CLAIM NO. E505773
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 15, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DAVID H. McCORMICK, Attorney at Law, Russellville, Arkansas and the HONORABLE JONATHAN P. SHERMER, JR., Attorney at Law, Russellville, Arkansas.
Respondent represented by the HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER[2] The Arkansas Court of Appeals has reversed a decision of the Full Workers’ Compensation Commission in the above-styled matter and remanded for a new determination of all dependents’ entitlement to benefits. In an interim order and opinion filed March 31, 1997, an administrative law judge denied Debbie Snuggs’ claim for dependency benefits but found that Sarah and Brittany Snuggs clearly had an expectation of future support from the decedent, Marvin Snuggs. In an opinion filed June 30, 1997, the administrative law judge again found that Debbie Snuggs was not entitled to dependency benefits, but found that the decedent’s “minor children from his first and second marriages” are entitled to dependency benefits. The Full Commission has reviewed the entire record de novo. The Commission affirms the administrative law judge’s finding that Debbie Snuggs is not entitled to dependency benefits, and we affirm the finding that children from the decedent’s first marriage, April, Karrie, and Ricky Snuggs, are entitled to dependency benefits. However, we reverse the administrative law judge’s finding that Sarah and Brittany Snuggs are entitled to dependency benefits. [3] Debbie Hertel (Snuggs) testified that in approximately October, 1989, while confined in Faulkner County Jail for violation of state narcotics statutes, she met Marvin Snuggs when Marvin was also confined in the jail, because he had not paid court-ordered child support. Debbie testified that she and Marvin conceived a child in January, 1990, Sarah, who Ms. Snuggs at one point testified was born in July, 1990 and at another point testified was born in October, 1990. Debbie testified that Sarah was born while she (Debbie) was incarcerated in the Arkansas Department of Corrections; Debbie testified that her parents cared for Sarah while she was imprisoned. Subsequently, Lisa Snuggs was granted an absolute divorce from Marvin Leroy Snuggs in a Decree
entered July 11, 1990 in Faulkner County Chancery Court. The Court granted Lisa Snuggs custody of minor children April, Karrie, and Ricky Snuggs, and the Court ordered Marvin to pay weekly support for these minor children. [4] The record indicates that Marvin L. Snuggs and Deborah J. Hertel (Snuggs) were married in April, 1991, in Pope County, Arkansas. Debbie Snuggs testified that she and Marvin had a second child, Brittany, born in January, 1993. Debbie Snuggs testified that Marvin’s name was on Sarah’s birth certificate and on Brittany’s birth certificate. Debbie testified that she and Marvin Snuggs physically separated in approximately May, 1993. However, according to Debbie, the separation was a “sham,” and was carried out in order for her to procure additional food stamps, AFDC, subsidized rent, and other welfare benefits. Debbie testified that Marvin continued to eat and sleep at her apartment and also provided monetary support for Sarah and Brittany. In order to receive subsidized housing, Debbie testified, she had to state that she received no money from any source. [5] Marvin Snuggs, while employed with Griffin Electric Heating
Air, died as a result of a compensable injury in September, 1993. Marvin’s widow, Debbie Snuggs, and her two minor children, Sarah and Brittany Snuggs, filed a claim for dependency benefits. (In an order filed September 6, 1996, an administrative law judge stated that Kyra Snuggs, another child of the deceased, did not wish to pursue a claim for dependency benefits, and the administrative law judge dismissed Kyra as a party to the claim.) [6] The administrative law judge conducted a hearing on March 21, 1997, and she filed an Interim Order and Opinion on March 31, 1997, which denied Ms. Snuggs’ claim but found that Sarah and Brittany Snuggs clearly had an expectation of future support from the decedent and were entitled to dependency benefits. The administrative law judge found that Debbie Snuggs’ testimony presented problems of credibility which defeated her claim. The administrative law judge also ruled that the three minor children of the decedent’s previous marriage (April, Karrie, and Ricky Snuggs), who were living out-of-state and whose existence initially became known to the Commission through Debbie Snuggs’ testimony, should be notified of the proceedings and given an opportunity to intervene before any formal award was entered. The respondents appealed the administrative law judge’s award to the Full Commission, and Debbie Snuggs appealed the denial of benefits to her. [7] While the case was pending before the Full Commission, counsel for Debbie Snuggs, Mr. David McCormick, corresponded with the administrative law judge on May 16, 1997:
