{ "id": 8521655, "name": "NELDA D. COSTNER, Widow of the Deceased, and NELDA D. COSTNER, Administratrix of the Estate of AUSTIN F. COSTNER, Deceased Employee v. A. A. RAMSEY & SONS, INCORPORATED, Employer; and BITUMINOUS INSURANCE COMPANIES, Carrier", "name_abbreviation": "Costner v. A. A. Ramsey & Sons, Inc.", "decision_date": "1986-06-03", "docket_number": "No. 8610IC65", "first_page": "121", "last_page": "124", "citations": [ { "type": "official", "cite": "81 N.C. App. 121" } ], "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": "278 S.E. 2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572837 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0281-01" ] }, { "cite": "168 S.E. 2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1933, "opinion_index": 0 }, { "cite": "204 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619304 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/204/0389-01" ] }, { "cite": "146 S.E. 2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561345 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0513-01" ] }, { "cite": "256 S.E. 2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573538 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0636-01" ] }, { "cite": "256 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "85 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "599" } ], "opinion_index": 1 }, { "cite": "241 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612018 ], "year": 1955, "pin_cites": [ { "page": "452" } ], "opinion_index": 1, "case_paths": [ "/nc/241/0448-01" ] }, { "cite": "256 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/297/0458-01" ] } ], "analysis": { "cardinality": 409, "char_count": 7619, "ocr_confidence": 0.772, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7517382287538772 }, "sha256": "9b5f3170c73df633843c37744e4ebc3493cee19aeb2c9da83bb70a96726c4306", "simhash": "1:3f1175ef3c394a7b", "word_count": 1298 }, "last_updated": "2023-07-14T19:31:13.412578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WHICHARD concurs.", "Judge Johnson dissents." ], "parties": [ "NELDA D. COSTNER, Widow of the Deceased, and NELDA D. COSTNER, Administratrix of the Estate of AUSTIN F. COSTNER, Deceased Employee v. A. A. RAMSEY & SONS, INCORPORATED, Employer; and BITUMINOUS INSURANCE COMPANIES, Carrier" ], "opinions": [ { "text": "WEBB, Judge.\nThe question posed by this appeal is whether the dependent of a deceased employee who was receiving benefits for permanent disability is entitled to receive payments under the Workers\u2019 Compensation Act as a survivor. We hold that she is not entitled to such benefits.\nThe decision in this case depends on the interpretation of several sections of the Workers\u2019 Compensation Act. G.S. 97-31(17) was amended effective 1 July 1979 to add the part in brackets.\nThe loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of G.S. 97-29. [The employee shall have a vested right in a minimum amount of compensation for the total number of weeks of benefits provided under this section for each member involved. When an employee dies from any cause other than the injury for which he is entitled to compensation, payment of the minimum amount of compensation shall be payable as provided in G.S. 97-37.]\nThe Industrial Commission, relying on Booker v. Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979), held that because the right of the plaintiff did not arise until after the amendment to the statute the amendment applied to her claim. We do not believe this was correct. The claim of the plaintiff in Booker was pursuant to G.S. 97-38. G.S. 97-38 creates a claim for dependents of persons who die as the result of a compensable accident. Our Supreme Court held that since the claim for the dependent in that case did not arise until the death of the employee the claim was governed by the statute in effect at the time of the employee\u2019s death. In this case G.S. 97-31(17) does not create a claim for a dependent. The plaintiffs claim is based on Austin Costner\u2019s claim. She is entitled to that part of his claim which had vested at his death. Austin Costner\u2019s injury occurred before the amendment to the statute and his claim was governed by the law in effect at that time. See Wood v. Stevens & Co., 297 N.C. 636, 256 S.E. 2d 692 (1979). Because the plaintiffs claim is based on Austin Costner\u2019s claim, it is governed by the law in effect at the time of Austin Costner\u2019s injury.\nThe appellees argue that the amendment to G.S. 97-31(17) is merely a compilation of the existing case law and that prior to the adoption of the amendment she had a right to the payment of the compensation which would have been due her deceased husband. She bases this argument on McCulloh v. Catawba College, 266 N.C. 513, 146 S.E. 2d 467 (1966); Butts v. Montague Bros., 204 N.C. 389, 168 S.E. 2d 215 (1933); and Wilhite v. Veneer Co., 303 N.C. 281, 278 S.E. 2d 234 (1981). Each of these cases involved a claim by a survivor to benefits of the decedent that had vested prior to death. It was held in each case that a survivor of a deceased employee is entitled to the benefits to which the employee was entitled at the time of his death. In this case Austin F. Costner was entitled under G.S. 97-31(17) to compensation for total and permanent disability according to G.S. 97-29. G.S. 97-29 provided that the benefits would last during Mr. Costner\u2019s total disability. It did not provide that the benefits would survive his death. He had no vested benefit which would pass to his survivor.