He has not returned to full-time student status since then. The family retained an attorney approximately eight days after the decedent’s death. The Notice of Fatal Injury or Occupational Disease/Claim for Compensation for Death Benefits (TWCC-42) was sent to the Texas Workers' Compensation Commission (Commission) by the attorney on July 27, 2001, and received by the Commission on July 30, 2001. The hearing officer found that no other claim for the payment of death benefits was filed prior to the claim received on July 30, 2001. Although he did not make a specific finding of fact, the hearing officer noted in his Statement of the Evidence that the attorney did not send a copy of the claim for death benefits to the carrier at the time that the claim was filed with the Commission, but did send a copy to the carrier on September 26, 2001. The parties stipulated that on August 24, 2001, the carrier filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) based upon the failure of the potential death benefit recipients to file a claim within one year of the decedent’s death.
Section 409.007 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 122.100 (Rule 122.100) require that a claim for death benefits be filed with the Commission not later than the first anniversary of the date the decedent died. Failure to timely file a claim bars the claim unless the potential beneficiary is a minor or incompetent, or good cause exists for the failure to timely file the claim. The hearing officer determined that the claims of RoB and OB are barred because the claim was not filed within one year of the death of the decedent, and there was no good cause for the failure to timely file the claim. On appeal, the claimant beneficiaries concede that the claim was filed late, but assert that they relied upon their attorney to file the claim, and that this is good cause for not filing the claim for death benefits within one year. The Appeals Panel has held that ignorance of the law does not constitute good cause to excuse an untimely filing. Texas Workers' Compensation Commission Appeal No. 93423, decided July 12, 1993; see also St. Paul Fire and Marine Insurance Company v. Lake Livingston Properties, Incorporated, 546 S.W.2d 404 (Tex. Civ. App.-Beaumont 1977, writ ref'd, n.r.e) which held, as a matter of law, that bad advice from one's attorney as to the time for filing a claim does not constitute good cause. The claimant beneficiaries also assert that the carrier failed to comply with Rule 132.17(d) concerning notice to potential beneficiaries and that this establishes good cause for the untimely filing, however, we note that the claimant beneficiaries received notice that they were potential beneficiaries on July 26, 2000, from the Commission. Under these circumstances, we cannot conclude that the hearing officer abused his discretion in determining that there was no good cause for the failure to timely file the claim. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).
The hearing officer correctly determined that the claim of ReB is not similarly barred. ReB was a minor at the time of the decedent’s death, and he was still a minor at the time that the claim for death benefits was filed. There is no dispute that he is eligible to receive death benefits; the only dispute is the duration of the benefits. We previously addressed this question in Texas Workers’ Compensation Commission Appeal No. 011542-s, decided August 23, 2001. We said:
Section 408.183, which addresses the duration of death benefits, provides in Subsection (d) that a child who is eligible for death benefits because, on the date of the employee's death the child is enrolled as a full-time student in an accredited educational institution is entitled to receive or to continue to receive benefits until the date the child ceases, for a second consecutive semester, to be enrolled as a full-time student in an accredited educational institution. [Rule citations omitted.]
CR testified that she was born on March 25, 1981; that on the date her father died she was 18 years of age and a junior in high school; and that she graduated from high school on May 24, 2000. She further stated that she "enrolled" at a college as a part-time student for the Fall 2000 and Spring 2001 semesters but failed to complete the second part of a school test required before she could attend classes and that she had not attended any college classes and has been working as a cashier.
The hearing officer found that on the date of the decedent's death, CR was 18 years of age and was enrolled as a full-time student in an accredited educational institution and that the date she ceased for the second consecutive semester to be enrolled as a full-time student was January 16, 2001. The hearing officer explained the latter date, stating that most classes begin mid-month. The hearing officer's determinations concerning CR's status as a beneficiary are sufficiently supported by the evidence. She was 18 and a full-time high school student when her father died. She "enrolled" as only a part-time student at the college but never attended a class and so the beginning of the Spring 2001 semester was the date she ceased for the second consecutive semester to be enrolled as a full-time student.
The instant case is similar. The hearing officer’s application of this statutory provision to ReB’s circumstances is in accord with our decision in Appeal No. 011542-s and the evidence. ReB withdrew from school on September 19, 2002. He ceased to be enrolled as a full-time student for that semester, and when he did not return to school the following semester, he ceased for the second consecutive semester to be enrolled as a full-time student. While ReB asserts entitlement through the time that a second consecutive semester would have ended and a third consecutive semester would start, the hearing officer correctly applied our precedent and determined that ReB ceased to be entitled to death benefits on January 6, 2003, the date the hearing officer calculated as the beginning date of the “second consecutive semester.”
We affirm the decision and order of the hearing officer.
The true corporate name of the insurance carrier is AMERICAN INTERSTATE INSURANCE COMPANY and the name and address of its registered agent for service of process is
STEVE ROPER
1616 SOUTH CHESTNUT STREET
LUFKIN, TEXAS 75901.
