SUN ELECTRIC COMPANY v. THE WORKERS COMPENSATION BOARD The Estate of CHARLES BROWN JR.; ROBERT D. NEACE; J. KEVIN KING, Chief Arbitrator; JOHN B. COLEMAN Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-002691-WC
SUN ELECTRIC COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS COMPENSATION BOARD
ACTION NO. WC-96-77424
v.
The Estate of CHARLES BROWN JR.;
ROBERT D. NEACE; J. KEVIN KING,
Chief Arbitrator; JOHN B. COLEMAN
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge.
Sun Electric Company appeals from an order of
the Workers’ Compensation Board which affirmed a decision of the
Administrative Law Judge (ALJ).
Nicholas
Brown
qualified
for
The ALJ found that Candace1 and
benefits
as
dependents
of
the
decedent, Charles Brown Jr., and that Sun was responsible for
attorney’s fees for pursuing an unsuccessful appeal under Ky. Rev.
Stat. (KRS) 342.320(2)(c).
1
In the ALJ’s Opinion and Order, her name was spelled
“Candice.” However, the Board’s opinion and the briefs submitted
by both parties to the Board and this Court have spelled her name
“Candace.”
On September 23, 1996, Charles Brown Jr. suffered a fatal
accident in the course and scope of his employment with Sun.
Charles was married to Sheri Brown.
At the time of Charles’s
death, Sheri had four children: Samantha and Christopher Campbell,2
and Nicholas3 and Candace Brown.
Sheri filed for death benefits as
Charles’ surviving spouse and sought benefits for Nicholas and
Candice under KRS 342.750(1)(b).
Sun voluntarily paid survivor
benefits to Sheri but contested the payment to Candace and Nicholas
due to lack of actual dependency.
The evidence submitted to the ALJ established that Sheri
and the decedent were married on September 13, 1996.
born on September 14, 1993.
Nicholas was
The decedent was not the biological
father of Nicholas but was living with him at the time of the
accident that claimed his life.
Candace was born on June 5, 1996,
with the decedent listed as her biological father.
The evidence
before the ALJ was in dispute as to whether Candace lived with the
decedent or the decedent’s parents.
Sheri testified that during
the 10 days of the marriage Nicholas and Candace spent the night
with the decedent’s parents because she and the decedent were
moving.
Sheri also testified that on August 13, 1996, Candace had
surgery in Cleveland after which she stayed with the decedent’s
parents.
She also testified that the decedent’s parents would not
return Candace after Charles Brown’s death.
2
Samantha and Christopher Campbell were fathered by
Carrington H. Campbell.
3
Nicholas’ last name was changed to Brown shortly after
Charles’ death. His name was previously Campbell because Sheri was
living with Carrington Campbell at the time of Nicholas’ birth.
However, Sheri testified that she believes his biological father
was David Lawless.
-2-
Affidavits of Christine Litreal, the decedent’s sister,
Carolyn Brown, the mother of the decedent, and Charles Brown Sr.,
the decedent’s father, which contradicted the testimony supplied by
Sheri, were made a part of the record.
The affiants testified that
they felt the decedent was sterile and not the biological father of
Candace and that Candace had lived with the decedent’s parents from
the time that she was nine weeks old until September 30, 1996.
Further, the decedent’s parents testified that Sheri and the
decedent did not provide monetary support for Candace during her
stay.
The ALJ believed Sheri’s testimony and concluded that
both Nicholas and Candace lived with the decedent and were entitled
to benefits.
The ALJ ordered Sun to pay attorney’s fees, pursuant
to KRS 342.320(2)(c), for its unsuccessful appeal from a decision
of the arbitrator.
The Board affirmed the ALJ’s decision and
remanded the case to the ALJ for an award of additional attorney’s
fees against Sun for its appeal to the Board.
This appeal
followed.
Sun
contends
on
appeal
that
the
Board
erred
by
determining that KRS 342.750(1)(b) does not require children to be
actually dependent upon the decedent for them to receive benefits.
Sun insists that in order for claimants to obtain income benefits
under KRS 342.750(1)(b), they must meet the standards set forth in
KRS 342.075.
KRS 342.750 provides that:
If the injury causes death, income benefits shall be
payable in the amount and to or for the benefit of the
persons
following,
subject
specified . . . .
-3-
to
the
maximum
limits
(1)(b)
To the widow or widower, if there is a child or
children living with the widow or widower, 45 percent of
the average weekly wage of the deceased, or 40 percent,
if such child is not or such children are not living with
a widow or widower, and in addition thereto, 15 percent
for each child.
