{ "id": 8353411, "name": "CARRIE ALLEN NICHOLSON, Widow of KENNEDY F. NICHOLSON, Deceased Employee, and QUANTILLA NICOLE NICHOLSON, Adult Child, and KENYA LORRAINE NICHOLSON, Adult Child, and KEITH TYRONE ALLRED, Alleged Dependent Minor Child, Plaintiffs v. EDWARDS WOOD PRODUCTS, Employer, and FORESTRY MUTUAL INS. CO., Carrier, Defendants", "name_abbreviation": "Nicholson v. Edwards Wood Products", "decision_date": "2006-02-07", "docket_number": "No. COA05-629", "first_page": "773", "last_page": "776", "citations": [ { "type": "official", "cite": "175 N.C. App. 773" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "420 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527719 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0479-01" ] }, { "cite": "491 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798491 ], "year": 1997, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0529-01" ] }, { "cite": "484 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710610 ], "year": 1997, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0354-01" ] }, { "cite": "561 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125602 ], "year": 2002, "pin_cites": [ { "page": "109-10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0105-01" ] }, { "cite": "592 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919824 ], "year": 2004, "pin_cites": [ { "page": "690-91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0688-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(12)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 399, "char_count": 8069, "ocr_confidence": 0.752, "pagerank": { "raw": 5.5127281562657935e-08, "percentile": 0.3444876515966761 }, "sha256": "5793b8437617a9dd590bda0fac1b65964a293dcc67cbce12fd43231188f8db14", "simhash": "1:e2f0eda616ba48d0", "word_count": 1286 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and JACKSON concur." ], "parties": [ "CARRIE ALLEN NICHOLSON, Widow of KENNEDY F. NICHOLSON, Deceased Employee, and QUANTILLA NICOLE NICHOLSON, Adult Child, and KENYA LORRAINE NICHOLSON, Adult Child, and KEITH TYRONE ALLRED, Alleged Dependent Minor Child, Plaintiffs v. EDWARDS WOOD PRODUCTS, Employer, and FORESTRY MUTUAL INS. CO., Carrier, Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nEdwards Wood Products (\u201cdefendant-employer\u201d) and Forestry Mutual Insurance Co. (\u201cdefendant-carrier\u201d) appeal from an Opinion and Award of the Industrial Commission, concluding that although Keith Tyrone Allred (\u201cAllred\u201d) was not technically a \u201cchild\u201d of Kennedy Nicholson (\u201cthe decedent\u201d) within the meaning of N.C. Gen. Stat. \u00a7 97-2(12) (2005), he was a \u201cdependent child\u201d within the meaning of N.C. Gen. Stat. \u00a7 97-38(3) (2005). Pursuant to this determination, the Industrial Commission awarded Allred benefits until he reached the age of eighteen. We vacate the Opinion and Award.\nOn 15 August 2002, the decedent was employed as a transportation driver for defendant-employer. On that date, the decedent was involved in a compensable accident that resulted in his death. At the time of his death, the decedent and his wife Carrie Allen Nicholson (\u201cNicholson\u201d) had two minor biological children, Kenya Lorraine Nicholson and Quantilla Nicole Nicholson. The decedent and Nicholson also cared for a boy, Allred, who they raised since he was approximately two months old. Allred was age seven (7) at the time of the accident. Nicholson testified that she and the decedent took care of Allred and provided sole support for him. However, the decedent and Nicholson never officially adopted Allred because his biological father would not sign a relinquishment of his parental rights.\nDeputy Commissioner Theresa B. Stephenson subsequently reviewed, inter alia, the issue of whether Allred qualified as a \u201cchild\u201d within the meaning of the Workers\u2019 Compensation Act. In an Opinion and Award of 20 February 2003, the deputy commissioner concluded that Allred \u201cqualifies as a \u2018child\u2019 under [N.C. Gen. Stat. \u00a7] 97-39 and therefore he is presumed to be wholly dependent upon the earnings of the deceased employee and is entitled to a share of the compensation available pursuant to [N.C. Gen. Stat. \u00a7] 97-38.\u201d The deputy commissioner then awarded Allred benefits until he reached the age of eighteen (18). From that Opinion and Award, defendants filed a Motion for Reconsideration, which was denied and, at defendants\u2019 request, converted into an appeal to the Full Commission.\nThe Full Commission heard this matter on 5 March 2004. Thereafter, the parties entered into a consent agreement that stated, in pertinent part,\n[Allred] is not a \u201cchild\u201d under the Act, but was wholly dependent upon the deceased-employee at the time of his death. The parties therefore agree that Keith is entitled to 400 weeks of benefits pursuant to [N.C. Gen. Stat.] \u00a7 97-38. The parties agree that these payments will be made to Carrie[] Nicholson for the use and benefit of Keith until the expiration of the 400 week period.\nThe minor biological children were also awarded 400 weeks of benefits in the consent agreement. The agreement was subsequently converted into an order when it was signed by Commissioner Christopher Scott and filed on 5 October 2004. Thereafter, on 1 December 2004, the Full Commission entered an Opinion and Award, determining that Allred was a \u201cdependent child\u201d under the Act and entitled to benefits until he reached the age of eighteen (18). Defendants appeal.\nDefendants argue that the Full Commission erred by failing to follow the order. We agree.\nAppellate review of an Opinion and Award of the Industrial Commission \u201cis limited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Roberts v. Century Contractors, Inc., 162 N.C. App. 688, 690-91, 592 S.E.2d 215, 218 (2004). The Industrial Commission is the sole judge of the credibility of witnesses and the strength of evidence. Effingham v. Kroger Co., 149 N.C. App. 105, 109-10, 561 S.E.2d 287, 291 (2002). Accordingly, findings of fact of the Industrial Commission are con-elusive on appeal if supported by competent evidence, even if the evidence might support a contrary finding. Hedrick v. PPG Industries, 126 N.C. App. 354, 357, 484 S.E.2d 853, 856 (1997). However, questions of law are reviewed de novo. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997).\nThe Full Commission in its Opinion and Award determined that \u201cthe consent order reflected an agreement between the parties that 400 weeks of benefits pursuant to [N.C. Gen. Stat. \u00a7] 97-38 were owed to [Allred] and that this amount was not in controversy.\u201d The Commission therefore stated, \u201c[t]he only issue remaining for the Full Commission to resolve is whether [Allred] is entitled to compensation beyond 400 weeks until his 18th birthday.\u201d We review de novo whether the order resolved the question whether Allred is entitled to compensation beyond 400 weeks.\nThe plain language of the order stated that Allred is \u201cnot a \u2018child\u2019 under the Act\u201d but, nonetheless, defendants opted to provide him 400 weeks of benefits. Although the Full Commission interpreted the order as resolving only the issue of whether Allred was entitled to 400 weeks of benefits and not whether Allred was entitled to benefits beyond the 400 weeks, we disagree with its interpretation. In its Opinion and Award, the Full Commission stated, \u201cNotwithstanding [Allred\u2019s] technical exclusion from the definition of \u2018child\u2019 under \u00a7 97-2(12), the Commission, reading the Act in its entirety and taking into account other pertinent definitions, finds [Allred] to be a \u201cdependent child\u201d pursuant to \u00a7 97-38(3).\u201d By this conclusion of law, the Full Commission clearly contradicts the order\u2019s determination that Allred is \u201cnot a \u2018child\u2019 under the Act.\u201d The order encompassed the bargained-for agreement of the parties and should have been followed in the absence of one of the grounds set forth in N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2005). See, generally, Thacker v. Thacker, 107 N.C. App. 479, 420 S.E.2d 479 (1992). Because the Full Commission never invoked Rule 60(b) and made findings to support relief from the order, we hold the Full Commission erred in failing to follow the order. Accordingly, we vacate its Opinion and Award.\nHaving vacated the Full Commission\u2019s Opinion and Award, we need not address appellants\u2019 other assignments of error.\nVacated.\nJudges BRYANT and JACKSON concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "No brief filed for plaintiffs-appellees.", "Lewis & Roberts, P.L.L.C., by Jeffrey A. Misenheimer and Sarah E. Gone, for defendants-appellants." ], "corrections": "", "head_matter": "CARRIE ALLEN NICHOLSON, Widow of KENNEDY F. NICHOLSON, Deceased Employee, and QUANTILLA NICOLE NICHOLSON, Adult Child, and KENYA LORRAINE NICHOLSON, Adult Child, and KEITH TYRONE ALLRED, Alleged Dependent Minor Child, Plaintiffs v. EDWARDS WOOD PRODUCTS, Employer, and FORESTRY MUTUAL INS. CO., Carrier, Defendants\nNo. COA05-629\n(Filed 7 February 2006)\nWorkers\u2019 Compensation\u2014 full Commission\u2019s failure to follow order \u2014 agreement to provide support even though technical exclusion from the definition of child\nA de novo review revealed that the full Industrial Commission erred in a workers\u2019 compensation case by failing to follow an order reflecting an agreement between the parties that 400 weeks of benefits under N.C.G.S. \u00a7 97-38 were owed to a minor dependent of decedent employee notwithstanding the minor\u2019s technical exclusion from the definition of child under N.C.G.S. \u00a7 97-2(12), and the full Commission\u2019s opinion and award is vacated, because: (1) the full Commission stated in its opinion and award that notwithstanding the minor\u2019s technical exclusion from the definition of child under N.C.G.S. \u00a7 97-2(12), it found the minor to be a dependent child under N.C.G.S. \u00a7 97-38(3); (2) the order encompassed the bargained-for agreement of the parties and should have been followed in the absence of one of the grounds set forth in N.C.G.S. \u00a7 1A-1, Rule 60(b); and (3) the Commission never invoked Rule 60(b) and made findings to support relief from the order.\nAppeal by defendants from Opinion and Award of the Industrial Commission entered 1 December 2004 by Commissioners Christopher Scott, Bernadine S. Ballance, and Pamela T. Young. Heard in the Court of Appeals 7 December 2005.\nNo brief filed for plaintiffs-appellees.\nLewis & Roberts, P.L.L.C., by Jeffrey A. Misenheimer and Sarah E. Gone, for defendants-appellants." }, "file_name": "0773-01", "first_page_order": 807, "last_page_order": 810 }