                                 Cite as 2016 Ark. App. 531


                 ARKANSAS COURT OF APPEALS

                                  DIVISIONS I, III, & IV
                                     No. CV-16-276


J.M.E. AND A.K.E. (MINOR          Opinion Delivered: NOVEMBER 2, 2016
CHILDREN)
                       APPELLANTS APPEAL FROM THE ARKANSAS
                                  WORKERS’ COMPENSATION
V.                                COMMISSION [NO. F706472]


VALLEY VIEW AGRI SYSTEMS, INC.,
GUARANTEE INSURANCE CO., AND
DEATH & PERMANENT TOTAL
DISABILITY TRUST FUND
                      APPELLEES REVERSED AND REMANDED


                             KENNETH S. HIXSON, Judge

       This is a statutory-interpretation case within the confines of the Workers’

Compensation Act. Our charge is not to rewrite unambiguous workers’ compensation

statutes. In fact, we are statutorily prohibited from doing so. The legislature expressed the

“General Assembly’s intent” in the Workers’ Compensation Act of 1993 when it declared

that, in the future, if “the scope of the workers’ compensation statutes need to be liberalized,

broadened, or narrowed, those things shall be addressed by the General Assembly and should

not be done by administrative law judges, the Workers’ Compensation Commission, or the

courts.” Ark. Code Ann. § 11-9-1001 (Repl. 2012). This principle permeates this appeal

and underpins the majority opinion.

       The issue in this case is whether appellants J.M.E. and A.K.E., who are minor

children of a deceased injured employee, are eligible for workers’ compensation survivor
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benefits. In a typical dependent-survivor case, the minor children of an injured employee

who is receiving permanent total disability payments are entitled to workers’ compensation

survivor benefits upon the death of the employee. What complicates this case is that, six

years after the children’s father/employee sustained a catastrophic injury rendering him

permanently and totally disabled, his parental rights were terminated and the two children

were subsequently adopted. Eight months after the children were adopted, the two children

filed for statutory survivor benefits. The Workers’ Compensation Commission ruled that

they were not eligible for survivor benefits because by the time the two children filed for

benefits they had been adopted, which rendered them strangers to the father/employee and,

therefore, no longer his dependents. The appellants now challenge that ruling on appeal.

We agree that the Commission erred, and we reverse for an award of survivor benefits to

the minor children of the deceased employee.

                                         The Facts

       The pertinent facts are undisputed. J.M.E. and A.K.E. were born in 2001 and 2004,

respectively. Their biological parents are Robert Emmons and Kimberly Emmons. On

June 22, 2007, Mr. Emmons suffered a catastrophic compensable injury while working

for appellee Valley View Agri Systems, which rendered him a quadriplegic and permanently

and totally disabled. At the time of the injury, the minor children J.M.E. and A.K.E

were living with their biological parents and were dependent on Mr. Emmons for support.

Mr. Emmons timely received $75,000 in benefits from the employer/insurance carrier and

was receiving monthly permanent and total disability payments from the Death and

Permanent Disability Trust Fund. In April 2011, DHS took custody of both children


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because of dependency-neglect due, in large part, to both the father’s and mother’s drug

use. On March 4, 2013, an order was entered that terminated both Mr. Emmons’ and Mrs.

Emmons’ parental rights to both children. On October 1, 2013, Mr. Emmons died as a

consequence of the compensable injury. On January 2, 2014, J.M.E. and A.K.E. were

adopted by their new parents. On August 20, 2014, J.M.E. and A.K.E. filed their claim for

survivor benefits arising from Mr. Emmons’ work-related death caused by his compensable

injury. 1 The Commission denied the survivor-benefits claim.

                                          Analysis

       When an employee sustains a compensable injury rendering the employee

permanently and totally disabled, the employee is entitled to permanent and total disability

payments. Ark. Code Ann. § 11-9-519 (Repl. 2012). When an employee dies as a result

of the compensable injury, his dependents are entitled to survivor benefits. Ark. Code Ann.

