
    James David THURMOND and Vera Evelyn Thurmond v. W.S. NEWELL, INC.
    Civ. 5309.
    Court of Civil Appeals of Alabama.
    Aug. 13, 1986.
    Rehearing Denied Sept. 17, 1986.
    Certiorari Denied Dec. 5, 1986 Alabama Supreme Court 85-1567.
    Sam E. Loftin, Phenix City, W. Banks Herndon, Opelika, for appellants.
    James H. Anderson of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case which was brought by parents who were partially dependent upon their son who died as a result of an injury on his job. It was previously before us on appeal. W.S. Newell, Inc. v. Thurmond, 481 So.2d 398 (Ala.Civ.App.1985).

After remand, the trial court rendered a judgment in which it found that the deceased son of the plaintiffs drowned in the line and scope of his employment with the defendant employer, that no persons were totally dependent upon the deceased at the time of his death, that the deceased was earning average weekly wages of $134 per week when he drowned, that his parents were partial dependents of the deceased, that the parents’ weekly income was $102 per week and that the deceased contributed $75 per week to the support of his parents. The trial court determined that the weekly compensation to be paid to the parents by the employer amounted to $37.85. The parents timely appealed.

In computing the weekly compensation to be paid to the parents, the trial court added to their income of $102 per week the $75 weekly contribution by the deceased son, giving the parents a total weekly income of $177. The parents contend that only the $102 per week should have been considered in determining their total income for compensation purposes. Judge James O. Haley in examples contained in his 1982 treatise, Handbook on Alabama’s Workmen’s Compensation, at pages 106 and 107, adds the deceased employee’s contributions to a partial dependent’s income to ascertain the dependent’s total income. We find np error as to that issue.

The parents' other contention is that the trial court erred in awarding to them only $37.85 per week as benefits. They argue that they are entitled to receive the minimum weekly compensation of $69 per week. That amount was the minimum weekly compensation that was in effect when the son drowned.

As to minimum weekly compensation, the workmen’s compensation statute expressly provides as follows:

“The compensation payable to partial dependents shall be subject to a maximum and minimum weekly compensation as stated in section 25-5-68, but if the income loss of said partial dependents by such death is less than the minimum weekly compensation stated in section 25-5-68, then the dependents shall receive the full amount of their income loss. This compensation shall be paid during dependency, not exceeding 500 weeks.”

§ 25-5-60(2), Code 1975.

The following is directly concerned with partial dependents in workmen’s compensation death cases.

“Another situation could be if there were no total dependents to receive benefits. The partial dependents would be entitled to receive the proportion of the benefits provided for total dependents which the average amount of the earnings regularly contributed by the deceased person to such partial dependent, at and for a reasonable time immediately prior to the injury, bore to the total income of the dependent during the same time. The compensation payable shall be subject to the maximum and minimum weekly compensation as stated in § 25-5-68, Code of Alabama 1975, as last amended, but if the income loss of said partial dependent by such death is less than the minimum weekly compensation as stated in § 25-5-68, then the dependents shall receive the full amount of their income loss.”

J. Haley, Handbook on Alabama’s Workmen’s Compensation Law, at 107 (1982).

The various alternatives regarding the amount of compensation death benefits for partial dependents have been succinctly summarized and stated as follows:

“Partial dependents receive compensation that is proportional; one compares the average amount of earnings regularly contributed by the deceased to the total income of the dependent. There is an additional computation to be made in case of a total dependent and one or more partial dependents. Again, compensation to partial dependents is subject to the maximum and minimum weekly compensation amounts calculated with the average weekly wage (never less than 25 percent and never more than 66⅜ percent). If the income loss to partial dependents is less than the minimum weekly compensation, however, the partial dependents are entitled to receive the full amount of their income loss.
“Compensation paid due to the death of an employee ceases upon death or marriage of a dependent.
“The basic formula for computing death benefits in the case of one dependent is as follows:
“(a) WB possible = AWE (time of injury) X 50 percent
“(b) Percent dependency = [ (Average amount contributed to dependent for reasonable time) -f- (Total income of dependent for reasonable time) ] x 100
“(c) WB payable = WB possible x percentage dependency (If totally dependent, either by law or fact, use 100 percent)
“1. If WB payable is more than the maximum weekly compensation, use the maximum weekly compensation for the WB payable to the dependent for the period, but not to exceed 500 weeks.
“2. If WB payable is less than the maximum weekly compensation, but more than the minimum weekly compensation, use WB payable for the period, but not to exceed 500 weeks.
“3. If WB payable is less than the minimum weekly compensation and the income loss to a partial dependent, or if the AWE (time of injury) in the case of a total dependent is more than the minimum weekly compensation, use the minimum weekly compensation as the WB payable to the dependent for the period, but not to exceed 500 weeks.
“4. If the income loss to the partial dependent or if the AWE (time or injury) in the case of a total dependent is less than the minimum weekly compensation, use the income loss to the partial dependent or the AWE (time of injury) in the case of a total dependent as the WB payable for the period, but not to exceed 500 weeks.”

