{"id":"alj-H103974-2023-07-03","awcc_number":"H103974","decision_date":"2023-07-03","opinion_type":"alj","claimant_name":"Kenneth Cobbs","employer_name":"J.B. Hunt Transport, Inc","title":"COBBS VS. J.B. HUNT TRANSPORT, INC. AWCC# H103974 JULY 3, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//COBBS_KENNETH_H103974_20230703.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COBBS_KENNETH_H103974_20230703.pdf","text_length":21307,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H103974 \nKENNETH COBBS, SR., (DEC’D)  \nEMPLOYEE                                                                                                              CLAIMANT \n \nJ.B. HUNT TRANSPORT, INC.,  \nEMPLOYER                                                                                                         RESPONDENT \n                                                                                                         \nINDEMNITY INSURANCE CO. OF NA,  \nINSURANCE CARRIER                                                                                    RESPONDENT \n \nESIS, INC., \nTHIRD PARTY ADMINSTRATOR (TPA)                                                     RESPONDENT \n \n \n               OPINION FILED JULY 3, 2023      \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant  represented  by  the  Honorable  Mark  Allen  Peoples,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondents  represented  by  the  Honorable  Joseph  H.  Purvis,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nStatement of the Case \nOn  April  4,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on February 22, 2023, from which \na  Pre-hearing  Order  was  filed  on  that  same  day.    A  copy  of  the  said  order  and  the parties’ \nresponsive filings have been marked as Commission’s Exhibit No. 1 and made a part of the record \nwithout objection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n\nCobbs – H103974 \n \n2 \n \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2. The  employer-insurance  carrier  relationship  existed  among  the  parties  at  all \nrelevant  times,  including  on  or  about  December  5,  2020,  when  the  Claimant \ncontracted  COVID-19,  in  the  course  and  scope  of  his  employment  with  the \nrespondent-employer. \n3. The Claimant died on December 26, 2020, due to COVID-19, at which time he was \nmarried to Mrs. Alma Cobbs.  At the time of the Claimant’s death, the couple had \ncustody  of  Mr.  Cobb’s  two  biological  minor  grandchildren,  namely,  However, \nsince this time/currently, the minor children are in the custody  of their biological \npaternal grandmother, Ms. Leadry B. Harris.    \n4. The Claimant’s average weekly on December 5, 2020, was $1,119.16, which \nentitles him to weekly compensation rates of $711.00 and $533.00. \n5. At that time of Claimant’s exposure to COVID-19 and his subsequent death, \nGovernor Asa Hutchinson’s Executive Order 20-35 was in force and effect. \n6. All  issues  not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \n7. The Respondents agree that the Claimant’s widow is entitled to payment for \ntemporary total disability compensation from December 6, 2020, through \nDecember 26, 2020. \n8. That the Claimant’s widow is entitled to an 18% penalty on the temporary total \ndisability compensation and funeral expenses, and that the Claimant’s attorney \nis likewise entitled to an 18% penalty on the same for his attorney’s fee in this \n\nCobbs – H103974 \n \n3 \n \nregard.    At  the  start  of  the  hearing,  Respondents’  attorney  clarified  that  a \ncontroverted attorney’s fee is not due on the funeral expenses under the statute.       \n9. That the Respondents have controverted this claim in its entirety.  At the time of \nthe hearing, the parties agreed to further stipulate that for attorney’s fees purposes, \nthe Respondents have controverted this claim in its entirety (T. p 11)    \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant’s biological grandchildren are entitled to dependency \nbenefits. \n \n2. Whether the Respondents are liable for out-of-pocket-expenses medicals.