ANDERSON v. CITY OF HOT SPRINGS, 2002 AWCC 63


CLAIM NO. E602813

CHRIS ANDERSON (DECEASED), EMPLOYEE, CLAIMANT v. CITY OF HOT SPRINGS, EMPLOYER, RESPONDENT NO. 1 ARKANSAS MUNICIPAL LEAGUE, WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER, RESPONDENT NO. 1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 14, 2002

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE JOHN B. GANN, Attorney at Law, Hot Springs, Arkansas.

Respondents No. 1 represented by the HONORABLE J. CHRIS BRADLEY, Attorney at Law, North Little Rock, Arkansas.

Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.

ORDER
The Death and Permanent Total Disability Trust Fund appeals an Administrative Law Judge’s opinion filed September 12, 2001. The Administrative Law Judge found that the deceased claimant’s dependent daughter, Amanda Anderson, was entitled to weekly indemnity benefits for the summer breaks when she was not attending as a full-time student between the commencement of her secondary education beginning August 27, 1997 through her graduation of December 15, 2000. After reviewing the entire record de novo, the Full Commission remands this matter to the Administrative Law Judge for additional findings.

I. HISTORY
The parties stipulated that Christopher Anderson sustained a fatal work-related injury on February 12, 1996, at which time his average weekly wage was $447.84. Mr. Anderson was survived by two eligible dependents: Catherine Anderson, widow, and Amanda Kathleen Anderson, natural child. Amanda Anderson was born on March 3, 1979 and reached the age of 18 on March 3, 1997.

The parties stipulated that Amanda Anderson’s weekly compensation rate was $67.00, and that she was entitled to weekly dependency benefits for the following known periods:

(1) February 13, 1996 through May 22, 1997, the date of her high school graduation;
(2) August 27, 1997 through May 14, 1998, when the claimant was a full-time student at Henderson State University;
(3) August 24, 1998 through May 14, 1999, when the claimant was a full-time student at Garland County Community College;
(4) August 23, 1999 through June 30, 2000, when the claimant was a full-time student at Garland County Community College; and
(5) August 21, 2000 through December 15, 2000, when the claimant was a full-time student at Garland County Community College.

Amanda Anderson graduated from Garland County Community College on December 15, 2000.

Ms. Anderson claimed entitlement to additional workers’ compensation. She contends that she should have received benefits year round without an interruption of benefits during the summer when she was not attending classes.

Respondent No. 1, the Arkansas Municipal League Workers’ Compensation Trust, joined in the claimant’s contentions. Respondent No. 1 contended that Act 796 of 1993 did not define the term “full-time student,” and that no Arkansas appellate decisions have addressed the question of what is a “full-time student” with regard to workers’ compensation.

Respondent No. 2, the Death and Permanent Total Disability Trust Fund, contended that the claimant was not entitled to benefits during those times in which she was not enrolled as a “full-time student” as that term is used in Ark. Code Ann. § 11-9-527(d)(2).

The Fund contended that Ark. Code Ann. § 11-9-527(d)(2) did not allow payment of weekly benefits for periods of time when Amanda Anderson attended college only part-time. The Fund stated, “If the legislature had intended for part-time students to be compensated, it could easily have included that category of student within the language of the statute. By a stronger argument, a student who does not attend at all, regardless of whether it is a regular or Summer session, was not meant to be compensated during those periods of time when the academic institution offered full-time schooling, but the potential beneficiary chose not to participate.”

After a hearing before the Commission and post-hearing briefs, the Administrative Law Judge found that the claimant “is entitled to weekly indemnity benefits of $67.00 a week for the summer breaks when she was not attending as a full-time student between the commencement of her secondary education beginning August 27, 1997 through her graduation of December 15, 2000.” The Administrative Law Judge stated:

In attempting to reach a determination of what constitutes a “full-time student” in this matter, this examiner need look no further than to the underlying social purpose of workers’ compensation legislation. That underlying social purpose is to provide periodic partial replacement of lost wages to an injured employee, or in the case of death to the employee, to provide those benefits to his eligible dependents.
Had Amanda Anderson’s father not been killed in the line of duty as a police officer, it is probable to assume that he would not have withheld financial support from her during her summer breaks while she attended college, nor should the Death and Permanent Total Disability Trust Fund.

The Administrative Law Judge directed the Death and Permanent Total Disability Trust Fund to pay dependent benefits to Amanda Anderson as set forth in the Administrative Law Judge’s findings of fact. The Administrative Law Judge also directed Respondent No. 2, the Fund, to pay the “maximum attorney’s fee allowed” to the claimant’s attorney. Respondent No. 2 appeals to the Full Commission.

II. ADJUDICATION
Ark. Code Ann. § 11-9-527(d) provides:

(2) A physically or mentally incapacitated child, 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
(our emphasis).

In the present matter, the Death and Permanent Total Disability Trust Fund contends that Ark. Code Ann. § 11-9-527(d)(2) does not allow payment of weekly benefits for those periods when Amanda Anderson attended college only part-time.

Respondent No. 1, the Municipal League Workers’ Compensation Trust, contends that the claimant was a “full-time student” pursuant to the statute from the time her father died until the claimant graduated from college.

In its Notice of Appeal, Respondent No. 2 (the Fund) states that the Administrative Law Judge erred “when he awarded the claimant an attorney fee against the Trust Fund. That the date of injury in this case precedes the effective date of Act 1281 of 2001 (July 1, 2001), and the Commission cannot award an attorney fee against the Trust Fund for cases involving injuries before July 1, 2001.” Respondent No. 2 concludes, “The award of an attorney fee against the Trust Fund is not warranted or legally authorized.” Respondent No. 2’s argument regarding attorney’s fees was not raised before the Administrative Law Judge.

Respondent No. 1 does not directly address the Fund’s attorney’s fee argument on appeal. Rather, Respondent No. 1 contends that “the Fund should not be ordered to pay benefits at this time but that the Fund should be directed to include survivor benefits paid by Respondent 1 during the time periods in question to be credited against the limitations on compensation imposed by Ark. Code Ann. § 11-9-502.”

Respondent No. 2 also contends on appeal that “Respondent No. 1 has already paid Amanda Anderson for those periods in the summer when she was not attending school as a full-time student. Respondent No. 1 will not meet its obligation for $75,000.00 in weekly benefits until the year 2003. Since Amanda Anderson has already been paid for those periods, it is not appropriate to pay her a second time for the same periods.” The respondent-employer apparently agrees with Respondent No. 2, telling the Full Commission, “the Fund should not be ordered to pay benefits at this time but that the Fund should be directed to include survivor benefits paid by Respondent 1 during the time periods in question to be credited against the limitations on compensation imposed by Ark. Code Ann. §11-9-502.” Respondent No. 2 also asserts in its Notice of Appeal “that Amanda Anderson has married and will never be entitled to draw from the Death and Permanent Total Disability Trust Fund when its duty to pay arises in 2003.”

After reviewing the entire record de novo, the Full Commission declines to reach any issues at this time and remands this matter to the Administrative Law Judge for additional proceedings to develop a record on the issues discussed by the Death and Permanent Total Disability Trust Fund on appeal, including, but not limited to, whether a credit should be assessed to the Fund, whether the Fund is liable for an attorney’s fee, and whether all Fund liability issues are now moot in light of Amanda Anderson’s marriage.

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
______________________________ JOE E. YATES, Commissioner