\nWe reverse and remand to the Industrial Commission for an order consistent with this opinion.\nReversed and remanded.\nJudge WHICHARD concurs.\nJudge Johnson dissents.", "type": "majority", "author": "WEBB, Judge." }, { "text": "Judge JOHNSON\ndissenting.\nI believe Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979) controlling, as did the Full Commission, despite the distinction between G.S. 97-37 and G.S. 97-38 pointed out in the majority opinion. In Booker, the Court stated:\nAmong those [majority of] jurisdictions which, like North Carolina, treat the dependents\u2019 right to compensation as separate and distinct from the rights of the injured employee, it is generally held that the right to compensation is governed by the law in force at the time of death. (Citations omitted.) This rule has been applied even when the effect was to confer upon the dependents substantive rights which were unavailable to the employee during his lifetime. (Citation omitted.)\nId. at 467, 256 S.E. 2d at 195. (Emphasis added.)\nThe Court in so stating in no way limited the application of this rule to G.S. 97-38, that is, to only dependents of employees who died as a result of the compensable accident.\nMoreover, to construe G.S. 97-37 and G.S. 97-31(17) as the majority does leads to absurd results. As one example, according to the majority\u2019s construction, dependents of an employee who suffers the loss of one leg prior to the effective date of the amendment to G.S. 97-31(17) and then dies from causes unrelated to the compensable injury within 200 weeks from the time of the injury are better off than the dependents of an employee who suffers the loss of two legs, such that he is deemed totally and permanently disabled, and likewise dies from causes unrelated to the compensable injury within 200 weeks. The former dependents receive compensation; the latter receive none. I believe the majority\u2019s construction, which permits such a result, violative of the Supreme Court\u2019s clear mandate to construe G.S. ch. 97 liberally \u201cto the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation.\u201d Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 452, 85 S.E. 2d 596, 599 (1955).", "type": "dissent", "author": "Judge JOHNSON" } ], "attorneys": [ "Bridges, Bridges & Morgan, P.A., by Forrest Donald Bridges, for plaintiff appellees.", "Caudle & Spears, P.A., by Lloyd C. Caudle and Richard S. Guy, for defendant appellants." ], "corrections": "", "head_matter": "NELDA D. COSTNER, Widow of the Deceased, and NELDA D. COSTNER, Administratrix of the Estate of AUSTIN F. COSTNER, Deceased Employee v. A. A. RAMSEY & SONS, INCORPORATED, Employer; and BITUMINOUS INSURANCE COMPANIES, Carrier\nNo. 8610IC65\n(Filed 3 June 1986)\nMaster and Servant \u00a7 79.1\u2014 workers\u2019 compensation \u2014 permanent disability \u2014 death of employee \u2014no continued compensation to dependent\nThe dependent of a deceased employee who was receiving benefits for total and permanent disability because of the loss of use of both legs is not entitled to receive compensation as a survivor where the employee\u2019s injury occurred before the 1 July 1975 amendment to N.C.G.S. \u00a7 97-31(17), since the dependent\u2019s claim is based on the employee\u2019s claim and is governed by the law in effect at the time of the employee\u2019s injury, and under that law the deceased employee had no vested benefit which would pass to his survivor.\nJudge Johnson dissenting.\nAppeal by defendants from an opinion and award of the Industrial Commission filed 15 October 1985. Heard in the Court of Appeals 15 May 1986.\nThe defendants appeal from an award to the widow and ad-ministratrix of the estate of Austin F. Costner. The deputy commissioner found facts which are not disputed that Austin F. Costner, who was employed by A. A. Ramsey & Sons, Incorporated, was injured by an accident arising out of and in the course of his employment on 16 March 1979. As a result of this accident he lost the use of both legs. He entered into an agreement with the defendants by which he was paid compensation for total and permanent disability. Austin F. Costner died on 21 July 1984 from a cause unrelated to his compensable injury. At the time of his death he had received 281 weeks of compensation.\nThe deputy commissioner concluded that Nelda Costner was entitled to 119 weeks of compensation. The Full Commission adopted the findings and conclusions of Deputy Commissioner Sellers and the defendants appealed.\nBridges, Bridges & Morgan, P.A., by Forrest Donald Bridges, for plaintiff appellees.\nCaudle & Spears, P.A., by Lloyd C. Caudle and Richard S. Guy, for defendant appellants." }, "file_name": "0121-01", "first_page_order": 145, "last_page_order": 148 }