{"id":"alj-H205665-2023-08-03","awcc_number":"H205665","decision_date":"2023-08-03","opinion_type":"alj","claimant_name":"Alejandro Naverrete","employer_name":"Hixson Lumber Sales, Inc","title":"NAVERRETE VS. HIXSON LUMBER SALES, INC. AWCC# H205665 AUGUST 3, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Naverrete_Alejandro_H205665_20230803.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Naverrete_Alejandro_H205665_20230803.pdf","text_length":28621,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205665 \n \n \nALEJANDRO MORALES NAVARRETE, DEC’D, \n EMPLOYEE CLAIMANT \n \nHIXSON LUMBER SALES, INC., \n EMPLOYER RESPONDENT \n \nUNION STANDARD INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 3, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  May  10,  2023,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant  represented  by  Ms.  Angela  Galvis  Schnuerle,  Attorney  at  Law,  North  Little \nRock, Arkansas. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On May 10, 2023, the above-captioned claim was heard in Little Rock, Arkansas.  \nA  pre-hearing  conference  took  place  on  February  7,  2023.    The  Prehearing  Order \nentered  on  February  8,  2023,  pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.    With \nadditional ones reached at the hearing, they are the following, which I accept: \n\nNAVERRETE – H205665 \n \n2 \n1. The     Arkansas     Workers’     Compensation Commission     (the \n“Commission”) has jurisdiction over this matter. \n2. The  employee/employer/carrier  relationship  existed on or  about \nJuly  23,  2022,  when Claimant  sustained  compensable  injuries  that \nresulted in his death. \n3. Respondents  accepted  Claimant’s  fatal  injuries  as  compensable \nand  paid  benefits  pursuant  thereto,  including  statutory  funeral \nexpenses  and  the  no-dependency  fee  to  the  Death  &  Permanent \nTotal Disability Trust Fund. \n4. Claimant’s  average  weekly  wage  of  $814.97  entitles  him  to  a  total \ndisability compensation rate of $544.00. \n5. None   of   the   alleged   dependents   were   wholly   and   actually \ndependent upon  Claimant  for  purposes  of  Ark.  Code  Ann.  § 11-9-\n527(c) (Repl. 2012). \n6. Both  Simon  Navarrete  Rosas  and  Ugarit  Navarrete  Rosas  at  one \ntime  or  another,  while  living  in  the  home  of  Alejandro  Morales \nCallentano,  rented  a  room  from  Mr.  Callentano  and  paid  rent  and \nutilities. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.    After \namendments at the hearing, the following were litigated: \n\nNAVERRETE – H205665 \n \n3 \n1. Whether Claimant’s father, Alejandro Morales Callentano, mother, Arianna \nMedai  Navarrete  Rosas,  and  siblings  Grace  Medai  Morales  Navarrete, \nEmily  Gelet  Morales  Navarrete,  and  Evelyn Arleth  Morales  Navarrete  are \nentitled to receive partial dependency benefits under Ark. Code Ann. § 11-\n9-527(i)(1) (Repl. 2012), and in what amount. \n2. Whether  Claimant’s  counsel  is  entitled  to  a  controverted  attorney’s  fee \nunder Ark. Code Ann. § 11-9-715 (Repl. 2012). \n3. Whether Claimant should be sanctioned under Ark. Code Ann. § 11-9-717 \n(Repl. 2012) in connection with this claim. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following  amendments at the hearing, \nread as follows: \n Claimant: \n1. Claimant’s  parents  and  siblings  contend  that  they  should  be  considered \ndependents  of  him  under  the  Arkansas  Workers’  Compensation  Act \nbecause they relied on him to help support the entire family. \nRespondents: \n1. Respondents  contend  that  Claimant  died  on  July  23,  2022,  without  any \ndependents.  He was 18 years old at the time of his injury and death; that \nhe  had  just  begun  working  for  Respondent  employer  on  June  23, 2022; \n\nNAVERRETE – H205665 \n \n4 \nthat  he  was  still  a  high  school  student;  and  that  his  parents  and  siblings \nwere not wholly and actually dependent upon him for support. \n2. In  addition,  Respondents  contend  that  they  are  entitled  to  sanctions \nconsisting of their expenses due to the filing of this claim and request for a \nhearing.    