Winstead v. Derreberry

• Decision Date: 19 February 1985
• Docket Number: VARCO-PRUDEN,No. 8410IC561,8410IC561
• Citation: 73 N.C.App. 35,326 S.E.2d 66
• Court: North Carolina Court of Appeals
• Parties: Elizabeth Lucas WINSTEAD, widow of, Kenneth E. Winstead, Deceased; Frances A. Lucas, guardian ad litem for Chad Paul Brewer and Ronald Carl Brewer, Claimants-Appellees, v. Linda Gayle DERREBERRY, guardian for Melanie Rachelle Winstead, Claimant-Appellant, v.BUILDINGS, Employer-Appellee, Travelers Insurance Company, Carrier-Appellee.

Page 66

326 S.E.2d 66

73 N.C.App. 35

Elizabeth Lucas WINSTEAD, widow of, Kenneth E. Winstead,

Deceased; Frances A. Lucas, guardian ad litem for

Chad Paul Brewer and Ronald Carl Brewer, Claimants-Appellees, v. Linda Gayle DERREBERRY, guardian for Melanie Rachelle

Winstead, Claimant-Appellant, v. VARCO-PRUDEN BUILDINGS, Employer-Appellee, Travelers Insurance Company, Carrier-Appellee.

No. 8410IC561.

Court of Appeals of North Carolina.

Feb. 19, 1985.

Hunter, Hodgman, Greene, Goodman & Donaldson by Robert N. Hunter, Jr., Greensboro, for claimant-appellant.

Ling & Farran by Stephen D. Ling, Greensboro, for appellees.

WELLS, Judge.

Claimant Melanie Winstead brings forth four assignments of error to the Commission's order, each challenging payment of death benefits to deceased's two minor stepchildren under the Workers' Compensation Act [hereinafter the Act]. These assignments of error essentially present the sole question of whether a stepchild who is substantially but not legally dependent upon a stepparent can receive death benefits under the Act, a question of first impression before our appellate courts. We hold that stepchildren are not conclusively presumed to be wholly dependent upon a supporting stepparent but are entitled to death benefits if substantially dependent upon the stepparent, and affirm the Industrial Commission's award.

The applicable provisions of the Workers' Compensation Act provide that:

If death results proximately from the ... [covered] accident ... weekly payments of compensation ... [shall be paid] to the person or persons entitled thereto as follows:

(1) Persons wholly dependent for support upon the earnings of the deceased employee at the time of the accident shall be entitled to receive the entire compensation payable share and share alike to the exclusion of all other persons....

N.C.Gen.Stat. § 97-38 (Cum.Supp.1983) (Emphasis added). A claimant may be found "wholly dependent" by two distinct avenues. First, a claimant may be factually determined to be "wholly dependent" when that person subsists entirely on the earnings of the decedent worker. The claimant is "wholly dependent" even though occasionally receiving "gratuitous services ..., or ... financial assistance ..., or ... other minor considerations or benefits which do not substantially modify or change the general rule...." Thomas v. Gas Co., 218 N.C. 429, 11 S.E.2d 297 (1940).

Certain classes of individuals, widow, widower, and child, are conclusively presumed to be "wholly dependent." N.C.Gen.Stat. § 97-39 (1979) states that a:

[C]hild shall be conclusively presumed to be wholly dependent for support upon the deceased employee.

The term "child" is defined by the Act as including a:

[S]tepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him.... 'Child' ... include[s] only persons who at the time of the death of the deceased employee are under 18 years of age.

N.C.Gen.Stat. § 97-2(12) (1979).

We are guided in our determination of this case by time honored rules of statutory construction with respect to the Workers' Compensation Act.

First, the ... [Act] should be liberally construed, whenever appropriate, so that benefits will not be denied upon mere technicalities or strained and narrow interpretations of its provisions.... Second, such liberality should not, however, extend beyond the clearly expressed language of those provisions, and our courts may not enlarge the ordinary meaning of the terms used by the legislature or engage in any method of 'judicial legislation.' ... Third, it is not reasonable to assume that the legislature would leave an important matter regarding the administration of the Act open to inference or speculation; consequently, the judiciary should avoid 'ingrafting upon a law something that has been omitted, which [it] believes ought to have been embraced.' ... Fourth, in all cases of doubt, the intent of the legislature regarding the operation or application of a particular provision is to be discerned from a consideration of the Act as a whole--its language, purposes and spirit.... Fifth, and finally, the Industrial Commission's legal interpretation of a particular provision is persuasive, although not binding, and should be accorded some weight on appeal and not idly cast aside, since that administrative body hears and decides all questions arising under the Act in the first instance....

