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TAYLOR v. LUBRITECH9/12/2001
This is an appeal from a decision of the Arkansas Workers' Compensation Commission finding that the average weekly wage of the decedent was $761.42 and denying dependency death benefits to the decedent's stepgrandson. On appeal, the appellant argues that the Commission erred in its failure to include the decedent worker's health insurance allowance, bonus, and vacation pay in the average weekly wage calculation and that the Commission erred in its failure to recognize a stepgrandchild as a dependent entitled to workers' compensation death benefits. We affirm the Commission.
Doyle Taylor worked as a truck driver for Lubritech. On April 18, 1997, Mr. Taylor died in a work-related accident. He was survived by his wife, Wilma Taylor, a stepson, Gerry Louis Coins, and a stepgrandson, Austin Coins. Travelers Insurance Company, appellee's insurance carrier, contested the compensability of the death. On September 25, 1997, an Administrative Law Judge of the Workers' Compensation Commission found the injury compensable. Travelers Insurance Company paid dependency death benefits
to Mrs. Taylor ($667 biweekly) and Austin Coins ($286 biweekly) based on an average weekly wage calculated to be $953. Travelers later reduced the payments to $488 and $206 respectively. Travelers justified the reduction in benefits based on a decision that Mr. Taylor's average weekly wage was actually $761.42 rather than $953. Travelers and Lubritech also argued that Austin Coins was not entitled to any benefits because he was a stepgrandchild; therefore, he was not a dependent under Arkansas Code Annotated section 11-9-522 (Supp. 1999). The ALJ found that the insurance, bonus, and vacation pay were not part of the decedent's average weekly wage and that Austin Coins was ineligible for dependency-death benefits. This decision was adopted and affirmed by the full commission on October 27, 2000.
Standard of Review
This court reviews decisions of the Arkansas Workers' Compensation Commission to see if they are supported by substantial evidence. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001).
Calculation of Average Weekly Wage
[2, 3] Appellant's first argument on appeal is that the Workers' Compensation Commission erred in its failure to include the decedent worker's health insurance allowance, bonus, and vacation pay in the average weekly wage calculation. Whether the decedent's health insurance allowance, bonus, and vacation pay should be included in the calculation of decedent's average weekly wage turns on whether he was a piece-rate worker. A piece-rate worker is one who is paid on the basis of the quantity of work done. Mamika v. Barca, 80 Cal.Rptr.2d 175 (1998). Wilma Taylor testified the decedent was paid by the mile. Lubritech presented evidence showing that decedent's pay varied according to the miles he drove. This variance indicates decedent was paid by the actual miles driven. The evidence clearly establishes decedent's pay was based upon the number of miles driven; therefore we hold decedent, a truck driver paid by the mile, was a piece-rate worker.
Arkansas Code Annotated section 11-9-518(a)(2) (Repl. 1996), provides that the average weekly wage of a piece-rate worker shall be calculated as follows:
(2) Where the injured employee was working on a p
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