Gentry v. Reaves Construction Co.

* * * * * * * * * * * The Full Commission incorporates the Findings of Fact and Conclusions of Law from the Amended Opinion and Award filed by the Full Commission on September 16, 2008 and makes further: FINDINGS OF FACT 1. William Rick Smith died as a result of a compensable accident that occurred on January 17, 2005. At the time of his death, William Rick Smith was employed by Reaves Construction Company, earning an average weekly wage of $320.00 per week, which yielded a compensation rate of $213.31 per week.

2. Tyler Jordan Gentry was born on October 15, 1995, and was 9 years of age at the time of the death of William Rick Smith. Tyler Jordan Gentry was the acknowledged illegitimate child of William Rick Smith and was conclusively presumed to have been wholly dependent upon William Rick Smith at the time of his death. Based on these findings of fact and conclusions of law, the Full Commission awarded Tyler Jordan Gentry one-half of the compensation due the whole dependents of William Rick Smith for 400 weeks or until his eighteenth birthday, whichever last occurred.

3. Brandon Carroll Smith was born on July 1, 1989, and was 15 years of age at the time of the death of William Rick Smith. The Full Commission made findings of fact and conclusions of law, that Brandon Carroll Smith was the acknowledged illegitimate child of William Rick Smith and, therefore, was conclusively presumed to have been wholly dependent upon William Rick Smith at the time of his death. N.C. Gen. Stat. §§ 97-2(12); 97-38; 97-39. Based on these findings of fact and conclusions of law, The Full Commission awarded Brandon Carroll Smith one-half of the compensation due whole dependents for 400 weeks.

4. The Full Commission concluded that Heather Pierce, the adult daughter of William Rick Smith, was only partially dependent upon William Rick Smith and, therefore, was not entitled to benefits pursuant to N.C. Gen. Stat. §§ 97-38; 97-39.

5. The Full Commission found that the defendant-employer, Reaves Construction Company, had willfully violated OSHA safety and health laws, rules and regulation as enumerated in the Findings of Fact and concluded that the defendant-employer was subject to a ten percent (10%) penalty for its willful noncompliance. The Full Commission assessed a ten percent (10%) penalty against the defendant-employer to be paid to the two dependents in addition to the compensation awarded them for the death of William Rick Smith.

6. The Full Commission awarded Gene A. Riddle, Attorney at Law, an attorney's fee of fifteen percent (15%) of the compensation and penalty awarded Tyler Jordan Gentry, for representing the interests of Tyler Jordan Gentry in this matter. Likewise, the Full Commission awarded Ralph G. Willey, Attorney at Law, an attorney's fee of fifteen percent (15%) of the compensation and penalty awarded Brandon Carroll Smith for representing the interests of Brandon Carroll Smith in this matter.

7. Pursuant to the Amended Opinion and Award, Key Risk Insurance Company, workers' compensation carrier for defendant employer, paid each of the dependents a weekly compensation of $213.31 x 1.10 = $117.33 — ($117.33 x .15) = $99.73 per week. The attorneys' fees were paid monthly in the amount of $117.32 x .15 = $17.60 x 52 = $76.26 per month.

8. Tyler Jordan Gentry died on April 5, 2009. At that time, the whole dependents had received benefits for 220 weeks and the defendants were obligated under the Amended Opinion and Award to pay the whole dependents for an additional 180 weeks.

* * * * * * * * * * * Based upon the above findings of fact and conclusions of law incorporated from the Amended Opinion and Award of September 16, 2008, the Full Commission makes the following: CONCLUSIONS OF LAW 1. "If there is a decrease in the dependent beneficiary poolduring the 400 weeks following the employee's death there must be a corresponding reapportionment of the full award payable for that set period among the remaining eligible members of the pool."Deese v. Southeastern Lawn and Tree Expert Co.,306 N.C. 275, 279-80, 293 S.E.2d 140, 144 (1982).

2. The death of Tyler Jordan Gentry before the expiration of the initial 400 weeks following the death of William Rick Smith constitutes a decrease in the dependent beneficiary pool and requires that the full award be paid to the sole remaining wholly dependent beneficiary, Brandon Carroll Smith, beginning on the date of Tyler Jordan Gentry's death, April 5, 2009. Deese v.Southeastern Lawn and Tree Expert Co.,306 N.C. 275, 293 S.E.2d 140, (1982).

3. On and after April 5, 2009, the sole wholly dependent beneficiary, Brandon Carroll Smith was and is entitled to the full weekly compensation payable for the death of William Rick Smith in the amount of $213.31, together with a ten percent (10%) penalty in the amount of $21.33, for a total weekly benefit of $234.64 per week.

4. The attorneys' fees in the amount of fifteen percent (15%) as previously awarded in the Amended Opinion and Award, should be deducted and paid one-half to Gene Riddle, Attorney for Tyler Jordan Gentry, and one-half to Ralph G. Willey, III, Attorney for Brandon Carroll Smith until expiration of the 400 weeks.

5. Each attorney should receive $234.64 x .15 = $35.20 = $17.60 per week, or in conformity with the current monthly pay schedule, $17.60 x 52 = $76.26 per month.

* * * * * * * * * * * Based on the foregoing findings of fact and conclusions of law, the Full Commission enters the following: AWARD 1. Beginning April 5, 2009, the defendants shall pay the full compensation due for the death of William Rick Smith in the amount of $213.31 per week, together with the ten percent (10%) penalty previously assessed under the September 16, 2008 Amended Opinion and Award, to Brandon Carroll Smith for the remainder of the 400 weeks payable to him pursuant to or until further order of the Commission.

2. The Award of full compensation and penalty made to Brandon Carroll Smith in the preceding paragraph is made subject to attorneys' fees in the amount of fifteen percent (15%) of the compensation and penalty. The defendant-employer and/or workers' compensation carrier are to deduct the attorneys' fees in the amount of $35.20 per week, or $152.52 per month, at the election of the employer and carrier from the compensation and penalty due Brandon Carroll Smith under paragraph one of this Award. The employer and/or carrier is to then pay $17.60 per week, or $76.26 per month, directly to Gene Riddle, Attorney for Tyler Jordan Gentry, and $17.60 per week, or $76.26 per month, directly to Ralph G. Willey, III, Attorney for Brandon Carroll Smith as the same becomes due until expiration of the 400 weeks.

This the 2nd day of December, 2010.

S/_________________ DANNY LEE McDONALD COMMISSIONER

CONCURRING:

S/____________________ BERNADINE S. BALLANCE COMMISSIONER

S/_____________ LINDA CHEATHAM COMMISSIONER