Michael B. McShane
Appeals Panel
Manager-Judge
CONCUR:
Margaret L. Turner
Appeals Judge
Edward Vilano
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 16, 2001, with the record closing on May 29, 2001. The hearing officer is to determine whether the death of (decedent) resulted from his compensable injury of __________, and the identity of his beneficiaries. The hearing officer determined that the decedent’s death on __________, was caused by a massive pulmonary embolus, which resulted from the compensable injury he sustained to his left lower extremity on __________. She also determined that the decedent’s beneficiaries are respondent/cross-appellant PR, his wife at the time of his death; his children by PR, namely, respondents AR, MR, and JR; and his children by a former wife, namely, ADR, JAR, and CR. The appellant/cross-respondent (carrier) has appealed, asserting that the determination that the decedent’s death resulted from a compensable injury is against the great weight of the evidence. The carrier also asserts error in the hearing officer’s determination that CR is an eligible beneficiary because CR, who is over 18 years of age but under 25, did not attend college classes after graduating from high school. The carrier further asserts error in the hearing officer’s determination that JR is an eligible beneficiary because she was not yet born at the time of the decedent’s death. In their response, ADR, JAR, and CR urge the sufficiency of the evidence to support the challenged compensability determination. Their response does not address the issues of the beneficiary status of CR and JR. AR, MR, and JR did not file a response to the carrier’s appeal. PR has filed a “Request for Review In Part” which first urges the sufficiency of the evidence to support the challenged compensability determination and then asserts error by the hearing officer in failing to decide that the carrier waived the right to dispute compensability. There was no disputed issue before the hearing officer concerning carrier waiver and the Appeals Panel does not consider issues raised for the first time on appeal. See Texas Workers’ Compensation Commission Appeal No. 91057, decided December 2, 1991. The Appeals Panel has previously commented on the applicability of the decision in Downs v. Continental Casualty Company, 32 S.W.3d 260 (Civ. Ct. App. - pet. Filed). Texas Workers’ Compensation Commission Appeal No. 010335, decided March 29, 2001; Texas Workers’ Compensation Commission Appeal No. 010003, decided February 12, 2001. No responses were filed to this appeal.
DECISION
Affirmed.
CAUSE OF DEATH
The essential issue below was whether the decedent’s death from pulmonary embolus resulted from an ordinary disease of life, e.g. thrombosis, or from the work-related injury to the claimant’s left leg on __________. The parties stipulated that on __________, the decedent sustained a compensable injury and that he died on __________. The evidence concerning the mechanism of the injury the decedent sustained to his left calf area on __________, in an apparently unwitnessed accident, is not uniform. A clinic record of April 13, 1999, merely identifies the treating physician as Dr. M and the diagnosis as “Sprains And Strains of Knee and Leg,” and states certain physical restrictions, including the use of a cane as needed. An Initial Medical Report (TWCC-61) dated April 13, 1999, from Dr. D does not state a diagnosis as such but does state the history as the decedent’s having injured his left calf while loading a wheelbarrow on a dock and sustaining “an acute injury to the left calf.” This report further states that the decedent denied a previous history of injury to this body part; that there was swelling and ecchymosis of the left calf, and motion and strength were decreased because of pain; that x-rays of the tibia were normal; that the decedent was treated with pain and anti-inflammatory medications, and given Ace wraps and crutches; and that he was taken off work completely until April 20 and released for light duty effective April 21, 1999.
The April 25, 1999, autopsy report of Dr. B states that he found, among other things, massive pulmonary emboli in the right and left pulmonary arteries extending into the segmental arteries, and multiple thrombi in deep saphenous veins of the left lower extremity. The report concluded that the decedent died as a result of massive pulmonary emboli and that the manner of death was “natural.” The death certificate signed by Dr. B on April 26, 1999, states the immediate cause of death as “pulmonary emboli” and the manner of death as “natural.” It does not state how the injury occurred. An amendment to that certificate signed by Dr. B on August 31, 2000, states the manner of death as “accident” and describes the occurrence of the injury as “collapsed outside after working on vehicle.” No evidence was adduced to account for the amendment.
The August 23, 1999, report to the carrier from Dr. A, who reviewed the records for the carrier, states that the obvious diagnosis of deep venous phlebitis was not considered in the decedent’s case and that this phlebitis was the probable cause of the originating thrombolic phenomenon which ultimately became the emboli in the pulmonary arteries which resulted in death. Dr. A further stated that in the absence of any further information, he “had to accept the fact that the patient died from a pulmonary embolus related to a deep venous phlebitis that may not have occurred as direct relation to his job, particularly on the basis that the patient did not do anything different from his usual capacity work.” The remainder of this report, largely illegible, indicates that Dr. A had little, if any, information about the decedent’s work.
Dr. F, a specialist in emergency room medicine who reviewed the decedent’s records for the carrier, testified about a number of risk factors for the formation of thrombi and their migration to other areas of the body (becoming embolic), including stasis, infection, injury to a vessel wall from trauma, and obesity, the latter being a strong risk factor in the decedent’s case. He stated that while minor injuries such as a sprain/strain or bump would not injure a blood vessel wall and cause a thrombus, a substantial injury or serious trauma which injures a vessel wall, such as a broken bone, a very deep bruise, or motor vehicle accident injuries, could do so. He said he understood that the decedent was “working with a wheel barrow and then said his leg hurt him” and that pushing a wheelbarrow up a ramp, which was the history in a medical record, could produce pain from existing phlebitis similar to the Homan’s Test used to diagnose phlebitis. In Dr. F’s opinion, no medical record showed the occurrence of such an injury at work as would cause thrombosis as distinguished from existing thrombosis becoming symptomatic, and that the decedent’s existing thrombosis manifested itself on the job but was not caused by the job. Dr. F felt that a thrombus from a deep saphenous blood vessel in the left leg broke off and migrated to the lungs, where it lodged and grew until it plugged up the pulmonary vessels. However, Dr. F agreed on cross-examination that there was not evidence in the medical records that the decedent had thrombi or clots in the left leg prior to April 13, 1999, but said his opinion was an “educated guess” based on the autopsy report. He also stated that it was “possible” that if the decedent sustained an acute injury to his left leg and developed a thrombus, it could result in his death two weeks later.
