STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARK E STENE (DEC'D), Applicant

WAVE COMMUNICATIONS, Employer

HARTFORD ACCIDENT & INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95061106

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

Diane Stene, the widow of the deceased Mark Stene submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued on March 26, 1997. Briefs were submitted by both parties. At issue is the distribution of the death benefit.

The commission has carefully reviewed the entire record in this matter and hereby modifies the Findings and Interlocutory Order of the administrative law judge. The commission makes the following:

MODIFIED FINDINGS OF FACT

1. Delete the last paragraph on the second page of the administrative law judge's Findings of Fact and substitute therefor:

"Having taken into the consideration the ages of the dependents and the other facts bearing on the dependency of the parties and after reviewing all the evidence and arguments, 80 percent of the death benefits is awarded to Diane Stene and 20 percent to Mark Brandon Shelton.

The total amount of the death benefit is $143,700.00. The amount of death benefit accrued to October 1, 1997 (100 weeks and 2 days) is $48,059.50. The carrier is entitled to a credit in the sum of $31,135.04 for benefits previously paid to Diane Stene as of January 24, 1997. The accrued balance now due after attorneys fees ($4,000.00) is $12,924.46. This accrued balance now due shall be paid to Mark Brandon Shelton.

20 percent of the total death benefit is payable to Mark Brandon Shelton in the sum of $26,740.00 (after fees for his attorney in the sum of $2,000.00). After payment of the accrued sum of $12,924.46, the unaccrued balance due Mark Brandon Shelton is $13,815.54. The balance shall be paid to him at the rate of $1,037.83 per month beginning November 1, 1997.

The remaining 80 percent of the death benefit in the sum of $114,960.00 is payable to Diane Stene. From this amount, the carrier is entitled to a credit in the sum of $31,135.04 for benefits previously paid to her as of January 24, 1997. After fees for her attorney in the sum of $2,000.00 the balance due Diane Stene is $81,824.96. This balance shall be paid at the rate of $1,037.00 per month beginning May 1, 1997."

2. Also, delete the administrative law judge's Interlocutory Order and substitute therefor:

"NOW, THEREFORE THIS,

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are modified in accordance with the above findings. Beginning November 1, 1997 the employer and its insurance carrier shall pay to Diane Stene the sum of $1,037.83 per month until the further sum of $81,824.96 is paid; within 30 days to Diane Stene's Attorney, John Welter the sum of $2,000.00 for attorneys fees; within 30 days to Mark Brandon Shelton the sum of $12,924.46 and beginning November 1, 1997 the sum of $1,037.83 per month until the further sum of $13,815.54 is paid and within 30 days to Mark Brandon Shelton's Attorney, Curtiss Lein the sum of $2,000.00 for attorneys fees. Jurisdiction is reserved for such further findings, orders and awards as may be warranted."

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed: October 30, 1997
stenema.wmd : 175 : 11 ND § 6.1

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

Diane Stene, the widow of the deceased employe Mark Stene contends in her petition for commission review that the administrative law judge erred in awarding the death benefits equally between herself and Mark Brandon Shelton, the applicant's son by a prior marriage. Under Wis. Stat. § 102.51 (3) if there is more than one person wholly or partially dependent the death benefits shall be divided between such dependents in such proportion as the department shall determined to be just considering their ages and other facts bearing on such dependency. In this case the evidence indicates that Diane Stene was married to the deceased since 1985 and that the deceased provided support for Ms. Stene as well as her son from a former marriage who was 16. Both Brandon Shelton and Diane Stene were dependents under the provisions of Wis. Stat. § 102.51 at the time of the decedent's death and therefore both were entitled to death benefits. The evidence indicated that Mark Brandon Shelton was about 17 and 1/2 years old at the time of the decedent's death and that the decedent had a legal obligation to support Brandon until he turned 18.

Ms. Stene states that while Brandon was considered wholly dependent upon his parents for support during his minority, Brandon's status can reasonably be expected to change with the mere passage of a few months of time until he turns adult and in contrast Diane Stene's marital status could have been expected to last indefinitely and the Division of Death Benefits should recognize that fact. The commission agrees and has modified the award in this case taking into account the fact that Mark Brandon Shelton was only eligible for six more months of support at the time of the decedent's death as compared to the ongoing support due to Ms. Stene. However, the commission also has taken into account the fact that the decedent was in arrears in the amount of $8,000.00 in child support for Brandon Shelton at the time of his death and that Brandon Shelton has medical bills related to previous medical problems and has not obtained a high school degree and was currently working as a laborer earning $400.00 a month at the time of the hearing. In addition, the commission has taken into account the fact that Diane Stene had a high school education and worked part-time and that her 16 year old son from another marriage received $600.00 in social security benefits. In reviewing the evidence as a whole, considering the ages of the dependents and other facts bearing on such dependency the commission has determined that an award of 80 percent of the death benefit to Diane Stene and 20 percent of the death benefit to Mark Brandon Shelton is just under the provisions of § 102.51 (3).

cc: ATTORNEY JOHN W WELTER
WHITE WELTER & SCHILLING

ATTORNEY CURTISS N LEIN
LEIN LAW OFFICES

STEVE SOBOTA
DEPARTMENT OF JUSTICE

MARGARET OCONNELL
WORKERS COMP DIV

DIANE STENE

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