J. Hood, B. Hardy and E. Saad, Alabama Workmen’s Compensation, § 10-16, at 91-92 (1982). (footnotes omitted)

Here, the trial court computed the weekly benefits payable to be $37.85 and ordered that amount paid weekly to the parents. However, since that figure is less than the minimum weekly compensation of $69 and since the income loss of $75 per week to the partially dependent parents was more than the minimum weekly compensation, alternative number 3 in the Hood treatise applies, and the minimum weekly compensation is the weekly benefit which is payable to the parents by the employer. The learned trial court incorrectly established the amount of weekly compensation payable to the parents, which should have been the minimum compensation of $69 per week instead of $37.85 per week.

We realize that the learned trial court, in good faith attempted to follow the mandate of this court upon remand. However, no issue was raised in this court in the first appeal as to the matters which have been argued and decided on the present appeal. In the first appeal a question was presented concerning whether or not the trial court erred in basing its findings upon its desire to enable the parents to receive a larger award, rather than upon the trial court’s best assessment of the evidence, and our prior opinion responded to that issue. In the present appeal, we are concerned with whether alternative number 3 from the Hood treatise is applicable.

This case must be reversed and remanded for the entry of a judgment which is consistent with this opinion.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the majority of the court.

REVERSED AND REMANDED.

WRIGHT, P.J., and BRADLEY, J., concur.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I agree with the majority that the amount the deceased contributed to the plaintiffs’ weekly income must be included in determining the plaintiffs’ total weekly income for purposes of workmen’s compensation. I disagree, however, with the majority’s conclusion that the plaintiffs are entitled to the statutory minimum weekly compensation, and I therefore respectfully dissent.

Whether the plaintiffs are entitled to the statutory minimum compensation under the facts of this case or to some lesser sum appears to be purely a matter of statutory interpretation. We are cited to no case in which an Alabama appellate court has dealt with this issue. It is apparently a question of first impression.

Alabama Code (1975), § 25-5-60(2) provides that the compensation payable to partial dependents in the case of death “shall be subject to a ... minimum weekly compensation as stated in section 25-5-68.” Thus, the extent to which the compensation payable to a partial dependent by reason of death may be subject to the minimum weekly compensation is governed more specifically by Ala.Code (1975), § 25-5-68.

Paragraph (b) of § 25-5-68 provides:

“With respect to injury or death resulting from an accident occurring on or after July 1,1976, the compensation paid under this article shall be not less than, except as otherwise provided in this article, 25 percent of the average weekly wage of the state as determined by the director of industrial relations ... and, in any event, no more than 66% percent of such average weekly wage.”

(emphasis supplied).

But for the above-emphasized language, one might easily conclude that the statutory minimum applies to all workmen’s compensation claims payable by reason of death. Such, in effect, is the implied conclusion of the majority. It is my opinion that the exempting language of § 25-5-68(b) precludes such a conclusion.

I agree with the employer that the compensation payable to a partial dependent due to death, as provided by Ala.Code (1975), § 25-5-60(l)d. is an instance where the compensation payable by reason of death is “otherwise provided” and § 25-5-68(b) does not govern. Section 25-5-60(l)d. provides in pertinent part:

“Partial dependents shall be entitled to receive only that proportion of the benefits provided for total dependents which the average amount of the earnings regularly contributed by the deceased employee to such partial dependent, at and for a reasonable time immediately prior to the injury, bore to the total income of the dependent during the same time.”

Under § 25-5-60(l)d. partial dependents, such as the plaintiffs, are not in all cases entitled to the statutory minimum compensation provided by § 25-5-68(b). Rather, they are entitled only to that proportion of the benefits provided for total dependents which the average amount of the earnings regularly contributed by the deceased bore to their total income. Applying this statutory mandate to the facts of the instant case requires the conclusion that plaintiffs are not entitled to the statutory minimum compensation of $69, but to $37.85.

It is an understatement to say that certain portions of the workmen’s compensation statutes of this state are confusing. Moreover, they may at times appear to require an illogical result. An argument can certainly be made that it is not logical for the partial dependents in this case not to receive the statutory minimum compensation. Nevertheless, in my opinion the better, and perhaps the mandated, interpretation of the workmen’s compensation statutes is one which gives effect to the exempting language of § 25-5-68(b), rather than ignoring it as apparently does the majority opinion.

It is interesting to note, moreover, that when this case was before this court on the prior appeal, the plaintiffs never raised as an issue their alleged entitlement to the statutory minimum compensation under § 25-5-68(b). It is also interesting to note that the learned and distinguished trial judge on prior remand attempted to follow what we implied in the first appeal of this case. One might now conclude that we did not really mean what was said and implied in W.S. Newell, Inc. v. Thurmond, 481 So.2d 398 (Ala.Civ.App.1985).

In any event, I would affirm the decision of the trial court.  