J.H. v. Workers' Compensation Appeal Board

OPINION BY Judge LEAVITT. J.H. (Claimant) petitions for review of an October 24, 2001 order of the Workers’ Compensation Appeal Board (Board) affirming the decision of the Workers’ Compensation Judge (WCJ) to terminate Claimant’s compensation benefits because she entered into a marriage-like relationship with a man not her husband. — 188 — Claimant is the widow of Dallas EL, who died in an accident on June 21, 1983, while working for Oley Township (Employer). As a result, Claimant and her son, Sean EL, were awarded workers’ compensation benefits.1 On December 23,1998, Employer filed a petition to terminate Claimant’s benefits as of December 28, 1988 for the stated reason that she was living with Stephen G. in a meretricious relationship, which is a basis to terminate compensation under Section 307(7) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 562, as is the act of remarriage. At the hearing before the WCJ, Employer presented the following documentary evidence: 1) a deed, dated December 7, 1989, conveying property in Breinigsville, Pennsylvania, to Claimant and Stephen G. as joint tenants in the entirety with a right of survivorship; 2) a mortgage note signed on December 15, 1989, by Claimant and Stephen G.; 3) a copy of Stephen G.’s voter registration application, noting his address at the property held jointly with Claimant; and 4) a 1998 real estate tax bill listing Stephen G. and Claimant as the taxpayers for their jointly-held property. Claimant Was called by Employer as of cross-examination and testified that she and Stephen G. had a child together, Dylan G., born on September 28, 1989.2 Claimant further admitted that she currently fives with Stephen G. at their jointly owned home. Employer also presented the deposition testimony of Claimant’s gynecologist and obstetrician, Jeffrey B. Frank, M.D. (Dr. Frank).3 Dr. Frank testified to Claimant’s medical history from 1983, when he began treating her, through 1999. At a visit on February 7, 1989, Claimant told Dr. Frank that she and her live-in “boyfriend or possible fiancé” of six months were thinking about having a child; on September 28, 1989, Claimant delivered her son Dylan G. Dr. Frank testified that he understood Stephen G. to be Claimant’s sexual partner4 and the father of her child, Dylan.5 Dr. Frank prescribed birth control for Claimant from November 9, 1989, after she delivered Dylan, through September 24, 1999.6 Dr. Frank stated — 189 — that he prescribed Claimant birth control specifically for the purpose of preventing pregnancy, as opposed to another medical reason. During the visits in 1999, Claimant indicated to Dr. Frank that she was using the prescriptions. At the conclusion of the hearing, the WCJ found that Claimant was involved in a meretricious relationship from December 28, 1988 through 1999. The WCJ made the following ruling: The Employer has sustained its burden of proving by substantial, competent and credible evidence that the Claimant has been involved in a meretricious relationship, and not married, and engaging in a sexual relationship since at least December 28, 1988 through the present. It is clear from the evidence presented by the Employer that a reasonable person could conclude that the Claimant has been involved in a meretricious relationship with [Stephen G.] since at least December 28, 1988 and up through the present time. As a result, the WCJ terminated Claimant’s benefits effective December 28, 1988. The Board affirmed. Claimant then petitioned for our review.7 Claimant contends that the Board erred as a matter of law by terminating benefits as of December 28,1988, the date on which the WCJ found that the meretricious relationship began.8 She asserts that December 23, 1998, the date on which Employer filed its petition, is the earliest date on which benefits could terminate. Further, Claimant contends that the Board’s conclusion that she was living with a man in a meretricious relationship on December 23, 1998 is not supported by substantial evidence.9 Section 307(7) of the Act provides, inter alia, that Should any dependent of a deceased employee die or remarry, or should the' widower become capable of self-support, the right of such dependent or widower to compensation under this section shall cease except that if a widow remarries, she shall receive one hundred" four weeks compensation at a rate computed in accordance with clause 2. of section 307 in a lump sum after which compensation shall cease: Provided, however, That if, upon investigation and hearing, it shall be ascertained that the widow or widower is living with a man or woman, as the case may be in a meretricious relationship and not married, or the widow living a life of prostitution, the board may order the termination of compensation payable to such widow or widower. — 190 — 77 P.S. § 562 (emphasis added). The employer must prove that on the date of filing the termination petition the “widow or widower is living with a man or woman, as .the case may be in a meretricious relationship.” 