                               Cite as 2014 Ark. App. 102

                ARKANSAS COURT OF APPEALS
                                     DIVISION IV
                                     No. CV-13-730


DEATH & PERMANENT TOTAL                         Opinion Delivered   February 12, 2014
DISABILITY TRUST FUND
                    APPELLANT                   APPEAL FROM THE ARKANSAS
                                                WORKERS’ COMPENSATION
V.                                              COMMISSION
                                                [NO. G206448]

ANDREW MYERS, DECEASED,                         AFFIRMED IN PART; REVERSED
SAMANTHA MYERS, DIXIELAND                       AND REMANDED IN PART
GIN REPAIR, INC., ZURICH
AMERICAN INSURANCE
COMPANY, and HAELY MORRIS
                       APPELLEES




                             DAVID M. GLOVER, Judge


       This is a death case from the Arkansas Workers’ Compensation Commission. Andrew

Myers was killed in a work-related accident.       The Administrative Law Judge (ALJ)

determined that Myers’s three stepchildren were dependent for purposes of receiving workers’

compensation death benefits. The Commission affirmed and adopted the ALJ’s opinion. The

Death & Permanent Total Disability Trust Fund (the “Fund”) appeals, arguing that the

Commission erred in finding that the three stepchildren were wholly and actually dependent

on Myers at the time of his death. The Fund further argues that the Commission erred in

giving preference to Myers’s widow in the division of weekly death benefits. We affirm the

Commission’s finding that the stepchildren were Myers’s dependents for purposes of receiving
                                 Cite as 2014 Ark. App. 102

workers’ compensation death benefits; however, we reverse and remand to the Commission

with regard to the division of benefits.

       Typically, on appeal to our court, we review only the decision of the Commission, not

that of the ALJ. Queen v. Nortel Networks, Inc., 2012 Ark. App. 188, at 3. However, when

the Commission affirms and adopts the ALJ’s opinion, thereby making the findings and

conclusions of the ALJ the Commission’s findings and conclusions, our court considers both

the ALJ’s opinion and the Commission’s opinion. Id.

                                   Dependency of Stepchildren

       The Fund first argues that the Commission erred as a matter of law and fact in finding

that Myers’s three stepchildren were wholly and actually dependent upon him at the time of

his injury and death and thereby eligible to receive death benefits under Arkansas Code

Annotated section 11-9-527(c) (Repl. 2012). Our court reviews the Commission’s findings

of fact in the light most favorable to the Commission’s decision and will affirm if the decision

is supported by substantial evidence. Hicks v. Bates, 104 Ark. App. 348, 292 S.W.3d 850

(2009). Substantial evidence is that evidence a reasonable mind might accept as adequate to

support a conclusion. Id. The issue is not whether our court might have reached a different

conclusion—if reasonable minds could reach the Commission’s result, our court must affirm.

Id. The Commission’s decision will not be reversed unless the appellate court is convinced

that fair-minded persons presented with the same facts could not have arrived at the

Commission’s decision. Id. Questions concerning the credibility of witnesses and the weight

to be given to their testimony are within the exclusive province of the Commission. Cedar


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Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).

       Under our state’s workers’ compensation statutes, “child” is defined as “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 of the spouse of the deceased, and a foster

child.” Ark. Code Ann. § 11-9-102(2) (Repl. 2012). The question of dependency is

determined at the time of the decedent’s injury, Arkansas Code Annotated section 11-9-

527(h), and it is an issue of fact rather than a question of law. Estate of Slaughter v. City of

Hampton, 102 Ark. App. 373, 285 S.W.3d 669 (2008). “Actually dependent” does not require

total dependency—it only requires a showing of actual support or a reasonable expectation

of support. Hicks v. Bates, supra.

       In Lawhon Farm Services v. Brown, 335 Ark. 272, 280, 984 S.W.2d 1, 5 (1998), our

supreme court discussed the history of Arkansas Code Annotated section 11-9-527:

              The history of § 11-9-527 and the record of our interpretation of it are helpful.
       Originally, the term “wholly dependent” was construed to refer to those ordinarily
       recognized in law as dependents. A conclusive presumption thus arose to the effect that
       a wife or child of a deceased employee who was killed in the course and scope of his
       employment was a dependent for purposes of the statute. See Chicago Mill & Timber Co.
       v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958). In 1976, the General Assembly
       amended § 11-9-527 to provide that a widow or widower shall establish “actual”
       dependency before she or he will be entitled to benefits. We interpreted that change
       as eliminating the conclusive presumption and requiring a widow to establish facts
       showing dependency upon the decedent before being entitled to benefits. Roach Mfg.
       Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979). We held that dependency was to
       be determined in light of the surrounding circumstances, citing Smith v. Farm Service
       Coop., 244 Ark. 119, 424 S.W.2d 147 (1968), and in light of prior events and not
       controlled by an unusual, temporary situation, citing Nolen v. Wortz Biscuit Co., 210
       Ark. 446, 196 S.W.2d 899 (1946).

In Lawhon, the appellants urged the supreme court to define “wholly” as “in entirety; fully;


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... to the whole extent; totally; entirely; completely; thoroughly;” and “to the exclusion of

other things, solely.” 335 Ark. at 279, 984 S.W.2d at 4. Our supreme court declined to

adopt this narrow interpretation, holding that a minor child would never be entitled to death

benefits if the parents were divorced and the child received any support from the surviving

parent, thus leading to an absurd result.

