Hoskins v. Rogers Cold Storage

Shea HOSKINS v. ROGERS COLD STORAGE

CA 95-187                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered March 6, 1996


1.   Workers' compensation -- standard of review. -- On review of
     an appeal from the Arkansas Workers' Compensation Commission,
     the appellate court must determine whether there is
     substantial evidence to support the Commission's finding; in
     doing so, it is duty-bound to view the evidence in the light
     most favorable to the result reached by the Commission,
     resolving all doubtful inferences in favor of its findings;
     the appellate court's role is not to review the record de
     novo, or to weigh the evidence presented to the Commission;
     instead, its responsibility is to review the record and decide
     whether there is evidence that could have led fair-minded
     persons to reach the same result and, if so, to affirm the
     Commission.

2.   Workers' compensation -- compensation for death --
     determination of dependency. -- Arkansas Code Annotated  11-
     9-527(c) (1987) provided that compensation for the death of an
     employee shall be paid to the persons who were wholly and
     actually dependent upon him; subsection (h) states that all
     questions of dependency shall be determined as of the time of
     the compensable injury.

3.   Workers' compensation -- statutory definition of "child"
     applicable to dependency determinations. -- Under Ark. Code
     Ann.  11-9-102 (10) (1987), the statutory definition of
     "child" applicable to dependency determinations in workers'
     compensation cases included 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, and a foster child.

4.   Workers' compensation -- compensation for death --
     determination of dependency -- issue of fact to be resolved
     upon facts present at time of compensable injury. --
     Dependency is an issue of fact rather than a question of law,
     and the issue is to be resolved based upon the facts present
     at the time of the compensable injury.

5.   Workers' compensation -- compensation for death --
     Commission's decision to deny claim for death benefits to
     stepchild supported by substantial evidence. -- The appellate
     court determined that the Commission's decision to deny the
     claim for death benefits to appellant stepchild of the
     decedent was supported by substantial evidence where appellant
     had no reasonable expectancy of support from the decedent and
     where appellant's mother demonstrated as much by her conduct
     in seeking child-support payments from appellant's father in
     her divorce; the appellate court concluded that the Commission
     was entitled to consider this circumstance in reaching its
     decision that appellant was not wholly and actually dependent
     upon the decedent.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Robert S. Blatt and Timothy C. Sharum, for appellant.
     Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Robert L.
Henry III and Christopher Gomlicker, for appellee.

     Wendell L. Griffen, Judge. *ADVREPCA9*                DIVISION II





                                   CA 95-187

                                                March 6, 1996


SHEA HOSKINS                       AN APPEAL FROM THE ARKANSAS
              APPELLANT            WORKERS' COMPENSATION
                                   COMMISSION                     
                                   NO. D403764

V.                                 HON. JAMES DANIEL, CHAIRMAN


ROGERS COLD STORAGE                       
              APPELLEE             AFFIRMED




                   Wendell L. Griffen, Judge.


