Opinion
CLAIM NO. E415136
OPINION FILED MAY 30, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOHN GREENHAW, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on August 16, 1995. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that she was 50% dependent on her son at the time of his death. The claimant cross appeals the administrative law judge's finding that she is not entitled to a lump sum payment. After conducting a de novo review of the entire record, we find that the preponderance of the evidence establishes that the claimant was not wholly and actually dependent on her son at the time of his death and thus is not entitled to dependency benefits. Therefore, we find that the administrative law judge's decision must be reversed; claimant's cross appeal is therefore moot.
The claimant is 52 years old and lives in Morrilton. She is the mother of the decedent/employee Michael Payne. The decedent began working for respondent Superior Industries in Fayetteville on November 23, 1992, and on September 27, 1994, he sustained an admittedly compensable injury which resulted in his death two days later. The decedent had two minor dependents who are being paid benefits pursuant to Ark. Code Ann. § 11-9-527 (Repl. 1996). The claimant filed this claim for survivor benefits, alleging that she was wholly dependent on the decedent.
The respondents contend that the claimant is not a statutory beneficiary of the decedent, and thus not entitled to dependency benefits. The claimant contends that as a dependent beneficiary of the decedent, she is entitled to a lump-sum payment. After conducting a de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that she was wholly and actually dependent upon the decedent, and thus entitled to dependency benefits. Therefore, we find that the administrative law judge's decision must be reversed.
Persons claiming compensation for the death of an employee must show that they were "wholly and actually dependent" on the deceased employee. Ark. Code Ann. § 11-9-527 (c) (Michie Cumm. Supp. 1995); Roach Manufacturing Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979); Bankston v. Prime West Corporation, 271 Ark. 727, 601 S.W.2d 586 (Ark.App. 1981). A person may be wholly dependent where the existence of an obligation of support sufficient to give a reasonable expectation of support is shown.Cole, 265 Ark. 908. However, "actual dependence" requires proof of some measure of actual support or a reasonable expectation of support. See Robinson v. Ed Williams Construction Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992); Doyle's Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W.2d 243 (1980); Bankston, 271 Ark. 727.
If the employee leaves dependents who are only partially dependent on his earnings for support, the compensation payable for partial dependency must be the proportion that the partial dependency bears to total dependency. Ark. Code Ann. § 11-9-527 (h)(i) (Repl. 1996). All questions of dependency are determined as of the time of the injury. Ark. Code Ann. § 11-9-527 (h) (Repl. 1996). Dependency is a fact question to be determined in light of the surrounding circumstances. Cole,supra; Robinson, supra.
In the present case, the claimant testified that the decedent lived in Fayetteville and returned to visit her in Morrilton every week or every other week. The decedent maintained a room in the claimant's home during this time. The claimant's mother, who is 72 years old, also lived with her. She testified that her mother draws social security retirement benefits. The claimant testified that she works at Arrow Automotive in Morrilton and that her average weekly net income is $225.61. She testified that in September 1994, she was working at least 40 hours a week, at a rate of $9.02/hour. She indicated that her wages now are $9.15/hour.
The decedent's brother, Terry Payne, testified that his salary is $31,000/year and that he also contributes to his mother. He and the claimant indicated that each time the decedent returned home, the decedent would bring the claimant money, either in the form of his payroll check or in the form of cash, a practice that continued up until his death in September 1994. The evidence consists of bank statements from the claimant's account at the First National Bank of Conway County in Morrilton as well as deposit slips and canceled checks from that bank. The claimant testified that each and every deposit on the bank statements and deposit slips offered into evidence reflects monies received from the decedent. It is her testimony that none of the deposit slips in evidence represent her payroll checks, however, because when she receives her paycheck each Thursday, she cashes it in its entirety.
The claimant testified that in 1993, she co-signed for a new car with the decedent. The evidence reflects that the decedent kept the car in Fayetteville, while the claimant and her mother shared another car in Morrilton. The payments of $410.64/month were written on the claimant's account in Morrilton. It is the claimant's testimony that about $15,000 is still owed on the car.
The claimant's testimony indicates that she and the decedent had no formal agreement as to how much she would receive from him per month or per week. She said, however, that he would give her money as she needed it, and that she had a reasonable expectation of future support from the decedent, noting that he was going to buy a greenhouse for her. She also testified that the decedent helped her buy furniture and appliances, which were all purchased on the credit cards in the decedent's name.
Several canceled checks from the claimant's account in Morrilton were offered into evidence. They represent payments on the car owned by the claimant and the decedent, as well as payments for insurance premiums and credit cards. The claimant testified that the canceled checks written on her account to Ford Citibank represent payments on a credit card that was in the decedent's name. This was also the case with the checks written to Montgomery Ward. The canceled checks written to Atlanta Casualty Company represent payments on insurance premiums on the car owned by the claimant and the decedent. Those checks written to Superior Federal Bank represent payments on the loan obtained to buy the car owned by the claimant and the decedent.
Ernest Mitchell Center, the manager of human resources with respondent Superior, testified that at the time of the decedent's death, his rate of pay was $7.75/hour and he worked 50 hours a week. Mr. Center testified that the decedent was paid on a weekly basis, each Friday. Beginning on September 5, 1994, a child support payment of $58.50 was deducted from his check.
Of all the deposits slips offered into evidence, most indicate deposits of checks. However, the claimant offered no proof of whose checks were deposited. The deposit slips simply indicate that checks were deposited, and not from what source they came. We thus cannot assume that the claimant's son was actually making payments to her in the form of his weekly paycheck. We also note that the only evidence in the record of the decedent's monetary contribution to the claimant came from the testimony of the claimant and her son, Terry Payne. Consequently, in light of the evidence presented, we find that their testimony should be given little weight.
Even if we assume that the checks that were deposited into the claimant's account were from the decedent's paycheck, we find that the evidence establishes that the claimant was basically managing the decedent's money for him. Furthermore, we find that if the decedent was sending the claimant money each week, he was doing no more than contributing to the payment of expenses that arose out of the claimant's care and management of his finances. The claimant testified that the decendent maintained a room in her house. It was also established that the decedent returned to his mother's home every week or every other week.
If a deceased employee was doing no more than supporting himself, compensation for dependency is not appropriate. See Pufahl v. Tamak Gas Products, 238 Ark. 895 (1965); Sherwin-Williams Co. v. Yeager, 219 Ark. 20, 239 S.W.2d 1019 (1951). Where a decedent receives and takes from the home and family group more than he furnishes, the decedent is at least partially dependent upon his family, rather than the converse. Id. The undisputed evidence reflects that the claimant paid the decedent's car payment and his car insurance by writing checks on her account. She also paid his credit card bills in the same manner. In fact, she testified that she even had his credit cards in her possession at some point in time. Thus, it appears that if the decedent was sending the claimant his paycheck, it was being sent to cover his own expenses.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has failed to prove by a preponderance of the evidence that she was wholly or partially dependent on her son. We thus find that she failed to prove by a preponderance of the evidence that she is entitled to dependency benefits. Therefore, we find that the decision of the administrative law judge is reversed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.