\n1\n \n \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  The Claimant contends: \n(a) That the Claimant was exposed to COVID-19 while in the course and scope of his \nemployment on or about December 5, 2020, and was unable to work thereafter;  \n  \n(b) That he is entitled to temporary total disability (TTD) benefits at the weekly rate of \n$711.00 from December 5, 2020, through December 26, 2020;  \n  \n(c) That Respondents controverted compensability of this claim but have more recently \nadmitted compensability and pledged to pay TTD owed, but have failed to do so, \ndespite  repeated  requests.    Thus,  Claimant  is  entitled  a  penalty  for  willful  late \npayment;  \n  \n(d) That Claimant died as a result of his exposure to COVID-19 while on the job;  \n  \n \n1\n Per an email to the Commission, the parties are trying to resolve the issue out-of-pocket expenses. As a \nresult, this issue will not be addressed in this opinion.  Instead, it has been reserved.     \n\nCobbs – H103974 \n \n4 \n \n(e) That  Claimant’s  widow, Alma Cobbs,  is  entitled to  weekly  payments  of  35% of \nClaimant’s AWW from the time of his death until her death (or until she re-marries);  \n  \n(f) That  Claimant’s  natural  granddaughter  was  wholly  dependent  on  Claimant  for \nsupport at the time of his death and is thus entitled to weekly compensation of 15% \nof Claimant’s AWW from the time of Claimant’s death until her 18\nth\n birthday (25\nth\n \nbirthday if she remains a full-time student);  \n  \n(g) That Claimant’s natural grandson was wholly dependent on Claimant for support at \nthe  time  of  his  death  and  is  thus  entitled  to  weekly  compensation  of  15%  of \nClaimant’s AWW from the time of Claimant’s death until his  18\nth\n  birthday  (25\nth\n \nbirthday if he remains a full-time student);  \n  \n(h) That  Claimant’s  widow,  Alma  Cobbs,  is  entitled  to  reimbursement  for  funeral \nexpenses in the amount of $7,242.00 or the statutory maximum;  \n  \n(i) That Respondents controverted compensability of this claim but have more recently \nadmitted compensability and pledged to pay funeral expenses owed, but have failed \nto do so, despite repeated requests.  Thus, Claimant is entitled a penalty for willful \nlate payment;  \n  \n(j) That Alma Cobbs is entitled to reimbursement for out-of-pocket medical expenses \nincurred as a result of Claimant’s exposure to COVID-19 while on the job; and  \n  \n(k) That  the  benefits  set  forth  above  have  been  controverted  and  thus,  undersigned \ncounsel is entitled to maximum statutory attorney’s fees.    \n \nRespondents:  The Respondents contend:  \nA.  That the foster children/grandchildren were not wholly dependent upon the \nClaimant at the time of his death; alternatively, at the very least they were only \npartially dependent and should qualify for no more than a small percentage of \ndeath benefits at best. \nB.  According to testimony of the Department of Human Services, Division of \nChildren  and  Family  Services  Regulations,  as  of  January  15,  2021,  these \nchildren are no longer part of the foster children program and any monies due \nthese foster children would no longer need to be placed in a trust. \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \n\nCobbs – H103974 \n \n5 \n \nhear  the  testimony  of  the  Claimant  and  observe  her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n \n   claim. \n \n2.    I hereby accept the above-mentioned proposed stipulations as fact. \n \n          3.       The evidence before me preponderates that the Claimant’s minor grandchildren    \n        were partially (one-third) dependent on the Claimant for support at the time of his  \n                    death.   \n         4.        The Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity   \n                    benefits awarded herein.  \n \n          5.       All issues not litigated are reserved under the Arkansas Workers’ Compensation  \n                    Act.      \nSummary of Evidence \nThe  record  consists  of  the  April  4,  2023  hearing  transcript,  comprising  the  following \nexhibits: Specifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order \nfiled on February 22, 2023 and the parties’ responsive filings; Claimant’s Exhibit 1 is a Medical \nExhibit  consisting  of  seven  numbered  pages;  Claimant’s  Exhibit  2  is  an Amended  Order \nAppointing Guardianship, consisting of three pages, it has been marked accordingly; Claimant’s \nExhibit  3  comprises  three  pages,  which  is  an  Amended  Order  Appointing  Guardianship;  a  one-\npage Letter of Guardianship of the Estate for the grandson has been marked as Claimant’s Exhibit \n4; a second one-page Letter of Guardianship of the Estate for the granddaughter has been marked \nas  Claimant’s  Exhibit  5; Respondents’  Exhibit  1  is a  Non-Medical  Exhibit,  which  is  the  Oral \n\nCobbs – H103974 \n \n6 \n \nDeposition of Tracy Holloway, which was taken on March 24, 2023.  It has been retained in the \nCommission’s files.  \nDuring  the  hearing,  the  only  witness  to  testify  was  the  Claimant’s  widow,  Mrs.  Alma \nCobbs. \n                                                  Testimony \nMrs. Alma Cobbs \n \nMrs. Alma Cobbs testified during the hearing.  She confirmed that she was married to the \ndeceased Claimant, Mr. Kenneth Cobbs, Sr.  Mrs. Cobbs confirmed that her husband passed away \na day after Christmas, on December 26, 2020.  She verified that when Mr. Cobbs passed, they had \nhis two grandchildren living in their home with them.  Mrs. Cobbs testified that the children had \nbeen in their home since August.  She basically testified that they obtained custody of the children \nthrough the State foster care program.  According to Mrs. Cobbs they had to go through training \nto become foster parents.  Upon taking custody of the grandchildren, she testified that she had to \nquit her evening job.  \nInstead, Mrs. Cobbs maintained that she had to quit her job in order for her to be able to \nattend to the children.  She got them up in the mornings and ready for school.  In addition to putting \na roof over the heads of the children, Mrs. Cobb testified that they supplied food, clothing, and a \nsafe shelter for the children.  \nMrs. Cobbs testified that the children are Mr. Cobbs’ grandchildren.  They are the children \nhis  son.    At  the  time  that  they  took  custody  of  the  children,  the  father  of  the  children  was \nincarcerated, and the mother was in drug rehab.  She testified that she does not know how much \nof the money that Mr. Cobbs made went to the support of the children.  Mrs. Cobbs confirmed that \nher husband made approximately $55,000.00 year. \n\nCobbs – H103974 \n \n7 \n \nOn cross-examination, Mrs. Cobbs was shown a document that listed only her husband as \nbeing the foster parent.  She denied that she was aware that Mr. Cobbs was the only foster parent.  \nHowever,  they  both  went  through  the  foster  care  training.    Mrs.  Cobbs  did  not  supply  a  clear \nexplanation of why they chose to be foster parents rather than adopt the children.  She testified that \nthey would have adopted the children had her husband not gotten sick.   Mrs. Cobbs denied that \nreceiving money from the State to help with the support of the children had anything to do with \ntheir decision.  However, Mrs. Cobb finally agreed that receiving money from the State played a \nrole  in  the  decision  as  to  whether  they  legally  adopted  the  children  as  opposed  to  being  foster \nparents.  \nMrs. Cobbs denied having any knowledge of how much they were going to receive as foster \nparents from the State in support of the children.   She also denied she knew how much money the \nchildren would receive from her husband’s death or under  the  State  foster  care  program.    Mrs. \nCobbs explained that she did not care about the money, because it is about the “kids.” She testified \nthat she quit her job so that she could make sure the children went to bed, were fed, had proper \nhygiene before going to  bed, and she had to get them up and ready for school every day.  Mrs. \nCobbs confirmed that the children were never in daycare.      \n     On redirect-examination, Mrs. Cobbs agreed that it was not about the money, it was about \nproviding a home for the children because they needed someone to take care of them.  Mrs. Cobbs \nwent on to explain that she did not want the children on the streets.   \n Upon being questioned by the Commission, she admitted that they were to receive $400.00 \nper  month  for  each  child  from  the  State.    