Claim of Burns v. Robert Miller Construction, Inc.

OPINION OF THE COURT

When a claim is filed for death benefits under the Workers’ Compensation Law by or on behalf of a child born out of wedlock to a deceased worker, there is strong reason to require proof of paternity and dependency. It is unconstitutional, however, to require the additional proof of acknowledgment as a prerequisite to approving the child’s claim.

Twenty-year-old Ricky Burns died on November 2,1971, two weeks after he started his new construction job, when a wall collapsed on him during a severe windstorm. Claimant was born approximately eight and one-half months later. In October, 1972, claimant, through his unmarried mother, filed for death benefits. At a hearing, the mother testified that the first and only time she mentioned her pregnancy to Ricky Burns was on the day of his death.

The Workers’ Compensation Board denied the claim, finding that the child was not an acknowledged child born out of wedlock. On appeal, the Appellate Division remitted to the board for clarification of the grounds for its decision (Matter of Burns v Miller Constr., 62 AD2d 1114 ). The board then determined that claimant had not been “acknowledged” by the decedent and so could not receive benefits. Claimant challenged that determination on the ground that subdivision 11 of section 2 of the Workers’ Compensation Law is unconstitutional. In particular, claimant urged a denial of equal protection by virtue of the law’s classification of children born in and those born out of

The Bell analysis was later confirmed in a Court of Appeals decision in an action arising under the Federal Employers’ Liability Act. In Hiser v Davis ( 234 NY 300 , 305 [1922]), the court, citing Bell, stated that “under the law in this state the word ‘child’ in a statute or will, without any other description, would [not] include an illegitimate child.”

Arguably, Bell incorrectly interpreted the Legislature’s intent. Three months after that decision was handed down, the subdivision was amended to include “illegitimate” children (L 1917, ch 705). That change, however, does not mean that children born out of wedlock may receive benefits under the category of “posthumous” children. In Matter of Kluss v Levene’s Son ( 269 App Div 801 , mot for lv to app den 269 App Div 912 , mot for lv to app den 295 NY 990 ), the Appellate Division, in affirming the compensation board’s award to an infant claimant, ruled that a posthumous child born out of wedlock must meet the same burden of proof as any child born out of wedlock — i.e., proof of paternity, acknowledgment, and dependency. Since Kluss was decided, the Legislature has amended section 2 at least 20 times, yet it has not seen fit to overrule Kluss by revising subdivision 11. It is reasonable to conclude, then, that the Legislature intended children born out of wedlock after the worker’s death to meet the same requirements as other children born out of wedlock or that it has had no desire to change the interpretation accorded the statute.

This interpretation is consistent with the statute’s structure as well. The first clause, not requiring proof of dependency, extends the definition of children to those conceived in wedlock, but born after the employee’s death, and to those whom the State particularly wishes to encourage to have a relationship as close as possible to the natural

Having concluded that claimant here can receive benefits under the statute, if at all, only as an acknowledged, dependent child born out of wedlock, the constitutionality of subdivision 11 of section 2 must be addressed.

At the outset, the proper level of scrutiny must be established. As initially developed, a law challenged for denying equal protection would be analyzed under one of two standards, depending on the nature of the right being infringed. If a fundamental, constitutionally based right were involved or the law made distinctions based on suspect classes, it would be subjected to strict scrutiny to determine whether the law was necessary to serve a compelling governmental interest (see, e.g., Shapiro v Thompson, 394 US 618 ; Loving v Virginia, 388 US 1 ). All other laws were reviewed merely to determine whether there was a rational basis by which the statute could be justified (see, e.g., New Orleans v Dukes, 427 US 297 ). In time, a third level of scrutiny was developed, sometimes referred to as the “middle tier”, which is invoked in circumstances such as here where the group classification does not involve a suspect class, but deserves a protection greater than that afforded by the rational-basis standard of review (see, generally, Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1 ). The test imposed may be described as an inquiry into whether the law’s classification bears a significant relationship to its purpose (see Weber v Aetna Cas. & Sur. Co., 406 US 164 , 172-173, 175). This middle-tier analysis is the appropriate standard when the classification challenged is the legitimacy of one’s birth (see Lalli v Lalli, 439

The claimant having established both paternity and dependency, it must be asked what purpose is served in the workers’ compensation context by requiring claimant also to prove acknowledgment. No fraudulent claims will be avoided that would otherwise be paid if only proof of paternity and dependency were required. Nor is there present any State interest comparable to that in the inheritance field, where the stability of property titles is involved (compare Lalli v Lalli, 439 US 259 , 268, supra, with Weber v Aetna Cas. & Sur. Co., 406 US 164 , 170, supra). Moreover, while a decedent has some interest in the distribution of his or her estate, the deceased worker has no personal interest in who receives workers’ compensation for his death as it is not paid from his estate, but by third parties. Indeed, the deceased worker who has supported his child born out of wedlock presumably would prefer for that child to share in the death benefits.

In Weber v Aetna Cas. & Sur. Co. ( 406 US 164 , supra), the .Supreme Court struck down a Louisiana statute permitting dependent, unacknowledged children born out of wedlock to recover workers’ compensation for a parent’s death, but relegated them to a position behind dependent children born in wedlock and dependent, acknowledged children born out of wedlock. The court reached its decision after noting that all children, regardless of the circumstances of their birth or whether they have been acknowledged, may suffer equally from the death of a parent (id., at p 169). The critical factor is that all are children dependent upon the deceased parent and so should be treated equally (id., at p 170). The Supreme Court concluded that, inasmuch as dependency is a prerequisite to anyone’s recovery, no compelling purpose is served in the statutory scheme by requiring acknowledgment, which the court noted “may be unlikely to occur or legally impossible to effectuate” (id., at pp 173-174).

As noted above, proof of paternity and dependency accomplishes the purposes of the statutory scheme. The Weber analysis is equally applicable here as acknowledg

The board, while concluding that Ricky Burns did not acknowledge claimant as his son, apparently made no findings as to the . questions of paternity and dependency. The board should be given an opportunity to address those issues.

Accordingly, the order of the Appellate Division should be reversed, with costs, appellant’s claim reinstated, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Workers’ Compensation Board for further proceedings in accordance with this opinion.

(dissenting). The order should be affirmed for reasons stated in Justice John T. Casey’s opinion for a unanimous Appellate Division. In so saying, I would reiterate that there can be no quarrel with the general proposition that all children, regardless of the circumstances of their birth, “may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged” (Weber v Aetna Cas. & Sur. Co., 406 US 164 , 169). The statute here, however, does no more than facilitate the determination of the necessary predicate that the injured or deceased worker is indeed the parent of the child who presents a derivative claim for benefits under the Workers’ Compensation Law.

Judges Gabrielli, Wachtler and Meyer concur with Chief Judge Cooke; Judge Fuchsberg dissents and votes

Order reversed, etc.