In Foley v. Thermal Engineering International, Inc., Me. WCB App. Div. Decision No. 15-2 (January 13, 2015), the Workers' Compensation Board Appellate Division held that, in a claim to death benefits, dependency status is determined as of the date of injury.

The Act defines a dependent as a "member of an employee's family or that employee's next of kin . . . dependent upon the earnings of the employee for support at the time of the injury." 39-A M.R.S.A. § 102(8) (emphasis added). The Act also provides: "If death results from the injury . . . the employer shall pay or cause to be paid to the dependents of the employee who were wholly dependent upon the employee's earnings for support at the time of the injury . . . ." 39-A M.R.S.A. § 215(1) (emphasis added). Section 215(2)(A) provides, with respect to the "[d]eath of an injured employee": ". . . Benefits are payable in the same manner as if the injury resulted in immediate death."

In Foley, the employee sustained a work injury while single with no dependents. He subsequently had a son and got married. Thereafter, he died from an overdose of prescription and illegal drugs. His wife sought death benefits. The Hearing Officer denied the claim finding that as of the date of injury the employee was not married and his son was not born and, therefore, they were not dependents entitled to death benefits.

The Appellate Division affirmed, finding that because the Legislature expressly included in § 215(2)(A) that "[b]enefits are payable in the same manner as if the injury resulted in immediate death," the application of § 215(2)(A) requires looking to § 215(1), which states expressly that death benefits are paid to those dependent as of the date of injury.

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