The carrier challenges the findings that the decedent sustained a compensable injury on __________, in the form of thrombosis of the left lower extremity, that the cause of death was a massive pulmonary embolus, and that the development of an embolus is a natural and direct result of the compensable injury, and the conclusion that the decedent’s death is a result of his __________, compensable injury. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The Appeals Panel, an appellate reviewing tribunal, will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
BENEFICIARY STATUS OF CR
Section 408.182, which provides for the distribution of death benefits, defines “eligible child” to include a minor child, a child who is enrolled as a full-time student in an accredited educational institution and is less than 25 years of age, and a child who is a dependent of the deceased and whose parent is not an eligible child. Section 408.183, which addresses the duration of death benefits, provides in Subsection (d) that a child who is eligible for death benefits because, on the date of the employee’s death the child is enrolled as a full-time student in an accredited educational institution, is entitled to receive or to continue to receive benefits until the date the child ceases, for a second consecutive semester, to be enrolled as a full-time student in an accredited educational institution. See also Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 132.4(f) (Rule 132.4(f)) and Rule 132.8.
CR testified that she was born on March 25, 1981; that on the date her father died she was 18 years of age and a junior in high school; and that she graduated from high school on May 24, 2000. She further stated that she “enrolled” at a college as a part-time student for the Fall 2000 and Spring 2001 semesters but failed to complete the second part of a school test required before she could attend classes and that she had not attended any college classes and has been working as a cashier.
The hearing officer found that on the date of the decedent’s death, CR was 18 years of age and was enrolled as a full-time student in an accredited educational institution and that the date she ceased for the second consecutive semester to be enrolled as a full-time student was January 16, 2001. The hearing officer explained the latter date, stating that most classes begin mid-month. The hearing officer’s determinations concerning CR’s status as a beneficiary are sufficiently supported by the evidence. She was 18 and a full-time high school student when her father died. She “enrolled” as only a part-time student at the college but never attended a class and so the beginning of the Spring 2001 semester was the date she ceased for the second consecutive semester to be enrolled as a full-time student.
BENEFICIARY STATUS OF JR
The birth certificate reflects that JR was born on July 5, 1999, and that the decedent was her father. The hearing officer found that on the date of the decedent’s death, JR was “the natural daughter and minor child” of the decedent. In her discussion of the evidence, the hearing officer states that although JR was not yet born on the date of her father’s death, she was nonetheless a minor child. The carrier contends that the date of the decedent’s death fixes the status of persons as beneficiaries, citing Freeman v. Texas Compensation Insurance Company, 603 S.W.2d 186 (Tex. 1980), and that “[u]nborn children cannot vest in property or rights.” The hearing officer’s discussion notes that, though not a holding, the decision in Foreman v. Security Insurance Company of Hartford, 15 S.W.3d 214 (Ct. App.-Texarkana 2000), mentioned in the factual recitation that “[a]fter Foreman died, a natural child, __________, was born, who also became eligible for workers’ compensation benefits.” Foreman concerned the status of step-children of the deceased employee as beneficiaries for workers’ compensation death benefits.
While not finding a Texas case on point, research indicates that certain other jurisdictions include unborn, after-born, or posthumous children as beneficiaries for purposes of workers’ compensation death benefits, particularly where “child” is defined in the statute to include such. See Annotation, Workmen’s Compensation: Posthumous Children and Children Born After Accident as Dependents, 18 A. L. R. 900. And see Texas Employees Insurance Association v. Shea, 410 F2d. 56 (5th Cir. 1969), where the court construed the Longshoremens’ and Harbor Workers’ Compensation Act which includes posthumous child in the definition of child. The 1989 Act defines “child” to mean “a son or daughter” and to include “an adopted child or a stepchild who is a dependent of the employee.” Section 401.011(7). As can be seen above, the definition of “eligible child” in Section 408.182 does not specifically include an unborn child nor does it specifically include an adopted child, a stepchild, or an acknowledged illegitimate child. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 132.4 (Rule 132.4)) does provide for adoptive and stepchildren, however, but is silent regarding unborn children. Rule 132.4(a) states that a child eligible for death benefits is the son or daughter of a deceased employee, including an adoptive child, and including a dependent stepchild, who meets any of the qualifications set out in the 1989 Act.
We are satisfied that the hearing officer has not committed legal error in determining that JR is a legal beneficiary of the decedent for the purpose of receiving death benefits under the 1989 Act. We are mindful of the following well-settled doctrine concerning the construction of workers’ compensation legislation recently iterated by the Texas Supreme Court in Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 959 (Tex. 1999), as follows: “We liberally construe workers’ compensation legislation to carry out its evident purpose of compensating injured workers and their dependents. [Emphasis Supplied.]”