Arkansas  Code  Annotated  Section  11-9-717(a)(2)  (Repl.  2012) \nprovides: \nThe signature of an attorney or party constitutes a certificate \nby him or her that: \n \n(A) He  or  she  has  read  the  claim,  request  for  benefits, \nrequest   for   additional   benefits,   controversion   of \nbenefits,  request  for  a  hearing,  pleading,  motion  or \nother paper; \n \n(B) To the best of his or her knowledge, information, and \nbelief   formed   after   reasonable   inquiry,   it   is   well \ngrounded in fact and is warranted by existing law or a \ngood faith argument for the extension, modification, or \nreversal of existing law; and \n \n(c) It is not interposed for any improper purpose, such as \nto  harass  or  cause  unnecessary  delay  or  needless \nincrease in the cost of litigation. \n \nRespondents contend that this request for benefits and request for a hearing is in \nviolation  of  § 11-9-717  in  that  a  reasonable  inquiry  into  the  facts  demonstrates \nthat Claimant’s family was not wholly or even partially dependent upon him at the \ntime  of  his  death.    Claimant’s  father  earned  gross  wages  of  $81,943  in  2021.  \nWhen  only  his  take  home  pay  for  the  12  months   immediately  preceding \nClaimant’s death is calculated, the father brought home a total of at least $65,000 \nas the full wages from June 2021 were not included in the payroll records to be \n\nNAVERRETE – H205665 \n \n5 \nsubmitted into evidence.  The majority of the family’s household expenses were \npaid out of the father’s bank account.  For the 12 months immediately preceding \nClaimant’s   death,   the   family’s   expenses   from   this   account   totaled   only \n$55,946.48.    In  addition  to  the  father’s  income  and  bank  account,  Claimant’s \nparents maintained a separate bank account that during the one-year preceding \nClaimant’s death held as much as $45,061.52 but no less than $7,986.17.  The \norigins  of  the  money  in  this  account  are  unknown,  but  not  necessary  when the \nexpenditures  from  this  account also  show  that  it  was used  for the benefit  of  the \nfamily’s  household  expenses  as  well.    The  mere  fact  that  Claimant  was  paid \ndisability  benefits  from  the  state  or  that  he  worked  for  Respondent  employer  is \nnot  sufficient  to  formulate  a  reasonable  belief  that  the  family  was  wholly  and \nactually  dependent  upon  Claimant  for  this  income.    A  review  of  Claimant’s  total \nincome from his disability checks shows that he was paid approximately $1,735 \nfrom  January  2021  through  June  2021.    (The  images  are  blurry  and  difficult to \nread, thus an approximate amount is used.)  At best, only $300 from this income \nwas never deposited into Claimant’s checking account.  The testimony from both \nparents showed that Claimant turned this money over to them, and that they, in \nturn, doled out his money to him to pay for band uniforms, clothing, shoes, band \ntrips,  food,  and  other  normal  expenses  of  a  high  school  student.    In  addition, \nClaimant’s  mother  testified  that  Claimant  attended  his  junior  prom  and  had \nexpenses for his clothing, food, date, and limousine.  It is reasonable to conclude \nthat  this  missing  $300  in  addition  to  supplemental  money  from  the  parents  was \n\nNAVERRETE – H205665 \n \n6 \nnecessary  to  cover  his  expenses.  Claimant’s  paychecks  from  Respondent \nEmployer  totaling  $3,985.34  were  all  directly  deposited  into  his  account.    His \nincome  from  his  earnings  and  disability  checks  totaled  $5,775.80.    Out  of \nClaimant’s  checking  account,  a  grand  total  of  $657.00  was  debited.    The  family \nhas not and cannot offer any credible evidence that any of this money was used \nin  any  manner  to  pay  household  expenses  or  support  them.    