Damon Butler (Deceased) v. Labor Finders and American Gas Company of Reading

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-640

February 1, 2006

DAMON BUTLER (Deceased) AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F210445]

V.

LABOR FINDERS and

AMERICAN GAS CO. OF READING

APPELLEES AFFIRMED

Wendell L. Griffen, Judge

The issue in this case is whether the Arkansas Workers' Compensation Commission erred in determining that Lois Butler, the mother of the deceased claimant, Damon Butler, was entitled to receive dependency benefits following his death. We affirm the Commission's order.

Damon Butler was employed by appellee Labor Finders as a garbage collector. It is undisputed that on September 4, 2002, while collecting garbage for appellee, Butler began having seizures and was taken to the hospital, where he died on September 18, 2002.

By 7:00 a.m. on the morning of September 4, Butler's co-workers noticed that he was unable to keep up. They asked him to ride in the cab of the truck. Butler began seizing in the cab and an ambulance was dispatched. Emergency workers found Butler unresponsive, and he began vomiting en route to the hospital.

Upon admission, Butler's rectal temperature was 108 degrees and his blood pressure was low. After further assessment, including a CT scan of his head, he was diagnosed with heat exhaustion, seizures, dehydration, respiratory failure, and diarrhea. Due to respiratory failure, Butler was placed on a respirator the same day. He thereafter developed numerous complications, including multiple organ failure, and died September 18 after being removed from the respirator.

Ms. Butler subsequently sought dependency benefits pursuant to Arkansas Code Annotated § 11-9-527 (Repl. 2002). Appellee controverted her entitlement to receive such benefits, and a hearing was held before an Administrative Law Judge (ALJ). The ALJ first found that Butler failed to prove that he had sustained a compensable injury as defined by Arkansas Code Annotated § 11-9-114 (Repl. 2002), which governs work-related deaths due to heart or lung injury or illness. Additionally, the ALJ stated that even if she had found that Butler sustained a compensable injury, she would not have found that Butler's mother was entitled to dependency benefits because the assistance Ms. Butler received from Butler was in exchange for him receiving free rent and utilities and having the use of her vehicle, rather than due to his mother's dependence on him. Accordingly, the ALJ denied the request for dependency benefits. The Commission affirmed and adopted in full the ALJ's findings.

In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. When a claim is denied because a claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id. The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999).

We affirm the Commission's order because the evidence does not support that Ms. Butler was entitled to receive dependency benefits. Arkansas Code Annotated section 11-9-527(c) authorizes dependency benefits where a dependent was "wholly and actually" dependent upon the claimant. However, § 11-9-527(i) provides that dependency benefits may be awarded in cases of partial dependency. Factors to be considered in making a determination of partial dependency for worker's compensation purposes include whether support was given at the time of the injury and the reasonable expectation of future support. Williams v. Cypress Creek Drainage, 5 Ark. App. 256, 635 S.W.2d 282 (1982). It is also appropriate to consider the amount of any contribution the claimant made to a parent in light of any contribution the parent made to the claimant. Id.

Here, Butler, who had no wife or children, had lived with his mother for approximately two years prior to his death. His mother, who was sixty-one at the time of the hearing, received $533 in social security benefits at the time of Butler's death. She testified that her monthly expenses included a $109 mortgage payment, a $175 utility payment, credit card payments of $275-$300, medication costs of over $100 per month, and the cost of groceries.

Before Butler worked for appellee, and before he lived with his mother, he worked as a cook in a fraternity house. According to Ms. Butler, when her son worked for the fraternity, he would give her money on a weekly basis for whatever she needed "to pay off." He thereafter worked for appellee sporadically, earning a total of $704 between March and September 2002. Butler gave his mother half of his income from appellee and further assisted her as needed out of the half of his income that he kept. Although Ms. Butler and Dwight Butler (the decedent's brother) asserted that Butler also gave Ms. Butler income from other odd jobs, they could not recall for whom else Butler worked or how much money he contributed to Ms. Butler from the odd jobs.

Butler also performed errands and services around the house for his mother that she could not perform herself. In turn, he lived rent-free and was not required to pay for utilities. He also had free use of her vehicle.

Several months before the September 4 incident, Butler's brother, Dwight, moved into Ms. Butler's home. Ms. Butler testified that Dwight also contributed to her household. According to Ms. Butler, she primarily used the money her sons gave her to pay off credit-card debt and to buy groceries.

On these facts, we are convinced that the Commission did not err in determining that Ms. Butler was not entitled to receive dependency benefits. The fact that Butler gave his mother an average of only $57 per month while he worked for appellee is not dispositive, nor is the fact that he was not Ms. Butler's sole source of support, because partial dependency benefits are calculated in proportion that the partial dependency bears to the total dependency. Ark. Code Ann. § 11-9-527 (i); Pinecrest Mem. Park v. Miller, 7 Ark. App. 185, 646 S.W.2d 33 (1983).

However, the Commission relied on the fact that in exchange for the support Butler gave his mother, he received free rent, free utilities, and the use of Ms. Butler's vehicle. It was proper for the Commission to consider the contributions that Ms. Butler made to the claimant in making the dependency determination. Williams, supra. We agree with the Commission's determination that the relationship between Ms. Butler and Butler was one of mutual dependence, rather than one in which Ms. Butler was dependent upon him. Accordingly, we affirm the Commission's order determining that Ms. Butler was not entitled to receive dependency benefits.

Affirmed.

Pittman, C.J., and Crabtree, J., agree.