10 Todd v. Workmen’s Compensation Appeal Board (NCR Corp. and National Union/Crawford & Co.), 547 Pa. 687, 692 A.2d 1086 (1997). A meretricious relationship has been defined as two individuals living together in a carnal way without benefit of marriage.11 Campbell v. Workmen’s Compensation Appeal Board (Hards Construction Co.), 695 A.2d 976, 979 (Pa.Cmwlth.1997). The employer must produce direct evidence of a carnal12 relationship to meet its burden. Gamble v. Workmen’s Compensation Appeal Board (Burrell Construction and Supply Co.), 143 Pa.Cmwlth. 277, 598 A.2d 1071 (1991). Here, Employer had to prove that on the date Employer filed its termination petition Claimant was: (1) living with Stephen G., (2) in a sexual relationship, and (3) without-being married to him. Employer’s evidence satisfied all three requirements. It showed by Claimant’s admission, and by relevant documentary evidence, such as the deed to their home, that Claimant and Stephen G. were living together on December 23, 1998, the date on which Employer filed its termination petition. Employer also showed by Claimant’s admission that Stephen G. was the father of her child and by Dr. Frank’s deposition testimony13 that after the birth of Dylan G. he continued to prescribe Claimant birth control for the purpose of preventing pregnancy, that the relationship between Claimant and Stephen G. was sexual in nature. Finally, Employer showed by Claimant’s description of Stephen G. as a “friend” and by the deed to their home, describing Claimant and Stephen G. each as a single person, that they were not married as of December 23,1998. Thus, the WCJ’s conclusion that Claimant was living with Stephen G. in a sexual relationship, without being married to him, on December 23, 1998, is supported by substantial, competent evidence. The Board’s affirmance of the WCJ was appropriate. Because Employer demonstrated that Claimant’s relationship with Stephen G. — 191 — began at least by December 28, 1988, the WCJ ordered benefits terminated on that date. This is consistent with precedent. In Jones Motors v. Workmen’s Compensation Appeal Board) 51 Pa.Cmwlth. 210, 414 A.2d 157, 159 (1980),14 we held that where the employer proves that claimant engaged in a meretricious relationship, the appropriate remedy is to terminate benefits during the period of the relationship. See also Hess Brothers v. Workmen’s Compensation Appeal Board (Gornick), 128 Pa.Cmwlth. 240, 563 A.2d 236 (1989). However, Claimant contends that the proper date for termination of benefits is the date that Employer filed the termi-nátion petition, not the date the relationship commenced. She bases this argument on the Supreme Court’s ruling in Todd. However, Todd did not address the date on which benefits could be terminated but only the date as of which the relationship had to be demonstrated. It held that the employer had to prove that a meretricious relationship continued to exist as of the date it filed its termination petition. Todd, 547 Pa. at 691, 692 A.2d at 1087.15 Although Section 307(7) of the Act does not expressly state when the termination of benefits should occur,16 the Pennsylvania Supreme Court has provided direction. In McCusker v. Workmen’s Compensation Appeal Board (Rushton Mining Co.), 536 Pa. 380, 639 A.2d 776 (1994), the Supreme Court held that Section 307(7) provides for the termination of benefits when the dependent of a deceased claimant either remames or is living in a meretricious relationship. Benefits are terminated to both remarried spouses and those in meretricious relationships under the assumption that the new relationship will ease the economic loss caused by the death of the former spouse. This legislative scheme treats both remarried dependents and those engaged in meretricious relationships the