Opinion
CLAIM NO. E908200
OPINION FILED MARCH 18, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant dependent Garth represented by HONORABLE ROBERT RUSSELL, JR., Attorney at Law, Little Rock, Arkansas.
Claimant dependent Stewart represented by HONORABLE MICHAEL RAINWATER, Attorney at Law, Little Rock, Arkansas.
Respondents represented by HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an Administrative Law Judge's June 5, 2002 opinion and order awarding dependency benefits to the minor children of a deceased worker. Upon our de novo review of the record, we affirm this decision.
Claimant suffered an admittedly compensable fatal injury on July 14, 1999. Claimant's representatives contend that survivor benefits are due to claimant's wife and two minor sons, Tavarie Lamar Stewart (born to Tiffany Desha Stewart in 1989) and Tavorie Lamar Garth (born to Felecia Garth in 1991). The Administrative Law Judge awarded benefits to the minor children, but denied such to claimant's widow. Respondents appeal the award to claimant's children.
History
Tavarie Lamar Stewart
Tavarie was born on August 26, 1989, in Las Vegas, Nevada, to Tiffany Stewart. Ms. Stewart testified that she lived next door to the decedent and his sister in 1988 when their relationship began and that she was 18 years old when she and the decedent conceived Tavarie.
The decedent moved from Las Vegas before Tavarie was born, but later returned for approximately one year. During that time, Ms. Stewart stated that she and the decedent attempted to reestablish their relationship, but this ultimately failed. She stated that Tavarie spent alternating weeks with his father until the decedent moved to Arkansas (in late 1992 or early 1993), then the visits became sporadic. However, Ms. Stewart stated that the decedent sent money and gifts to Tavarie via his brother, Roy Garth, who also lived in Las Vegas.
While the decedent's name does not appear on Tavarie's birth certificate, Ms. Stewart testified that he always acknowledged Tavarie as his son and that he gave this information to the Social Security Administration before his death when applying for disability benefits for himself. This admission of paternity allowed Tavarie to receive social security death benefits from the decedent's account. Ms. Stewart applied for, but never received, formal child support.
Ms. Stewart contends that the decedent maintained consistent contact with Tavarie (regularly sending money and gifts through his brother and other family members) and that, in 1998, the decedent sent his son a birthday gift, $75, and a Christmas gift. She further testified that the decedent occasionally telephoned Tavarie — his last call to Tavarie being approximately one week before his death. Additionally, Ms. Stewart stated that the decedent's family continues to acknowledge Tavarie as the decedent's son and has maintained a relationship with him after the decedent's death, even allowing him to attend the decedent's funeral with them.
Tavorie Lamar Garth
Tavorie Lamar Garth was born on April 4, 1991, in Monroe, Louisiana — a few weeks after the decedent married his mother, Felecia Garth, on March 25, 1991. The decedent and Mrs. Garth separated in December of 1991, and the decedent eventually moved back to Arkansas where he died in 1999. Mrs. Garth remained in Louisiana. The two never divorced.
Mrs. Garth testified that Tavorie visited his father once or twice each month in either Arkansas or Louisiana and that Tavorie spent time with the decedent and the decedent's mother when the decedent came to Louisiana.
Mrs. Garth also applied for, but never received, formal child support for Tavorie. However, she said the decedent did give his son money and buy him food and clothing when they were together. Mrs. Garth further testified that she and her husband reconciled before his death and were making plans to buy a house together, but stated that she had not seen the decedent the year and a half before his death. Mrs. Garth and Tavorie now receive social security widows' and dependency benefits.
Respondents argue the compensability of the decedent's fatal injury in their notice of appeal, but limit their argument in brief to the issue of the dependency status of the minor children. Since the parties have already stipulated to the compensability of this claim and the respondents do not make an argument against this, we will only address the dependency issue of the minor children. We further decline to address the issue of a widows' benefit as it was not raised on appeal.
Adjudication
Ark. Code Ann. § 11-9-527 governs compensation for death benefits and requires employers to pay benefits to the deceased workers' beneficiaries upon certain conditions, providing (in pertinent part):
(c) . . .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:
(1)(A)(i) To the widow if there is no child, thirty-five percent (35%), and the compensation shall be paid until her death or remarriage.
(ii) However, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided in this section. . .
