{ "id": 8568216, "name": "BRENDA H. DEESE, Widow; BRACY DEESE, Guardian of Katie Lynn Deese, Stephen Haywood Deese, and Christopher Wayne Deese, Minor Children; BRACY DEESE, Administrator of the Estate of Charles W. Deese, Deceased, Employee, Plaintiffs v. SOUTHEASTERN LAWN AND TREE EXPERT COMPANY, Employer, FIDELITY AND CASUALTY COMPANY OF NEW YORK, Carrier, Defendants", "name_abbreviation": "Deese v. Southeastern Lawn & Tree Expert Co.", "decision_date": "1982-07-13", "docket_number": "No. 16PA82", "first_page": "275", "last_page": "285", "citations": [ { "type": "official", "cite": "306 N.C. 275" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "281 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "463" } ], "opinion_index": -1 }, { "cite": "53 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522682 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "607-08" } ], "opinion_index": -1, "case_paths": [ "/nc-app/53/0607-01" ] }, { "cite": "293 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568257 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0286-01" ] }, { "cite": "102 S.E. 2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621326 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0199-01" ] }, { "cite": "132 S.E. 2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575143 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0435-01" ] }, { "cite": "235 S.E. 2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572773, 8572811, 8572750, 8572791, 8572734 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0728-03", "/nc/292/0728-05", "/nc/292/0728-02", "/nc/292/0728-04", "/nc/292/0728-01" ] }, { "cite": "233 S.E. 2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553142 ], "year": 1977, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0676-01" ] }, { "cite": "161 S.E. 403", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "opinion_index": 0 }, { "cite": "201 N.C. 768", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627985 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/201/0768-01" ] }, { "cite": "164 S.E. 752", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "203 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599618 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/203/0094-01" ] }, { "cite": "113 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621237 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0295-01" ] }, { "cite": "186 S.E. 252", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "opinion_index": 0 }, { "cite": "210 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626165 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/210/0312-01" ] }, { "cite": "8 S.E. 2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "217 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609189 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/217/0428-01" ] }, { "cite": "188 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574896 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0300-01" ] }, { "cite": "154 S.E. 69", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1930, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "199 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595736 ], "weight": 2, "year": 1930, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0154-01" ] }, { "cite": "114 S.E. 2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1960, "pin_cites": [ { "page": "705" }, { "page": "705" } ], "opinion_index": 0 }, { "cite": "252 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625622 ], "weight": 3, "year": 1960, "pin_cites": [ { "page": "741" }, { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0738-01" ] }, { "cite": "23 S.E. 2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "297", "parenthetical": "\"[i]t is ours to construe the laws and not to make them\"" } ], "opinion_index": 0 }, { "cite": "222 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630398 ], "year": 1942, "pin_cites": [ { "page": "366", "parenthetical": "\"[i]t is ours to construe the laws and not to make them\"" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0358-01" ] }, { "cite": "131 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "337", "parenthetical": "a statute must be interpreted according to its \"definite and sensible\" meaning" } ], "opinion_index": 0 }, { "cite": "259 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561989 ], "year": 1963, "pin_cites": [ { "page": "675", "parenthetical": "a statute must be interpreted according to its \"definite and sensible\" meaning" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0672-01" ] }, { "cite": "264 S.E. 2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "101", "parenthetical": "\"|j]udges must interpret and apply statutes as they are