same and rationally promotes the governmental interest of judicious distribution of worker’s compensation benefits. McCusker, 536 Pa. at 391, 639 A.2d at 781 (emphasis added). To hold otherwise would encourage persons not to remarry in order to continue benefits. Thus, Section 307(7) of the Act was intended to encourage, not discourage, the institution of mar — 192 — riage. McCusker, 586 Pa. at 392, 639 A.2d at 781. Because Section 307(7) of the Act terminates benefits for those in a marriage-like (or “meretricious”) relationship 17 the same as if they were married, it eliminates the economic incentive not to remarry. The date a marriage begins is the date on which benefits terminate; to be consistent, the date on which the marriage-like relationship begins should provide the termination date. In this case, Employer produced substantial evidence that Claimant had been engaged in a meretricious relationship since December 28, 1988. Whatever reason Claimant had not to marry Stephen G., Section 307(7) of the Act ensures that the continued collection of benefits will not be a factor in her reasoning process. The WCJ terminated Claimant’s benefits as of the date that the Employer proved her meretricious relationship commenced, and the Board affirmed. We hold that the Board correctly affirmed the termination of Claimant’s benefits as of December 28, 1988. For these reasons, the decision and order of the Board is affirmed. ORDER AND NOW, this 29th day of October, 2002, the order of October 24, 2001, of the Workers’ Compensation Appeal Board in the above-captioned case is hereby affirmed. Footnotes [2] Employer also admitted into evidence Dylan G.’s birth certificate, which lists Stephen G. as his father and Claimant as his mother. [3] At the hearing before the WCJ, Claimant objected to this deposition testimony alleging that: (1) it violated the patient-doctor privilege and (2) was taken after the WCJ’s deadline. However, Claimant did not raise the issue of physician-patient privilege in her appeal to the Board or her petition for review to this Court. Board Opinion at 6, Reproduced Record 323a (R.R. -). Her petition for review states: The Workers' Compensation Appeal Board committed an abuse of discretion or error of law in holding that various and numerous procedural violations committed by Defendant/Appellee are either excused or do not require reversal. This is not sufficient to preserve the privilege claim, and Claimant's Brief does not develop the physician-patient privilege issue. The issue is waived. [4] In his medical notes, Dr. Frank wrote that Claimant's sexual partner is Stephen G. R.R. 181a, 187a. [5] Dr. Frank testified that according to a health history summary of Claimant dated February 7, 1989, Stephen is listed as the father of Claimant’s child. R.R. 145a-146a. [6] Dr. Frank prescribed birth control to Claimant on two occasions after Employer filed its petition: on March 24, 1999 and on September 24, 1999. R.R. 166a, 167a, 169a. [7] This Court's scope of review is limited to determining whether there has been a constitutional violation, an error of law, or whether findings of fact are supported by substantial evidence of record. Gamble v. Workmen’s Compensation Appeal Board (Burrell Construction and Supply Co.), 143 Pa.Cmwlth. 277, 598 A.2d 1071 (1991). [8] The evidence showed that this was the date that Claimant began living in a meretricious relationship with Stephen G. because it was when Claimant became pregnant with Dylan ■G., approximately nine months before his birth on September 28, 1989. R.R. 53a. Dr. Frank testified that on February 7, 1989, Claimant informed him that she had been living with Stephen G. for six months. [9] Claimant also contends that Section 307(7) of the Act violates the Equal Protection Clause of the U.S. and Pennsylvania Constitutions because it discriminates against a widow who lives in a meretricious relationship with a man but not a widow who lives in a meretricious relationship with a woman. The Pennsylvania Supreme Court, however, upheld the constitutionality of Section 307(7) in McCusker v. Workmen's Compensation Appeal Board (Rushton Mining Co.), 536 Pa. 380, 639 A.2d 776 (1994). [10] Section 307(7) of the Act, 77 P.S. § 562. This provision was added by a 1939 amendment. See Act of June 21, 1939, P.L. 520. [11] The dissent suggests that this definition is the invention of the majority. In point of fact, the definition has been used by Pennsylvania's appellate courts for many years. See Pegee v. Ricchini, 140 Pa.Super. 