*1 37) (844 67,933 No. Conservator, Through and Their J.J.J., By Brenda

R.L.J. Wiens, Deceased, Dependents of Michael L. Jones, Appel- lants, Conservator, M.P.J., By Through His Lydia Smith, Alleged Jones, Dependent of Michael L. n/k/a Deceased, Sprinklers, Inc., Jones, Appellee, Western Company, Federated Appellees. Mutual Insurance Opin- ion filed December McFarland, Grisell, P.A., Mark E. Doering City, & of Garden for appellants. Schultz, Gerald O. City, appellee of Garden for Nelson, Salina, King, Jeffrey E. Hampton, Engleman Royce, & Inc., appellees Sprinkler, Western and Federated Mutual Insurance Company. Brazil, Pierron, Becker,

Before and Steven R. District P.J., J., assigned. Judge PlERRON, following This case is before the court a district J.:

court review of a workers action. The district court child, held there was sufficient evidence to find the minor M.P.J., employee, Jones, was the son of the deceased Michael overturning thereby the decision of the administrative law and the Director (ALJ) Compensation. Workers two Jones’ marriage

minor from his are appealing children the district court’s *2 decision. can

The facts be summarized as follows. Michael L. died Jones in a work-related accident November 1987. He was survived two children: and At by dependent the time of R.L.J. J.J.J. death, Lydia Michael’s was pregnant. She was not married Jones son, to Michael or anyone Lydia gave else at the time. birth to a M.P.J., April 1988. She claims that wholly is a M.P.J. child of Michael dependent and is entitled to survivor benefits compensation. K.S.A. 1991 Supp. 44-510b(a)(l). under The found there was insufficient support evidence to ALJ determination that was the natural child of Michael. The M.P.J. district court on de novo review found there was sufficient evi- dence to find was the child of Michael and a “wholly M.P.J. dependent child” entitled to pursuant benefits to K.S.A. 1991 Supp. 44-508(c). following

The evidence of paternity presented: was Lydia testified Michael fathered her child. She testified Jones they engaged in during sexual intercourse the time of conception and she was not with anyone during intimate else period time. No one contradicted or confirmed this testimony. Lydia also testified she informed Michael he was the father of her child and gave he her help for a pay physician’s $25 visit for prenatal care. She also testified spent Michael nights several a week at apartment her during July Lydia 1987. and Michael June married, were not married, did not plan to be and discussed marriage terms, only general if at all.

Five acquaintances of Lydia Michael and They testified. were that, of the opinion was the father of Lydia’s Michael child. However, each said Michael never stated he was the father. Each witness testified he or she found out about pregnancy from Lydia or some third party. They assumed Michael was the father based on their impressions Lydia and Michael’s relationship.

Christine Anderson testified she asked Michael how he felt about “the news.” He responded coming that “it was sooner or later.” She they talking assumed were Lydia’s about pregnancy, but neither Christine or Michael ever specifically stated that. Homer witnessed this conversa- Jacque Anderson testified Homer could not remember conversation. tion. The the child resembled Michael. al- witnesses testified Four noses; included similar similar facial similarities leged physical structure; person testified when and similar smiles. One body things you of them baby just just at the “it was one looked he Lydia testified has body. It looked like him.” your feel in could Lydia Michael had brown hair. eyes. hair and blue blond were, eyes thought color Michael’s but she not remember what were they brown. car neighbors told her Michael’s was landlady testified

Lydia’s during night house all parked Lydia’s front of frequently landlady The could not confirm whether Michael summer night together landlady because the Lydia spending were nights. she She also testified overheard Michael worked *3 sex, but she did not hear Michael claim baby’s about the joking deny paternity. or pregnant was aware was until she family

Michael’s not the birth at Michael is listed on told them funeral. not Michael’s as the of certificate father M.P.J. they Lydia’s security

Two witnesses testified felt claim for social based, compensation benefits for at and workers were M.P.J. having or “greedy” the fact she was financial part, least on that problems. defining dependent on “wholly

This case the term centers proof of the the standard of employee child” covered Wichita, In 16 applied. Killingsworth City must be v. Kan. of 801, the term (1992), 2d 830 70 this court focused on App. instant case focuses on the term “child.” dependent.” The “wholly 44-508(c)(3)(A) wholly dependent 1991 defines a Supp. “a child or child of adopted employee.” child as birth the M.P.J. However, presumption he is no claims the birth child of Michael. case, to there never been a of this has paternity applies judicial paternity. determination of argues judicial paternity that a determination of separate M.P.J. wholly dependent is required

is not before a minor declared As survival benefits. au- compensation child entitled to workers Burch, 164 Kan. thority position, for this cites Green v. M.P.J. 752 Wichita,

