{ "id": 6141389, "name": "DEATH & PERMANENT TOTAL DISABILITY TRUST FUND v. Eugene BRANUM, Employee Service America Corporation, and Wausau Insurance Company, Carrier", "name_abbreviation": "Death & Permanent Total Disability Trust Fund v. Branum", "decision_date": "2003-05-28", "docket_number": "CA 02-1294", "first_page": "338", "last_page": "346", "citations": [ { "type": "official", "cite": "82 Ark. App. 338" }, { "type": "parallel", "cite": "107 S.W.3d 876" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 11-9-301", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "opinion_index": 0 }, { "cite": "34 Ark. App. 154", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138995 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/34/0154-01" ] }, { "cite": "12 Ark. App. 196", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140376 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/12/0196-01" ] }, { "cite": "76 Ark. App. 348", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141971 ], "weight": 4, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/76/0348-01" ] } ], "analysis": { "cardinality": 630, "char_count": 12956, "ocr_confidence": 0.754, "pagerank": { "raw": 3.5874984211861904e-07, "percentile": 0.8870698639187072 }, "sha256": "2451f5935a8a28f1ac8f1548d040c80b0c25c556e96c8a3bcd47687cac278b46", "simhash": "1:0b336a91ab77de21", "word_count": 2203 }, "last_updated": "2023-07-14T22:49:45.234835+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Gladwin and Robbins, JJ., agree." ], "parties": [ "DEATH & PERMANENT TOTAL DISABILITY TRUST FUND v. Eugene BRANUM, Employee Service America Corporation, and Wausau Insurance Company, Carrier" ], "opinions": [ { "text": "Olly Neal, Judge.\nOn March 1, 1995, Eugene Branum was killed while in the course and scope of his employment with his employer, Service America Corporation. A hearing was held on February 25, 1997, to determine the appropriate beneficiaries of death benefits and their benefit amounts. The administrative. law judge determined that Beverly Branum, Eugene Branum\u2019s widow, her two children, Kevin Bunn and Shawn Bunn, and the deceased\u2019s children from a previous marriage, Jeffrey Allen Branum, Jeannie Marie Branum, and Terry Lynn Branum (now McClain), were wholly and actually dependent upon the deceased at the time of his death. Although she was married and no longer a full-time student under the age of twenty-five, Terri Lynn McClain was determined to be wholly and actually dependent upon the deceased due to mental incapacity.\nIt is undisputed that appellant, Death & Permanent Total Disability Fund (Fund), was not in attendance at this hearing. It argues that it received no notice of any proceedings until it was served with a copy of the ALJ\u2019s opinion that ordered benefits to be paid to all named beneficiaries. Upon receipt of the opinion, the Fund advised the attorney who represented the insurance carrier, Wausau Insurance Company, that it did not agree with the finding of dependency made on behalf of Terri Lynn Branum McClain, Jeffrey Branum, Kevin Bunn, or Sean Bunn. The Fund\u2019s letter, dated October 17, 1997, stated as follows:\nThe Death and Permanent Total Disability Trust Fund has examined the information on this case and from that have taken the position that Terry Lynn (Branum) McClain was not an eligible dependent at the time of Mr. Branum\u2019s death. We have also determined that both Kevin and Sean Bunn were not wholly and actually dependent upon decedent.\nHowever, the Fund took no further action. The Fund acknowledged receipt of a copy of the ALJ\u2019s opinion in a letter dated October 23, 2000, in which it stated:\nThe Trust Fund received a courtesy copy of the March [7], 1997 opinion on this case prior to the official AR-D notification received on June 25, 1997 from Wausau. The deceased[,] by prior marriage, had either adopted children or natural children. In an \u201cAgreed Order\u201d dated August 30, 1991, for child custody, the deceased was given custody of two children and the ex-wife [\u2019s] two children. The order also relieved the deceased of obligation of child support as previously ordered. It is the Trust Fund\u2019s opinion that this Order eliminated the expectations of support for Terri Lynn Branum and Jeffrey Branum.\n* * #\nThe Trust Fund has taken a position that the step-children were not wholly and actually dependent on the deceased. Several factors from our investigation support this. The claimant only earned 40% of the household income as [ ] Beverly Branum earned the majority of the income. Ms. Branum also carried claimant and her two children on her medical coverage.