White Oak Construction Co. v. Death

386 S.W.3d 616, 2011 Ark. App. 682, 2011 WL 5387415, 2011 Ark. App. LEXIS 738
CourtCourt of Appeals of Arkansas
DecidedNovember 9, 2011
DocketNo. CA 11-573
StatusPublished

This text of 386 S.W.3d 616 (White Oak Construction Co. v. Death) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White Oak Construction Co. v. Death, 386 S.W.3d 616, 2011 Ark. App. 682, 2011 WL 5387415, 2011 Ark. App. LEXIS 738 (Ark. Ct. App. 2011).

Opinion

DAVID M. GLOVER, Judge.

|!White Oak Construction Company and its carrier appeal from the Commission’s decision, which affirmed and adopted the ALJ’s decision, to award dependent benefits to deceased employee Alberto Olvera’s parents. White Oak contends (1) that there is not a substantial evidentiary basis in the record for the Commission’s determination that the appellees were wholly and actually dependent on the deceased employee; (2) that the Commission erred by not using Arkansas Code Annotated section 11-9-111 because the parents are alien dependents; (3) that the parents did not prove they were dependent for one year prior to July 26, 2007, pursuant to Arkansas Code Annotated section 11-9-111; and (4) that if the parents are found to be dependent, they are only partially dependent under Arkansas Code Annotated section 11-9-527. We affirm.

| ^Background

Alberto Olvera died on July 28, 2007, after falling from a roof while working for White Oak Construction Company. He was working in the United States under a work visa; his citizenship was in Mexico, where his parents lived. Alberto’s parents’ names are Flora Olvera Moran and Jesus Verde Cabello. Although Alberto had initially worked for White Oak for eight months without a visa, he returned to Mexico to obtain a visa, and then resumed work in the United States. He worked for White Oak for six additional months before dying in the fall from a roof.

His father, Jesus, testified that Alberto sent money home to Mexico to help support him and Flora and the other children; that they had struggled to pay their bills after Alberto’s death; and that he had been a welder but had to stop about twenty years ago because of impaired vision. He said that the money from Alberto was the only income he had until he started receiving his pension and the salary he made as a babysitter. He testified that Alberto would send money to them about every fifteen days. Jesus explained that he now receives social security in the amount of 2800 pesos per month and that those payments began in 2008. He acknowledged that Alberto’s money was sent to Flora. He said that he did not have a bank account and did not have records of how the money was spent, but that it was used to buy food and pay for other expenses. He stated that each time his son made a money transfer, he would get a receipt, but that he did not have those | .¡receipts. He testified that Alberto had supported him and Flora from 1990 until the time of his death.

Aberto’s mother, Flora, testified that she and Jesus had been married and lived together since 1971; that they have five children, including Aberto; and that A-berto sent money to her and Jesus until his death. She stated that she had not worked outside the home during the entire marriage, that one son still lives with them, and that the other three children are married and have families of their own. She explained that the only source of income for her and Jesus since Aberto’s death is Jesus’ pension. She explained that they had been “living on a shoestring” since Aberto’s death; that they did not have a bank account; that Aberto would send the money to her and she would distribute the money to Jesus; and that she received the payments about every fifteen or twenty days. She testified that she last saw Aberto in December 2006 in Mexico; that he did not work during the six months that he was in Mexico; that he returned to the United States during the first week of May 2007; and that he was the only family member from whom she received money during 2006 or 2007. She stated that she handled the household money, paid the bills in cash, and spent the money from Alberto on food, clothing, shoes, water, electricity, gas, and medications.

The records of money transfers made to Flora Olvera Moran showed:

1) March 27, 2006 — 2,152.00 Pesos
2) April 17, 2006 — 7,117.00 Pesos
($642.00)
3) May 15, 2006 — 3,237.00 Pesos
($290.40)
4) May 27, 2006 — 2,158.90 Pesos
($193.66)
5) June 5, 2006 — 7,290.00 Pesos
($645.99)
6) July 3, 2006 — 11,200.00 Pesos
($1,004.12)
|47) August 21, 2006 — 21,280.00 Pesos ($1,070.00)
8) September 11, 2006 — 6,518.00 Pesos ($589.05)
9) November 21, 2006 — 8,648.00 Pesos ($786.37)
10) May 21, 2007 — 1,070.00 Pesos
($95.99)
11) July 16, 2007 — 8,580.00 Pesos
($796.61)
12) July 25, 2007 — 5,345.00 Pesos
($491.91)

The ALJ found in pertinent part that at the time of Alberto’s death, neither Alberto’s mother nor his father was working; that the credible evidence established that Alberto was the sole primary source of income to the household from 1999 until Alberto’s death in 2007, and that it was not until Alberto’s death that his father returned to the work force by taking care of children, and began collecting a monthly government pension. The ALJ concluded that the evidence clearly demonstrated that Alberto had provided financial support to his parents for at least one year prior to his death and that his parents had a reasonable expectation of support from Alberto.

Standard of Review

As this court explained in Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 94, 828 S.W.2d 860, 862-63 (1992):

Dependency is a fact question to be determined in the light of the surrounding circumstances. The findings of the Workers’ Compensation Commission must be upheld on review if there is substantial evidence to support them. The issue on appeal is not whether this court would have reached the same results as the Commission on this record or whether the testimony would have supported a finding contrary to the one made; the question here is whether the evidence supports the findings which the Commission made. Before we can reverse a decision of the Commission, we must be convinced that fair-minded persons with the same facts before them could not have reached the same conclusion reached by the Commission.

lfi(Citations omitted.) In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).

(1) Wholly and actually dependent

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Related

Roach Manufacturing Co. v. Cole
582 S.W.2d 268 (Supreme Court of Arkansas, 1979)
Chicago Mill & Lumber Co. v. Smith
310 S.W.2d 803 (Supreme Court of Arkansas, 1958)
Nolen v. Wortz Biscuit Co.
196 S.W.2d 899 (Supreme Court of Arkansas, 1946)
Death & Permanent Total Disability Trust Fund v. Rodriguez
292 S.W.3d 827 (Court of Appeals of Arkansas, 2009)
Robinson v. Ed Williams Construction Co.
828 S.W.2d 860 (Court of Appeals of Arkansas, 1992)
Smith v. Farm Service Cooperative
424 S.W.2d 147 (Supreme Court of Arkansas, 1968)
Lawhon Farm Services v. Brown
984 S.W.2d 1 (Supreme Court of Arkansas, 1998)

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Bluebook (online)
386 S.W.3d 616, 2011 Ark. App. 682, 2011 WL 5387415, 2011 Ark. App. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-oak-construction-co-v-death-arkctapp-2011.