56, 12 A.2d 830 (1940). This Court has also consistently followed this definition. Hess Brothers v. Workmen's Compensation Appeal Board (Gornick), 128 Pa.Cmwlth. 240, 563 A.2d 236 (1989); Nevius v. Workmen’s Compensation Appeal Board, 52 Pa.Cmwlth. 418, 416 A.2d 1134 (1980). [12] The dissent did not choose the first definition of "carnal” found in the source cited, but a rather extreme definition. Another source, Webster’s II New College Dictionary 169 (1995) defines "carnal” as follows; 1. Relating to sensual desires and appetites. 2. Earthly: temporal. As used by our appellate courts, it appears that "carnal” means simply "sexual.” [13] This Court in Doe v. Workmen's Compensation Appeal Board (USAIR, Inc.), 653 A.2d 715, 717 (Pa.Cmwlth.1995), held that in instances where a claimant is seeking compensation benefits in a worker's compensation matter, the doctor-patient privilege does not apply. There is no reason why, as the dissent suggests, that this should be limited to the injured worker’s medical records. Where medical evidence is relevant to the Employer’s burden of proof, it should be admissible. In any case, as noted in footnote 3, the privilege issue was not preserved. This is not.to say that the majority endorses the scope of Dr. Frank’s deposition. [14] In Jones Motors, the claimant lived in a meretricious relationship from July 1, 1977 to June 1, 1978, but she terminated the relationship as of June 2, 1978. The referee and the Board suspended benefits from July 1, 1977 through June 1, 1978 and reinstated benefits on June 2, 1978 when the relationship ceased. This Court held that termination of benefits is the only available remedy and reversed the Board's order to reinstate benefits on June 2, 1978. Thus, the Court’s order in effect terminated benefits as of July 1, 1977, the date the meretricious relationship commenced. Jones Motors, 414 A.2d at 159. Likewise here, Claimant's benefits should be terminated from the date that the meretricious relationship commenced, December 23, 1988. [15] Todd also differs factually from this case because the claimant sought a lump sum distribution of benefits, or widow's dower, under Section 307(7). Todd, 547 Pa. at 689, 692 A.2d at 1087. Here, Claimant seeks continued benefit payments. [16] Section 307(7) of the Act provides that, "the board may order the termination of compensation payable to such widow or widower.” 77 P.S. § 562. Section 307(7) gives the Board discretion to determine whether payments should be terminated but does not give direction as to when the payments should be terminated. This lack of direction raises a question of delegation of legislative authority, but that issue is not before us. In any case, our Supreme Court has concluded that using economic hardship as the standard satisfies Pennsylvania Constitution’s separation of powers. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Sadvary), 524 Pa. 235, 240, 570 A.2d 84, 86 (1990). [17] The dissent criticizes the legislature's use of the word "meretricious” and the statutory concept that living together in a sexual relationship out of wedlock is "meretricious.” We do not agree with the choice of words in Section 307(7) of the Act, but, we must uphold duly enacted statutes and within the bounds of binding precedent. This Court has held that the "... legislature is properly concerned with fostering good morals by encouraging legally recognized and responsible family relationships and discouraging the forming of illicit relationships.” Nevius, 416 A.2d at 1137. The more recent McCusker holding by the Supreme Court holds that the purpose of Section 307(7) is to level the playing field between widows who remarry and those who live in a marriage-like relationship; benefits terminate in either situation. Whether this legislation is intended to foster a moral code not consistent with the "reality of modern human relationships” is a question to be addressed to the General Assembly. Section 307(7) of the Act may merit revisiting by our legislature for another reason. Upon becoming "capable of self-support,” a widower's benefits terminate, but a widow's benefits continue notwithstanding her ability to support herself. This does not reflect "the reality of modem human relationships” where both spouses often contribute to the economic well-being of a family.