* * *
(2) To the widow or widower if there is a child, the compensation payable under subdivision (c)(1) of this section and fifteen percent (15%) on account of each child;
(3)(A) To one 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. § 11-9-102 defines a widow as "the decedent's legal wife, living with or dependent for support upon him at the time of his death." It defines a child as "a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or spouse of the deceased, or a foster child." Id. The definition of "child" shall not include married children, unless they are wholly dependent upon the deceased. Id.
Before the 1976 amendment to Ark. Code Ann. § 11-9-527, death benefits were payable only to persons who were "wholly dependent" upon the deceased employee. In addressing the legislature's addition of the word "actually" to that definition, the Arkansas Supreme Court concluded that the legislature must have believed that courts were construing the act too liberally:
. . .under our settled 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. Edmondson, 257 Ark. 837, 520 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.
Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979). The court further stated:
We have said, where there is no presumption of dependency, that dependency is a fact question to be determined in the light of surrounding circumstances. Smith v. Farm Service Cooperative, 244 Ark. 119, 424 S.W.2d 147 (1968). The fact of dependency is to be determined in the light of prior events and not to be controlled by an unusual temporary situation. Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S.W.2d 899 (1946). Larson summarizes the rule applicable under statutes requiring actual dependency: "Proof of bare legal obligation to support, unaccompanied by either actual support or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency." Larson, Workmen's Compensation Law, 63 (1976).Roach Mfg. Co., 265 Ark. 908 at 912, 913. In Roach, the Arkansas Supreme Court upheld the Commission's denial of widows' benefits and award of dependency benefits for the decedent's minor child where: (1) the husband/employee left his wife and child and moved to a different state, and (2) the wife made no attempt to enforce her husband's legal obligations to help support his child or herself. Id. The husband was killed 11 months later in a work-related injury, and the wife and child filed for workers' compensation benefits. The court held that the wife's inaction to enforce support for herself constituted a failure to "establish in fact some dependency" on her husband at the time of his death. Conversely, the court held that the same inaction on the wife's part to enforce the husband's legal obligations to help support his child did not demonstrate an absence of "any reasonable expectation of support on the part of the father" with regards to his child.
In 1993, the legislature again amended Arkansas' Workers' Compensation Law with Act 796. This time, the legislature increased funeral expense benefits from $3,000 to $6,000, but made no other changes to survivor benefits. However, appellants in Lawhorn Farm Servs. v. Brown, 60 Ark. App. 64, 958 S.W.2d 538 (1997), argued that Act 796 of 1993 repealed prior case law which includes in the definition of actual dependency the "reasonable expectation of support." In response to this contention, the Arkansas Court of Appeals stated:
It can hardly be said that the Legislature in making sweeping changes to our workers' compensation law in 1993 was unaware of our interpretation of the words "wholly and actually dependent." Roach, supra. See also Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1995); Tune v. Cate, 301 Ark. 66, 781 S.W.2d 482 (1989); Smith Admr. v. Ridgeview Baptist Church, 257 Ark. 139, 514 S.W.2d 717 (1974). Yet, case law interpreting these words was not expressly overridden ( see Ark. Code Ann, §§ 11-9-107(e), 713(e) (Repl. 1996)), and the dependency benefit provisions of prior law were not substantively changed. Lawhorn Farm Servs., 60 Ark. App. 64 at 72.
Consequently, the court in Lawhorn affirmed the Commission's award of benefits where the Commission found testimony regarding the children's dependency to be credible and where the Commission determined that the decedent had provided varying degrees of support to his children — despite the fact that the mother had not yet filed for child support. In reaching this decision, the Commission had also considered the children's increasing needs as they grew older in determining that the children were "wholly and actually" dependent upon the decedent at the time of his death.
In considering whether Tavarie Lamar Stewart and Tavorie Lamar Garth are entitled to dependency death benefits, we must first address whether they meet the statutory definition of a "child" within the meaning of Arkansas' workers' compensation law.
The answer to this question is relatively easy with regards to Tavorie Lamar Garth who was born on April 4, 1991, shortly after the decedent married his mother. The presumption of the legitimacy of children born during the wedlock of two persons has common law and statutory basis in Arkansas and is among the strongest presumptions in the law. Bankston v. Prime West Corp., 271 Ark. App. 727, 601 S.W.2d 586 (1981), quoting Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976):
We are met with the common law presumption, long valid in this State, that a child born to a legally married woman is the legitimate child of the husband and the presumption is one of the strongest presumptions known to the law. It is only rebuttable by the strongest type of evidence such as conclusive evidence of impotency of the husband, or nonaccess between the parties at the time of conception. The moral and social reasons for retaining this common law presumption in domestic relations and in the property laws relating to decent and distribution are too obvious and well known to justify comment, and our decisions on this point are too numerous and uniform we deem it unnecessary to cite them.