\n* * *\nA subsequent hearing was held on June 12, 2001, wherein all parties were represented by counsel. In a pre-hearing order entered on March 22, 2001, the parties stipulated that the issues to be determined were (1) whether the Fund was bound by the March 7, 1997 opinion; (2) whether Terri Lynn Branum McClain was entitled to any dependent\u2019s benefits; and (3) whether Kevin Bunn and Sean Bunn were entitled to full benefits as children of the deceased. At the hearing, the following colloquy took place:\nFund\u2019s Counsel: Your Honor, our position on that is that at the \u2014 as we were not a party, we treat this as if the first hearing had never taken place, Your Honor, and under the Code, as well as the established case law, those seeking compensation benefits have the burden of proving they\u2019re entitled to them.\nALJ: Well, you forget one aspect of the hearing and, that is, whether or not you all are bound by this. That\u2019s one aspect. And I suppose the moving party on that is the respondent/employer/carrier is the moving party in regard to whether or not the Death & Permanent Total Disability Bank Fund is bound by these things and is obligated to commence the payment of benefits. You know, I am not sure that this is just another case where we just hold the prior hearing as a nullity and that the burden is on the claimants to reprove their case. That\u2019s only true if your contention holds up that you\u2019re not bound by the prior order or opinion.\nFund\u2019s Counsel: And that is our position, Your Honor.\nALJ: I understand that, but, I mean, that\u2019s not \u2014 that hasn\u2019t been' decided. I mean, if that had been decided, then maybe we wouldn\u2019t be here again retrying this case[.] . . .\nFund\u2019s Counsel: Your Honor, this case does not involve a change of status. It involves the fact that one party is being asked to pay benefits that was not mentioned at all in the previous hearing. It was not mentioned in the style of the case nor the opinion. It was not given notice.\nALJ: All right. It appears, then, that you all have already decided. What you want to do is you want to go on your other deal. You want to go on the issue first. You want the issue tried and decided first, whether this prior opinion is binding against the Death & Permanent Total Disability Bank Fund?\nClaimants\u2019 counsel: Yes.\nALJ: That\u2019s what everybody wants?\nWausau\u2019s counsel: Yes, Your Honor. . . .\nALJ: Well, that\u2019s well and good, I mean, if that\u2019s what everyone wants, is an opinion first ' on whether or not this prior decision or whether or not this prior opinion is binding on the Fund, so be it. That\u2019s the way we\u2019ll proceed. All right. How about the Fund? What evidence do they want to put on in regard to that issue?\nFund\u2019s Counsel: Well, Your Honor, again I don\u2019t think the Fund has the burden of proving it\u2019s binding on the Fund when it was not a party in any way.- I think the burden would be on those seeking \u2014\nALJ: I\u2019m not saying it\u2019s your burden of proof. I\u2019m just asking you if there\u2019s any proof you want to put on. Whether you\u2019ve got the burden of proof or not, you\u2019ve got a right to put on proof. That\u2019s one of the reasons we\u2019re here \u2014\nFund\u2019s Counsel: I understand. If you\u2019re asking about the issue \u2014\u2022\n\u2014 is your argument that you weren\u2019t afforded an opportunity to put on proof. Now, do you want to put on any proof to support your argument that it isn\u2019t binding on you because you were deprived of putting on proof? ALJ:\nOur position, of course, Your Honor, is it\u2019s an issue of law and, obviously, we could cite some law to you in the form of briefs or memorandums or such as that. We did submit direct request for admissions and interrogatories to all the parties regarding that issue, whether we were put on notice. We can introduce those. But I think both claimants \u2014\u2022 at least would anticipate \u2014 would be willing to admit that they did not put the Fund on notice, and I have their sworn answers here that I can introduce. Fund\u2019s Counsel:\nALJ: Introduce them. Let\u2019s get it all in that you want in on this particular issue.\nFund\u2019s Counsel: Specifically, Your Honor, we will be admitting answers to request for admissions submitted to both claimants and the respondents, basically asking them to admit or deny that they had given us notice and their responses accordingly.\nALJ: . . . Anything else you all want to present in the way of evidence on this limited issue?\nNot in the form of documentary evidence, Judge. We would ask to give some citations of law. Fund\u2019s Counsel:\nAll right. ... I would request that that be done in the way of trial briefs. ALJ:\nAll right. Fund\u2019s Counsel:\nI\u2019ll allow anyone that wants to file a trial brief to file one within 15 days. Due to the nature of this proceeding and the fact that it is almost an absolute certainty, however I rule, that it will not stop with me, and the fact that these payments are coming to an end, I\u2019ll try to expedite this case as much as possible to get you a decision as soon as possible, so have your briefs in within 10 days. ALJ:\nThere is no evidence in the record that any party submitted a brief on this matter. Thereafter, the ALJ determined that the Fund was bound by the previous ALJ opinion and entered an order on August 14, 2001, finding that the Fund was collaterally estopped from challenging the previous opinion and barred from relitigating the issue under the doctrine of laches. The Full Commission adopted the decision of the ALJ in an opinion filed August 22, 2002, and this appeal followed.