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill
Appeals Judge
CONCUR:
Thomas A. Knapp
Appeals Judge
Robert W. Potts
Appeals Judge
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 March 28, 2000. The issue was whether appellant, Mr. V, became ineligible for death benefits, and, if so, on what date. The hearing officer determined that Mr. V became ineligible for death benefits on October 19, 1996. Mr. V appealed, contended that the hearing officer erred in determining that he was not enrolled as a full-time student during certain semesters, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that he was a full-time student during those semesters and that he remains entitled to benefits because of the death of his mother. Respondent 1, Mr. NH, replied, contended that Mr. V's request for review was not timely filed; urged that the determinations of the hearing officer are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust; and requested that the decision of the hearing officer be affirmed. Respondent 2, the carrier, replied; urged that the evidence is sufficient to support the decision of the hearing officer; and requested that it be affirmed.
DECISION
We affirm.
We first address the timeliness of the request for review of Mr. V. The decision of the hearing officer was distributed to the parties on April 13, 2000. The last day for an appeal to be filed by Mr. V was May 3, 2000; he mailed his appeal on that day; and his appeal was timely filed.
The Decision and Order of the hearing officer contains a statement of the evidence and quotations from sections of the 1989 Act and Texas Workers' Compensation Commission rules. Ms. MH died as the result of injuries sustained in the course and scope of her employment on ________. Mr. NH, who was nine years old at the time of the CCH, and Mr. V, who was born on October 19, 1978, are sons of Ms. MH. Mr. V became 18 years of age on October 19, 1996. He was not attending school at that time. Mr. V enrolled as a student in (ACC) for the spring semester of school year 1996-1997 in January 1997. A copy of Mr. V's official transcript from ACC is in evidence. It reveals that for the spring 1997 semester Mr. V registered for four three-hour courses for a total of twelve semester hours, that he withdrew from two courses, and did not pass a third course. For the fall of 1997 semester, Mr. V again registered for twelve hours, withdrew from two courses, and did not pass a third course. For the spring of 1998 semester, Mr. V registered for twelve hours and withdrew from all of the courses. For the fall of 1998 semester, Mr. V registered for six hours, withdrew from one course, and completed the other one. For the spring of 1999 semester, Mr. V registered for twelve hours and successfully completed each course. Mr. V testified that after the death of his mother, he suffered from depression; was treated by a psychiatrist; was advised by the psychiatrist to drop all courses; had treatment; and his grades for the last semester were A, B, C, and C.
Mr. L, the Director of Admissions and Records at ACC, testified that twelve hours is considered a full-time load at ACC; that if a student does not complete twelve hours during a semester, the student is not considered a full-time student; that a student who enrolls for twelve hours and withdraws from a course is not classified as a full-time student; that a student who has less than twelve hours of classes because of withdrawing from a course or courses is not considered a full-time student and is not eligible for financial aid; and that the records of ACC reveal that the spring of 1999 semester is the only semester that Mr. V was considered to be a full-time student.
Section 408.183, DURATION OF DEATH BENEFITS, provides in part:
(c)A child who is eligible for death benefits because the child is a minor on the date of the employee's death is entitled to receive benefits until the child attains the age of 18.
(d)A child eligible for death benefits under Subsection (c) who at age 18 is enrolled as a full-time student in an accredited educational institution or a child who is eligible for death benefits because on the date of the employee's death the child is enrolled as a full-time student in an accredited educational institution is entitled to receive or to continue to receive, as appropriate, benefits until the earliest of:
(1)the date the child ceases, for a second consecutive semester, to be enrolled as a full-time student in an accredited educational institution; . . . .
Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 132.4(f) (Rule 132.4(f)) provides in part A[a] child shall only be considered a full-time student if the child meets the educational institution's requirements for a full-time student in the child's course of study. Mr. L testified about ACC's policy concerning full-time students, reviewed the transcript concerning the claimant, and stated that the spring 1999 semester was the first semester that Mr. V was a full-time student. Mr. V reached the age of 18 on October 19, 1996.
The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness's testimony because the finder of fact judges the credibility of each and every witness, the weight to assign to each witness's testimony, and resolves conflicts and inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Texas Workers' Compensation Commission Appeal No. 93426, decided July 5, 1993. The hearing officer made findings of fact that Mr. V reached the age of 18 on October 19, 1996; that at age 18 he was not enrolled as a full-time student; and that he did not qualify as an enrolled full-time student for the spring semester of 1997, the fall semester of 1997, the spring semester of 1998, or the fall semester of 1998. He made a conclusion of law that Mr. V became ineligible for death benefits as of October 19, 1996. Those determinations of the hearing officer are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust and are affirmed. In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
We affirm the decision and order of the hearing officer.
Tommy W. Lueders
Appeals Judge
CONCUR:
Alan C. Ernst
Appeals Judge
Dorian E. Ramirez
Appeals Judge
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 April 1, 1998, with the record closing on April 22, 1998. (Hearing officer) presided as hearing officer. She determined the amount of death benefits owed the two stepchildren of the deceased after a third party settlement of a wrongful death action was reached with the deceased’s wife and three natural children. The wife appeals this determination on behalf of the stepchildren, contending error as a matter of law in the interpretation of applicable provisions of the 1989 Act. The respondent’s (carrier) reply was untimely and for this reason will not be considered. See Section 410.202. However, the position statements of the parties which were introduced into evidence at the CCH will be considered in our decision.
DECISION
Affirmed.