The record contains a copy of Tavorie's birth certificate (dated April 4, 1991) and a copy of the marriage license between the decedent, Charles Dale Garth, and Felecia Ann Sanders (dated March 25, 1991) which clearly places Tavorie's birth within the confines of matrimony between the decedent and Mrs. Garth. Additionally, Tavorie's birth certificate names the decedent as his father. And, there is credible testimony that Tavorie had a continuous relationship with the decedent and that the decedent held Tavorie out to be his natural child. For these reasons, we find that Tavorie is a "child" of the decedent.
Next is the question of the decedent's paternity of Tavarie. While this question is a little more difficult, we find that a similar result should ensue from this analysis. The facts establish that the decedent was never married to Tavarie's mother, and Tavarie's birth certificate does not list the decedent (or anyone else) as the child's father. Nevertheless, credible testimony reveals that Tavarie had the same relationship with his father as did Tavorie. Ms. Stewart testified that she and the decedent lived together for a short time before living apart (though in the same town). But, Ms. Stewart stated that their separate living arrangement did not keep the decedent from maintaining a relationship with Tavarie and that during the times they lived apart, the decedent kept Tavarie on alternating weeks and provided food and clothing for him. Ms. Stewart further testified that after the decedent moved to Arkansas, he regularly sent gifts and money to Tavarie through his brother and other family members.
It is obvious from Ms. Stewart's testimony that the decedent also held Tavarie out to his family and to the world as his natural child. In fact, testimony revealed that Tavarie, the decedent's first child, received disability support benefits from the Social Security Administration based on the decedent's indication that Tavarie was his son. The decedent's actions indicate his public acknowledgment of Tavarie as his illegitimate son. Based on these particular facts and circumstances, we find that Tavarie also is the decedent's "child."
Since we find that Tavarie and Tavorie are the decedent's natural children, we next reach the issue of their dependency status. Dependency is a question of fact rather than a question of law, and the issue is to be resolved based on the facts present at the time of the compensable injury. Hoskins v. Rogers Cold Storage, 52 Ark. App. 219, 916 S.W.2d 136 (1996). See Ark. Code Ann. § 11-9-527. "Actual dependent" does not require total dependency. Porter Seed Cleaning, Inc. v. Skinner, 1 Ark. App. 230, 615 S.W.2d 380 (1981). All that is required is a showing of actual support or a reasonable expectation of support. Id. See also Roach, supra; Doyles Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W.2d 243 (1980); and Continental Insurance Co. v. Richard, 268 Ark. 671, 596 S.W.2d 332 (Ark.App. 1980).
In this case, both mothers presented credible testimony that they had applied for, but that the decedent never paid, formal child support for his minor children. In fact, they both testified that they were required to file for child support after they presented to their respective states for welfare benefits to help care for their sons. This evidence indicates that the decedent's children no doubt needed their father's — regardless of the amount he actually rendered. Nevertheless, the parties have presented credible testimony that the decedent did, in fact, provide regular support for his sons in the form of money, clothes, food, child care and even transportation.
The courts undeniably hold that "actual dependency" requires, not total dependency, but a showing of support or a reasonable expectation that the children will require support in the future. These children obviously come from low-income families, as evidenced by their reliance on state-provided assistance and on the decedent's sporadic support. Since credible testimony reveals that the decedent did provide a certain level of support for these minor children, we find a sufficient showing of support by the decedent for his sons such that Tavarie and Tavorie were actually dependent on their father's support at the time of his death.
We further find that these minor children have a reasonable expectation of future support from their father. The Court in Roach stated that a father's failure to pay child support did not mean that his daughter had no "reasonable expectation" of future support from him.
. . .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 without legal action on the mother's part 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," as we expressed it in Smith v. Farm Service Cooperative, supra. Thus a reasonable expectation of future support could be found. Roach Mfg. Co., 265 Ark. 908 at 913.