§ 11-9-527 (Repl. 2012). Subsection 11-9-527(h) pointedly and unambiguously provides

that “[all] questions of dependency shall be determined as of the time of the injury.”

       Even though the children were living with their biological father, Mr. Emmons, at

the time of his compensable injury in 2007 and were being supported by him at that time,

the Commission nonetheless concluded that the children were ineligible for survivor

benefits. The Commission’s decision was based on the fact that, before the children filed

their claim for survivor benefits, they had been adopted by other parents. The Commission




       1
       The record contains no information as to why the claim for survivor benefits was
not made prior to the adoption while the children were wards of the state.
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relied on an adoption statute, specifically Arkansas Code Annotated section 9-9-215(a)(1) &

(2) (Repl. 2015), which provides in pertinent part:

       A final decree of adoption . . . [has] the following effect as to matters within the
       jurisdiction or before a court of this state:

       ....

       [T]o relieve the biological parents of the adopted individual of all parental rights and
       responsibilities, and to terminate all legal relationships between the adopted
       individual and his or her biological relatives, including his or her biological parents,
       so that the adopted individual thereafter is a stranger to his or her former relatives for
       all purposes. This includes inheritance and the interpretation or construction of
       documents, statutes, and instruments, whether executed before or after the adoption
       is decreed, which do not expressly include the individual by name or by some
       designation not based on a parent and child or blood relationship.

       ....

       To create the relationship of parent and child between petitioner and the adopted
       individual, as if the adopted individual were a legitimate blood descendant of the
       petitioner, for all purposes including inheritance and applicability of statutes,
       documents, and instruments, whether executed before or after the adoption is
       decreed, which do not expressly exclude an adopted individual from their operation
       or effect.

The Commission found that despite the clear language of subsection 11-9-527(h), by

operation of the adoption statute, the children became strangers to Mr. Emmons when they

were adopted, and hence, were no longer his dependents.               Thus, the Commission

concluded that the children failed to prove that they were statutory beneficiaries, and that

they were not entitled to survivor benefits. To avoid the consequences of the application

of the clear language in subsection 11-9-527(h) of our workers’ compensation law, the

Commission employed the legal fiction that because the children had been adopted they

were deemed the children of the adoptive parents from birth and therefore, on the date of



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injury, the children were actually the children of the adoptive parents and not the children

of the injured employee.

         In this appeal, J.M.E. and A.K.E. argue that the Commission erred in determining

their dependency status as of the date they filed their claim, instead of as of the date of their

biological father’s compensable injury, thereby wrongfully denying them survivor benefits

under the applicable workers’ compensation law. We find appellants’ argument to have

merit.

         Typically, we review decisions of the Workers’ Compensation Commission using

the substantial-evidence standard of review. See Thompson v. Superior Indus., 2012 Ark. App.

335, 463 S.W.3d 748. However, here the facts are undisputed and we simply have an issue

of applying the facts to the law. The question of the correct application of a statute is a

question of law, which this court decides de novo. Broussard v. St. Edward Mercy Health

Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385. Moreover, pursuant to Arkansas Code Annotated

section 11-9-704(c)(3), we construe the provisions of the Workers’ Compensation Act

strictly.

         The ultimate issue in this case is under what circumstances a dependent child’s

survivor benefits can be terminated. The workers’ compensation statutory scheme provides

us with the answer. There is no need to look outside the confines of the workers’

compensation scheme, as the Commission did, to extrapolate an answer. Arkansas Code

Annotated section 11-9-527(c) generally describes the benefits allowable to dependents of

deceased employees, including children’s benefits. Subsection (d)(2) prescribes how a child,

grandchild, brother or sister’s dependency may be terminated:


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       (d) TERMINATION OF DEPENDENCE.
       (2) A physically or mentally incapacitated child, a grandchild, brother or sister shall
       be entitled to compensation as a dependent of the deceased employee without regard
       to age or marital status, but if physically or mentally capacitated to earn a livelihood,
       dependency shall terminate with the attainment of eighteen (18) years of age or upon
       marriage. However, benefits to an otherwise eligible child shall not terminate at the
       age of eighteen (18) years provided the child is a full-time student who has not
       attained the age of twenty-five (25) years.