    Shea Hoskins, stepdaughter of Leonard Jack Slate (deceased),
has appealed the November 28, 1994, decision by the Workersþ
Compensation Commission denying her claim for dependency benefits
due to Slateþs work-related death on March 30, 1984.  Her appeal
presents the question whether the Commissionþs determination that
appellant was not wholly and actually dependent upon Slate at the
time of his death is supported by substantial evidence.  Because we
find substantial evidence supporting the result reached by the
Commission, we affirm its decision.
    Slate suffered a compensable injury resulting in his death on
March 30, 1984.  Appellant and her mother lived with Slate at the
time of his death, and had lived with him for almost a year and a
half, after appellantþs mother separated from John Hoskins, her
husband and appellantþs father.  On March 28, 1984, two days before
Slateþs death, appellantþs mother obtained a divorce from John
Hoskins, and then married Slate.  
    After Slateþs death, Firemanþs Fund Insurance Company, the
workersþ compensation insurance carrier for his employer, began
paying death benefits to his widow (appellantþs mother), and to his
two children from a previous marriage.  Dependency benefits were
later paid to Cody Jack Slate, a child Slate fathered with
appellantþs mother but who was not born until after Slate died.  No
benefits were ever paid to appellant.  Her mother contended that
she did not learn that appellant may have been entitled to
dependency benefits until nine years after Slate died.  Appellantþs
father had been ordered to pay child support in the divorce decree
entered on March 28, 1994, and did so for a period of time after
the divorce.  However, appellant and her mother testified that
Leonard Jack Slate was her sole support for most of the time that
appellant lived in Slateþs home with her mother before he died. 
Appellantþs father paid child support sporadically after the
divorce, and later became disabled.  Appellant received social
security benefits based upon her father's disability, but argues
that Slate was her sole support on March 30, 1984, when he died. 
An administrative law judge awarded dependency benefits to
appellant after finding that she was wholly and actually dependent
upon Slate at the time of his death.  That decision was reversed by
the Commission, and this appeal followed.
    Appellant contends that the Commission erred when it found she
was not wholly and actually dependent upon Slate.  That contention
requires that we determine whether there is substantial evidence to
support the finding.   In doing so, we are duty-bound to view the
evidence in the light most favorable to the result reached by the
Commission, resolving all doubtful inferences in favor of its
findings.  Our role is not to review the record de novo, or to
weigh the evidence presented to the Commission.  Instead, our
responsibility is to review the record and decide whether there is
evidence that could have led fair-minded persons to reach the same
result.  If so, our duty is to affirm the Commission. Bradley v.
Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995); Cagle Fabricating
& Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993).
    Arkansas Code Annotated  11-9-527(c) (1987) provides that
compensation for the death of an employee shall be paid to the
persons who were wholly and actually dependent upon him. 
Subsection (h) states that all questions of dependency shall be
determined as of the time of the compensable injury.  Arkansas Code
Annotated  11-9-102 (10) (1987) contains the statutory definition
of þchildþ applicable to dependency determinations in workersþ
compensation cases such as this, and states:
    þChildþ means 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, and a foster child. . . .