The facts of this case were stipulated by the parties. The deceased sustained a compensable injury on ____________, as a result of which he died. At the time of death, he had a wife; two children born of the marriage; a child born of this marriage five months after his death; and two stepchildren, born to his wife before her marriage to the deceased and dependent on him. Death benefits were fixed at the rate of $472.00 per week and were paid half to the wife and half to the five children.
As of October 3, 1997, $59,944.00 in death benefits had been paid. On this date, the wife and three children of the marriage, as plaintiffs, reached a settlement in a wrongful death action against a third party, which awarded the plaintiffs $3.95 million. Carrier asserted a lien on the judgement in the amount of $50,044.95, the benefits it had already paid to the wife and natural children, but not to the stepchildren. It received this amount pursuant to a Rule 11 of the Texas Rules of Civil Procedure agreement with the wife and three children. In pertinent part, the Rule 11 agreement provided that the settlement would be considered an advance for purposes of the workers’ compensation claim under Section 417.002(b) and that the advance was "of such size that [carrier] will not be obligated to pay anymore benefits" to the wife and three children borne of the marriage.
The two stepchildren were not parties to the third party liability lawsuit, judgement, or Rule 11 agreement with the carrier. For this reason, the carrier continued to pay benefits to these individuals in the original amount, which was one-fifth of 50% of $472.00, or $47.20 each per week. The stepchildren contend that they are entitled to share equally the full $472.00 weekly benefits because, as a result of the Rule 11 agreement there are no longer any other eligible beneficiaries. In support of their position, they rely on Section 408.184(a), which provides:
(a)If a legal beneficiary dies or otherwise becomes ineligible for death benefits, benefits shall be redistributed to the remaining legal beneficiaries. . . .
The hearing officer determined that the stepchildren were not entitled to the full amount of the death benefits, but only to the pro rata share established by Section 408.182 because the wife and three natural children were still eligible beneficiaries even though they received as an advance the full amount of the benefits to which they were likely due.
In their appeal, the stepchildren argue that it was "ridiculous" for the hearing officer to find that the wife and natural children were still "technically 'eligible' to receive Workers’ Compensation benefits subsequent to the settlement of the third party case" simply because the carrier will not have to pay anymore benefits to the wife and natural children by virtue of the large amount of the settlement. In support of this position, the stepchildren rely on the case of Blankenship v. Highlands Insurance Company, 594 S.W.2d 147 (Tex. Civ. App.-Dallas, 1980, writ ref’d n.r.e.). In that case, the deceased injured worker was survived by a wife and minor children. The wife remarried, thus terminating her right to continued death benefits. The children contended that they were entitled to the full amount of the benefits as established on the date of death, arguing that they had a reversionary interest in the benefits previously paid to the surviving spouse. The court held that the workers’ compensation law in effect at the time specified only who the beneficiaries were and did not limit the amount of benefits to be paid once this amount was fixed as of the date of the death. It held that the children did have a reversionary interest in the amount of death benefits originally paid to the surviving spouse.
We do not find Blankenship, supra, controlling in the case we now consider because in that case the beneficiary spouse expressly lost this status by operation of law. Section 408.182 of the 1989 Act defines eligibility for death benefits in terms of status, that is a child, a dependent, a grandchild or spouse. Once this status is lost, the beneficiary becomes ineligible for death benefits. Thus, Section 408.134(b) provides, as in the Blankenship case, that a spouse who remarries "ceases to be eligible" for benefits after the 104th week. A child is no longer eligible for benefits upon reaching majority (and not in school) or upon losing dependency status. The mere satisfaction of benefits through an advance such as in this case does not remove the eligible beneficiary status from the spouse and natural children, but simply and quite logically only relieves the carrier of paying again what the beneficiaries have already received. The continuing "technical" status of a beneficiary is also consistent with Section 417.002(c) which provides that if an advance is insufficient, the carrier is to then "resume the payment of benefits when the advance is exhausted." In our opinion, the hearing officer correctly interpreted the 1989 Act as providing that the spouse and natural children remain beneficiaries under the facts of this case and that the stepchildren are not entitled to the wife’s and natural children’s shares of death benefits. Any other result, we believe, is not consistent with a fair reading of the 1989 Act and would effectively destroy the carrier’s subrogation rights established in Section 417.001 et seq.
Finding no legal error, we affirm the decision and order of the hearing officer.
Alan C. Ernst
Appeals Judge
CONCUR:
Stark O. Sanders, Jr.