These children, like all others, will continue to require additional support (i.e., clothing, school supplies, food, etc. . .) as they grow older. Therefore, we find that at the time of decedent's death, his minor children had a reasonable expectation of future support. Accordingly, the Full Commission affirms the Administrative Law Judge's award of dependency death benefits for Tavarie Lamar Stewart and Tavorie Lamar Garth.
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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that Tavarie Lamar Stewart and Tavorie Lamar Garth are entitled to dependency benefits. The majority finds that both children were entitled to dependency benefits pursuant to Ark. Code Ann. § 11-9-527. In my opinion, a review of the evidence indicates that neither child is entitled to any dependency benefits because there is no proof of dependency as required by Ark. Code. Ann. § 11-9-527.
When deciding any issue, the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence. See, Ark. Code Ann. § 11-9-704(c)(2) (Repl. 2002). The claimant has the burden of proving, by a preponderance of the evidence, that he is entitled to benefits. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1998). In determining whether the claimant has met his burden of proof, the evidence is to be weighed impartially without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704(c)(4) (Repl. 2002); Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
A claim for workers' compensation benefits must be based on proof. Speculation and conjecture, even if plausible, cannot take the place of proof. Arkansas Department of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991); Deanna Construction Company v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979). A decision by the Workers' Compensation Commission which rests upon evidence that presents a mere choice of possibilities is based upon speculation and is not sufficient evidence for a party to meet its burden of proof. Thomas v. Southside Contractors, Inc., 260 Ark. 694, 543 S.W.2d 917 (1976); Ellsworth Brothers Truckline v. Canady, 245 Ark. 1055, 437 S.W.2d 243 (1969).
Any question of dependency shall be determined at the time of the injury. See, Ark. Code. Ann. § 11-9-527(h), Sherwin-Williams Co. v. Yeager, 219 Ark. 20, 239 S.W.2d 1019 (1951). A factor in determining dependency is the claimant's reasonable expectation of future support. Williams v. Cypress Creek Drainage, 5 Ark. App. 256, 635 S.W.2d 282 (1982). In order to determine eligibility for benefits, dependency is a question of fact as opposed to a question of law. See, Pinecrest Memorial Park v. Miller, 7 Ark. App. 185, 646 S.W.2d 33 (1983). The addition of the word "actually" to the statute removes the conclusive presumption of dependency. Now a claimant must show actual dependency in order to receive benefits. Roach Manufacturing Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979). Temporary situations will not control determination of dependency. Williams v. Cypress Creek Drainage, 5 Ark. App. 256, 635 S.W.2d 282 (1982).
The only issue presently before the Commission is the entitlement of either or both of the minor children to dependency benefits pursuant to Ark. Code Ann. § 11-9-527. In my opinion, a review of the evidence indicates that these children are not entitled to dependency benefits.
TAVORIE GARTH
Tavorie Garth is the son of Felecia Garth, and was born April 4, 1991, two weeks after the claimant married her. The claimant resided with Ms. Garth until December, 1991. The claimant and Ms. Garth did not live in the same household again before the claimant sustained his fatal injuries. The claimant resided in Las Vegas and ultimately ended up in Fordyce, Arkansas. Ms. Garth remained in Bastrop, Louisiana, until she moved, two years ago, to Monroe. The evidence indicates that Ms. Garth never received any child support from the claimant. Ms. Garth testified that since the claimant returned to Fordyce, he would see Tavorie, "once or twice a month." Occasionally, during these visits, the claimant would give Tavorie money, clothes, shoes, and food. Ms. Garth also testified that she did not see the claimant for a year-and-a-half before his death.
The evidence indicates that Tavorie lived with Ms. Garth and went to school while he lived with her. The claimant was never the custodian or guardian for Tavorie. Although Tavorie visited his father once or twice a month, it had been at least two months since Tavorie last saw the claimant before his death.
TAVARIE STEWART
Tavarie was born on August 26, 1989, as the result of a relationship the claimant had with Tiffany Desha Stewart. Tavarie was born after the claimant returned to Arkansas, and the claimant's name does not appear on Tavarie's birth certificate. Ms. Stewart testified that there was an approximate two-month period of time where the claimant lived with her. However, during the majority of Tavarie's life, he has never resided with the claimant, nor has he ever visited the claimant in Arkansas. Tavarie received gifts from the claimant's brother, allegedly from the claimant, in the form of cash or toys. However, Ms. Stewart failed to present any photographs, documentation, or any other evidence as proof that these gifts were actually from the claimant. Ms. Stewart last saw the claimant in 1993, and she had no way to contact him after 1994. She was never married to the claimant. Ms. Stewart admitted that the money and gifts were not on a regular basis, and would just simply show up. There was no way that she could rely upon them and they were in no way consistent. Further, she had no actual proof that these gifts came from the claimant, because they would always come through the claimant's brother.
