Taylor v. Lubritech

Wendell L. Griffen, Judge, concurring. I concur with the result in this case because I believe reasonable minds could conclude that our legislature did not intend to include step-grandchildren as recipients of death dependency benefits when it enacted Act 796 of 1993. However, I write separately because the applicable statutes in this case reflect an anti-worker, anti-family bias that I do not condone and refuse to ignore.

The term “child” is defined under both pre-Act 796 and post-Act 796 law as “a natural child, a posthumous child, a child legally adopted prior to the injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or of the spouse of the deceased, and a foster child.” Ark. Code Ann. §§ 11-9-102 (10) (1987) & 11-9-102(2) (Supp. 1999). Under pre-Act law, brother and sister were defined to include stepbrothers and stepsisters. See Ark. Code Ann. § ll-9-102(10)(B)(1987). In addition, under pre-Act law, the definition of parent included a grandparent and grandchild was defined to include “a child of a child defined in subdivision (10) of this section.” See Ark. Code Ann. § 11-9-102 (10) (B) & (11) (1987).

Thus, under pre-Act law, the term child was interpreted to include stepchild, the term brother to include stepbrother, the term sister to include stepsister, and the term grandchild was defined so broadly as to arguably include “step-grandchild.” While Act 796 retained the definition of child that includes a stepchild, it eliminated the definitions of parent, grandparent, brother, and sister. There is no commentary indicating whether by doing so our legislature anticipated coverage for or intended to eliminate coverage for step-grandchildren. However, we are required to strictly construe workers’ compensation statutes. See Ark. Code Ann. § 11-9-704 (c)(3) (Repl. 1996). Because the legislature removed the broad definitions of brother, sister, and grandparent, I agree that a strict reading of the post-Act statutes supports the Commission’s finding that the legislature intended to exclude step-grandchildren as recipients of death dependency benefits as a matter of law.

Nonetheless, I disagree with the notion, apparently held by the Commission, that in order for a child to be considered wholly and actually dependent upon a worker within the meaning of the workers’ compensation statutes, the worker must have a legal guardianship over the child or claim him on his income taxes. It is a reality of life in Arkansas and elsewhere that many grandchildren reside with and are dependent upon their grandparents, but it is equally true that many of these relationships are never legally formalized. Whether a deceased employee was a legal guardian of a child is not determinative of whether a child was wholly and actually dependent upon the employee. The Commission would not slavishly award benefits to the child of a worker who had a legal obligation to a child but provided no support to that child. Conversely, a worker should not be required to establish legal guardianship in order for a child to be found wholly and actually dependent upon him. Whether a child is wholly and actually dependent is a question of fact, not of law. See Hoskins v. Rogers Cold Storage, 52 Ark. App. 219 , 916 S.W.2d 136 (1996).

Finally, I do not agree that the fact that Mrs. Taylor worked outside of the home should be controlling or even relevant to a determination as to whether Austin was not wholly and actually dependent upon the decedent. It would be ludicrous to assert that the legislature intended to provide dependency benefits only to the dependents of those deceased workers whose spouses are not employed outside of the home. Moreover, the remedial purposes of the workers’ compensation statutes are not furthered by punishing a caregiver for working outside of the home.