Chief Appeals Judge
Robert W. Potts
Appeals Judge
This appeal arises under the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On April 12, 1996, a contested case hearing (CCH) was held in (city), Texas, with the record held open until June 17, 1996, when it closed. (Hearing officer) presided as hearing officer. No oral testimony was presented at the April 12, 1996, CCH. The issue at the April 12, 1996, CCH was who were the eligible beneficiaries for death benefits in this case. The hearing officer determined that VW, RW, QW, (hereinafter referred to as claimants), and JD, and KD, were not eligible beneficiaries and that the sole eligible beneficiary was JW.1 On appeal, VW, who claimed to be the common-law wife of the decedent, contended that the hearing officer erred in refusing to consider documentation of her beneficiary status and in determining that she was not entitled to death benefits. RW, a disabled adult who was alleged to be a dependent of the decedent, and QW, the minor dependent child of the decedent, also contended that the hearing officer erred in refusing to consider documentation regarding their status as death beneficiaries. JD and KD, the decedent's alleged dependent grandchildren, did not appeal the hearing officer's adverse determinations and they became final. Section 410.169. The hearing officer had refused to consider the documentation of beneficiary status of VW, RW, and QW because she determined that it was not timely submitted by their attorney, as the hearing officer had ordered on Friday, April 19, 1996. In Texas Workers' Compensation Commission Appeal No. 961447, decided September 9, 1996, we reversed the hearing officer's decision and order and remanded the case for a hearing to consider the affidavit of claimants' attorney, Mr. R, as well as the other evidence to be developed regarding when Mr. R received the hearing officer's April 19, 1996, order for submission of evidence, and regarding when Mr. R "submitted" the documentation as ordered. The hearing officer held a hearing on remand in this regard on February 6, 1997. The hearing officer determined that the April 19, 1996, order was received by Mr. R's "office" on Friday, April 19, 1996, that the documentation was not timely filed within 10 days, or by April 29, 1996, and that, because she would not consider their documentary evidence, VW, RW, and QW were not eligible beneficiaries. Claimants again appeal, contending that the hearing officer erred in determining that they were not eligible beneficiaries, that Texas Workers' Compensation Commission (Commission) orders may not be sent by facsimile transmission, that the Commission order was deemed received five days after the April 19, 1996, mailing, that a legible facsimile transmission was not received by Mr. R until Monday, April 22, 1996, and that the documentation was timely filed and VW, RW, and QW are eligible beneficiaries. Mr. R also incorporated his brief and arguments from the previous appeal in this case. Respondents JW and the carrier did not respond on appeal.
We affirm in part and reverse and render in part.
It is undisputed that the decedent died on (date of injury), from a compensable injury. Therefore, his legal beneficiaries were entitled to death benefits under the 1989 Act. This case involves the claim of an alleged putative common-law spouse and children of the decedent. At the CCH, carrier did not dispute compensability, but merely sought a decision regarding the identities of the death beneficiaries.
We must first address the claimants' contention that the hearing officer abused her discretion in refusing to consider the claimants' documentary evidence regarding their claims. We will first review the procedural background of this case.
The hearing officer noted that VW, RW, QW, and Mr. R had not appeared at the April 12, 1996, CCH in [the field office] regarding these claims. Because the parties and Mr. R had not appeared for that CCH, the hearing officer subsequently ordered Mr. R to file the documentation for these claims within 10 days. In her first decision and order, the hearing officer determined that she would not consider the documentary evidence he filed regarding these claims because it was not "timely submitted" by April 29, 1996. The hearing officer further stated that, because the documentary evidence was not filed within the 10-day deadline she set, it was "appropriate" to determine that VW, RW, and QW were not eligible beneficiaries.
In an April 19, 1996, letter to Mr. R, the hearing officer had stated:
It is generally my practice to grant late requests for continuance based on the sudden occurrence of a family emergency, and I would have been happy to do so in this case had I been advised of the emergency before arriving in the [field office].
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To put matters quite bluntly, your handling of this matter tends to indicate that you hold Commission proceedings in relatively low esteem and consider them amenable to rescheduling solely at your convenience. . . .
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Commission personnel in the [field office] have advised me that your mother was ill. While I am truly sorry that she was ill, and I wish her speedy recovery, I also wish to advise you that on the morning of [the April 12, 1996, CCH] [my child] had a fever of 104 degrees. I made alternate arrangements for my son's care, so that I could [be at the CCH]. Since, despite the efforts of all other persons involved in the case, you were unavailable [at the time of the CCH], your clients' [CCH] will be conducted in writing.
The hearing officer noted that Mr. R's secretary did not contact the Commission regarding the motion for continuance until late in the afternoon, that the Commission claim file did not reflect that Mr. R was the attorney handling the case, that Mr. R's secretary had apparently contacted claimants and told them not to appear at the CCH, and that Mr. R had not found someone else to appear at the CCH in his place. The hearing officer took official notice of Dispute Resolution Information System (DRIS) notes that stated that Mr. R's secretary called to say that another attorney could not "cover because he was taking depositions."
The April 19, 1996, order said:
Within 10 days of receiving this order, Attorney [Mr. R], shall submit all documentary evidence . . . in support of his client's [sic] position . . . .
Some of the documentary evidence was filed on April 30, 1996, and some was filed on May 1, 1996. We remanded for a hearing regarding when Mr. R received the April 19, 1996, order and at the February 6, 1997, CCH on remand, Mr. R testified that: (1) during April 1996 the facsimile (fax) machine in his office had been intermittently turning out "black" or illegible copies; (2) at times it was not clear who sent the faxes; (3) he did not receive the fax and did not know of its ever having been faxed until he received the hearing officer's first decision and order dated June 26, 1996; (4) the problem with the fax machine was inferior cartridges and this problem was eventually resolved; (5) he received the April 19, 1996, order on Monday, April 22, 1996; and (6) he had been unable to attend the April 12, 1996, CCH because he had to fly to New Jersey (State A) on April 11, 1996, to see about his 80- year-old mother, who was ill, and that he brought his mother back to Texas. Ms. P, Mr. R's secretary and legal assistant, testified to similar facts regarding the problems with the fax machine, said that she did not receive the April 19, 1996, faxed order, and that she first received the April 19, 1996, order by mail on April 22, 1996.