Finally, although \nClaimant had just turned 18, he was still a high school student living at home with \nhis  parents.    Thus,  even  assuming  his  family  used  any  of  his  money to  pay \nhousehold expenses, he received free rent and utilities, the use of the 2019 GMC \ntruck  that  they  had  purchased  for  him,  and  the  gas  and  insurance  to  cover  the \ntruck  from  the  parents.    Claimant  was  wholly  and  actually  dependent  upon  his \nparents—not the other way around.  See Butler v. Labor Finders, 2006 Ark. App. \nLEXIS  104,  2006 WL  235088.\n1\n  Therefore,  based  on a  reasonable  inquiry  of  the \nfacts, reasonable persons cannot conclude that Claimant’s family has a claim for \ndependency  benefits  from  his  death.    Accordingly,  Respondents  contend  that \nthey are entitled to their costs and expenses due to the filing of this claim. \n \n1\nThis is an unpublished opinion.  Per Ark. Sup. Ct. R. 5-2(c): \n \nOpinions of the Supreme Court and Court of Appeals issued before July 1, \n2009,  and  not  designated  for  publication  shall  not  be  cited,  quoted,  or \nreferred  to  by  any  court  or  in  any  argument,  brief,  or  other  materials \npresented  to  any  court  (except  in  continuing  or  related  litigation  upon  an \nissue such as res judicata, collateral estoppel, or law of the case). \n  \n\nNAVERRETE – H205665 \n \n7 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \ndeposition  transcripts,  and  other  matters  properly  before  the  Commission,  and  having \nhad an opportunity to hear the testimony of the hearing witnesses and to observe their \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3.  The preponderance of the evidence establishes that Claimant’s father and \nmother,  Alejandro  Morales  Callentano  and  Arianna  Medai  Navarrete \nRosas,  were  partially  dependent  upon  Claimant  in  the  amount  of  ten \npercent  (10%)  each  under  Ark.  Code  Ann.  § 11-9-527(i)(1)  (Repl.  2012).  \nAccordingly,   per   § 11-9-527(c )(4)  ,   they  are   each   entitled   to   weekly \nbenefits  amounting  to  two  and  one-half  percent  (2.5%)  of  Claimant’s \naverage weekly wage, or $20.37. \n4. The  preponderance  of  the  evidence  establishes  that  Claimant’s  siblings \nGrace  Medai  Morales  Navarrete,  Emily  Gelet  Morales  Navarrete,  and \nEvelyn   Arleth   Morales   Navarrete,   Alejandro   Morales   Callentano   and \nArianna Medai Navarrete Rosas, were partially dependent upon Claimant \nin  the  amount  of  ten  percent  (10%)  each  under  Ark.  Code  Ann.  § 11-9-\n527(i)(1)  (Repl.  2012).    Accordingly,  per  § 11-9-527(c )(4)  ,  they  are  each \n\nNAVERRETE – H205665 \n \n8 \nentitled  to  weekly  benefits  amounting  to  one and one-half percent (1.5%) \nof Claimant’s average weekly wage, or $12.22. \n5. Claimant’s  estate  has  proven by  a  preponderance  of  the  evidence  that \nRespondents   controverted   the   partial   dependency   benefits   awarded \nabove  to  his  parents  and  siblings.    Accordingly,  Claimant’s  counsel, \nAngela  Galvis  Schnuerle,  Esq.,  is  entitled  to  a  controverted  fee  on  those \nbenefits, pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2012). \n6. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \nClaimant’s  counsel  should  be  sanctioned  under  Ark.  Code  Ann.  §  11-9-\n717 (Repl. 2012). \nCASE IN CHIEF \nSummary of Evidence \n Witnesses.    The  hearing  witnesses  were  Alejandro  Morales  Callentano  and \nArianna  Medai  Navarrete  Rosas.  Simon  Navarrete  and  Ugarit  Rosas  testified  via \ndeposition.  The  transcripts  of  these  depositions  have  been  admitted  into  evidence as \noutlined below. \n Exhibits.  