CLAIM NO. F208714
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 1, 2008
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant, DUSTIN DEWAYNE BATES, represented by the HONORABLE JOHN BARTTELT, Attorney at Law, Jonesboro, Arkansas, and by the HONORABLE JAMES C. BULLARD, Attorney at Law, Kennett, Missouri.
Claimant, CAROLINE HICKS, represented by the HONORABLE EDWARD REEVES, Attorney at Law, Caruthersville, Missouri.
Claimant, JAMIE HICKS, represented by the HONORABLE WILLIAM W. CARTER, Attorney at Law, Hayti, Missouri.
Respondent No. 1 represented by the HONORABLE DAVID C. JONES, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
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ORDER
Presently before the Commission is Respondent No. 2’s Motion for Reconsideration. After consideration of Respondent No. 2’s Motion, Claimants Caroline Hicks’ and Jamie Hicks’ response thereto, and all other matters properly before the Commission, we find that Respondent No. 2’s Motion is well grounded in fact and law and, therefore, must be granted.
In our Opinion filed December 21, 2007, we found, among other things, that Dustin Bates was the dependent minor of Claimant, Jerry Hicks, deceased, and that Respondent No. 2 was ordered to pay Jamie Hicks 35% of the Claimant’s average weekly wage, Caroline Hicks 15% of the Claimant’s average weekly wage, and Dustin Bates 15% of the Claimant’s average weekly wage, totaling a payout of 65% of the Claimant’s average weekly wage, in accordance with A.C.A. § 11-9-527(c). As noted by Respondent No. 2 in its Motion for Reconsideration, 65% of the Claimant’s average weekly wage amounts to $853.00, which clearly exceeds the maximum compensation rate permitted by Arkansas Law. A.C.A. § 11-9-501
establishes the limits on maximum compensation benefit rates for both partial and total disability. As the maximum compensation rate at the time of the Claimant’s death was $425.00 per week, the benefits payable to Jamie Hicks, Caroline Hicks, and Dustin Bates, shall not exceed $425.00 per week. Prior to our December 21, 2007, Opinion, Jamie Hicks’ and Caroline Hicks’ benefits were already based upon their proportionate rates of this maximum, with Jamie Hicks
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receiving $297.50 per week and Caroline Hicks receiving $127.00 per week, for a total payout of $425.00 per week. Since the maximum weekly benefit may not be exceeded, to include Dustin Bates into the category of dependents, the maximum benefits must be further apportioned, with Jamie Hicks receiving $228.84 per week, Caroline Hicks receiving $98.08 per week and Dustin Bates receiving $98.08 per week.
However, as the maximum weekly compensation benefit has already been paid to Caroline and Jamie Hicks, there remains no additional sums available from which to recoup Dustin Bates accrued, but unpaid benefits. The Trust Fund contends that if Dustin Bates’ accrued benefits are to be paid in a lump sum from the date of Jerry Hicks’ death until the present, as ordered by the Commission, Jamie Hicks’ and Caroline Hicks’ future benefits will have to be decreased to avoid paying total benefits which exceed the maximum compensation rate allowed by law. In our opinion, the Trust Fund is correct. Since Dustin Bates is, and always has been, a dependent of claimant, Jamie Hicks and Caroline Hicks have received an overpayment of benefits. In order for Dustin Bates to receive accrued un-paid benefits during his dependent period, the Trust Fund must pay his benefits in a lump-sum, recouping the overpayment of benefits paid to Jamie Hicks and Caroline Hicks over time, but prior to the termination of their benefits. In determining how to recover this overpayment. We must look to how and when dependency benefits will eventually terminate.
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According to Ark. Code Ann. § 11-9-527, dependency benefits to Jamie Hicks continue until she remarries or dies. Should Jamie Hicks re-marry, she is entitled to a lump sum equal to compensation for 104 weeks. The children’s dependency benefits continue until their eighteenth birthdays, marriage, or twenty-fifth birthdays if they are enrolled as full-time students. We find that according to Ark. Code Ann. § 11-9-527, as Jamie Hicks’ dependency benefits do not automatically terminate, and, as Jamie Hicks’ dependency benefits will ultimately increase to the maximum $425.00 rate upon the termination of the children’s benefits, thereby making her recovery of dependency benefits greater not only in duration but also in amount, any recoupment of overpayment should be deducted from Jamie Hicks’ weekly benefits, and not the weekly benefits paid to the minor child Caroline Hicks.
Therefore, in order to minimize the impact of re-payment on Jamie Hicks, while still ensuring that Caroline Hicks and Dustin Bates receive the benefits to which they are entitled, we order the Trust Fund to pay Dustin Bates a lump-sum payment of accrued benefits, while continuing his weekly benefits of $98.08. We order the Trust Fund to continue to pay Caroline Hicks her weekly benefit of $98.08. We order the Trust Fund to reduce Jamie Hicks’ weekly benefit by half, from $228.84 to $114.42, continuing until the Trust Fund has recouped the total amount overpayment of benefits previously received by Jamie Hicks and Caroline Hicks.
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Should Jamie Hicks’ portion of the $425 maximum rate increase due to the termination of benefits to Caroline Hicks, Dustin Bates, or both children, before the Trust Fund has recouped the overpayment, the Trust Fund may continue to reduce Jamie Hicks’ increased portion of weekly dependency benefits by one-half until all benefits previously overpaid have been recouped.
IT IS SO ORDERED.
_________________________________ OLAN W. REEVES, Chairman
__________________________________ KAREN H. McKINNEY, Commissioner
__________________________________ PHILIP A. HOOD, Commissioner
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