Again, the hearing officer refused to consider the documentation because it was not filed within 10 days. The hearing officer stated in the decision and order after remand:
Although the hearing officer has little reason to doubt [Mr. R's] testimony to the effect that he had no personal knowledge of the hearing officer's order of April 19 until the following Monday, April 22, the fact remains that [Mr. R] would have been considered to have received the order on the date that it was received at his place of business, even though he may have been unaware of the order until sometime thereafter.
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The hearing officer also stated that it was unlikely that the attorneys in Mr. R's office would "permit the [fax] machine to remain intermittently inoperable" and that "Mr. R has narrowly failed to persuade the hearing officer that the scenario he has proposed is more likely than not to have occurred."
To obtain reversal of a judgment based upon the hearing officer's abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers' Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). The failure to attend a CCH is a matter for an administrative violation and will not preclude a party from presenting evidence. Texas Workers' Compensation Commission Appeal No. 941679, decided February 2, 1995; Texas Workers' Compensation Commission Appeal No. 950044, decided February 21, 1995.
Section 410.163 states, in pertinent part, that:
(b) A hearing officer shall ensure the preservation of the rights of the parties and the full development of facts required for the determinations to be made.
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The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers' Compensation Commission Appeal No. 950456, decided May 9, 1995.
The Appeals Panel has indicated in other contexts that whether a fax transmission may constitute written notice is a fact question for the hearing officer. Texas Workers' Compensation Commission Appeal No. 951239, decided September 1, 1995. The hearing officer apparently found that the attorney had "received" the April 19, 1996, order the day that it was faxed. However, there was uncontroverted evidence from Mr. R, who represented as an officer of the court that the fax machine was not working and that the document, in the form of a legible order, did not arrive so that the order could be "received" by Mr. R. His testimony was corroborated by Ms. P's testimony. Because there was no evidence that a legible faxed order was received by Mr. R on April 19, 1996, we conclude that the hearing officer erred in refusing to consider the documentary evidence filed by Mr. See Texas Workers' Compensation Commission Appeal No. 941196, decided October 20, 1994 (regarding uncontroverted evidence and receipt of written notice in a 90-day rule case). If the order was received by Mr. R on Monday, April 22, 1996, the documentation of the claimants' claims was timely filed because it was filed on April 30, 1996, and May 1, 1996, which was within 10 days of the April 22, 1996, receipt. We decline to uphold what amounts to the ultimate sanction of barring a party's evidence based on a record with no evidence to support a determination that the faxed order was received on April 19, 1996. See generally Texas Workers' Compensation Commission Appeal No. 962387, decided January 14, 1997. The hearing officer's determinations in Findings of Fact Nos. 15 and 18 that Mr. R (or his office) received the April 19, 1996, order on April 19, 1996, and did not timely submit the documentation are so against the against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we reverse them. Cain, supra. Any legal conclusion that claimants' documentation of their claims was not timely filed within 10 days of the receipt of the April 19, 1996, order is incorrect.2
The hearing officer made findings regarding the excluded documentary evidence in this case and, in her first decision and order, set forth what her findings would be should the Appeals Panel reverse her decision not to admit the documentary evidence. We now consider this documentary evidence and address the merits of these claims.
Regarding the merits of her case, VW contends that the hearing officer erred in determining that she was not entitled to death benefits as the decedent's putative common- law wife. VW filed for death benefits as the decedent's alleged common-law wife. In the first decision and order, the hearing officer denied VW's death benefits because VW knew the decedent was already married and, therefore, was not a putative common-law wife.3
In her affidavit, VW stated that: (1) she has lived with the decedent for over 30 years "as man and wife"; (2) she agreed with the decedent to be man and wife; (3) the two held themselves out in the community as man and wife; (4) the two purchased a mobile home, insurance, and other items as man and wife; (5) the two conducted transactions in the community as man and wife; (6) the two had eight children together; and (7) at no time did she have knowledge that the decedent was or may still have been married to another woman.
A marriage certificate shows that the decedent married WE on August 15, 1959. The record does not contain evidence regarding a divorce. WE is not a claimant in these proceedings. It was represented that VB, VW, and RH, were all the same person. VW stated in her affidavit that the decedent is the natural father of RW. In affidavits, Mr. HE and Ms. W stated that the decedent represented that RW was his son. Some school reports for RW were introduced and they listed RW's name as R-- E-- B-- and said under "parent or guardian," "[decedent] and [VW]." In affidavits, Mr. HA, Mr. M, Ms. TO, Ms. TU, Ms. BR, Mr. BU, and Mr. S, stated that the decedent and VW lived together as husband and wife for over 20 years, that they held themselves out as husband and wife, and that they conducted themselves as such. A certificate of ownership states that a manufactured home was owned by the decedent and "[RHW]". A signed and notarized statement dated April 30, 1996, states that VW is "sometimes known as [RHW]," that at no time did VW have knowledge that the decedent "was or may have been married to another woman," and that, up until the decedent's death, she believed they were married with no legal impediments. VW's driver's license states that her name is "[RHW]".
