Opinion
CLAIM NO. E408559
OPINION FILED DECEMBER 10, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by TERESA A. FRENCH, Attorney at Law, McGehee, Arkansas.
Respondent represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order in the above-captioned case on January 17, 1996, finding that Jamie, Melva, and Angela Brown, the minor children of decedent James R. Brown (hereinafter "decedent"), were entitled to an award of death benefits under Ark. Code Ann. § 11-9-527 (Repl. 1996).
Respondents now appeal from that opinion and order, contending that claimant's minor children have failed to prove, by a preponderance of the evidence, that they are entitled to death benefits as a result of their father's work-related death.
Following our de novo review of the entire record, we find that claimant's minor children have proven, by a preponderance of the credible evidence, that they are entitled to death benefits under Ark. Code Ann. §§ 11-9-527 (c) and (c)(3) (Repl. 1996). The Administrative Law Judge's decision must therefore be affirmed.
Mrs. Lucinda Penick, decedent's ex-wife and the mother of his minor children, provided the majority of oral evidence received during the hearing. Mrs. Penick stated that she and decedent were married on May 5, 1978, and that two children, Melva Sue Brown and Angela Marie Brown, were born of that marriage. Apparently, Jamie Brown was Mrs. Penick's daughter from a previous relationship, but was at some point adopted by decedent. At the time of the hearing, Jamie was eighteen years of age, and Melva and Angela were sixteen and fourteen respectively.
Decedent and Mrs. Penick separated in July, 1992, and dissolved their marriage by formal decree on January 27, 1993. As of the hearing date, the two younger children still resided with Mrs. Penick and her new husband, Mr. David L. Penick, whom she married on February 25, 1994.
When decedent and Mrs. Penick first divorced, decedent received custody of Melva (also referred to as "Susie") and Angela, while Jamie remained with Mrs. Penick. Neither decedent nor Mrs. Penick were required to pay one another child support. However, Mrs. Penick testified that decedent nonetheless provided Jamie with clothes, school supplies, and (occasionally) money "when she needed it." In addition, Mrs. Penick answered in the affirmative when asked if decedent "totally supported" Melva and Angela while acting as their custodial parent. Mrs. Penick herself received visitation with Melva and Angela during the summer and on alternating weekends, and she testified that decedent would also provide assistance such as fuel and groceries during these periods.
During the Summer of 1993, decedent asked Mrs. Penick if she would "send Susie and Angela to school . . . and he said that he would buy their school supplies." Mrs. Penick agreed to this informal arrangement, and all three children were thereafter reunited in the home she shared with Mr. Penick (whom she had yet to marry). Pursuant to their agreement, claimant shortly afterward took his daughters to a local store and purchased their clothes and supplies for the upcoming school year.
Mrs. Penick went on to explain that Melva and Angela did start school as planned, but while Angela finished out the year, Melva "went about a week . . . she didn't want to go to school, so I called James and I asked him if he would come down and talk to her . . . so he came down." By this time, Mrs. Penick had contacted the local child support enforcement unit concerning her formal child support options, and further testified that decedent discovered this during his efforts to reconcile Melva's behavioral problems.
Decedent thereafter took Melva back to reside with him in an effort to resolve her difficulties, leaving Mrs. Penick with Jamie and Angela as of August, 1993. However, he continued to provide assistance with their care:
Q. During that period of time, did he assist you with two girls that you had in McGehee?
A. If I needed it, he did. If I called or anything like that, he would do what he could do.
Q. Did he give the girls money directly?
A. He did Angela that I know of.
Decedent fared no better with Melva than had Mrs. Penick, and informed the latter in January, 1994, that "he couldn't do nothing with her, that he was going to give me first choice of taking her back and see if I could do anything with her; if I couldn't, he was going to put her in a girls' home."
From January, 1994, Mrs. Penick once again had all three children in her custody, and explained how decedent continued to assist with their maintenance:
Q. Did he assist you with the girls financially during that time?
A. He gave us groceries. Like I said, you know, he gave us the furniture and then he bought them a stereo, a Nintendo set, and he would give them money. I never seen it, but he would give them money, because they would come up with things that, you know, I didn't have the money to give them to go get.
