Cottrell v. EBI Companies

WARREN, J.

Claimant filed a claim for death benefits under ORS 656.226, alleging that she is entitled to benefits because she is a surviving cohabitant. She seeks review of the Workers’ Compensation Board’s affirmance and adoption of the referee’s order denying her claim.

Claimant and decedent had cohabited for approximately three years before the job-related accident that caused decedent’s death, and they had a child together. A month before the accident, decedent moved out of claimant’s home into an apartment 15 to 20 minutes away. He returned to visit four or five times, and claimant visited him at his apartment twice, both for short periods of time. During the visits to claimant’s home, decedent helped around the house and yard. Claimant testified that decedent had moved out because they “needed space” to work out some problems and that she hoped that they would get back together.

ORS 656.226 provides:

“In case an unmarried man and an unmarried woman have cohabited in this state as husband and wife for over one year prior to the date of an accidental injury received by one or the other as a subject worker, and children are living as a result of that relation, the surviving cohabitant and the children are entitled to compensation under ORS 656.001 to 656.794 the same as if the man and woman had been legally married.”

In Amos v. SAIF, 72 Or App 145, 694 P2d 998 (1985), we said that a claimant must be cohabiting with the insured at the time of the compensable injury in order to be entitled to survivor’s benefits under the statute. Thus, unless the arrangement between claimant and decedent was cohabitation, her claim must be denied.

“Cohabitation” is determined in each case by the nature of the relationship:

“[T]he essence of cohabitation is the living together and the sexual relations, and there may be some degree of living apart and an occasional trip away without destroying the relation * * *." Bowlin v. SAIF, 81 Or App 527, 531, 726 P2d 1186 (1986), quoting from Wadsworth v. Brigham, 125 Or 428, 482, 259 P 299, 266 P 875 (1928).

Here, decedent moved out of claimant’s house and into an apartment in another part of the city, because they were having problems with their relationship. Although claimant and decedent continued to talk about working out their problems and to make plans for future improvements to claimant’s home, it is speculative whether he would have ever returned to live with her and their child. Unlike in Bowlin, here the change in living arrangements was caused by a change in the nature of the relationship. Although claimant testified that she hoped the previous relationship would resume, that does not amount to cohabitation. Benefits were properly denied.

Affirmed.