In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence  in  this  case  were  the  following:   Claimant’s  Exhibit  1, his  Prehearing \nQuestionnaire  Response  plus  exhibits  thereto,  consisting  of 20  numbered  pages; \nClaimant’s  Exhibit 2,  the  transcript  of  the  deposition  of  Simon  Navarette  Rosas  taken \nMarch  10,  2023,  consisting  of  29 pages;  Claimant’s  Exhibit  3, the  transcript  of  the \ndeposition  of  Ugarit  Navarrete  Rosas  taken  March  10,  2023,  consisting  of 30  pages; \n\nNAVERRETE – H205665 \n \n9 \nRespondents’  Exhibit  1,  financial  records,  consisting  of  one  index  page  and 97 \nnumbered  pages  thereafter;  Respondents’  Exhibit  2,  their  Prehearing  Questionnaire \nResponse,  consisting  of  three  numbered  pages;  and  Respondents’  Exhibit  3,  their \nSupplemental   Prehearing   Questionnaire   Response,   consisting   of   three   numbered \npages. \n At the hearing, the parties were directed to file post-hearing briefs.  They did so \non May 31, 2023.  Those briefs, five and nine numbered pages in length, respectively, \nhave been blue-backed to the record. \nAdjudication \nA. Dependent Benefits \n Introduction.  Herein, Claimant’s estate has contended that his parents, Alejandro \nMorales Callentano and Arianna Medai Navarrete Rosas, and his minor siblings Grace \nMedai  Morales  Navarrete,  Emily  Gelet  Morales  Navarrete,  and  Evelyn  Arleth  Morales \nNavarrete  are  entitled  to  receive  partial  dependency  benefits  under  Ark.  Code  Ann.  § \n11-9-527(i)(1)  (Repl.  2012).    Respondents  have  argued  to  the  contrary,  asserting  that \nthe  evidence  does  not  show  that  the  above-named  individuals  were  even  partially \ndependent upon Claimant.\n \n Standards.    The  applicable  provision  here is  Ark.  Code  Ann.  §  11-9-527(i)(1) \n(Repl. 2012), which reads: \nIf the employee leaves dependents who are only partially dependent upon \nhis or  her  earnings  for  support at  the  time of  injury,  the  compensation \npayable  for  partial  dependency  shall be  in  the  proportion  that  the  partial \ndependency bears to total dependency. \n \n\nNAVERRETE – H205665 \n \n10 \nThe statute further provides that “[a]ll questions of  dependency shall be determined as \nof the time of the injury.”  Id. §   11-9-527(h).  Dependency is an issue of fact that must be \ndetermined  in  light  of  the  surrounding  circumstances.   Hicks v.  Bates,  104  Ark.  App. \n348,  292  S.W.3d  850,  2009  Ark.  App.  LEXIS  460; Finley v.  Farm  Cat, Inc.,  103  Ark. \nApp. 292, 288 S.W.3d 685 (2008).\n \n Evidence.  As the parties have stipulated, Claimant was fatally injured at work on \nJuly   23,   2022.      This   is   the   operative   date   for   purposes   of   determining partial \ndependency.  His birth date was June 27, 2004.  Thus, at the time of his death, he had \nbeen a legal adult for only 26 days.  Claimant had been working for Respondent Hixson \nfor  just  30  days;  his  start  date  there  was  June  23,  2022.    The  parties  have  stipulated \nthat his average weekly wage at Hixson was $814.97. \n Prior  to  his  obtaining  this  job,  Claimant’s  income  had  consisted  of  (1)  odd  jobs, \nfor which he was paid in cash; and (2) monthly warrants (in varying amounts) from the \nState of Arkansas that began in January 2022 and totaled approximately $1,700.00.  It \nis  not  clear  from  the  evidence  how  much  Claimant  earned  from  the  odd jobs,  which \nincluded  cleaning  out  chicken  houses  and  cutting  hay.    Claimant opened  a  bank \naccount in June 2022.  Prior to then, his parents held his money for him and gave him \ncash on  request.   He used  these  funds  for,  inter alia,  personal  expenses  that  included \nthe costs of being in the high school band and attending his prom.  His own money was \nalso  used  for  fuel,  clothing,  and  other  necessities.    It  must  be  kept  in  mind  that  such \nexpenses  as  these  would  normally  be  covered  by  one’s  parents  when  the  party  in \n\nNAVERRETE – H205665 \n \n11 \nquestion is still a minor—and Claimant was a minor for the vast majority of the time that \nhe was making money. \n The  evidence  that  was  adduced  at  the  hearing  shows  that  Claimant’s  earnings \nwere  not  only  used  to  cover  his  own  expenses,  but  those  of  his  family.    