Q. Did he buy their school clothes during that period of time and their school supplies during that period of time?
A. Yes, he did.
Even so, Mrs. Penick pointed out that, from the time all three girls returned to her home in January, 1994, decedent "never even came down and seen them."
Mrs. Penick also continued to explore formal child support options, including further consultations with the child support enforcement unit. In addition, she pursued a FINS petition in the Desha County Juvenile Court, in order to "get help with the children." However, no support was awarded out of this proceeding (brought in April, 1994). Mrs. Penick thereafter consulted a private attorney regarding the possibility of a remedy in chancery court, but did not have sufficient funds to proceed at the time. Shortly afterward, decedent was killed in an automobile accident related to his work in June, 1994.
Awards for death benefits are governed by Ark. Code Ann. § 11-9-527 (Repl. 1996), and the instant case is more particularly affected by Ark. Code Ann. § 11-9-527 (c) and (c)(3). These sections provide, in pertinent part, that:
(c) BENEFICIARIES — Subject to the limitations as set out in § 11-9-501 — § 11-9-506, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee and in the following order of preference:
(3)(A) To one (1) child if there is no widow or widower, fifty percent (50%).
(B) If more than one child, and there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (35%) to the children as a class, to be divided equally among them;
Ark. Code Ann. § 11-9-527 (c) (Repl. 1996) was previously codified at Ark. Stat. Ann. 81-1315 (c) (1947), and required only that a beneficiary be "wholly dependent" upon a deceased employee in order to receive death benefits. This phrase was later amended to read "wholly and actually dependent."
Prior to this change, the Arkansas Supreme Court had occasion to address the requirement of "wholly dependent" in Chicago Mill Lumber Co. v. Smith, 228 Ark. 576, 310 S.W.2d 803 (1958):
We believe the Legislature used the term "wholly dependent" in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children.
Because the parties stipulated at the beginning of the hearing on this matter that decedent was the father of Jamie, Melva, and Angela Brown, we specifically find that each of these minor children have satisfied the "wholly dependent" requirement in accordance with Chicago Mill Lumber Co..
In Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979), the Supreme Court noted the 1976 amendments to 81-1315 (c), one of which was the addition of the "actual dependency" requirement mentioned above. In construing this additional prerequisite, the Court stated that:
We assume — under our settled our law we must assume — that the legislature, in deciding to amend the statute, knew the meaning that we had attributed to "wholly dependent." Williams v. Edmonson, 257 Ark. 837, 250 S.W.2d 260 (1975). It unavoidably follows that the addition of the word "actually" was intended to change what amounted to a conclusive presumption of dependency under our prior cases. It follows at least that when, as here, the widow and child were not living with the employee at the time of his death, there must be some showing of actual dependency.
It is worth pointing out that the 1976 changes also included a requirement that widowers and widows "shall establish, in fact, some dependency upon the deceased employee before (s)he will be entitled to benefits as provided herein." (Emphasis added, see Ark. Code Ann. § 11-9-527 (c)(1)(A)(ii) and (c)(1)(B)(ii) (Repl. 1996)). However, this amendment was not added to the sections concerning child beneficiaries ((c)(3)(A) and (B)), nor has it been in the time since.
In light of the 1976 amendments, and relying on Larson's summary of the rule concerning "actual dependency" statutes (from Larson, Workmens' Compensation Law, § 63 (1976)), our Supreme Court held in Roach that:
With respect to the wife, she elected to attempt to support herself and made no effort during her husband's 11-month absence preceding his death to enforce whatever legal right to support she may have had. Thus the Commission could find that she failed, in the language of the amended statute, to "establish in fact some dependency" upon her husband at the time of his death. On the other hand, the Commission could also find, with respect to a 10-year-old child who was being supported by her mother, that the same lapse of 11 months did not demonstrate, in Larson's language, that there was no longer any "reasonable expectation of support" on the part of the father. The child was not able to act for herself. Her necessary expenses would naturally increase as she grew older, with the concurrent possibility that her mother would not be able to maintain the child in "her accustomed mode of living". . . Thus a reasonable expectation of future support could be found.
