Decedent worked as a crane operator for twenty years, including six years for Employer. He retired in 2004 because of orthopedic problems. In 2008, Decedent was diagnosed with lung cancer. Following his death in 2009, which was caused by non-small cell lung carcinoma with contributing causes of chronic obstructive pulmonary disease, hypertension, and pulmonary embolus, Claimant filed a claim for death benefits. The issue was whether Claimant qualified as a “widow” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).
Pursuant to Section 2(16) of the LHWCA a “widow” includes a decedent’s wife who was “living with or dependent for support upon [the decedent] at the time of [the decedent’s] death; or living apart for justifiable cause or by reason of [the decedent’s] desertion at such time.”
The administrative law judge (“ALJ”) determined that Claimant was not a “widow.” According to the ALJ, Claimant and Decedent had legally separated; there was no evidence of reconciliation; and the conjugal nexus had severed when Decedent filed for divorce.
On appeal to the Benefits Review Board, Claimant argued that she was a “widow” because she was dependent upon Decedent for support or, alternatively, she was living apart from Decedent for justifiable cause. Claimant alleged she was dependent because of her receipt of the community portion of Decedent’s retirement pension, and Decedent’s continued health insurance coverage for Claimant. The problem, however, was that Claimant did not raise this argument in front of the ALJ. Accordingly, Claimant was required to show that she lived apart from Decedent for “justifiable cause” and that a “conjugal nexus” remained between Decedent and Claimant at the time of Decedent’s death…five years after they began living separate and apart from one another.
The alleged “justifiable cause” for living separate and apart was that Decedent had abused Claimant and that Decedent consumed too much alcohol. The ALJ did not make a “specific finding regarding any justifiable cause for the separation, and addressed only whether a conjugal nexus existed at the time of death.” Because the justifiable cause analysis was incomplete, the BRB vacated the ALJ’s denial of benefits and remanded the case with specific instructions:
On remand, if the administrative law judge finds evidence that, at the time of decedent’s death, there no longer was justifiable cause for claimant and decedent to be living apart, see Henderson, 204 F.2d at 179, claimant cannot be decedent’s widow and benefits should be denied. If, however, he finds that the original justification persisted to the date of death, then he must consider whether the conjugal nexus had been severed.
The BRB also had instructions for the ALJ with respect to the conjugal nexus inquiry:
On remand, the administrative law judge must assess the weight and credibility of this, and any other, relevant testimony and evidence, as well as resolve conflicts in the evidence, in order to determine if claimant’s conduct maintained or severed her conjugal nexus with decedent. The administrative law judge should re-examine the case precedent in view of the proper focus on claimant’s actions in maintaining or severing the conjugal nexus. If the administrative law judge finds that the conjugal nexus between claimant and decedent had been severed, claimant is not decedent’s “widow,” and she is not entitled to death benefits. If the administrative law judge finds that a conjugal nexus between the two existed at the time of decedent’s death, then claimant is decedent’s “widow” under the Act. He then must address whether decedent’s death was work-related such that claimant is entitled to death benefits.