Before Schwelb, Farrell and Glickman, Associate Judges.
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Glickman, Associate Judge
Petitioner Susan Pickrel appeals from the decision of the Director of the District of Columbia Department of Employment Services, who concluded, contrary to the hearing examiner, that petitioner was not entitled to death benefits under the D.C. Workers' Compensation Act because she did not qualify as a "widow" within the meaning of that Act. We affirm the Director's decision, because there was not substantial evidence in the record to establish either that Mrs. Pickrel was dependent on her husband for support at the time of his death, or that what the courts have called a "conjugal nexus" existed between her and her husband at that time.
Susan and Ronald Pickrel were married in 1980. Mrs. Pickrel moved out of their home in March 1995, and they entered into a formal separation agreement on February 9, 1996. Two months later, Mr. Pickrel was shot and killed by a disgruntled employee at his place of work. Mrs. Pickrel filed a claim for widow's benefits pursuant to the Workers' Compensation Act. Mr. Pickrel's employer, Star Vending Company, and its insurer contested Mrs. Pickrel's claim because she was living apart from her husband at the time of his death.
At the hearing on her claim, Mrs. Pickrel testified that her relationship with her husband had deteriorated in the year before she moved out. She attributed the deterioration, and her resulting decision to leave the marital home, predominantly to her husband's unsympathetic reaction to the fact that she was struggling with depression in connection with her employment and EEOC claims which she had filed. Mrs. Pickrel testified that her husband did not understand her depressive symptoms and was unsupportive and "extremely frustrated" with her. She also stated that during the year before she moved out, her husband occasionally acted violently towards her - throwing a glass, grabbing or pushing her, or hitting her in the arm with his open hand. In the summer of 1994, she testified, she and her husband had an argument in which he stated, "before I'll let you take anything or everything I ever worked for or half of it again that I will kill you and me both before I let, before I see that happen."
After Mrs. Pickrel left the marital home, she continued to have contact with her husband on a sporadic basis. She testified that sometimes they spoke a couple of times a month, while at other times they would not speak for weeks on end. They had telephone conversations that Mrs. Pickrel felt suggested possible reconciliation, and they engaged in sexual relations on approximately three occasions.
No reconciliation took place, however. Instead, Mr. and Mrs. Pickrel executed a formal separation agreement on February 9, 1996. The agreement recited that they were "irreconcilably estranged," that "there is no probability of a reconciliation between them," and that they therefore desired "to effect a full, final and complete settlement of their respective property rights and obligations arising out of their marital relationship." The parties agreed to relinquish all "marital rights" and to "continue to live separate and apart . . . as if each were sole and unmarried." The separation agreement bound each party to assume full responsibility for his or her own existing and future debts; to waive any claims for alimony and support from the other; and to waive any rights of inheritance or to benefit from the other's retirement or pension plans or from any bequest in any previously executed will. As part of what the agreement termed a "full and complete property settlement," Mr. and Mrs. Pickrel divided up their bank accounts and other property. They agreed, among other things, that Mrs. Pickrel would convey her interest in the family home to Mr. Pickrel; and that Mr. Pickrel would pay Mrs. Pickrel the sum of $50,000 upon execution of the agreement and an additional $10,000 by August 31, 1996. The parties further agreed that each "shall be free to acquire, use and dispose of his or her own property as though each were unmarried." Finally, Mr. and Mrs. Pickrel waived all grounds for divorce other than voluntary separation; agreed that either party could bring an action of divorce based on voluntary separation after the required statutory period had expired; and waived statutory rights to equitable adjustment of property interests of spouses upon divorce. In entering into this separation agreement, Mrs. Pickrel was represented by counsel.
Mrs. Pickrel testified that after they signed the separation agreement, her husband told her, "[D]on't worry about this. . . . [Y]ou still get everything if I die or something." She also testified that after leaving the lawyer's office, she and her husband sat in the car in her driveway and cried, and her husband gave her Valentine's Day candy. However, between February 1996 and Mr. Pickrel's death in April, their only contact consisted of two or three telephone conversations. According to Mrs. Pickrel, she and her husband never discussed divorce at any time, but Mr. Pickrel's sister testified that he intended to file for divorce as soon as the statutory year had passed after execution of the separation agreement.
Mrs. Pickrel testified that she did not have a romantic relationship with another man after leaving the marital home, and that she never saw her husband with another woman. Mr. Pickrel's sister and daughter testified, however, that he had dated two women after Mrs. Pickrel moved out.
Concerning her finances, Mrs. Pickrel testified that she settled her EEOC claims in February 1995, approximately one month before she moved out of the marital home. Pursuant to the settlement, she was reimbursed for attorneys' fees and back pay in May and June 1995, and received an increase in her salary. Unfortunately, her depression impaired her ability to maintain employment, and she was terminated from her position in January 1996. Between March 1995 and February 1996 Mrs. Pickrel borrowed money from her husband on approximately three occasions in order to pay her bills. Mrs. Pickrel testified that she reimbursed Mr. Pickrel for those loans. She also testified that when she asked her husband for money, he told her that she would have to sign a separation agreement. By February 1996, when she executed that agreement, Mrs. Pickrel was several months overdue on her bills and was in a "total financial mess." In accordance with the agreement, however, Mr. Pickrel paid Mrs. Pickrel the promised lump sum of $50,000, which she deposited in her own separate bank account.
At the time of Mr. Pickrel's death in April 1996, he had not yet removed Mrs. Pickrel's name from certain joint checking and credit card accounts. In addition, Mrs. Pickrel was still named as the sole beneficiary in Mr. Pickrel's will, and was still designated as the beneficiary of two life insurance policies that Mr. Pickrel held. And although Mrs. Pickrel had signed over the deed to the marital home to her husband, he had not recorded the change in title.
The hearing examiner found that Mrs. Pickrel was entitled to workers' compensation death benefits pursuant to D.C. Code § 36-309 (2) (1997) *fn1 because she qualified as a "widow" within the meaning of D.C. Code § 36-301 (20) (1997). That section of the Workers' Compensation Act defines "widow" or "widower" to include "the decedent's wife or husband living with or dependent for support upon the decedent at the time of his death; or living apart for justifiable cause or by reason of his or her desertion at such time." As we explained in Beta Const. Co. v. District of Columbia Dep't of Employment Servs., 748 A.2d 427, 430-31 (D.C. 2000), a "conjugal nexus" requirement has been read into the "living apart for justifiable cause" prong of this definition. The hearing examiner found that Mrs. Pickrel was dependent upon her husband for financial support because "the decedent was continuing to financially contribute to the claimant, whether calling it a loan or otherwise." In the alternative, the examiner found that Mrs. Pickrel was living apart from her husband for justifiable cause, reasoning "that she left in part due to her own mental condition and a need to be away, and in part due to her fear of the deceased, his lack of understanding and support regarding her condition, as well as, whether he might follow through on threats he made to her." And the ...