We accept Mrs. Penick's testimony as credible, and specifically find therefrom that decedent has, in fact, provided varying degrees of support to his minor children both as a custodial and non-custodial parent. From that same evidence, we also specifically find that Mrs. Penick, after she had assumed the primary custodial role, made efforts to pursue some form of official child support remedy prior to decedent's death. Also, given the maintenance needs of school-aged children in a modernized society, and taking into account that decedent's minor children have, in fact, needed school supplies, clothes, and other items which he provided (at least in part) while alive, we specifically find that the necessary expenses of decedent's minor children will naturally increase as they grow older. In light of the above, we are persuaded to specifically find that decedent's minor children had a "reasonable expectation of future support" from him, and were accordingly "actually," as well as "wholly," dependent upon him at the time of his death in a work-related accident. We therefore specifically find that decedent's minor children (Jamie, Melva, and Angela Brown) are entitled to death benefits under Ark. Code Ann. §§ 11-9-527 (c) and (c)(3) (Repl. 1996).
In reaching our decision, we are not unmindful of respondents' assertion that Ark. Code Ann. § 11-9-1001 (Repl. 1996) renders null and void the previous judicial interpretation of the "wholly and actually" dependency requirement. That provision states, in pertinent part, that:
It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers' Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act.
Respondents take the position that the existing judicial interpretation of "wholly and actually dependent" is at odds with a literal reading of Ark. Code Ann. § 11-9-527 (c) (Repl. 1996), and further argue that our mandate to strictly construe Act 796 (see Ark. Code Ann. § 11-9-704 (c)(3) (Repl. 1996)) requires us to substitute the latter for the former. More particularly, respondents proffer the definitions of these words as supplied by Webster's New International Dictionary, 2nd. Ed. Unabridged, as the standard we should adopt, and supply the following excerpts from that source:
wholly: "in entirety; fully . . . to the whole extent; totally; entirely; completely, thoroughly;" and "to the exclusion of other things; solely."
actually: "actively" or "in act or in fact; reality; also at the present moment.")
We are certainly not unaware of either provision from Act 796 to which respondents cite. However, we cannot say, with any degree of certainty or comfort, that the instant case presents a situation where it is appropriate for this Commission to determine that existing case law is null and void by virtue of a conflict with Act 796. We feel no differently with regard to respondents' suggested construction of the phrase "wholly and actually dependent."
First, we find it significant that the General Assembly has previously addressed our Supreme Court's interpretation of "wholly dependent" by way of its 1976 amendments to Ark. Stat. Ann. 81-1315 (c). Those amendments can hardly be said to have fundamentally repudiated that interpretation. Rather, they simply imposed an additional requirement to an award of death benefits, and left intact the judicial view of "wholly dependent" itself.
Concerning the Court's interpretation of "actually dependent," we note that the 1976 amendments imposed an "in fact" requirement upon widows and widowers — meaning that surviving spouses would have to establish "some dependency" upon a deceased employee before death benefits could be awarded. (Emphasis added). However, at the same time, no such requirement was imposed upon a decedent's children. With this in mind, our Supreme Court's adoption of Larson's statement of the rule regarding the "actual dependency" of child beneficiaries, e.g. that there must be a showing of a "reasonable expectation of future support," appears to simply be a reflection of the plain language of the revised 81-1315 (c).
We are thus not persuaded that the Chicago Mill and Roach line of cases actually conflict with Act 796 of 1993, which did not disturb the portions of Ark. Code Ann. § 11-9-527 (Repl. 1996) that are relevant here. Also, we are aware that the General Assembly, within Act 796, has expressly identified certain prior cases or judicial constructions and deemed them overruled. For instance, several cases are identified and deemed annulled by Ark. Code Ann. § 11-9-107 (e) (Repl. 1996). In addition, Ark. Code Ann. § 11-9-702 (a)(1)(B) (Repl. 1996), pertaining to the limitations period for workers' compensation claims, provides that:
For purposes of this section, the date of the compensable injury shall be defined as the date an injury is caused by an accident as set forth in § 11-9-102 (5).
Presumably, the foregoing is meant to displace the venerable line of cases originating with Donaldson v. Calvert-McBride, 217 Ark. 625, 232 S.W.2d 651 (1950), which equates the date of injury, for statute of limitations purposes, with the date of "disability," or loss of earnings.