       Subsection (d)(2) provides that a child’s dependency can be terminated at the age of

eighteen if he is capable of earning a livelihood and is not a full-time student less than

twenty-five years of age. The circumstances delineated in subsection (d)(2) are the only

circumstances set forth in the Arkansas Workers’ Compensation Act that allow or require

termination of a child’s dependency status. However, the Commission expanded the

statutory criteria to terminate a minor’s dependency to include deceased employees’ children

who have been adopted. The clear language of the applicable statute does not allow for

termination of a minor child’s survivor benefits upon termination of the employee’s parental

rights or adoption. Our duty is to apply the unambiguous statute.

       Recognizing that future conduct of the parents could affect the dependency status of

children and their corresponding rights to benefits, the legislature specifically created

subsection (h) to answer the question of when dependent status is determined. Because of

countless possibilities that may occur in the future with regard to parents and their children,

the legislature provided us with a clear directive in subsection (h), stating “[a]ll questions of

dependency shall be determined at the time of the injury.” (emphasis added). 2 This directive



       2
       To the extent there is any conflict between this provision in our workers’
compensation law and the adoption statutes found in another section of the Arkansas Code,
our supreme court has held that it is blackletter law for statutory construction to give effect
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is simple and unambiguous. Dependency is determined at the time of injury. Here, there

is no question that the minor children were dependent on the deceased employee at the

time of injury. The minor children are considered dependents unless something terminates

that status under subsection (d)(2), and in this case there was nothing to terminate the

appellants’ status as dependents.

       It should not be overlooked that the legislature did provide additional hurdles for

proving entitlement to survivor benefits for widows and widowers, but not for children.

Where the claimant of the deceased employee is a dependent spouse, that dependent spouse

must not only be a dependent at the time of injury under subsection (h), that dependent

spouse must also prove that he or she is, in fact, dependent on the deceased employee at the

time of death. Arkansas Code Annotated § 11-9-527(c)(1)(A)(ii) provides, “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.” 3 (emphasis added). The legislature, as it

is entitled to do, created an additional hurdle for spouses that it did not create for children.

       It is the General Assembly’s responsibility to liberalize, broaden, or narrow the scope

of workers’ compensation statutes—not ours nor the Commission’s. See Ark. Code Ann. §

11-9-1001. Here, by adding adoption to the grounds upon which a child’s dependency

status may be terminated, the Commission impermissibly broadened the scope of the statute.

Our mandate is to apply the unambiguous statutes, and any change to the law should be left



to the specific statute over the general. See Searcy Farm Supply, LLC v. Merchs. & Planters
Bank, 369 Ark. 487, 256 S.W.3d 496 (2007).
       3
           The same hurdle is set forth in section (B)(ii) with respect to widowers.
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to the legislature. Because the undisputed facts established that the appellants were, in fact,

dependent on the deceased employee, their biological father, at the time of the compensable

injury, and there were no circumstances within the Workers’ Compensation Act

terminating their dependency status, we hold that the Commission erred in denying

appellants’ claim for survivor benefits. Accordingly, we reverse and remand for an award of

appropriate survivor benefits commencing on the date of the death of the deceased

employee and continuing through the date on which Arkansas Code Annotated section 11-

9-527(d)(2) would operate to terminate J.M.E.’s and A.K.E.’s dependency status.

       Reversed and remanded.

       ABRAMSON, HARRISON, WHITEAKER, and HOOFMAN, JJ., agree.

       GLADWIN, C.J., and GRUBER, VAUGHT, and BROWN, JJ., dissent.