During the \ntestimony of Claimant’s father at the hearing, the following exchange took place: \nQ. Did Alejandro, Jr., give you his check? \n \nA. Yes. \n \nQ. And you stated that you spent that money [on] general bills.  Could \nyou  please  tell  the  judge  some  of  the  bills  you  paid  with  that \nmoney? \n \nA. The thing is, my son was gonna graduate on the 11\nth\n of this month; \nso he bought a truck to go to university. \n \nQ. Now,  you  said  that  you—it  was  spent  on  general  household \nexpenses.    I’m  asking  you  what  household  expenses  did  you  pay \nwith that money? \n \nA. Yes.    Oh,  yes.    Electricity,  water,  the  TV  signal.  We  paid  the \ninsurance  on  the  house,  and  car  insurance  and  the  cell  phones, \nand internet for the house.  He needed that when he was studying. \n \n. . . \n \nQ. Have you always needed extra money to pay all of your bills? \n \nA. Yes. \n \nQ. Now, I’m asking now for a little bit of historical account.  Way back, \ndid you have people living with you? \n \nA. Yes. \n \nQ. And did they pay you rent? \n \nA. Yes. \n\nNAVERRETE – H205665 \n \n12 \n \nQ. And was that to help pay the bills? \n \nA. Yes. \n \nQ. But you didn’t have anybody paying rent at the time of  Alejandro’s \ndeath, correct? \n \nA. That’s right. \n \n. . . \n \nQ. Did you rely on your son’s money for the family? \n \nA. Yes. \n \nQ. However,  you  also  contributed  your  money  to  support  your  family, \ncorrect? \n \nA. Yes. \n \n. . . \n \nQ. You purchased a pick-up truck, correct? \n \nA. That’s right. \n \nQ. And was that expense—how were you going to pay for that truck? \n \nA. It’s very difficult. \n \nQ. Whose monies were you going to use to pay for that truck? \n \nA. My son’s. \n \nQ. Do you still have that truck? \n \nA. Yes. \n \nIn  her  testimony,  Claimant’s  mother  added  that  her  son  gave  money to  help  purchase \ngroceries.    The  funds  that  Claimant  contributed  were  important  because,  among  other \n\nNAVERRETE – H205665 \n \n13 \nissues,  his  mother  did  not  work  outside  the  home.    The take  home  pay  of  Claimant’s \nfather was not enough, by itself to support the family.  The best illustrations of this are \nnot only that they resorted to using income from their minor child, but that the balance of \nthe parents’ joint account dwindled significantly. \n In addition to the support Claimant furnished his family members by covering his \nown expenses and those of the family at large, he also supported them through specific \nindividual  items.    These  included  medications  for  his  mother  and  sister,  and  school \nsupplies and entertainment for his siblings. \n Discussion.    An  alleged  beneficiary  must  establish  facts  showing  his  or  her \ndependency upon the decedent claimant in order to be held entitled to benefits pursuant \nto  § 11-9-527.   Roach  Mfg.  Co.  v.  Cole,  265  Ark.  908,  582  S.W.2d  268  (1979).    The \ndetermination  of  a  witness’ credibility  and  how  much  weight  to  accord  to  that  person’s \ntestimony  are  solely  up  to  the  Commission.   White  v.  Gregg  Agricultural  Ent.,  72  Ark. \nApp.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.   Id.  After  due  consideration,  I  credit  the  testimony  of  Claimant’s  father  and \nmother as outlined above. \n Based  on  the  foregoing  evidence,  I  find  that  Claimant’s  three  siblings  had  a \nreasonable expectation of support from him.  See Robinson v. Ed Williams Constr. Co., \n38  Ark.  App.  90,  828  S.W.2d  860  (1992); Williams  v.  Cypress  Creek  Drainage,  5  Ark. \n\nNAVERRETE – H205665 \n \n14 \nApp.  256,  635  S.W.2d  282  (1982).    Again,  this  is  taking  into  account  both  Claimant’s \npayments towards general family expenses (of which the siblings benefitted along with \neveryone else in the household), as well as specific items of support discussed supra. \n As for Claimant’s mother and father, I find that the credible evidence shows that \nthey, too, had a reasonable expectation of support from him along these same lines.  