348, (1948), City 892 Killingsworth 189 P.2d of 2d App. 801. specifically paternity It that neither of these cases states is true However, benefits are awarded. must be determined before was a of the presumption paternity; Green there father mother as openly held themselves out married and father acknowledged paternity his the children. 164 Kan. at In against SRS had suit em- Killingsworth, paternity initiated which was after ployee prior concluded his death and to the suit, compensation In paternity workers action. the district court the employee had found was the claimant’s natural father due testing. to the results of DNA In the later com- workers pensation stipulated pa- action the defendant to the employee’s ternity. 16 Kan. 2d at 802. App. Appellee attempts position also this in case as one that,

volving question. argues awarding a constitutional He when benefits, illegitimate workers children cannot be differently legitimate treated from children. This is true. clearly Co., Surety Weber v. Aetna & U.S. Ed. Casualty 31 L. 2d 92 Ct. S. case present does not question legitimate illegitimate. The question versus in this worker, case is whether the claimant is a child whether legitimate or not.

The Kansas courts never ques have been confronted with the tion of whether a separate judicial paternity determination of precede a paternity proceeding must an award of com benefits, pensation proof of is inci paternity necessary where dent to a determination dependency eligibility for benefit purposes. jurisdictions that Some have considered this question *4 negative. have held in the See Bettelon Repair v. Metalock Serv ice, 448, Lott, 137 App. Mich. 358 N.W.2d 608 Goins (1984); v. 435 1002 1982). N.E.2d (Ind. App. jurisdictions

Several held that compensation have a workers hearing board or make may officer this determination. See Jones 221, Commission, v. Ill. (1976); Industrial 64 2d 356 N.E.2d 1 Lott, 1002; Goins Repair 435 N.E.2d Bettelon v. Metalock Service, App. 137 Mich. this may determination be limited to paternity purposes compensation for of workers Service, Repair benefits. Bettelon v. 137 App. Metalock Mich.

753 find, workers compensation purposes at 454. We benefits of reviewing or court compensation may that a workers only, ALJ appropriate the of an workers in course parentage determine finding binding not case. such would be compensation Any that the Com- purposes other We find the of Workers any way. approach. allow less comprehensive Act pensation evidentiary apply. is what standard should question The second action, the the compensation In a claimant bears bur- workers The of fact must consider the whole record. proof. den of trier Supp. 44-501(a). 1991 Burden of is defined as “the proof persuade by preponderance of a to the trier of facts party burden that issue party’s position the credible evidence such an is of true than not true on the basis the probably more of whole 44-508(g). 1991 Since this is a Supp. record.” K.S.A. action,

compensation evidence is the eviden- preponderance tiary standard.

Were this a action to for all the paternity purposes resolve parentage, required a stricter burden would be question allowing living “a woman swear paternity concerns about to the illegitimate man” offspring upon given dead would be more weight. VanLerberg, Gross v. ruling finding

This is with the that consistent Gross there the finding is a distinction between abstract and paternity finding just as in a child’s action for benefits paternity an element Gross, 231 Kan. 406. This under some law. at ruling has been no other determination on presumes there court the issue. ruling, find we the trial did not abuse his

Under this finding discretion in that is child of Michael Jones. otherwise, Although might another finder of fact have ruled evidence. supported by competent is substantial conclusion Affirmed. limits majority The dissenting: respectfully I dissent. J., Brazil, compensation case in workers parentage determination only. means This compensation benefits the award of workers case, if, in this relitigated as by heirs must be parentage assets, insurance are other deceased and there

the worker is course, benefits, is a real benefits, there etc. Of security social *5 might possibility parentage differently be decided before a applying evidentiary different court a different standard. Act, Parentage The Kansas seq., provides K.S.A. 38-1110 et determining comprehensive paternity. framework The purpose Act is to serve best interests of the child and to ensure legal rights obligations that all of a parent-child relationship Ross, are carried out. In Marriage ¶ re Syl. 783 P.2d 331 require I would a formal paternity judicial action dec- of paternity prior laration to an award workers compensation benefits. Courts more with procedures are familiar and ev- identiary standards that should employed be such case. More- over, hearsay the use of can be testimony strictly more controlled in judicial proceeding. alternative,

In the the administrative law should be en- couraged to use presumptions of paternity and evidentiary standards set out in K.S.A. 38-1114 and Supp. 38- 1119(a).