\nOn appeal, the Fund argues that the Commission erred in (1) holding that it is bound by the March 7, 1997 administrative-law-judge opinion, (2) applying the doctrine of collateral estoppel against it, and (3) applying the doctrine of laches against it. We affirm.\nWhen reviewing a decision from the Workers\u2019 Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Death & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. See id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id.\nIn the case at bar, the Commission issued a brief opinion which set out the specific findings of the administrative law judge, and affirmed and adopted the administrative law judge\u2019s opinion as the decision of the Commission. Under Arkansas law, the Commission is permitted to adopt the administrative law judge\u2019s decision. See Odom v. Tosco Corp., 12 Ark. App. 196, 672 S.W.2d 915 (1984). Moreover, in so doing, the Commission makes the administrative law judge\u2019s findings and conclusions the findings and conclusions of the Commission. See ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991). Therefore, for purposes of our review, we consider both the administrative law judge\u2019s order and the Commission\u2019s majority order.\nAppropriated funds for the Death and Permanent Total Disability Trust Fund are administered for the use and benefit or at the direction of the Workers\u2019 Compensation Commission. See Ark. Code Ann. \u00a7 11-9-301 (Repl. 2002). Additionally, Arkansas Code Annotated section 11-9-205 (Repl. 2002) provides the Workers\u2019 Compensation Commission with the authority to make any such rules and regulations as it may find necessary. As established under the Commission, the Fund is subject to these rules and regulations. Neither party has provided the applicable rule in the record, but it is agreed upon that Rule 28 of the Workers\u2019 Compensation Rules provides:\na) A party desiring to raise the issue of liability to the Death and Permanent Total Disability Trust Fund shall name the Trust Fund as a party by notifying the Special Funds Administrator of the Workers\u2019 Compensation Commission and all other parties no later than ninety days prior to the completion of payment of the first Fifty Thousand or Seventy-Five Thousand (depending on the applicable limit) and weekly benefits pursuant to ll-9-502(b) of the Act in writing by a form of mail requiring a signed receipt. The notice shall include a current Form A-30 to be filed with the Workers\u2019 Compensation Commission.\nb) Failure to give notice as set out above shall constitute a waiver of a claim of Death and Permanent Total Disability Fund liability until such time as the notice requirements in (a) above are met. In no event shall the employer or his carrier cease payments for death or permanent total disability prior to compliance with the notice requirement above.\nc) This rule shall not apply in claims where a certificate of acceptance has been received from the Death and Permanent Total Disability Trust Fund and there have been no changes since the date of the certification of acceptance.\nThere is no requirement under the established rules that the Fund receive any notice prior to ninety days before the completion of payment of the first $75,000 and weekly benefits paid pursuant to ll-9-502(b) (Repl. 2002). Nor did any of the parties have reason to believe that any other notice was required. Under Rule 28, the only requirement is that the Fund receive notice ninety days prior to when it was calculated that the carrier would have reached its maximum liability, which was determined to be on July 7, 2001. Therefore, as substantial evidence supports the decision of the Commission, we affirm.\nAffirmed.\nGladwin and Robbins, JJ., agree.", "type": "majority", "author": "Olly Neal, Judge." } ], "attorneys": [ "Terry Pence and David L. Pake, for appellant.", "Friday, Eldredge & Clark, by: Guy Alton Wade, for appellees." ], "corrections": "", "head_matter": "DEATH & PERMANENT TOTAL DISABILITY TRUST FUND v. Eugene BRANUM, Employee Service America Corporation, and Wausau Insurance Company, Carrier\nCA 02-1294\n107 S.W.3d 876\nCourt of Appeals of Arkansas Division I\nOpinion delivered May 28, 2003\nTerry Pence and David L. Pake, for appellant.\nFriday, Eldredge & Clark, by: Guy Alton Wade, for appellees." }, "file_name": "0338-01", "first_page_order": 364, "last_page_order": 372 }