written\"" } ], "opinion_index": 0 }, { "cite": "299 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575832 ], "year": 1980, "pin_cites": [ { "page": "726", "parenthetical": "\"|j]udges must interpret and apply statutes as they are written\"" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0723-01" ] }, { "cite": "173 S.E. 2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561636 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0417-01" ] }, { "cite": "225 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560920 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0276-01" ] }, { "cite": "188 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "opinion_index": 1 }, { "cite": "281 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574896 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/nc/281/0300-01" ] }, { "cite": "225 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "290 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560920 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/nc/290/0276-01" ] } ], "analysis": { "cardinality": 1016, "char_count": 24547, "ocr_confidence": 0.816, "pagerank": { "raw": 6.561378403257785e-07, "percentile": 0.961310292607793 }, "sha256": "a067741649d204b34062d07e125754f18263f946492e9691ad40b30e82bdfa0d", "simhash": "1:ad29d56b709b2cd9", "word_count": 4078 }, "last_updated": "2023-07-14T20:30:26.892112+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices EXUM and CARLTON join in this dissenting opinion." ], "parties": [ "BRENDA H. DEESE, Widow; BRACY DEESE, Guardian of Katie Lynn Deese, Stephen Haywood Deese, and Christopher Wayne Deese, Minor Children; BRACY DEESE, Administrator of the Estate of Charles W. Deese, Deceased, Employee, Plaintiffs v. SOUTHEASTERN LAWN AND TREE EXPERT COMPANY, Employer, FIDELITY AND CASUALTY COMPANY OF NEW YORK, Carrier, Defendants" ], "opinions": [ { "text": "COPELAND, Justice\nIn this appeal, we are called upon to review the opinion and award of the Industrial Commission for the existence of legal error (see G.S. 97-86) in that agency\u2019s interpretation and application of G.S. 97-38. The statute in question governs the payment and allocation of compensation benefits in cases where the employee has died as the result of a work-related injury. See G.S. 97-29. Put as simply as possible, the sole issue is whether G.S. 97-38 requires a reapportionment of the entire amount of payable death benefits among the remaining dependent children in equal shares as each child reaches the age of eighteen, after the expiration of the initial compensation period of 400 weeks. A careful and commonsense reading of G.S. 97-38 convinces us that our legislature merely intended to enlarge the period during which a dependent child of a deceased employee may continue to receive his or her fixed share of benefits, beyond the normal cut-off of 400 weeks to the time the child attains majority, and it did not also intend to provide a means for increasing the amount of the dependent\u2019s individual share in conjunction with that special extension. We, therefore, affirm the decision of the Court of Appeals.\nThis Court has interpreted the statutory provisions of North Carolina\u2019s workers\u2019 compensation law on many occasions. In every instance, we have been wisely guided by several sound rules of statutory construction which bear repeating at the outset here. First, the Workers\u2019 Compensation 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. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E. 2d 577 (1976); Petty v. Transport, Inc., 276 N.C. 417, 173 S.E. 2d 321 (1970). 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 \u201cjudicial legislation.\u201d Andrews v. Nu-Woods, Inc., 299 N.C. 723, 726, 264 S.E. 2d 99, 101 (1980) (\u201c|j]udges must interpret and apply statutes as they are written\u201d); Davis v. Granite Corporation, 259 N.C. 672, 675, 131 S.E. 2d 335, 337 (1963) (a statute must be interpreted according to its \u201cdefinite and sensible\u201d meaning); Gilmore v. Board of Education, 222 N.C. 358, 366, 23 S.E. 2d 292, 297 (1942) (\u201c[i]t is ours to construe the laws and not to make them\u201d). 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 \u201cingrafting upon a law something that has been omitted, which [it] believes ought to have been embraced.\u201d Shealy v. Associated Transport, 252 N.C. 738, 741, 114 S.E. 2d 702, 705 (1960); Rice v. Panel Co., 199 N.C. 154, 157, 154 S.E. 69, 70 (1930). 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 \u2014 its language, purposes and spirit. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972); Morris v. Chevrolet Co., 217 N.C. 428, 8 S.E. 2d 484 (1940). Fifth, and finally, the Industrial Commission\u2019s 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. Shealy v. Associated Transport, supra, 252 N.C. at 742, 114 S.E. 2d at 705; Rice v. Panel Co., supra; see Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936). See generally G.S. 97-86, 97-91. With these principles firmly in mind, we proceed to examine the statute in issue.\nIn pertinent part, G.S. 97-38 states the following:\nIf death results proximately from the accident and within two years thereafter, or while total disability still continues and within six years after the accident, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation equal to sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased employee at the time of the accident ... to the person or persons entitled thereto as follows:\n(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. If there be only one person wholly dependent, then that person shall receive the entire compensation payable.\n. . . Compensation payments due on account of death shall be paid for a period of 400 weeks from the date of the death of the employee; provided, however, after said 400-week period in case of a widow or widower who is unable to support herself or himself because of physical or mental disability as of the date of death of the employee, compensation payments shall continue during her or his lifetime or until remarriage and compensation payments due a dependent child shall be continued until such child reaches the age of 18.\nThe thrust of plaintiffs\u2019 claim in this case is that the general provision in G.S. 97-38 for the continuation of \u201ccompensation payments\u201d to a disabled spouse or minor child beyond the 400-week period is amplified by the specific provision of subsection (1) for dependents of the deceased employee to receive \u201cthe entire compensation payable\u201d (emphasis added), and that, when these provisions are properly read together, it is manifest that the legislature intended for the total compensation award (6673% of the deceased\u2019s average weekly wage) to be paid so long as there are any beneficiaries eligible to take it. According to plaintiffs\u2019 theory of the statute then, when &\u2022 member of the post-400 week beneficiary group becomes ineligible to receive further death benefits, his or her share is put back into the compensation \u201cpot,\u201d and the entire award is redistributed equally among the remaining eligible beneficiaries. We disagree.\nTo us, the plain terms of G.S. 97-38 express a clear legislative intent that the employer and its insurance carrier pay the full amount of the specified compensation for 400 weeks (approximately 7.7 years), or the commuted present value of that sum, if the deceased employee is survived by dependents or next of kin. G.S. 97-38(1) \u2014 (3), 97-40. That is the overall, governing aim of the statute, and we are compelled thereby to conclude that, if there is a decrease in the dependent beneficiary pool during the 400 weeks following the employee\u2019s death, there must be a corresponding reapportionment of the full award payable for that set period among the remaining eligible members of the pool. See G.S. 97-38(1), quoted supra. See generally 99 C.J.S. Workmen\u2019s Compensation \u00a7 324(e) (1958). That, we hold, is the only situation in which there will be an increase in the amount of the individual shares paid to the dependents still partaking of the compensation fund. For purposes of this case, it suffices to say that the underlying logic of the statute evinces no reason for decreasing the employer\u2019s or carrier\u2019s 400-week obligation based merely upon a decrease in the number of persons to whom such payments must be made and that the result we reach is certainly consistent with the tenor of prior decisions indicating that the rights and liabilities arising under G.S. 97-38 attach in a final sense at the time of the employee\u2019s death so that the award then determined is not thereafter extinguished on the payor\u2019s end until it has been paid in full. See Hill v. Cahoon, 252 N.C. 295, 113 S.E. 2d 569 (1960); Queen v. Fibre Co., 203 N.C. 94, 164 S.E. 752 (1932); Brooks v. Clement Co., 201 N.C. 768, 161 S.E. 403 (1931). We are not, however, likewise persuaded that a necessary corollary of the statute\u2019s primary goal is the broader theory contended for by plaintiffs whereby the employer\u2019s or carrier\u2019s obligation to a particular dependent beyond the 400 weeks is effectively increased due to an event which terminates the similar extended right of some other person to continue receiving his or her equal share of the death benefits after such time.