In \nso doing, I again note that while the parents had a legal duty to support Claimant while \nhe  was  a  minor,  he  nonetheless  made  substantial  contributions  toward  that  support.  \nThe fact that Claimant was never under a legal duty to furnish financial support of these \ntwo individuals is irrelevant.  As the Full Commission wrote in Garcia v. Coast to Coast \nCarports,  Inc.,  2009  AR  Wrk.  Comp.  LEXIS  16,  Claim  No.  F513705  (Full  Commission \nOpinion issued Feb. 25, 2009): \nThe Arkansas legislature has seen fit to  recognize that some people, like \nthe  claimant  in  this  case,  although  not  legally  required  to  do  so,  honor a \nmoral  duty  to  support  their  families.    Here,  the  claimant’s  mother  and \nsiblings  were  fortunate  enough  to  have  such  an  honorable  son  and \nbrother. \n \n The  Arkansas  Court  of  Appeals  in Pinecrest  Mem.  Park.,  Inc.,  v.  Miller,  7  Ark. \nApp.  185,  646  S.W.2d  33  (1983),  found  in  a  decision  awarding  partial dependency \nbenefits that \nA  showing  of  actual  dependency  does  not  require  proof  that  without  the \n[decedent’s]   contribution   [the   alleged    dependent]   would   lack   the \nnecessities  of  life  but  only  that  the  decedent’s  contributions  were relied \nupon  by  the  [alleged  dependent]  to  maintain  her  accustomed  mode  of \nliving. \n \nThis is certainly the case here.  The support given by Claimant to his parents and three \nsiblings in the forms of his cash earnings, his payments from the State of Arkansas, and \n\nNAVERRETE – H205665 \n \n15 \nfrom  the  proceeds  of  his  position  at  Respondent  Hixson,  were  relied  upon  by  them  in \norder  to  maintain  their  accustomed  mode  of  living.    To  reiterate,  this  reliance  was  a \nreasonable one under Robinson, supra. \n In sum, after consideration of the credible  evidence, I find that  Claimant’s  father \nand  mother,  Alejandro  Morales  Callentano  and  Arianna  Medai  Navarrete  Rosas,  were \npartially dependent upon Claimant in the amount of ten percent (10%) each under § 11-\n9-527(i)(1)  (Repl.  2012).    Consequently,  in  accordance  with  § 11-9-527(c )(4)  ,  they  are \neach  entitled  to  weekly  benefits  amounting  to  two  and  one-half  percent (2.5%)  of \nClaimant’s   average   weekly   wage,   or   $20.37.  Furthermore,   I   find   that   the \npreponderance  of  the  evidence  establishes  that  Claimant’s  siblings  Grace  Medai \nMorales   Navarrete,   Emily   Gelet   Morales   Navarrete,   and   Evelyn   Arleth   Morales \nNavarrete  were partially  dependent upon  Claimant  in  the  amount of  ten percent  (10%) \neach under § 11-9-527(i)(1) (Repl. 2012).  Thus, under § 11-9-527(c )(4)  , they are each \nentitled to weekly benefits amounting to one and one-half percent (1.5%) of Claimant’s \naverage weekly wage, or $12.22. \nB. Controversion \n Introduction.    Claimant’s  estate has  asserted  that  its  attorney is  entitled  to  a \ncontroverted fee in this matter. \n Standard.    Arkansas  Code  Annotated §  11-9-715(a)(1)  (Repl.  2012)  provides  in \nrelevant part: \n(a)(1)(A) Fees for legal services rendered in respect of a claim shall not be \nvalid unless approved by t he Workers' Compensation Commission. \n \n\nNAVERRETE – H205665 \n \n16 \n(B) Attorney's fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable to  the  injured  employee  or dependents of  a \ndeceased  employee.  