SOPHIA SANDIFORT

v.

AKERS CUSTOM HOMES, INC. AND AMERISURE INSURANCE

TANENBAUM, J.

Section 440.16(1)(b), Florida Statutes (2019), provides for compensation to be paid to certain relatives of an employee who dies as a result of a workplace accident. Entitlement to that compensation turns on the relative’s “dependency upon the deceased.” In this appeal, we must answer the question whether the reliance of Sophia Sandifort and her other children on her deceased minor child’s Supplemental Security Income (SSI)

benefits¹ meets this “dependency” requirement.

We conclude that it does not, so we affirm the compensation order denying Sandifort’s claim.

The facts of the underlying claim are undisputed and quite tragic. Sandifort was the mother and sole caretaker of five children, two of whom were minors at the time. None of them worked or had any source of income beyond nominal child support from an ex-husband. The family was sustained primarily by the SSI that Sandifort received on behalf of her sixteen-year-old son, who had a permanent learning disability. Sandifort used the SSI money to support herself, the sixteen-year-old, and the rest of the family.

In July 2019, while on summer break from high school, the sixteen-year-old received an offer from a friend to work for a subcontractor of the employer, Akers Custom Homes, Inc. The teen had never been employed before in his life, but he desired to earn some extra spending money to buy himself a new pair of shoes. Unfortunately, on his very first day on that new job, the sixteen-year-old drowned in a workplace accident. Sandifort claimed benefits from the employer under chapter 440, including death benefits pursuant to section 440.16(1), Fla. Stat.² Sandifort petitioned for death benefits under section 440.16. The Judge of Compensation Claims (JCC) denied the claim. The JCC

noted that the sixteen-year-old had not held a job before the accident that killed him. The JCC concluded that Sandifort could not establish dependency because her son had never established “the ability to support himself much less anyone else.” In the appeal that followed, Sandifort makes several arguments for reversal, but we address only one and reject the others without further comment. The essence of Sandifort’s main argument is that the statute does not limit dependency to her son’s wage-earning ability or his capacity to separately provide for himself. She contends that she and her other children relied on her son’s SSI benefits—which of course stopped coming after his death—and that is enough to qualify her and the kids under section 440.16(1)(b) as dependents of the deceased son. This is a misreading of the statute.

Section 440.16(1)(b) requires payment of a specific type of compensation³ upon the death of an employee resulting from a compensable accident; only several specified relatives can get it, a parent and sibling being two examples. The statute bases entitlement “on account of dependency upon the deceased,” and the amount of compensation is calculated as a “percentage[] of the average weekly wages.” Id. (emphasis supplied).

The overall amount to be paid is capped at “66 2/3 or 66.67 percent of the average wage.” Id. (emphasis supplied).

The highlighted words in the preceding text indicate that a relative must have a particular type of dependency to be entitled to the benefit: dependency on the decedent’s wage-earning capacity. The supreme court has said as much. For example, as it considered the constitutionality of the death benefit statute, the court observed that save for reimbursement of medical benefits, relief under chapter 440 “is directly related to loss of earning power either to the employee, or to those financially supported by him.” Mullarkey v. Fla. Feed Mills, Inc., 268 So. 2d 363, 366 (Fla. 1972).

In turn, the purpose of chapter 440 is to replace the uncertainty of tort remedies “with a scheduled payment of lost wages,” so a relative that is “not financially supported by the deceased employee suffer[s] no loss with his demise.” Id. Even earlier than that, the court reversed a judicial determination that a mother was entitled to a death benefit under Florida’s Workmen’s Compensation Law in part because her claim was “not supported by any evidence as to the weekly wages of [her] deceased” son, “an essential prerequisite as required by law.” Panama City Stevedoring Co. v. Padgett, 6 So. 2d 822, 823 (Fla. 1942) (emphasis supplied).

The SSI benefits that Sandifort “received” from the federal government were welfare payments paid on her son’s behalf to assist in his support. Indeed, the fact that SSI benefits were being paid for the son made him a dependent himself. Sandifort’s effort to argue to the contrary is in direct conflict with yet another observation about dependency from the supreme court: [T]he law presupposes that the deceased is one capable of supporting himself and in addition thereto of contributing to the support of another. If this were not so it could lead to the ridiculous situation wherein one who is himself a dependent is found to be a person on whom another is dependent. MacDon Lumber Co. v. Stevenson, 117 So. 2d 487, 491 (Fla. 1960); cf. McCall v. Motor Fuel Carriers, Inc., 22 So. 2d 153, 153 (Fla. 1945) (characterizing the law as intended to compensate for the parents’ loss of their son as “the last able-bodied breadwinner”).

Candidly, the SSI benefits cannot reasonably be treated as akin to a “wage” earned by the son, used to support himself, Sandifort, and her children. The JCC, then, was correct. Sandifort could not show actual dependency on her son. As we have said, the statute anticipates a dependency on the deceased employee’s wage-earning capacity, not his entitlement to welfare payments. More to the point here, though, any expectation on Sandifort’s part of future wages from the son also would not be enough (had she even known that her sixteen-year-old had found a job).

The expectation of future earnings is not a substitute for a relative’s reliance on a deceased employee’s prior earnings. MacDon, 117 So. 2d at 492–93 (holding that a mother had not met her evidentiary burden to establish

dependency of a parent, where her deceased son previously had worked only occasionally at odd jobs and died on the first day of a new job at a lumber company). Before his death, Sandifort’s son had not held a paying job. Tragically, the first wages he ever earned came on his last day of life. As a matter of law, she cannot show that the sixteen-year-old’s death on the job resulted in a wage loss for her “on account of dependency upon the deceased” son, because there were no prior wages brought in by the son that she was counting on for support. That fact alone is dispositive to Sandifort’s entitlement to compensation under section 440.16(1)(b). The JCC’s disposition, denying her petition, was dictated by the terms of the statute, so it was correct. AFFIRMED.

ROWE, C.J., and ROBERTS, J., concur. _____________________________