She  confirmed  that  they  received a  back  payment  of \n$1,400.00 from the State.  Mrs. Cobbs confirmed that the mother had visitation with the children, \nonce a month. \n\nCobbs – H103974 \n \n8 \n \n On recross-examination, Mrs. Cobbs essentially testified that she did not continue with the \ncare of the children after her husband’s death because she needed help with them, and they were \nher husband’s grandchildren.       \nThe Oral Deposition of Tracy Holloway \n The Respondents took the Oral Deposition of  Tracy Holloway on March  23, 2023.  She \nlives  in  Cabot,  Arkansas.    Ms.  Holloway  is  employed  by  the  Arkansas  Department  of  Human \nServices.    Ms.  Holloway  is  the  program  administrator  for  foster  care,  adoption,  and  kinship \nconnect.  She manages the statewide foster care, adoption, and kinship programs.           \n Ms. Holloway confirmed that Mr. Cobbs signed an application to become foster parent for \nhis two grandchildren.  She testified that a provisional foster parent is what Mr. Cobbs was at the \ntime  of  placement.    There  was  no  money  for  support  until  you  are  an  approved  home.    She \nexplained the training requirements and process for becoming an approved home.      \n She  confirmed  that  Mr.  and  Mrs.  Cobbs  attended  the  training.    They  turned  in  licensing \npaperwork and on December 4, 2020, their home was officially opened  as a relative  foster care \nhome.  Mrs. Holloway confirmed that at that point, Mr. Cobbs became entitled to receive money \nfrom the State to help with the support of these children. \n Under  further  questioning,  Ms.  Holloway  confirmed  that  Exhibit  4  shows  the  financial \nsupport provided to foster parents.  She agreed that she was referencing Paragraph 1 of Title IV E \nfoster care payment, which states that the payments cover the cost of food, clothing, shelter, daily \nsupervision, and school supplies.  Ms. Holloway agreed that this money was going to Mr. Cobbs \nfor support of the children.  She confirmed that the money was for the purpose of making sure the \nentire burden to support these children, would not rest solely on the shoulders of the foster parent/ \n\nCobbs – H103974 \n \n9 \n \nShe confirmed that the children are no longer in the legal custody of the Department of Human \nServices.           \n Ms.  Holloway stated that they provided some financial support to foster parents, but the \nState does recognize that the money does fully support the children.  As a result, the foster parents \ndo bear some of the responsibility.  She testified that financial support is based on age.  At the time \nthat Mr. Cobbs assumed foster care of the children, he was eligible to receive payments $410.00 \nand  $440.00  a  month  for  the  two  children.  She  confirmed  that  Mr.  Cobbs  was  approved  on \nNovember 16, 2020, and a check was generated on December 4, 2020, for $850.00. \n She was not certain if the children were in the care of the biological grandmother but said \nthat they were with another relative.       \n On  cross  examination,  Ms.  Holloway  testified  that  Mr.  and  Mrs.  Cobbs  received \napproximately $1,500.00 from the State for the five months they had the children.  She confirmed \nthat the children are no longer in foster care.  She confirmed that the trust account that had been \nset  up  by  the  State  would  no  longer  apply  to  the  children  should  they  be  awarded  workers’ \ncompensation benefits.   \n            Discussion \nA.  Dependency Benefits            \n  \n Here, the decedent had taken custody of his grandchildren in August of 2020.  He became \na  foster  parent  to  them  in  November.    On  December  26,  2020,  Mr.  Cobbs  passed  away  due  to \nCOVID-19.  The parties stipulated that  the Claimant contracted COVID-19, while working and \nthat this was a work-related death.  At the time of his death, Mr. Cobbs and his wife had taken \ncustody  of  his  two  minor  grandchildren,  through  the  State’s  foster  care  program.    He  received \nmonthly benefits for the children.       \n\nCobbs – H103974 \n \n10 \n \nThe crucial issue for determination is whether the Claimant’s grandchildren were “wholly” \nor “partially  “dependent  on  him  at  the  time  of  his  death.  