\nThe legislative history of G.S. 97-38 is significant in this respect. Prior to 1975, workers\u2019 compensation death benefits were awarded in an appointed sum for a flat period under the statute. Benefits were not paid to anyone upon any basis beyond the stated term. The General Assembly created an exception to that rule in 1974 by ratifying an amendment to G.S. 97-38 entitled \u201cAn Act to Amend the Workmen\u2019s Compensation Act Regarding the Duration of Benefits.\u201d 1973 Sess. Laws, ch. 1308, \u00a7 4 (emphasis added). That amendment added language authorizing the continuation of compensation payments beyond 400 weeks to the deceased employee\u2019s spouse or child for so long as he or she continued to be \u201cdependent\u201d in a factual or legal sense.\nOn the face of it, the 1974 amendment to G.S. 97-38 was enacted as a simple means to accomplish a limited end, i.e., the expansion of coverage for two distinct classes of dependents. See also Caldwell v. Realty Co., 32 N.C. App. 676, 681, 233 S.E. 2d 594, 597, discretionary review denied, 292 N.C. 728, 235 S.E. 2d 782 (1977). The organization of the amended version of G.S. 97-38 also strongly suggests that the portion dealing with the extended rights of a dependent spouse or child was meant to stand upon its own footing. Consequently, we believe that the specific provisions of subsections (1) \u2014 (3) are substantively separate therefrom for the most part. When the statute is so read, the legislature\u2019s failure to use the word \u201centire\u201d to qualify or quantify the amount of compensation to be paid these specially covered dependents is important, and we must give meaningful effect thereto in our construction of the statute.\nThe 1974 amendment does not plainly say, as it so easily could have with a few more strokes of the pen, that a dependent spouse or child is entitled to receive the entire amount of all compensation due from the employer or carrier on account of the employee\u2019s death. Instead, the amendment only says that the compensation payments due the dependent shall continue to be paid. There is no indication that that which is due a dependent during the period of extended coverage may vary from that which was due during the initial 400 weeks of coverage. In short, the omission of an explicit and clear mandate concerning the entitlement of the designated dependents to receive, and the obligation of the employer or carrier to pay, the full award beyond the initial period, as opposed to the dependents\u2019 previously determined shares thereof, is critical, and we shall not overlook it or attempt to fill its void by means of this judicial opinion. We hold that G.S. 97-38 does not permit a reapportionment of the entire compensation award among eligible dependents after 400 weeks have elapsed.\nOur interpretation of the statute as it is written accords completely with its overriding policy of providing death benefits, at a fixed rate for a fixed period, to the individual dependents of an employee who has met with an untimely and unexpected demise. It should also be noted that it was never contemplated that the Workers\u2019 Compensation Act would provide full compensation in the event of injury or death or that it would be the equivalent of general accident, health or life insurance. See Taylor v. Twin City Club, 260 N.C. 435, 132 S.E. 2d 865 (1963); Kellams v. Metal Products, 248 N.C. 199, 102 S.E. 2d 841 (1958). Instead, this legislation was enacted to afford certain and reasonable relief against peculiar hardship. Kellams v. Metal Products, supra. Yet plaintiffs complain that the amount of total death benefits payable by the employer or carrier will, although based upon the same average weekly wage, vary greatly from case to case depending on the number and ages of the employee\u2019s wholly dependent survivors. The \u201cinequity\u201d that results from this so-called anomaly is inherent in the variety of life itself, and its origins do not strictly spring from the operation of G.S. 97-38. In any event, this is a matter for the legislature to consider and correct, if it be so inclined.\nIn closing, we mention that we have reviewed cases from other jurisdictions regarding reapportionment of workers\u2019 compensation benefits. See generally 81 Am. Jur. 2d Workmen\u2019s Compensation \u00a7 218 (1976 and 1981 Supp.); 99 C.J.S. Workmen\u2019s Compensation \u00a7 324(e) (1958 and 1981 Supp.). An in-depth analysis of these authorities, which are based upon unique and materially different statutes, would be fruitless and unavailing to our construction of North Carolina\u2019s own compensation law, and we shall not engage in lengthy citation here. See Shealy v. Associated Transport, 252 N.C. 738, 114 S.E. 2d 702 (1960); Hill v. Cahoon, 252 N.C. 295, 113 S.E. 2d 569 (1960); Rice v. Panel Co., 199 N.C. 154, 154 S.E. 69 (1930).