McLean v. Coca-Cola Bottling Co. Consol.

2. An employer-employee relationship existed between the defendant-employer and decedent at all relevant times herein.

3. Defendant-employer was an approved self-insured with RSKCO acting as its servicing agent at all relevant times herein.

4. Decedent's average weekly wages were $581.39 per week on or about July 21, 2000, yielding a compensation rate of $387.62 per week.

5. Kali Askiri Garvey, the deceased employee, sustained an injury by accident while in the course and scope of his employment with defendant-employer on July 21, 2000, and the said injury by accident caused the deceased employee's death.

6. The decedent was survived by his minor child, Matthew Kali Askin Garvey, his mother Brigitte Garvey, his father Bentham Garvey, his sister Kanika Garvey and his brother Bakiri Garvey. The minor child was the only person dependent upon the deceased employee at the time of his death. It should be noted that the minor child Matthew Kali Askin Garvey was not born until after the death of the deceased employee, and that by Order of the District Court of Cumberland County, North Carolina in File Number 01 CVD 7189 the Court found the said minor child to be the child of the deceased employee; said Order is dated October 2, 2001. Decedent was not survived by anybody else who was either wholly or partially dependent upon him at the time of his death.

The issues to be determined from this hearing are as follows:

a) Who are the dependents of the deceased employee?

b) What, if any, benefits are the dependents entitled to receive under the North Carolina Workers' Compensation Act?

2. A 3 May 2001 Final Order for Name Change from the Superior Court in Fulton County, Georgia reads, in pertinent part: "IT IS ORDERED AND DECREED that KEITH ANDREZ DAWSON'S name shall be removed from the child's birth record and replaced by the natural father, KALI ASKIRI GARVEY." (Emphasis added).

3. Decedent was survived by his posthumous child, Matthew Kali Askin Garvey, his mother Brigitte Garvey, his father Bentham Garvey, his sister Kanika Garvey and his brother Bakiri Garvey.

4. Decedent's posthumous child was originally given the last name of a friend of the child's mother so the baby would be provided neonatal health care.

5. The decedent had never married and had no other children.

6. Decedent's mother Brigitte M. Garvey was given the custody, care and control of the minor child, Matthew Kali Askiri Garvey on October 2, 2001.

7. Defendant presented no expert testimony to explain the DNA data submitted. Defendant alleges that the raw DNA data disproves Matthew Kali Askiri Garvey's biological grandparantage by Brigitte Garvey and Bentham Garvey, thereby excluding decedent as the biological father of Matthew Kali Askiri Garvey.

8. Despite apparent irregularities in the circumstances surrounding decedent's birth certificate and notwithstanding defendant's "non-grandparantage" theory, defendant presented no evidence establishing that decedent was the biological son of Bentham Garvey and Brigitte Garvey.

2. "Full faith and Credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." U.S. Const. Art. IV § 1, cl 1.

3. Given the finding made in the State of Georgia and the lack of contrary evidence presented, Matthew Kali Askiri Garvey is decedent's biological posthumous child and is presumed to be dependent upon decedent. U.S. Const. Art. IV § 1, cl 1; N.C.G.S. §§ 97-2(12);97-39.

4. As a result of decedent's fatal injury by accident, plaintiffs are entitled to have defendant pay for the medical expenses incurred for the treatment of decedent's injuries sustained as a result of the injury by accident. N.C.G.S. § 97-25.

5. As a result of decedent's fatal injury by accident, plaintiffs are entitled to have defendant pay burial expenses not exceeding $2,000.00 to the person or persons entitled thereto. G.S. § 97-38.

6. Matthew Kali Askin Garvey is entitled to decedent's full death benefits. N.C.G.S. §§ 97-2(12); 97-38; 97-39.

7. Matthew Kali Askiri Garvey is entitled to $387.62 per week beginning July 21, 2001 and continuing for 400 weeks, or until Matthew Kali Askiri Garvey reaches the age of majority, whichever occurs last.