I  am  persuaded  that  the  Claimant’s \ngrandchildren  were  partially  dependent  on  him  for  support  at  the  time  of  his  death.    Ark.  Code \nAnn. §11-9-527 (i) provides:  \nPARTIAL DEPENDENCY.  (1) If the employee leaves dependents who are only \npartially dependent upon his or her earnings for support at the time of injury, the \ncompensation payable for partial dependency shall be in the proportion that the \npartial dependency bears to total dependency. \n The preponderance of the evidence shows that Mr. Cobbs was a foster parent for his two \nbiological minor grandchildren.  The preponderance of the evidence shows that the minor children \nwere partially dependent on their grandfather for support and care.  This conclusion is established \nby the testimony of the step-grandmother, Mrs. Alma Cobbs and Ms. Tracy Holloway, the program \nadministrator for the foster care, adoption, and kinship program.    \nAlthough  the  grandchildren  of  the  decedent  herein  may  have  received  support  from  the \nState, their grandfather provided their daily support, both financially and as a father-figure, came \nfrom  Mr.  Cobbs,  by  his  course  of  conduct  he  had  formed  with  his  minor  grandchildren.    The \nevidence shows that decedent’s intent demonstrates that he assumed the duties and responsibilities \nof becoming the foster parent to his grandchildren, not only in providing partial financial support \nto  them,  but  also in  his  caring  for  their  general  welfare.    Such  actions  created  a  reasonable \nexpectation  of  future  partial  support  and  care  for  his  minor  grandchildren,  considering  he  was \nproviding shelter and other support for the children at the time of his death.  Mrs. Cobbs testified \nthat  she  does  not  know  how  much  of  the  Claimant’s  income  went  to  support  the  children.  \nHowever, at the time of the Claimant’s death, he was entitled to receive a  total  of  $850.00  per \nmonth  from  the  State  for  the  two  children.    The  children  did  not  need  daycare  or  any  special \nservices.   These funds provided for more than 50% of the money needed to care for the children.   \n\nCobbs – H103974 \n \n11 \n \nBased on all of the foregoing, the evidence before me preponderates that the Claimant’s \nminor  grandchildren  were  partially  (one-third)  dependent  on  him  for  support  at  the  time  of  his \ndeath.    Therefore,  I  find  that  the Claimant’s minor  grandchildren  are  each  eligible  beneficiaries \nand should each receive a partial share each in the dependency benefits.   \n B.  Controverted Attorney’s Fee \nIt is undisputed that the Respondents have controverted this claim for additional benefits as \nevidenced by their stipulation to conversion.  Therefore, pursuant to Ark. Code Ann. §11-9-715 \n(Repl. 2012), the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity \nbenefits awarded herein.  \nAWARD \nThe Respondents are directed to pay benefits in  accordance with the  findings of fact set \nforth  herein  this  Opinion.    All  issues  not  addressed  herein  are  expressly  reserved  under  the \nArkansas Workers’ Compensation Act. \nAll accrued sums shall be paid in lump sum without discount, and this  award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).   See Couch \nv. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 (1995).  Pursuant to Ark. Code \nAnn.  §11-9-715  (Repl.  2012),  the  Claimant's  attorney  is  entitled  to  a  25%  attorney's  fee  on  the \nindemnity benefits awarded herein.  This fee is to be paid one-half by the carrier and one-half by \nthe Claimant.    \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE \n\nCobbs – H103974 \n \n12","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H103974 KENNETH COBBS, SR., (DEC’D) EMPLOYEE CLAIMANT J.B. HUNT TRANSPORT, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE CO. OF NA, INSURANCE CARRIER RESPONDENT ESIS, INC., THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED JULY 3, 2023 Hearing held b...","fetched_at":"2026-05-19T23:04:51.643Z","links":{"html":"/opinions/alj-H103974-2023-07-03","pdf":"https://labor.arkansas.gov/wp-content/uploads//COBBS_KENNETH_H103974_20230703.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}