In light of these examples and the sweeping effects of respondents' proposal, we believe that had the General Assembly wished to annul existing case law concerning the requirements of "wholly and actually dependent," it would have expressly declared so within § 11-9-527 itself.
Turning away from the question of "annulment," respondents have also urged us to adopt a literal "dictionary" interpretation of the statutory phrase "wholly and actually dependent." In our opinion, it would be no more appropriate for us to do so than it would if we were to deem our Supreme Court's construction of "wholly and actually dependent" null and void.
If Webster's were indeed to be our guide, in the manner respondents proffer, it is easy to discern that most children of separated parents will have little, if any, chance of ever obtaining death benefits should their non-custodial parent meet an untimely and work-related end. Under respondents' theory, where a custodial parent has even a modicum of self-subsistence available for the care of a child, that child could never be said, in the literal or "dictionary" sense, to be "wholly" dependent upon a deceased non-custodial parent.
In our opinion, had the General Assembly meant for the death benefit statute to operate or be construed as respondents prefer — an operation and construction which is dramatically different and incalculably harsher than the present — it would have expressly said so. Absent some specific instructions within the statute itself, we decline to depart so radically from the current construction of "wholly and actually dependent."
Following our de novo review of the entire record and for the reasons discussed herein, we specifically find that the minor children of decedent James R. Brown, namely Jamie, Melva, and Angela Brown, have proven, by a preponderance of the credible evidence, that they are entitled to the maximum death benefits allowed by Ark. Code Ann. § 11-9-527 (c)(3) (Repl. 1996). The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant's children were wholly and actually dependent upon the deceased employee at the time of his death.
Although there is evidence in the record that while Melva and Angela resided with their father he was their sole means of support, there is no evidence in the record to reflect that at the time of his death the claimant was providing any support in the way of gifts, food, clothing, or otherwise. There is no evidence in the record of any assistance or support from the claimant from January 1994 until his death in June of 1994. Based upon the evidence in the record, I find that the claimant did not provide any assistance in the form of money, food, presents or other form of support to the children or to their mother from January 1994 until his death in June of 1994.
Ark. Code Ann. § 11-9-527 (c) provides in pertinent part:
Beneficiaries — amounts. Subject to the limitations as set out in § 11-9-501 — § 11-9-506, compensation for death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee and in the following order of presence: . . .
To one (1) child if there is no widow or widower, fifty percent (50%). If more than one (1) child, and there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (35%) to the children as a class, to be divided equally among them.
Furthermore, Ark. Code Ann. § 11-9-522 (h) provides: "All questions of dependency shall be determinedas of the time of the injury." (Emphasis added.)
Since the claimant's compensable injury occurred in June of 1994, Act 796 of 1993 is controlling. Ark. Code Ann. § 11-9-704 (c)(3) (Repl. 1996) specifically states that "Administrative law judges, the commission, and any reviewing courts shall construe the provisions of this chapter strictly." This Commission in Duke v. Regis Hairstyles, FC Opinion, Sept. 12, 1995 ( E402336) defines strict construction as "construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes nothing that is not expressed, takes the language used in its exact and technical meaning and admits to equitable considerations or implications." Moreover, not only did the General Assembly require that the statute be strictly construed, it expressly admonished this Commission to not liberalize, broaden or narrow the workers' compensation statutes. Ark. Code Ann. § 11-9-1001 (Repl. 1996). I simply cannot agree with the majority that Act 796 did not render all previous case law which interpreted the beneficiary section null and void. In my opinion, a strict construction of Ark. Code Ann. § 11-9-527 (c) prohibits a finding in this case that the children were wholly and actually dependent upon Mr. Brown.
Accordingly, based upon my de novo review of the entire record, and for those reasons discussed herein, I find that the claim for dependency benefits must fail. At the time of the injury, the claimant had not been supporting decision, I realize that the result may be harsh but the strict construction requirement placed upon this Commission by the General Assembly allows for no other decision given the facts in this case. Therefore, I respectfully dissent from the majority opinion.
ALICE L. HOLCOMB, Commissioner