2. Defendant shall pay burial expenses not exceeding $2,000.00 to the person or persons entitled thereto.

3. Defendant shall pay for all medical expenses incurred by decedent as a result of the said injury by accident.

4. A reasonable attorney fee in the amount of 25% of the amount due in paragraph 1 of this AWARD is approved for plaintiff's counsel. To the extent that a sum has accrued, 25% of that sum shall be paid to plaintiff's counsel. Thereafter, for the duration of the award period, every fourth check shall be paid directly to plaintiff's counsel.

5. Defendant shall pay the costs of this action.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

I respectfully dissent from the majority's findings of fact and conclusions of law that Mathew Kali Askin Garvey is the posthumous child of the deceased employee, Kali Askiri Garvey. In order to receive death benefits, an individual must meet the statutory definition of "child" as defined in N.C. Gen. Stat. § 97-2(12). The minor child herein has failed to prove that he is the child of the decedent.

The majority relies upon the Final Order for Name Change from the Superior Court in Fulton County, Georgia as proof that the minor child at issue is the posthumous child of the deceased. However, this non-adversarial proceeding is not sufficient to establish these facts. Specifically, the Court of Appeals found in the case of Tucker v. City ofClinton, 120 N.C. App. 776, 782, 463 S.E.2d 806,811 (1995), that a county clerk order legitimating a child in a non-adversarial proceeding was insufficient to provide proof of paternity for the Industrial Commission, stating "the Commission should have made such reasonable foundational inquiries necessary to ensure the Order contained a reasonably modicum of trustworthiness." In the instant case, the name change was a non-adversarial procedure performed by filing a form with the Georgia Clerk. There is no evidence that any testimony was presented or that there was an opportunity for cross examination. Moreover, no scientific evidence was presented to confirm the assumption and the representation to the clerk that the minor child was in fact the biological son of the deceased. The Court in Tucker further stated that "evidence of the facts within the clerk's Order may be tendered to the Commission, but those facts must be individually proven, and not "bootstrapped" facts from the Order itself." Id. 783. The majority's conclusion that the Full Faith and Credit Clause applies to the name change order which lists the decedent as the "natural father" of the minor child is not based upon competent evidence because the majority has "bootstrapped" facts from a perfunctory order based on a non-adversarial proceeding. Significantly, the majority fails to conduct an analysis of the underlying facts and procedure, which is contrary to the holding inTucker.

Furthermore, the majority has incorrectly placed the burden on defendant to disprove that the minor child is the child of the decedent. The DNA evidence presented by the defendant revealed 0% probability of grandparentage between the minor child and the parents of the deceased. Plaintiff discredits the DNA evidence by arguing that there is no evidence that the Garveys are the natural parents of the deceased employee. However, in the evidentiary record, the deceased is described as the Garvey's son and there is no mention of the possibility that the deceased was the natural child or adopted child of the Garveys. Further, the Garveys agreed to undergo the DNA testing. If there were a question as to their parentage of the deceased, logic dictates that they would have revealed so at the time. It was only after the introduction of the DNA evidence that the minor plaintiff makes the argument that the deceased may not have been the biological son of the Garveys. In the interest of justice this matter could be resolved by the submission of the Garveys' affidavit or deposition. Consequently, if the deceased was in fact their natural child, then based on the DNA evidence presented the minor child would not be the decedent's illegitimate post-humous child.

Moreover, even if the minor plaintiff proves that he is in fact the illegitimate post-humous child of the decedent, the minor plaintiff also has the burden to prove that he was acknowledged by decedent before his death by decedent's actions, statements or conduct. Carpenter v. Hawley,53 N.C. App. 715, 718, 281 S.E.2d 783, 786-87 (1981). Only decedent's mother testified in this matter and decedent did not inform her of the impending birth but merely stated that he must go to Atlanta for "something important". This statement is insufficient under the law to show acknowledgment.

Thus, I must dissent from the majority's findings of fact and conclusions of law that Mathew Kali Askin Garvey is the posthumous child of the deceased employee, Kali Askiri Garvey and would hold that the Garveys are the proper beneficiary as next of kin under the statute.

S/_______________ DIANNE C. SELLERS COMMISSIONER