Attorney's  fees  shall not  be  awarded on  medical \nbenefits or services except as provided in subdivision (a)(4) of this section. \n \n. . . \n \n(B)(i) In  all other  cases  whenever  the  commission  finds  that  a  claim  has \nbeen  controverted, in  whole or  in  part,  the  commission  shall  direct  that \nfees for legal services be paid to the attorney for the claimant as follows: \nOne-half  (½) by  the  employer or  carrier in  addition  to  compensation \nawarded;  and one-half  (½) by  the  injured  employee or  dependents of  a \ndeceased employee out of compensation payable to them. \n \n(ii)  The  fees  shall be  allowed  only on  the  amount of  compensation  for \nindemnity benefits controverted and awarded. \n \n(iii)  However,  the  commission  shall  not  find  that  a  claim has  been \ncontroverted if the claimant or his or her representative has withheld from \nthe  respondent  during  the  period of  time  allotted  for  the  respondent to \ndetermine  its  position any  medical information in  his or  her  possession \nwhich substantiates the claim. \n \n(Emphasis added) \n Discussion.    One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.   Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    It  is  clear  that  but  for  Claimant’s \nestate  instigating  the  portion  of  this  litigation  concerning  the entitlement  of  his  family \nmembers   to   partial   dependency   death   benefits,   none   would   have   been   paid.  \nRespondents’ counsel acknowledged this at the outset of the hearing, as shown in the \nfollowing colloquy: \nJUDGE  FINE:    As  I  discussed  with  the  parties  before  going  on  record, \nagain,  I  was  not  the  judge  who  conducted  this  prehearing  telephone \nconference,  and  I  am  not  the  one  who  created  the  Prehearing  Order.  \nThere  needs  to  be  an  issue  added  concerning  whether  Ms.  Schnuerle  is \n\nNAVERRETE – H205665 \n \n17 \nentitled to a controverted fee and certainly under the statute, in the event \nthat  these  death  benefits  are  awarded  to  any  of  these  individuals,  she \nwould  be  entitled  to  a  statutory  fee,  and  that  was  not  addressed  in  that, \nbut I feel that needs to be addressed.  So I’m not hearing objections from \nthe  parties,  particularly  the  Claimant—I  mean,  from  the  Respondents.    I \nwill go ahead and add that as an issue as well. \n \nMS. McKINNEY:  That’s proper.  We did controvert dependence, so that is \na proper issue. \n \n Therefore, Claimant’s estate has proven by a preponderance of the evidence that \nRespondents  controverted  those  benefits,  and  that  the  appropriate  attorneys’  fee  here \nshould be 25 percent (25%) of the indemnity benefits awarded herein, one-half of which \nwould  be  paid  by  Claimant’s  estate  and  one-half  to  be  paid  by  Respondents  in \naccordance with  §  11-9-715.   See Death  &  Permanent  Total  Disability  Trust  Fund  v. \nBrewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \nC. Sanctions \n Respondents  have  asserted  that  that  counsel  for  Claimant’s  estate  should  be \nsanctioned  under  Ark.  Code  Ann.  §  11-9-717  (Repl.  2012),  quoted  extensively  in  their \nContention  No.  2, supra.    However,  the  estate  has  prevailed  in  the  quest  for  partial \ndependency  benefits  for  Claimant’s  surviving  immediate  family  members.   See  supra.  \nFor that reason, Respondents have not met their burden under this issue. \nCONCLUSION AND AWARD \n Respondents are directed to furnish/pay benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate until  paid, \n\nNAVERRETE – H205665 \n \n18 \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorneys  are  entitled  to a full 25  percent  (25%)  attorney’s  fee \nawarded herein, one-half of which is to be paid by Claimant’s estate and one-half to be \npaid by Respondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205665 ALEJANDRO MORALES NAVARRETE, DEC’D, EMPLOYEE CLAIMANT HIXSON LUMBER SALES, INC., EMPLOYER RESPONDENT UNION STANDARD INS. CO., CARRIER RESPONDENT OPINION FILED AUGUST 3, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 10, 20...","fetched_at":"2026-05-19T23:03:29.835Z","links":{"html":"/opinions/alj-H205665-2023-08-03","pdf":"https://labor.arkansas.gov/wp-content/uploads/Naverrete_Alejandro_H205665_20230803.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}