[8] Jon Shermer, my co-counsel in this case, has discussed our representation of the children of Lisa Snuggs with Debbie Snuggs, and he advises me that Debbie has no objection to this. Therefore, I would appreciate it if you would please advise whether you now have enough information to enter a final order in this matter or if any additional hearing will be required. By copy of this letter I am advising Walter Murray of this communication with you. [9] After receiving this letter, the administrative law judge wrote to Mr. Murray and requested advisement as to whether the respondents wanted to undertake additional discovery or hold a subsequent hearing. In a letter to the administrative law judge dated May 30, 1997, counsel indicated that the respondents did not desire to conduct any additional discovery or hold a second hearing. Consequently, the administrative law judge filed a second opinion on June 30, 1997. The administrative law judge stated that the claimant’s widow, Debbie Snuggs, and her two minor children, Sarah and Brittany, along with the deceased’s children from another marriage, April, Karrie, and Ricky Snuggs, sought payment of dependency benefits. The administrative law judge considered the May 16, 1997 correspondence from counsel, and found that the claimant’s “minor children from his first and second marriages are entitled to dependency benefits pursuant to A.C.A. § 11-9-527, based upon an expectation of future support. The claimant is directed to provide the children’s birth certificates to the respondent.” Further, the administrative law judge again found that Debbie Snuggs was not entitled to dependency benefits, as she had failed to prove that she was actually dependent upon the deceased. The respondents appealed this award to the Full Commission. [10] The Full Commission vacated and set aside the administrative law judge’s June 30, 1997 order in an opinion filed November 17, 1997. In addition, the Commission found that the administrative law judge’s first order in this matter, filed March 21, 1997, should be reversed in part and affirmed in part. With regard to the June 30, 1997 order, we noted that no claim had been filed on behalf of April, Karrie, and Ricky Snuggs, nor had the three minor children entered an appearance in the case. The record did not indicate where these individuals resided, their ages, or any other information regarding them. We also stated that the divorce decree submitted by counsel did not indicate the ages of these three children, and that there was no evidence to indicate which, if any, of these persons were minors at the time of the decedent’s death. [11] The Full Commission opined that the order of March 21, 1997 was a final, appealable order. Once the parties appealed, we found, subject matter jurisdiction vested with the Full Commission, and the administrative law judge was not authorized to continue entering orders and conducting proceedings. We declined to make the May 16, 1997 correspondence by counsel part of the record on appeal, determining that the administrative law judge had not left open the record for admission of additional evidence after the first hearing. Therefore, we set aside the administrative law judge’s June 30, 1997 order, and found that the March 21, 1997 order thus became the final order in the case. The remainder of our opinion dealt exclusively with the March 21, 1997 “final order” of the administrative law judge. [12] In this regard, the Full Commission affirmed the determination of the claimant’s average weekly wage, as neither party appealed that portion of the administrative law judge’s decision. The Commission found ample basis to support the administrative law judge’s conclusion regarding Debbie Snuggs’ lack of credibility, which included conviction on multiple felony drug offenses and welfare fraud. We noted that Ms. Snuggs had not offered into evidence a copy of her marriage license, and that her testimony “should be afforded little weight and is not sufficient to establish that she was either the widow of the deceased nor that she was actually dependent upon him at the time of his death.” We further found that “the testimony of Debbie Snuggs is not sufficiently credible to establish either her or her children were the dependents of Mr. Snuggs or were entitled to benefits as a result of his death.” Since no claim had been filed on behalf of the three minor children born into the decedent’s other marriage, any decisions regarding them were held in abeyance until the matter was properly brought before the Commission. We directed the respondents to contact any latent dependents which they may be aware of, including those referred to at hearing, and advise these dependents of the claimant’s death and their potential entitlement to dependency benefits. Debbie Snuggs, individually and on behalf of Brittany and Sarah Snuggs, appealed the denial of benefits to the Arkansas Court of Appeals. The respondents cross-appealed, contending that the Commission erred in ordering them to contact potential claimants. [13] The Court of Appeals reversed and remanded in an unpublished opinion delivered February 3, 1999(CA98-225). The Court found it clear that the administrative law judge essentially left the record open after the first hearing in March, 1997, and remanded with the following directions:Pursuant to the terms of the order which you recently entered in this matter, I have made contact with Lisa Snuggs, the ex-wife of Marvin Snuggs. Enclosed with this letter you will find a copy of the Decree of Divorce between her and Mr. Snuggs which indicates that they were the parents of three children and that he was under a court order to pay support for them. Since all of these children are still minors, it would appear that they are entitled to share in any award which may be entered in this matter.