The parties do not dispute that appellant was the stepchild of
Leonard Jack Slate when he died.  Their disagreement involves
whether appellant was wholly and actually dependent upon Slate when
he died so as to be entitled to dependency benefits pursuant to 
11-9-527 (c).  Appellant argues that, through her testimony and
that from her mother, she proved that she was wholly and actually
dependent upon Slate, that Slate provided for her total support at
the time of his death, and that he had done so for more than a year
beforehand.  Appellant also presented proof that her natural father
provided no support during that time span.  There was proof that
although the divorce decree, issued two days before Slateþs death,
contained an order directing appellantþs natural father to pay
child support, he failed to do so consistently, and eventually
became disabled some time after Slate died.  Appellee maintains
that appellant was not wholly and actually dependent upon Slate
because her natural father had been ordered to pay child support
for her at the time that Slate died, even though her father had not
done so before that time.
    Before our Workersþ Compensation Law was amended in 1976 to
provide that death benefits are payable to persons who are
þactuallyþ dependent upon a deceased employee, persons claiming
entitlement to those benefits could prevail by showing that they
were þwhollyþ dependent.  But the Arkansas General Assembly amended
the law in 1976 to require proof that a claimant to death benefits
is þwholly and actually dependent.þ  Court decisions after the
amendment was enacted reflect the different result that it
produced.  The pre-1976 judicial interpretation of the statutory
requirement that one be þwholly dependentþ resulted in benefits
being awarded to a widow whose deceased husband provided no support
to her or their children at the time of his death based on the view
that the term þwholly dependentþ was intended to be understood in
its figurative, rather than literal, sense.  Chicago Mill & Luber
Co. v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958).  By contrast,
after the General Assembly amended the law to require proof that a
claimant to death benefits was þwholly and actually dependentþ upon
the deceased employee, the denial of benefits was upheld in the
case of a widow whose husband left her and moved to another city,
married another woman without obtaining a divorce, and provided no
support to her before he was accidentally killed in the course of
his employment.  Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979).  The rationale stated by Justice George Rose Smith in
the Roach case for affirming the Commissionþs decision to deny
benefits was that the wife made no effort to enforce whatever right
to legal support she had during the eleven months of her husbandþs
absence before his death, and that she had attempted to support
herself.  Yet, the Supreme Court in Roach affirmed the Commissionþs
decision granting death benefits to the minor child of the deceased
worker.  In doing so, it reasoned that the eleven-month absence of
action by the mother to enforce the childþs right to support from
her father did not demonstrate absence of a þreasonable expectation
of support,þ because the child was unable to act for herself, and 
would incur increased necessary expenses as she matured that her
mother possibly would be unable to meet to maintain her standard of
living.  Id., at 265 Ark. 914.
    In Doyle Concrete Finishers v. Moppin, 267 Ark. 874, 596 S.W.2d 1 (Ark. App. 1979), our court affirmed and modified a decision by
the Commission that awarded death benefits to the minor child of a
deceased worker who was not living with his father when the father
died.  The worker had been divorced from his wife and had been
ordered to pay child support in the divorce decree.  A claim for
death benefits was made for the child, but the employer contended
that the childþs death benefit should not have been more than the
amount of the child support decreed in the divorce decree ($108 per
month), rather than the $77 per week maximum benefit then
prescribed by law.  Our court affirmed the Commissionþs decision
awarding the maximum benefit, but modified the award because the
Commission had concluded that the child was entitled to the maximum
benefit "as a matter of law."  There was proof in the record that
the childþs father had provided child support pursuant to the
decree plus other forms of support to the child before he died. 
Noting that a minor child may have independent resources and,
therefore, be capable of being non-dependent upon a deceased parent
for purposes of workersþ compensation benefits, Judge Steele Hays,
writing for the court in Doyle Concrete Finishers, rejected the
dependency "as a matter of law" standard, and indicated that death
benefits may nevertheless be entitled where the expectation and
need for support are real or actual.  Id., at 267 Ark. 881. 
Because the court in that case concluded that the Roach holding
demonstrates that þa minor child continues to have an expectancy of
future support,þ it refused to conclude that a minor who was
actually dependent and receiving support was entitled to less than
full benefits.
    The foregoing authorities show that before death benefits are
payable to persons enumerated in the Workersþ Compensation Law to
receive them, there must be proof that the claimant was þwholly and
actually dependentþ upon the deceased worker at the time of the
compensable death.  Ark. Code Ann.  11-9-527(c).  Dependency may
be established by evidence that the decedent actually provided
support, as shown by the holding in Doyle Concrete Finishers.  The
dependency requirement can also be met by proof of actual need for
support, and a reasonable expectancy of future support even if no
actual support may have been provided the claimant when the
decedent died, as demonstrated by the Roach holding.  In any event,
dependency is an issue of fact rather than a question of law, and
the issue is to be resolved based upon the facts present at the
time of the compensable injury.  Ark. Code Ann.  11-9-527(h).
    In view of these principles, we believe that the Commissionþs
decision to deny the claim for death benefits to appellant is
supported by substantial evidence.  It is true that appellant and
her mother testified that the decedent provided actual support to
appellant from the time shortly after she and her mother began
living with him until his death more than a year later.  There was
also proof that appellantþs natural father failed to provide
support for her during that time span.  Nevertheless, the
Commission also received evidence that appellant was entitled to
receive child support payments from her natural father pursuant to
the terms of her parentþs divorce decree that had been entered only
two days before the decedentþs death.   This indicates that
appellant had a reasonable expectancy of support from her natural
father when the decedent died.  But, that is not the critical
inquiry.  The issue is whether appellant had a reasonable
expectancy of support from the decedent.  She was his stepchild, to
be sure, and she had enjoyed his support before he married her
mother.  There was no reason, however, to expect that the decedent
was obligated to support appellant at any time.  In fact,
appellantþs mother demonstrated as much by her conduct in seeking
child support payments from appellantþs father in her divorce.  The
Commission was entitled to consider this in reaching its decision
that appellant was not þwholly and actually dependentþ upon the
decedent.
    Our result in this case should not be interpreted to mean that
a stepchild may never recover death benefits following the death of
her stepparent as a matter of law.  The holding in Doyle Concrete
Finishers shows that dependency is not a question of law, but a
fact issue to be determined by the circumstances existing when the
compensable injury occurs.  It is based on proof of either actual
support from the decedent, as was shown in that case, or a showing
of a reasonable expectation of support, as was shown in Roach.  Our
decision does not address whether a stepchild may always, or never,
have a reasonable expectation of support from a deceased worker
where there is evidence that she is being actually supported by her
natural parent, or where she has a right to expect support from the
natural parent even if it is not actually provided.     Each case
will turn on its facts.  On the facts presented in this case,
however, we are unable to conclude that fair-minded persons
presented with the same evidence could not have reached the
conclusion that the Commission made, namely, that appellant was not
þwholly and actually dependentþ upon Leonard Jack Slate when he
died.
    Affirmed.
    Jennings, C.J., and Robbins, J., agree.