       In the present case, Myers was married to Samantha Myers for almost two years before

his death. All three of Samantha’s children lived with them during the marriage, and Myers

paid child support for his two biological children who did not live with them. Although

Samantha received child support from the three biological fathers of her children, she testified

that the child support did not meet all of the children’s needs and that she used Andrew’s

paycheck to help provide for her children’s needs. During the marriage, Samantha did not

work, and at times when Andrew was not working, he drew unemployment benefits. The

family also received Medicaid and food stamps, as well as Pell grants, which were used to pay

college expenses for Samantha and Andrew, with anything left over going to living expenses.

In her deposition, which was introduced as an exhibit at the hearing, Haely Morris, Andrew’s

ex-wife and the mother of his two biological children, attempted to waive her two children’s

rights to any death benefits, explaining that her children received Social Security benefits due

to Andrew’s death that met their needs and that it would be “more fair” to award the death

benefits to Samantha and her children because they needed and deserved them more than her

children did.1


       1
        Morris was not allowed to waive her children’s rights to death benefits.

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       The ALJ found that it was undisputed that Andrew actually supported Samantha and

his three stepchildren during the marriage, and that finding was established by credible

testimony from Samantha and from Haely Morris.            Substantial evidence supports this

conclusion.

       The Fund improperly relies on the prior Commission opinion in Hoskins v. Rogers Cold

Storage, Inc., 1994 AWCC 179 (No. D403764), for its contention that Andrew’s stepchildren

were not wholly and actually dependent on him for support at the time of his death. In the

Hoskins case, the Commission found that a preponderance of the evidence failed to show that

the deceased stepfather, Leonard Slate, was obligated to support Shea Hoskins, his

stepdaughter. In its opinion, the Commission stated that an obligation might arise if the

stepparent stood in loco parentis to the minor stepchild. In the present case before us, the

Fund argues that Andrew did not stand in loco parentis to his three stepchildren. While in

the earlier case our court did affirm the Commission’s denial of death benefits, we did not do

so on the basis that Slate did not stand in loco parentis to his stepdaughter, Shea. Hoskins v.

Rogers Cold Storage, 52 Ark. App. 219, 916 S.W.2d 136 (1996). Therefore, the Fund’s

argument is misplaced; Full Commission opinions are not precedent to our court. Family

Dollar v. Edwards, 97 Ark. App. 156, 245 S.W.3d 181 (2006). Nevertheless, as our court

pointed out in Hoskins:

              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 [v. Moppin, 268 Ark. 167, 594 S.W.2d 243
       (1980)] 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,

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       or a showing of a reasonable expectation of support, as was shown in Roach [Mfg. Co.
       v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979)]. 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 “wholly and actually dependent”
       upon Leonard Jack Slate when he died.

52 Ark. App. at 225, 916 S.W.2d at 140. Here, before us, there is substantial evidence to

support the Commission’s award of death benefits to Andrew’s three stepchildren, and we

affirm the Commission’s decision on this issue.

               Preference to Samantha Myers in Division of Weekly Death Benefits

       It is uncontroverted that the weekly death benefit in this case is $440. In his opinion,

the ALJ awarded Samantha Myers $231 per week, and Andrew Myers’s dependent children

(two biological children and three stepchildren) were each awarded equal portions of the

remaining $209, or $41.80 per week per child. The Fund argues, however, that the

Commission erred by giving preference to Samantha Myers as the widow rather than

apportioning the benefits to her and the children as a class as required by Arkansas Code

Annotated section 11-9-527(e). We agree with the Fund’s argument.

       Arkansas Code Annotated section 11-9-527(c)(2) provides that, if there is a widow and

children, benefits are to be payable thirty-five percent to the widow and fifteen percent for

each dependent child. When, as in this case, the number of dependent children would exceed

the amount payable, i.e., fifteen percent for each dependent child, subsection (e) of the statute

is then activated; it provides:

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       Where, because of the limitation in subsection (c) of this section, a person or class of
       persons cannot receive the percentage of compensation specified as payable to or on
       account of the person or class, there shall be available to the person or class that
       proportion of the percentage which, when added to the total percentage payable to all
       persons having priority or preference, will not exceed a total of sixty-five percent
       (65%), which proportion shall be paid:

       (1) to that person; or

       (2) to that class in equal shares unless the Workers’ Compensation Commission
       determines otherwise in accordance with the provisions of subsection (f) of this
       section.2

       Our supreme court, in Gary McJunkin Trucking Company v. Byars, 258 Ark. 387, 525

S.W.2d 662 (1975), held that when there is a widow and children, they are all placed on equal

footing under this statute and given the same classification priority; however, they are given

priority over lower classifications.3 In this case, there is not enough money to award

Samantha a thirty-five-percent share and each dependent child a fifteen-percent share. Thus,

the Commission may pay each member of the class an equal share under subsection (e) or may

consider the determination of beneficiaries under subsection (f). We therefore reverse and

remand on this issue for the Commission to determine the proper apportionment of benefits.

       Affirmed in part; reversed and remanded in part.
       HARRISON and WYNNE, JJ., agree.
       David L. Pake, for appellant.
       Garland L. Watlington, for appellee.


       2
         Subsection (f) provides, “If the commission determines that payments in accordance
with subdivision (e)(2) of this section would provide no substantial benefit to any person of
the class, it may provide for the payment of the compensation to the persons within the class
whom it considers will be most benefitted by the payment.” The Commission has made no
such finding in the instant case.
       3
        There are no other lower classifications to be considered in this case.

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