\nFor the reasons stated, the decision of the Court of Appeals and the award of the Industrial Commission are affirmed.\nAffirmed.\n. The same issue is raised in another workers\u2019 compensation case decided by our Court today: Chinault v. Pike Electrical Contractors, 306 N.C. 286, 293 S.E. 2d 147 (1982).", "type": "majority", "author": "COPELAND, Justice" }, { "text": "Justice Mitchell\ndissenting.\nThe interpretation of G.S. 97-38 applied by the majority in the present case will clearly cause the amount of total death benefits payable to workers\u2019 dependents to vary wildly from case to case upon no basis other than the number and ages of worker\u2019s wholly dependent survivors. Unlike the majority, I do not believe that such results are \u201cinherent in the variety of life itself, and . . . do not strictly spring from the operation of G.S. 97-38.\u201d\nA comparison of two hypothetical situations involving the death of the same worker is sufficient to reveal the inequitable results which will certainly arise from the application of the majority\u2019s interpretation of the statute. If the worker in the hypothetical case made $270 per week immediately prior to his death, the \u201ctotal compensation award\u201d or maximum yearly compensation available to his dependents would be 6673 percent of this amount or $180 per week without regard to the number of persons wholly dependent upon him at the time of his death. G.S. 97-29; G.S. 97-38. If the hypothetical worker happened to be a widower survived only by one wholly dependent person, a small child one year of age, the weekly benefit of $180 would be paid to that child alone until he reached 18 years of age. When the child reached the age of 18 years, the compensation paid at $180 per week for 17 years would amount to a total of $159,120. This would be true regardless of the manner in which we resolve the issues before us today.\nIf the same hypothetical worker was a widower and happened to be survived by three wholly dependent minor children whose ages were one year, five years and ten years respectively, a far different result would be required under the interpretation of the statute employed by the majority. Under the majority\u2019s interpretation of G.S. 97-38 the \u201ctotal compensation award\u201d or maximum weekly compensation of $180 per week would be divided equally with each child receiving $60 per week until he reached 18 years of age. The one year old child would receive $60 per week for 17 years for a total of $53,040. The five year old child would receive $60 per week for 13 years for a total of $40,560. The ten year old child would receive $60 per week for 8 years or a total of $24,960. The total amount paid the three minor children would be $118,560 or $40,560 less than the $159,120 received by the sole surviving minor child in the first hypothetical situation.\nIn my view, such inequities are created primarily by the majority\u2019s interpretation of G.S. 97-38 and are not \u201cinherent in the variety of life itself.\u201d It is frequently said that variety is the spice of life. Assuming this to be the case, the dish served by the majority is too heavily spiced to suit my taste.\nI believe that a proper construction of the statute would allow the dependents of the deceased worker in the second hypothetical situation to receive $180 per week until the youngest of the three children reached 18 years of age with the $180 being divided each week among those still eligible to receive a share. G.S. 97-38(1) provides that:\nPersons 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. If there be only one person wholly dependent, then that person shall receive the entire compensation payable.\n(Emphasis added.) The general provision of G.S. 97-38 providing for the continuation of \u201ccompensation payments\u201d to a disabled spouse or minor child beyond the 400 week period is, in my view, amplified and extended by the specific provisions of subsection (1) commanding that dependents of the deceased worker receive the \u201centire compensation payable.\u201d When these provisions are read together, it is my view that they are entirely consistent and harmonious and manifest a legislative intent that the term \u201centire compensation payable\u201d be construed as referring to the required total compensation award of 66% percent of the average weekly wage earned by the deceased immediately prior to his death. Further, I find that the manifest legislative intent was that this total compensation award or \u201centire compensation payable\u201d be paid so long as there are beneficiaries eligible to take. See generally 81 Am. Jur. 2d Workmen\u2019s Compensation \u00a7 218 (1976 and 1981 Supp.); 99 C.J.S. Workmen\u2019s Compensation \u00a7 324(e) (1958 and 1981 Supp.). When a member of the post-400 week beneficiary group becomes ineligible to receive further benefits, that portion of the \u201centire compensation payable\u201d previously distributed to him should be distributed to the remaining eligible beneficiaries.