In order to prove entitlement to dependency benefits, Ark. Code Ann. § 11-9-527 requires the claimed beneficiary to prove that they were "wholly and actually dependent" on the claimant. Actual dependency requires a showing of actual support or a reasonable expectation of support. My review of the evidence indicates that the claimants Tavarie Stewart and Tavorie Garth are unable to prove such.
The majority akins this case to the case of Lawhon Farm Services v. Brown, 984 S.W.2d 1, 335 Ark. 272 (1998). In Lawhon, Mr. and Mrs. Brown were married 12 years and had 2 children. In July of 1992, the Browns separated and were later divorced. Mr. Brown died in January of 1994. From January of 1993 until the Fall of 1993, the two minor children born into the marriage resided with the claimant, who totally supported them during this time. When the children visited their mother, Mr. Brown continued to provide money for groceries and even allowed the use of his furniture. In the Fall of 1993, the children resided with their mother. Mr. Brown provided school supplies and clothes for that year. Mr. Brown was the custodian of these children also. The Court of Appeals and the Supreme Court determined specifically that Mr. Brown was actually supporting his children prior to his death. Although Mr. Brown did not pay child support payments, he was contributing by spending money for their support. Mr. Brown continued buying groceries and other things for his children, even though the children were not living with him.
When the case presently before us is reviewed in light of Lawhon , the facts in this case do not support an award of benefits. At no time was the claimant in this case awarded custody of either child. Other than a week or two here and there over a two-week period in 1994, Tavarie Stewart never resided with the claimant. Further, no more than a night or two here and there on the weekends, Tavorie Garth never resided with the claimant. Tavarie Stewart never saw the claimant after 1993, six years before his death. Further, Tavorie Garth's mother testified that had not seen the claimant for over a year-and-a-half prior to his death and that Tavorie Garth had only seen the claimant once or twice a month is simply questionable. She did admit that it had been two months since the last visit with the claimant before he died.
There is no evidence to support a finding that actual dependency existed for either child. There was no consistency of either visits or gifts. There is no order of support. The claimant did not pay any child support whatsoever. With respect to Tavarie Stewart, there is no proof that the gifts actually came from the claimant. Ms. Stewart admitted that she had a close relationship with the claimant's brothers and sisters, but no relationship with the claimant. She had not seen the claimant since 1994, and did no know how to get in touch with him. There was no note, card, photograph, or other tangible proof that these were, in fact, from the claimant and not from the claimant's brother, for whom Ms. Stewart testified was close to Tavarie.
The majority states that these children are from low-income families. Somehow, this statement indicates that the Commission should overlook the inconsistency or lack of support in general. While the law does not specify an amount of support that is necessary, consistency is necessary in order to generate a "reasonable expectation" that such support would continue.
Ms. Stewart testified that any gift from the claimant's brother was random, inconsistent, and could not be relied upon. It is also of note that these gifts were not sent to Ms. Stewart directly, or to Tavarie, but were sent through the brother. Curious, at best, that postage to the brother would be the same as postage to Ms. Stewart or to Tavarie. The facts simply do not support a finding that Tavarie Stewart was wholly and actually dependent on the deceased claimant on July 14, 1999. Accordingly, the award of benefits to Tavarie Stewart should be reversed.
With respect to Tavorie Garth, there is also a lack of wholly and actual dependency on the claimant's support of him. The claimant was not the custodial parent. There was only an occasional weekend every few months that the claimant would even spend time with Tavorie. There was also no testimony or evidence that the claimant always attempted to spend time with Tavorie whenever possible. Although the claimant provided shoes or money at times to Tavorie, there was no indication that these were consistent. It is also curious that Ms. Garth became pregnant with another man's child three months after she and the claimant separated. The claimant and Ms. Garth never received a divorce, but never lived together again. Ms. Garth testified that there was an attempted reconciliation approximately a year-and-a-half before his death. However, the reconciliation attempt was discouraged by a house fire at the claimant's mother's house. In my opinion, no reasonable expectation of any continued support from the claimant can be found in the facts presented in the record.
Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner