Appeal by defendants from opinion and award of the North
Carolina Industrial Commission entered 13 June 2003. Heard in the
Court of Appeals 19 May 2004.
Mitchell, Brewer, Richardson, Adams, Burns & Boughman, by
Vickie L. Burge, for plaintiff-appellees.
Lewis & Roberts, P.L.L.C., by Christopher M. West and Jack S.
Holmes, for defendant-appellants.
Bentham Garvey and Brigitte M. Garvey, Pro Se.
ELMORE, Judge.
Kali Askiri Garvey (decedent) was killed in a car accident
which arose out of and was in the course of his employment with
Coca-Cola Bottling Company Consolidated (Coca-Cola). After
decedent passed away, a child was born to Santrise Jackson
(Jackson), a Georgia resident, which she claimed was fathered by
decedent. Jackson contacted decedent's mother, Brigitte Garvey
(Ms. Garvey), to tell her that she was having decedent's baby and
did not want to keep the baby. Keith Andrez Dawson (Dawson) was
listed as the child's father on the birth certificate issued by the
State of Georgia, allegedly to make sure the hospital bill was
covered by insurance. Later, Jackson hired an attorney to have the
birth certificate changed to name decedent as the father. Decedent
never married nor had any other children. Decedent's parents, Mr.
and Ms. Garvey, are now raising the child.
A petition was brought before the North Carolina Industrial
Commission (the Commission) in the name of the minor child,
claiming death benefits from decedent's work-related fatal
accident. Deputy Commissioner George T. Glenn filed an opinion
awarding benefits to the minor child. Defendants appealed to the
Full Commission, which upheld the award, with a dissent. The
opinion and award concluded as a matter of law that the child was
decedent's biological posthumous child and was presumed to be
dependent on the decedent. This conclusion was based on the
Georgia court's order allowing Jackson's petition to change the
child's birth certificate to reflect decedent as the father. From
this opinion and award, defendant now appeals.
I.
The standard for appellate review of an opinion and award of
the Industrial Commission is well settled. Review “is limited to
a determination of (1) whether the findings of fact are supported
by competent evidence, and (2) whether the conclusions of law are
supported by the findings.” Barham v. Food World, 300 N.C. 329,
331, 266 S.E.2d 676, 678 (1980); see also Shah v. Howard Johnson,
140 N.C. App. 58, 61, 535 S.E.2d 577, 580 (2000), disc. review
denied, 353 N.C. 381, 547 S.E.2d 17 (2001).
In addition, “so long as there is some 'evidence of substance
which directly or by reasonable inference tends to support the
findings, this Court is bound by such evidence, even though there
is evidence that would have supported a finding to the contrary.'”
Shah, 140 N.C. App. at 61-62, 535 S.E.2d at 580, (quoting
Porterfield v. RPC Corp., 47 N.C. App. 140, 144, 266 S.E.2d 760,
762 (1980)). “[O]ur task on appeal is not to weigh the respective
evidence but to assess the competency of the evidence in support of
the Full Commission's conclusions.” Calloway v. Memorial Mission
Hosp., 137 N.C. App. 480, 486, 528 S.E.2d 397, 401 (2000).
Our Supreme Court has also reasoned:
. . . that this Court is bound by the
Commission's finding of fact when there is any
evidence to support it. . . . But the
principle must be applied with discrimination.
A “fact found” upon supporting evidence may be
posited as an evidentiary fact purporting to
establish the existence of another, or other
facts or factual situations necessary to the
final result; or leading to a question of fact
and law, or a conclusion of law upon which the
decision or award is necessarily predicated.
It is still the office of this Court todetermine whether a reasonable inference may
be drawn from the basic fact, or facts, found
by the Commission tending to establish the
other facts in sequence, or the conclusions
predicated upon them. . . .
Evans v. Lumber Co., 232 N.C. 111, 116, 59 S.E.2d 612, 615-16
(1950).
II.
Defendants first argue on appeal that the Full Commission
erred in concluding that the minor child was a dependent of the
decedent. We agree.
The Commission concluded as a matter of law:
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);
N.C.G.S. §97-39.
North Carolina provides full faith and credit to a paternity
determination made by another state only if such a determination is
made: “(1) [i]n accordance with the laws of that state, and (2)
[b]y any means that is recognized in that state as establishing
paternity[.]” N.C. Gen. Stat. § 110-132.1 (2003). Accordingly, we
must examine the law of Georgia to determine whether amendment of
a birth certificate via a name change petition is a “means that is
recognized in that state as establishing paternity[.]”
Id.
It appears that Georgia allows paternity to be resolved, in
some instances, through amendment of a birth certificate.
Doe v.
Roe, 235 Ga. 318, 319, 219 S.E.2d 700, 701 (1975) (stating that a
name change petition “would be the proper legal vehicle for theresolution of this dispute [between two putative fathers regarding
paternity], serving a petition on both purported fathers, making
both of them parties to the proceedings. The trial judge would
then have to resolve the dispute.”) However, it appears that such
a procedure, set forth as part of the Georgia domestic relations
laws, Ga. Code Ann. § 19-12-1
et. seq, cannot be used to establish
paternity following the putative father's death.
Rodriguez v.
Nunez, 252 Ga. App. 56, 60, 555 S.E.2d 514, 518 (2001) (action to
determine paternity, provided for within the title “Domestic
Relations,” does not apply when “the putative father is not alive,
and [the case] includes no issues of child support, adoption,
custody, or visitation.”) In addition, although Ga. Code Ann. § 19-
7-46.1(a) provides that the appearance of the name of the father on
the birth certificate constitutes
prima facie evidence of
paternity, this is true only if the name was “entered with his
written consent[.]”
In the present case, which includes no issues of child
support, adoption, custody, or visitation, the Georgia order was
entered after the death of decedent, the putative father. Nor did
decedent give his written consent to inclusion of his name on the
birth certificate. Therefore, the Georgia order, even if it
purports to determine paternity, is not, on these facts, a means
recognized by the state of Georgia as establishing paternity.
Rodriguez, 252 Ga. App. at 60, 555 S.E.2d at 518. Accordingly, the
Georgia order is not entitled to full faith and credit in NorthCarolina on the issue of paternity, pursuant to N.C. Gen. Stat. §
110-132.1.
Because the Commission based its opinion and award on its
belief that the Georgia order was binding, we conclude that the
Commission acted under a misapprehension of the law in awarding
benefits to the minor child as a presumed dependent of decedent.
When the Commission acts under a misapprehension of the law, the
award must be set aside and the case remanded for a new
determination using the correct legal standard.
Holley v. ACTS,
Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003). In the case
Tucker v. City of Clinton, 120 N.C. App. 776, 463 S.E.2d 806
(1995), this Court, after concluding that the Commission erred in
relying upon a clerk of court's posthumous determination of
paternity, “recognize[d] that evidence can exist independent of the
clerk's Order which might suffice to pass the
Carpenter [v. Tony E.
Contractors, 53 N.C. App. 715, 281 S.E.2d 783 (1981)] test” and
remanded the matter to the Commission for rehearing.
Tucker, 120
N.C. App. at 783, 463 S.E.2d at 811.
Based on
Tucker and
Holley, and noting that defendants also
contend the Commission erred in failing to determine whether or not
decedent acknowledged the child as his son, we conclude that remand
for rehearing on the issues of paternity and acknowledgment is the
proper disposition in the present case. Regarding acknowledgment,
we conclude that to the extent defendants seek to impose a
requirement under the Workers' Compensation Act of proof of
acknowledgment separate from paternity, such a construction mayrender the Act unconstitutional under
Weber v. Aetna Casualty &
Surety Co., 406 U.S. 164, 31 L. Ed. 2d 768 (1972) (restrictions
placed on recovery rights of illegitimate children under workers'
compensation statute must bear rational relationship to statute's
objective). Plaintiffs, however, have not raised this
constitutional issue, and it is therefore not before us.
Nevertheless, a remand for rehearing may eliminate any concern
about
Weber. Remand would give the Commission an opportunity to
further explore the evidence regarding DNA testing which the record
indicates was presented at the hearing. If the Commission
ultimately concludes that the evidence establishes paternity, then
the question of acknowledgment need not be reached. Even if the
Commission determines that decedent is not the child's biological
father, the child would qualify for death benefits if plaintiffs
can show that decedent acknowledged the child through his actions
or conduct.
This case is reversed and remanded to the Industrial
Commission for rehearing consistent with this opinion.
Reversed and remanded.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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