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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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