Deese v. Lawn and Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140 (1982) (citations omitted). Melanie Winstead contends that because G.S. § 97-2(12) abrogated the common law rule that a stepchild has no right of support from a stepparent the statute must be strictly construed and the liberal interpretation accorded to the Act only applies in situations where liability, not benefits, is in issue. We disagree. The Deese court applied a liberal interpretation standard under facts in which apportionment of benefits, not liability of the employer, was in issue. See also e.g., Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968).

Applying the Deese principles, we begin our review of the legislature's purpose in G.S. § 97-38. It intends that death benefits will be first payable to those who were "wholly" dependent upon the deceased worker for financial support. If any claimant, or more than one claimant, is determined to be "wholly" dependent all death benefits are paid to that individual or individuals. If no claimant is found "wholly dependent" then benefits are paid to any claimant determined "partially dependent" to the exclusion of all others. If no person is either "wholly" or "partially" dependent, death benefits are paid to deceased's "next of kin."

With certain exceptions, not applicable to the facts before us, any individual who is factually "wholly" dependent upon the deceased worker is entitled to share in benefits. E.g. Thomas v. Gas Co., supra (deceased's mother); Scott v. Auman, 209 N.C. 853, 184 S.E. 830 (1936) (deceased's father). In addition, G.S. § 97-39 conclusively establishes three classes of individuals, widow, widower and children, to be "wholly" dependent, even if not factually dependent. Compare Bass v. Mooresville Mills, 11 N.C.App. 631, 182 S.E.2d 246 (1971), cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972) (wife living separate from husband under separation agreement and not factually dependent may be entitled to benefits if conjugal relations resumed shortly before deceased's death thereby vitiating separation agreement); with Sloop v. Exxon Service, 24 N.C.App. 129, 210 S.E.2d 111 (1974) (no benefits if valid separation agreement in full force and effect). The terms "child," "widow" and "widower" are defined by G.S. §§ 97-2(12), -2(14), -2(15). See e.g., Carpenter v. Tony E. Hawley, Contractors, 53 N.C.App. 715, 281 S.E.2d 783, disc. rev. denied, 304 N.C. 587, 289 S.E.2d 564 (1981) (child over 18 before decedent's death lost conclusive presumption of "child" and must prove factual dependency in order to qualify as "wholly" dependent under G.S. § 97-38). Within G.S. § 97-2(12) the term "child" is defined to include a natural, adopted, illegitimate, married children and a stepchild. Except for natural children, each sub-group defined as a child is limited in some fashion; adoption must be completed before the injury proximately causing death, illegitimate children must be acknowledged and dependent, and married children must be "wholly dependent" on the deceased. A fair reading of these provisions reveals the General Assembly's intent to afford the conclusive presumption of dependency to those persons who would most usually be factually dependent upon the deceased thereby alleviating the burdensome requirement of proof of dependency in every case. Mandating a conclusive presumption often effectuates the Act's goal of swift and certain award of benefits.

Melanie Winstead contends that the term "dependent" in G.S. § 97-2(12) which qualifies the words "stepchild" and "illegitimate" must be interpreted as legal, not factual, dependency citing Hewett v. Garrett, supra; Lippard v. Express Co., 207 N.C. 507, 177 S.E. 801 (1935). The Lippard court considered the award of benefits to a deceased worker's acknowledged illegitimate child born posthumously. The court held that in the context of illegitimate children "dependent" must be interpreted as legal not factual dependency stating:

The dependency with the statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial.

The philosophy of the common law, which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by the statute.

Lippard v. Express Co., supra. Melanie Winstead contends that because a stepparent is not legally obligated to support a stepchild, e.g. In re Dunston, 18 N.C.App. 647, 197 S.E.2d 560 (1973), a stepchild can receive death benefits under the conclusive presumption of G.S. § 97-38 only if the stepchild can show legal dependency. The argument fails under its own logic. As a stepchild has no legal right of support from a stepparent, we can envision no practical set of circumstances under which a stepchild could be legally dependent upon the stepparent...