[14] and the marriage license of Debbie and Marvin Snuggs, to which appellant and appellee refer in their briefs. [15] Regarding the cross-appeal, the three minor children of the decedent’s prior marriage have been notified and named as claimants by the ALJ in the June order. We do not think the respondent should be responsible for making further search for dependents, and we therefore reverse on cross-appeal.We remand to the Commission for a new determination of all dependents’ entitlement to benefits. As evidenced by the June order, the ALJ apparently had been furnished after the hearing with copies of a decree of divorce for the first marriage, an order of child support, and other information on minor children of that marriage. The Commission will have before it on remand, then, the record of the hearing, the above-mentioned evidence made a part of the record after March, the ALJ’s March and June decisions,
[16] (1)(A)(i) To the widow if there is no child, thirty-five percent (35%), and the compensation shall be paid until her death or remarriage. [17] (ii) 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; [18] (2) To the widow or widower if there is a child, the compensation payable under subdivision (c)(1) of this section and fifteen percent (15%) on account of each child; [19] (B) If more than one (1) child, and there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (35%) to the children as a class, to be divided equally among them.The administrative law judge held in March, 1997 and June, 1997 that Debbie Snuggs was not entitled to dependency benefits. We affirm. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-527 (Repl. 1996), provides death benefits for dependents of workers who die in work-related accidents. The statute provides, in pertinent part:
(c) BENEFICIARIES — AMOUNTS. Subject to the limitations as set out in §§ 11-9-501 — 11-9-506, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee and in the following order of preference:
[20] In the present matter, we affirm the administrative law judge’s finding that Debbie Snuggs has failed to establish facts showing actual dependency on Marvin Snuggs. Debbie and Marvin were separated at the time of his fatal accidental injury. As the Commission has noted, Debbie Snuggs’ “separation” from Marvin was a fraud, carried out in order for her to procure public welfare benefits. In order to receive such benefits, Ms. Snuggs testified, she had to declare that she received no financial assistance from any source. Nevertheless, Debbie testified that Marvin continued to eat and sleep in her apartment. Further, Ms. Snuggs has been convicted of four felony drug offenses on two separate occasions, and has been incarcerated in the state penitentiary. In a unanimous opinion filed November 17, 1997, this Commission found, “It appears to us, that if Ms. Snuggs was willing to lie to obtain welfare benefits, she almost certainly would be willing to lie to obtain workers’ compensation benefits.” It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). We have relied on an individual’s record of criminal activity in assessing a lack of credibility. Mooney v. MondayAssociates, Full Workers’ Compensation Commission, opinion filed August 15, 1996(E410794). See also, Redmond v. Arkansas StateHospital, Full Workers’ Compensation Commission, opinion filed December 10, 1996 (E507855). There has been no further proffer of evidence sufficient to alter our determination of Ms. Snuggs’ lack of trustworthiness. The submission of Debbie and Marvin Snuggs’ 1991 marriage license does not bolster Ms. Snuggs’ lack of credibility in trying to prove that she was actually dependent on Marvin at the time of his death. We must affirm the administrative law judge’s decision that Debbie Snuggs is not entitled to dependency benefits. [21] Where death results from an injury arising out of and in the course of employment, a child of the deceased may be entitled to compensation. Ark. Code Ann. § 11-9-527(c) (Supp. 1997), supra. Before death benefits are payable, however, there must be proof that the child was “wholly and actually dependent” upon the deceased worker at the time of the compensable death. This requirement can be met by a reasonable expectancy of future support, even if no actual support was being provided. Roach supra. In the present matter, Marvin Snuggs was ordered in a 1990 divorce decree to pay weekly support to minor children April, Karrie, and Ricky Snuggs. Therefore, April, Karrie, and Ricky had an expectation of future weekly support from the decedent after the 1990 divorce. Consequently, we affirm the administrative law judge’s decision with regard to April, Karrie, and Ricky. [22] The administrative law judge did find that the testimony of Ms. Snuggs was sufficiently credible to establish that Sarah and Brittany Snuggs were his children. We find that this result is inconsistent with the administrative law judge’s findings that Ms. Snuggs was not a credible witness. The only evidence offered to establish that Sarah and Brittany Snuggs were the children of the decedent was Ms. Snuggs’ testimony. Once again, no birth records or other documents were offered into evidence reflecting that Mr. Snuggs was their parent. If Ms. Snuggs’ testimony is not sufficiently credible to establish her entitlement to benefits, we do not see how it can be found to be sufficiently credible to establish that her children were also the dependents of Mr. Snuggs. We therefore find that the testimony of Debbie Snuggs is not sufficiently credible to establish either her or her children were the dependents of Mr. Snuggs or were entitled to benefits as a result of his death. Therefore, the administrative law judge’s decision in this regard is reversed. [23] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we affirm the administrative law judge’s denial of Debbie Snuggs’ claim for dependency benefits, and we affirm the administrative law judge’s finding that April, Karrie, and Ricky Snuggs are entitled to dependency benefits. We reverse the administrative law judge’s finding that Sarah and Brittany Snuggs are entitled to dependency benefits. We thus affirm the administrative law judge in part and reverse in part. [24] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [25] For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [26] IT IS SO ORDERED.Originally, the term “wholly dependent” was construed to refer to those ordinarily recognized in law as dependents. A conclusive presumption thus arose 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. Chicago Mill Timber Co. v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958). In 1976, the Arkansas General Assembly amended § 11-9-527 to provide that a widow shall establish “actual” dependency before she will be entitled to benefits. The Arkansas Supreme Court interpreted that legislative 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). The Court held that dependency was to be determined in light of surrounding circumstances, Smith v. Farm Service Coop., 244 Ark. 119, 424 S.W.2d 147 (1968), in light of prior events and not controlled by an unusual, temporary situation, Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S.W.2d 899 (1946). Act 796 of 1993 did not change the Court’s interpretation of the law. Lawhon Farm Services v. Brown, 335 Ark. 272, 984 S.W.2d 1(1998).
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[27] Commissioner Humphrey dissents.