Where there are more than two (2) such
children, the indemnity benefits payable on account of
such children shall be divided among such children, share
and share alike.
In order for a claimant to obtain the benefits specified
in KRS 342.750, the requirements of KRS 342.075 must be satisfied.
See White v. Stewarts Dry Goods Co., Ky., 531 S.W.2d 504 (1976).
According to KRS 342.075(1)(b), children under the age of sixteen
years and living with or supported by the decedent at the time of
death are presumed to be dependent.
If the claimant is not
presumed to be a dependent, the evidence must show that the
claimant is living in the household of the employee at the time of
the accident or bears to the employee the relation of father,
mother,
husband,
or
wife,
father-in-law
or
mother-in-law,
grandfather or grandmother, child or grandchild, or brother or
sister of the whole or half blood and is actually dependent.
KRS
342.075(3).
Sun
insists
that
the
ALJ‘s
finding
under
KRS
342.750(1)(b) that Nicholas and Candace were dependent on the
decedent is not supported by substantial evidence.
The ALJ found
the testimony of Sheri to be persuasive and concluded that both
Nicholas and Candace were living with the decedent at the time of
-4-
his death and thus were presumed to be dependents.4
Sun maintains
that Candace should not be presumed to be a dependent because she
was living with her grandparents and not with the decedent at the
time of his death.
Sun also asserts that Candace was not actually
dependent on the decedent because he did not support her.
Sun also
argues that although Nicholas lived with the decedent, he was
supported by his mother and the State of Ohio.
In considering evidence, the ALJ has the right to believe
or disbelieve all or any portion of the evidence before him.
Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, 16
(1977).
Where conflicting evidence is presented, the ALJ is free
to accept or reject the evidence presented. Shields v. Pittsburgh
& Midway Coal Mining Co., Ky. App., 634 S.W.2d 440, 444 (1982).
Where an employer appeals an adverse decision, the question before
this Court is whether the decision of the Board is supported by
substantial evidence.
S.W.2d 735 (1984).
Wolf Creek Colleries v. Crum, Ky. App., 673
In this case, the decision of the ALJ is
supported by substantial evidence, and we may not substitute our
judgment for that of the ALJ.
Wolf Creek, 673 S.W.2d at 736.
The
fact that the evidence may also support a finding favorable to Sun
makes no difference. Special Fund v. Francis, Ky., 708 S.W.2d 641,
643 (1986).
Sun asserts that KRS 342.075(1) should be interpreted as
a rebuttable presumption of dependency.
However, the presumptions
of dependency under this statute have been held to be conclusive
4
The ALJ determined that Nicholas was the decedent’s
stepchild. Pursuant to KRS 342.085(1), “child,” as used in KRS
342, includes stepchildren.
-5-
and cannot be defeated or rebutted by extraneous testimony where
the dependent child or children meet the provisions of the statute.
Reynolds Metal Co. v. Glass,
302 Ky. 622, 195 S.W.2d 280,284
(1946). See also Johnson v. Kentucky Color & Chemical Co., 285 Ky.
358, 147 S.W.2d 686 (1941).
Lastly, Sun contends that the ALJ erred by granting an
award of attorney’s fees under KRS 342.310 because its appeal from
the arbitrator resulted in a delay of the children’s benefits. Sun
maintains that its appeal was reasonable and in good faith, and,
therefore not an unreasonable proceeding.
argument,
the
ALJ
awarded
342.320(c), not KRS 342.310.
attorney’s
fees
Contrary to Sun’s
pursuant
to
KRS
KRS 342.320(c) requires an employer
to pay a claimant’s attorney’s fees when an employer appeals the
benefit determination of an arbitrator or ALJ and does not prevail
on appeal.
Because Sun did not prevail on its appeal of the
arbitrator’s and ALJ’s determinations, there was no error.5
The
decision
of
the
Workers’
Compensation
Board
is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Jeffrey K. Neiheisel
Thomas C. Lyons
KEVIN L. MURPHY &
ASSOCIATES
Covington, Kentucky
5
Because we have determined that Sun’s appeal lacks merit,
we need not address whether this portion of the appeal should be
dismissed for its failure to name claimant’s attorney as a party on
appeal to the Board.
-6-
BRIEF FOR APPELLEES
THE ESTATE OF
CHARLES BROWN JR.,
and ROBERT D. NEACE:
Robert D. Neace
Florence, Kentucky
-7-
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