Gilmer v. Nolen Sistrunk Trucking
| Docket Number: | 2003-WC-01261-COA Linked Case(s): 2003-WC-01261-SCT ; 2003-WC-01261-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-24-2004 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Workers’ compensation - Dependency of children - Dependency of grandchildren - Section 71-3-25 (g) - Section 71-3-3 (l) Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, Irving, Chandler and Griffis, JJ. Non Participating Judge(s): Barnes, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 05-20-2003 Appealed from: Scott County Circuit Court Judge: Marcus D. Gordon Disposition: ORDER OF COMMISSION DENYING DEPENDENCY AND DEATH BENEFITS AFFIRMED Case Number: 2002-CV-279-SC |
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| Party Name: | Attorney Name: | |||
| Appellant: | Descendants of Terry Glen Gilmer, Deceased |
FRANK H. SHAW |
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| Appellee: | Nolen Sistrunk Trucking, Inc. and Georgia Casualty and Surety Company | PHILLIP PERKINS EMBRY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Workers’ compensation - Dependency of children - Dependency of grandchildren - Section 71-3-25 (g) - Section 71-3-3 (l) |
| Summary of the Facts: | Terry Gilmer died as a result of a motor vehicle accident. Melissa Gilmer Brown, Bobby Brown and Roneshia Brown filed a petition to controvert which alleged that they were the sole death beneficiaries of Terry Gilmer and that Terry Gilmer died as a result of a work-related injury. Nolen Sistrunk Trucking , Inc., Gilmer’s employer, answered the petition admitting the existence of a compensable work-related injury but denying the existence of death beneficiaries as defined by the Mississippi Workers’ Compensation Act. The administrative judge issued an order finding that there are no dependants of Terry Gilmer to which benefits are due. The Commission and the circuit court affirmed the order of the administrative judge. The alleged beneficiaries appeal. |
| Summary of Opinion Analysis: | Section 71-3-25 (g) provides that all questions of dependency shall be determined as of the time of the injury and a surviving spouse, child or children shall be presumed to be wholly dependent. Under section 71-3-3 (l), a child does not include married children unless wholly dependent on the deceased. Melissa Brown, the natural child of Terry Gilmer, was twenty-six years old and was married to Marvin Brown at the time of Gilmer’s death. Brown argues that she was dependent on Gilmer due to her physical disability. Her left leg was amputated when she was young, and she testified that she relied on Gilmer for practically everything she needed financially. The principle of total dependency is consistent with receipt of other income, if it is sporadic and insubstantial. Brown testified that she received income from several other sources: her husband, her mother, SSI, food stamps and the Silver Star Casino. Given the myriad of income sources available to and utilized by Brown, such income cannot be considered sporadic or insubstantial. Therefore, the Commission’s decision that Brown was not a dependent of Gilmer is supported by substantial evidence. The remaining parties are the grandchildren of Terry Gilmer. Under section 71-3-25 (g), the dependency of grandchildren must be considered on the basis of total or partial dependence as the facts may warrant. Melissa Brown testified that she used the money from Gilmer to support herself and her children. A claimant asserting dependency must show a reasonable ground to anticipate future support from the decedent. Here, there was no indication that the children expected future support from their grandfather. If they expected support from anyone it more than likely would have been from their mother or grandmother. Therefore, the Commission’s decision that they were not entitled to death benefits is supported by substantial evidence. |
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