Claimant Charles Garth suffered a fatal injury on July 14, 1999, that was admittedly compensable. His representatives sought workers’ compensation benefits for his widow and two minor sons, Tavarie Lamar Stewart and Tavorie Lamar Garth. The Administrative Law Judge (ALJ) awarded benefits to the minor children, but denied benefits to the widow on the grounds that she was not dependent on claimant. The widow did not appeal. The respondents appealed as to the benefits awarded to the children. The Commission affirmed the ALJ’s award of benefits. Appellants argue on appeal to this court that the Commission’s decision that the minor children were wholly and actually dependent on claimant at the time of his death is not supported by substantial evidence. We affirm.
The Commission gave the following history of events leading up to the claim for benefits. Tiffany Stewart began a relationship with claimant in 1988, when they lived next door to one another in Las Vegas, Nevada. Their child, Tavarie Lamar Stewart, was born on August 26,1989. Claimant had moved from Las Vegas before Tavarie was born, but later returned for about one year. Ms. Stewart testified that Tavarie spent alternating weeks with his father until the claimant moved back to Arkansas in late 1992 or early 1993. She stated that although their visits became sporadic after that, claimant maintained consistent contact with Tavarie, regularly sending money and gifts through his brother and other family members. She further testified that claimant occasionally telephoned Tavarie, his last call being approximately one week before his death. Ms. Stewart said that claimant’s family allowed Tavarie to attend claimant’s funeral with them, that they continue to acknowledge him as claimant’s son, and that they have maintained a relationship with him following claimant’s death. Ms. Stewart applied for, but never received, formal child support. Although claimant’s name does not appear on Tavarie’s birth certificate, Ms. Stewart testified that he had always acknowledged Tavarie as his son and that he had asserted paternity of Tavarie on forms he filled out for the Social Security Administration when he had applied for disability benefits.
Tavorie Lamar Garth was born on April 4, 1991, in Monroe, Louisiana, a few weeks after claimant had married the boy’s mother, Felecia Garth. Claimant and Mrs. Garth separated in December of 1991, and claimant moved back to Arkansas, where he died in 1999. Mrs. Garth remained in
Arkansas Code Annotated section 11-9-527 (Supp. 2001) provides death benefits for dependents of workers who die in work-related accidents. It states, in pertinent part, that “compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee ....” Appellants contend that a finding that the children were “wholly and actually dependent” is not supported by substantial evidence.
Before the adoption of Act 1227 of 1976, which added the requirement ofbeing “actually dependent,” benefits were payable to persons “wholly dependent.” In Chicago Mill & Lumber Co. v. Smith,
In interpreting the effect of the 1976 amendment, the supreme court noted in Roach Mfg. Co. v. Cole,
In Doyle’s Concrete Finishers, supra, the supreme court addressed the issue of whether a minor child, not living with the claimant-parent and receiving only a part of his support from that parent, was entitled to maximum death benefits. The claimant in Doyle's Concrete had been obligated to make child support payments, and there was testimony that he also provided child care on occasion, bought clothing and gifts for the child, and paid for the child’s medical expenses. The court noted that the child’s sole source of income since his father’s death was a monthly social security check; that his necessary expenses would naturally increase as he grew older; and that the widow had become unable to work due to severe health problems. In affirming the Commission’s decision to award maximum benefits to the child, the court stated, “Certainly, if, as in Roach, the child who received no financial support was entitled to maximum benefits, it must be said that a child, as here, who receives some financial support, should be entitled to no less than the maximum benefits.”
Under the holding in Chicago Mill, and Roach, . . . persons who are ordinarily recognized in law as dependents, including a wife and children, and to whom the employee owes a duty of support, are “wholly dependent” under our Workers’ Compensation Law.
“Actually dependent,” in light of the prior cases, does not require total dependency. All that is required is a showing of actual support or a reasonable expectation of support.
Subsequent to the passage of Act 796 of 1993, the supreme court decided Lawhon Farm Servs. v. Brown,
Appellants in Lawhon sought to have the court define the words “wholly” and “actually” according to their dictionary definitions. The supreme court stated that appellants’ view of a strict construction of this part of the statute would require the children to prove that, at the time of their father’s death, they were entirely or completely dependent upon him for support. The court concluded that “[a]pplying the dictionary definitions urged by Lawhon would mean that a minor child would never be entitled to the death benefits specified in ll-9-527(c)(3) where the parents were divorced and the child received any support whatever from the surviving parent. That would be an absurd result, and we will not adopt such an interpretation.. .. We are confident our General Assembly could not have intended the result suggested by [appellants].”
Appellants in Lawhon further contended that our case law dealing with dependents’ benefits was in conflict with Ark. Code Ann. § 11-9-527 and should not be applied to cases arising after the effective date of Act 796, which was July 1,1993. Our supreme court held that the previous decisions interpreting the statutory language in question were not inconsistent with Act 796 of 1993 and remained controlling as the wording of Ark. Code Ann. § 11-9-527 was not changed by the Act.
The court in Lawhón also noted that the General Assembly is presumed to be familiar with the court’s interpretations of its statutes, and if it disagrees, it can amend the statutes, as it did when the word “actually” was added to the provisions of Ark. Code Ann. § 11-9-527 subsequent to the court’s decision in Chicago Mill & Lumber Co. v. Smith, supra. Without such amendments, however, the
Appellants herein contend that the finding of the Commission is not supported by substantial evidence. Dependency is a fact question to be determined in the light of the surrounding circumstances. Robinson v. Ed Williams Constr. Co.,
Here, it was shown that the deceased had acknowledged both boys as his sons; that he had visited with them or maintained telephone contact with them; and that he had contributed, albeit sporadically, to their welfare by spending money for gifts and for certain needs such as food and clothing. The fact that the boys’ mothers did not secure child-support payments or more consistent and substantive contributions from the boys’ father did not mean that the boys no longer had any reasonable expectation of support from the father. See Roach Mfg. Co., supra. As noted in Robinson, supra, the test of “actual dependency” does not require a showing of total dependence; a finding of some measure of actual support or a reasonable expectation of support will suffice.
In light of all the attendant circumstances, we conclude that there was substantial evidence to support the finding of the Commission that Tavarie Lamar Stewart and Tavorie Lamar Garth were wholly and actually dependent upon the deceased claimant, Charles Garth. Accordingly, the award of dependency benefits pursuant to Ark. Code Ann. § 11-9-527 is affirmed.
Affirmed.