       WAYMOND M. BROWN, Judge, dissenting. I respectfully dissent from the

majority’s opinion finding that appellants are entitled to survivor’s benefits even though they

had been adopted at the time they sought benefits. I agree that the pertinent facts of this

case are undisputed. However, the majority fails to include in its recitation of facts that

when appellants were adopted on January 2, 2014, the adoption order provided that their

last names be changed and their birth certificates reflect the names of their adoptive parents

as of the date of their births. Therefore, the Commission did not employ a “legal fiction”

that the appellants were considered the children of their adopted parents from birth; the

order specifically dictated that this was the case.




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       The only legal fiction in this case is the majority’s insistence that the workers’

compensation law is a self-contained law. However, no law is self-contained. All laws must

operate together in order to achieve a legal and just result.

       When reviewing a decision of the Commission, we view the evidence and all

reasonable inferences deducible therefrom in the light most favorable to its findings and

affirm that decision if it is supported by substantial evidence. 1 Substantial evidence is

evidence that a reasonable mind might accept as adequate to support a conclusion. 2 When

the Commission adopts the conclusions of the ALJ, as it is authorized to do, this court

considers both the decision of the Commission and the decision of the ALJ. 3 The issue is

not whether we might have reached a different result or whether the evidence would have

supported a contrary finding; if reasonable minds could reach the Commission’s conclusion,

we must affirm its decision. 4

       Arkansas Code Annotated section 11-9-527(c) provides death benefits for

dependents of workers who die as a result of work-related accidents. The statute states that

“compensation for the death of an employee shall be paid to those persons who were wholly

and actually dependent upon the deceased employee[.]” 5 “Actually dependent” does not



       1
        Inskeep v. Emerson Elec. Co., 64 Ark. App. 101, 983 S.W.2d 132 (1998).
       2
        Kimbell v. Ass’n of Rehab Indus., 366 Ark. 297, 235 S.W.3d 499 (2006).

      See Death & Perm. Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107
       3

S.W.3d 876 (2003).
       4
        Inskeep, supra.
       5
        Ark. Code Ann. § 11-9-527(c).

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require total dependency but rather a showing of actual support or a reasonable expectation

of support. 6 Subsection (h) provides that “[a]ll questions of dependency shall be determined

as of the time of the injury.” 7 Dependency is a fact question to be determined in light of

the surrounding circumstances. 8 When the Commission makes a finding of fact, that finding

carries the weight of a jury conclusion. 9

       With exceptions not applicable here, Arkansas Code Annotated section 9-9-215(a)(1)

provides that the effect of a final decree of adoption is to terminate all legal relationships

between the adopted individuals and their biological relatives, including the biological

parents, so that the adopted individuals are thereafter strangers to their former relatives for

all purposes. This includes inheritance and the interpretation or construction of statutes.

       Appellants argue that the evidence does not support the Commission’s decision to

deny them survivor’s benefits. They contend that the Workers’ Compensation Act is a

stand-alone law and that the Commission erred in ruling that the dependency statute was

trumped by the adoption statute. We acknowledge that this is a very unique situation that

has not been decided in Arkansas. However, the clear language of the adoption statutes

states that a final decree of adoption terminates all legal relationships between the adopted

children and the biological parents, including the interpretation of statutes. Thus, although



       6
        Lawhon Farm Servs. v Brown, 60 Ark. App. 64, 958 S.W.2d 538 (1997).
       7
        Ark. Code Ann. § 11-9-527(h).
       8
        Fordyce Concrete v. Garth, 84 Ark. App. 256, 139 S.W.3d 154 (2003).
       9
        Id.

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appellants were dependent on Robert at the time of his injury, their adoption in January

2014 terminated their relationship with him and made them legal strangers to him.

Therefore, when their attorney made an appearance for them on August 20, 2014, they

were legal strangers to Robert and were not entitled to survivor’s benefits following

Robert’s death for his work-related injury.

       GLADWIN, C.J., and GRUBER and VAUGHT, JJ., join in this dissent.

       Law Offices of James W. Harris, by: James W. Harris, for appellants.

       David L. Pake, for appellee Death & Permanent Total Disability Trust Fund.




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