APPEAL FROM THE DEPARTMENT OF EMPLOYMENT SERVICES (DOES).
Before Farrell and Reid, Associate Judges, and Gallagher,
The opinion of the court was delivered by: Farrell, Associate Judge.
Washington Metropolitan Area Transit Authority (WMATA) seeks review of a decision of the District of Columbia Department of Employment Services (DOES) awarding intervenor Cathy M. Davis widow death benefits [716 A2d Page 977]
and a ten percent penalty payment and denying WMATA a credit against pension and private life insurance benefits already received by Ms. Davis.
A DOES hearing examiner concluded that: (1) Ms. Davis was entitled to widow death benefits "in that she and decedent were living apart for a justifiable cause and she was dependent upon him for support at the time of death"; (2) WMATA was not entitled to a credit against benefits Ms. Davis received because the pension plan was not solely funded by WMATA and the life insurance policy was not part of an ERISA retirement plan; (3) Ms. Davis was not entitled to any penalty for bad faith for WMATA's failure to pay death benefits; and (4) Ms. Davis was entitled to a ten percent penalty for WMATA's failure to file a timely notice of controversion.
On appeal, the Director of DOES affirmed the award of death benefits, concluding there was substantial evidence in the record to support the finding that Ms. Davis was dependent on her deceased husband for support. *fn1 The Director also concluded that WMATA was not entitled to a credit against benefits because there was no statutory basis for a set-off for the life insurance policy, and the pension benefits were from a plan not funded solely by WMATA. Finally, the Director implicitly affirmed the penalty award for late notice of controversion.
We sustain the Director's conclusion that Ms. Davis was entitled to death benefits and the ten percent penalty award, and the conclusion that WMATA is not entitled to a credit for the life insurance proceeds. However, in keeping with our decision in Mushroom Transp. v. District of Columbia Dep't of Employment Servs., 698 A.2d 430 (D.C. 1997), we reverse and remand to the Director for further consideration of whether WMATA may receive a credit for Mr. Davis's pension benefits.
Harry Davis, Jr. was a police officer employed by WMATA. In December 1993, during a routine traffic stop, he was shot and killed. He was survived by his wife, Cathy Davis; their son Derrick; and a son by his first marriage, Donnell Davis. After purchasing a home in 1981, the Davises began having domestic problems which sometimes resulted in violence by Mr. Davis toward his spouse and Derrick.
In September 1990, Mr. Davis, an army reservist, went to the Middle East during Operation Desert Storm. Ms. Davis and Derrick moved from the family home in Maryland to Florida, in part to be closer to Ms. Davis's family and two older children. Ms. Davis filed for legal separation but did not serve her husband with the papers. When Mr. Davis returned from the Middle East in June 1991, he moved to Florida to live with his wife and son.
Ms. Davis asked her husband to leave Florida in August 1992 because she feared he would become physically abusive again and thought Derrick would harm his father. During visits to Florida by Mr. Davis in October 1992 and in March 1993, the couple had sexual relations and discussed reconciliation. Throughout the period of separation, the Davises spoke on the phone two to three times a week and discussed reconciliation.
Ms. Davis filed for divorce in May 1993 and served Mr. Davis in October 1993 because she was "trying to . . . pressure . . . Harry to get help." She was never served with his response, although she found it in his papers after his death. Ms. Davis was planning to visit her husband in Maryland to discuss reconciliation, but he died in December 1993 before she got the chance.
The year before Mr. Davis's death, Ms. Davis earned $18,000 and Mr. Davis earned roughly $43,000. After the couple separated in August 1992, Mr. Davis sent monthly payments to Florida ranging from $300 to $450. According to Ms. Davis's testimony, in some months she would have been unable to pay her monthly expenses without financial help from her husband, and she had no savings or investments at the time Mr. Davis died. Despite their separation, Ms. Davis remained [716 A2d Page 978]
the primary beneficiary of Mr. Davis's will, and his life and accident insurance plans and pension benefits which were ...