A putative marriage is one which was entered into in good faith by at least one of the parties, but which is invalid by reason of an existing impediment on the part of one or both of the parties. Garduno v. Garduno, 760 S.W.2d 735 (Tex App.-Corpus Christi 1988, no writ). A putative marriage may arise out of either a ceremonial or informal marriage. Reyv. Rey, 487 S.W.2d 245 (Tex. Civ. App.-El Paso, no writ). A putative marriage is based upon good faith and ignorance of the impediment. Esparza v. Esparza, 382 S.W.2d 162 (Tex. Civ. App.-Corpus Christi 1964, no writ). If the alleged putative spouse is aware that a prior marriage existed at one time or if a party to an alleged putative marriage receives reliable knowledge of an impediment to the marriage, that party cannot simply declare disbelief of information and continue as if it were untrue. Instead, that party has a duty to investigate further and not act blindly or without reasonable precaution. Garduno, supra.
Section 408.182 provides as follows in relevant part:
(a) If there is an eligible child or grandchild and an eligible spouse, half of the death benefits shall be paid to the eligible spouse and half shall be paid in equal shares to the eligible children. . . .
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Section 408.182(f)(3) provides as follows in relevant part:
"Eligible spouse" means the surviving spouse of a deceased employee unless the spouse abandoned the employee for longer than the year immediately preceding the death without good cause, as determined by the commission.
Rule 132.3(c) (Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 132.3(c)) provides as follows:
If more than one person claims to be the surviving spouse of the deceased employee, the commission shall presume the most recent spouse is the surviving spouse. This presumption may be rebutted by an individual who presents proof of a prior valid marriage to the deceased employee.
The hearing officer determined that VW was not an eligible spouse. In the discussion portion of the first decision and order, the hearing officer noted that she viewed with some "skepticism" VW's statement that she did not know of the decedent's prior marriage because one of VW's children, RW, used the surname "[B]" (B--) "as late as 1995."
However, we note that other documents, such as QW's birth certificate, show that VW also used the last name "B--." The fact that a child uses his mother's last name, which is different than his father's last name, shows that, perhaps, the child was born before the mother married the father. At most, this evidence shows that perhaps RW was born before any alleged putative common-law marriage began and that RW merely continued to use the name "B--." Evidence that a child's last name is the same as his mother's previous name does not indicate that the mother has any knowledge about her alleged husband's previous marriage. The hearing officer did not mention other reasons, if any, why she found that VW's affidavit evidence was not credible. There was no evidence in the record that VW knew or had reason to know of the decedent's prior marriage.
Good faith is a question of fact and, generally, we will not substitute our judgment for that of the hearing officer regarding fact issues. Texas Workers' Compensation Commission Appeal No. 941639, decided January 20, 1995. However, in this case, the hearing officer's explanation for disbelieving uncontroverted affidavit evidence is not based on fact and solid reasoning. The hearing officer is normally in the better position for judging credibility. However, the witness, VW, was not present before the hearing officer when the hearing officer made this determination in the first decision and order; the determination was made from affidavit evidence. Based on the uncontroverted evidence, we determine that Finding of Fact No. 11 and Conclusion of Law No. 4 are so against the against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we reverse them. Cain, supra. We render a decision that VW maintained a good faith belief that she had previously established a common-law marriage with the decedent, that she is a putative common-law spouse, and that she is an eligible beneficiary.
QW, the decedent's minor child, contends that the hearing officer erred in determining that she was not entitled to death benefits. The hearing officer denied her benefits because QW's attorney, Mr. R, did not file her claim within 10 days of the hearing officer's April 19, 1996, order.
The only reason the hearing officer made a legal conclusion that QW was not an eligible beneficiary was because Mr. R did not file the above-mentioned documentary evidence within 10 days of the April 19, 1996, order. We note that the hearing officer stated that RW and QW would have been eligible beneficiaries if the hearing officer had considered the documentary evidence. We have already determined that the hearing officer abused her discretion and that the hearing officer should have considered this evidence. Having reviewed the unappealed determinations regarding QW and the hearing officer's decision and order, we reverse the hearing officer's determination that QW is not an eligible beneficiary and render a decision that QW is an eligible beneficiary.
RW contends the hearing officer erred in determining that he was not entitled to death benefits. In an unappealed finding, the hearing officer determined that RW was a natural child or stepchild of the decedent and that he was dependent on the decedent because of a mental disability. The hearing officer denied RW's death benefits because Mr. R did not file RW's claim within 10 days of the hearing officer's April 19, 1996, order. We have already held that the hearing officer should have considered the documentary evidence regarding this claim. Having reviewed the unappealed determinations regarding RW and the hearing officer's decision and order, we reverse the hearing officer's determination that RW is not an eligible beneficiary and render a decision that RW is an eligible beneficiary.
We reverse the hearing officer's determination that VW, RW, and QW are not eligible beneficiaries and render a decision that VW, RW, and QW are eligible beneficiaries. We affirm that part of the decision and order that determines that JD and KD are not eligible beneficiaries and that JW was an eligible beneficiary.
Judy L. Stephens
Appeals Judge
CONCUR:
Stark O. Sanders, Jr.
Chief Appeals Judge
Robert W. Potts
Appeals Judge
1JW filed for death benefits as a dependent child of the decedent. It is not disputed that JW was entitled to death benefits. JW was apparently the child of a third party and the decedent. The district court adjudicated decedent's paternity of JW in 1989.
2We need not address the propriety of the fax transmission of Commission orders and assume, without deciding, that under the facts of this case such transmission was proper.
3The hearing officer also denied the benefits because she refused to consider the documentary evidence of VW's claim, but we have already determined that this was an abuse of discretion.