\nI would point out that the interpretation of the statute for which I argue would not remove the inequities \u201cinherent in the variety of life itself.\u201d If a worker dies leaving three small children, each of them would still receive less total compensation than he would have received had he been the sole surviving wholly dependent minor child of the same worker. This type of inequity faces every child who has brothers or sisters and is truly \u201cinherent in the variety of life itself.\u201d\nThe interpretation I suggest would, however, prevent the harsh and inequitable results which will arise as a result of the majority\u2019s interpretation of the statute. The opinion of the majority compounds and exacerbates the inequities \u201cinherent in the variety of life itself.\u201d It will in many cases cause a worker\u2019s minor dependent children who have brothers and sisters to receive not only less individually than a sole dependent child of the same worker would have received, but also less as a class than such sole dependent child would have received individually. I do not believe that the General Assembly intended or the language of the statute requires any such result.\nEven if it is conceded arguendo that the statute in question lends itself as easily to the interpretation applied by the majority as to the interpretation for which I argue, the plaintiffs here should prevail under established rules of statutory construction applicable to the Worker\u2019s Compensation Act. In seeking to discover the legislative intent behind the Act, this Court must consider the language of the Act, the spirit of the Act, and what the Act seeks to accomplish. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972). Additionally, the Worker\u2019s Compensation 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. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E. 2d 577 (1976); Stevenson v. City of Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972). In my view, these rules mandate that G.S. 97-38 be interpreted to provide for a reapportionment of the entire amount of the total compensation award among the remaining dependent minor children in equal shares as each child reaches the age of 18, after the expiration of the initial compensation period of 400 weeks.\nFor these reasons I respectfully dissent from the opinion of the majority and vote to reverse the Court of Appeals.\nJustices EXUM and CARLTON join in this dissenting opinion.", "type": "dissent", "author": "Justice Mitchell" } ], "attorneys": [ "Roberts, Cogburn & Williams, by James W. Williams and Isaac N. Northup, Jr., for plaintiff-appellants.", "Vanwinkle, Buck, Wall, Starnes and Davis, by Phillip J. Smith, for defendant-appellees." ], "corrections": "", "head_matter": "BRENDA H. DEESE, Widow; BRACY DEESE, Guardian of Katie Lynn Deese, Stephen Haywood Deese, and Christopher Wayne Deese, Minor Children; BRACY DEESE, Administrator of the Estate of Charles W. Deese, Deceased, Employee, Plaintiffs v. SOUTHEASTERN LAWN AND TREE EXPERT COMPANY, Employer, FIDELITY AND CASUALTY COMPANY OF NEW YORK, Carrier, Defendants\nNo. 16PA82\n(Filed 13 July 1982)\nMaster and Servant \u00a7 79\u2014 workers\u2019 compensation \u2014 determination of death benefits\nG.S. 97-38 does not require a reapportionment of the entire amount of payable death benefits among the remaining dependent children in equal shares as each child reaches the age of 18, after the expiration of the initial compensation period of 400 weeks. A careful reading of G.S. 97-38 convinces the Court that our legislature intended to enlarge the period during which a dependent child of a deceased employee may continue to receive his or her fixed share of benefits, beyond the normal cut-off of 400 weeks to the time the child attains majority, and it did not also intend to provide a means for increasing the amount of the dependent\u2019s individual share in conjunction with that special extension. ,\nJustice Mitchell dissenting.\nJustices Exum and Carlton join in this dissenting opinion.\nAPPEAL by plaintiffs pursuant to G.S. 7A-31 for discretionary review of the decision of the Court of Appeals (Judge Webb, with Judges Hedrick and Arnold concurring) reported at 53 N.C. App. 607, 281 S.E. 2d 462 (1981). The Court of Appeals affirmed the opinion and award of the Industrial Commission entered on 15 August 1980 regarding the distribution of compensation benefits to the widow and dependent minor children of the deceased employee.\nThis appeal arises from a proceeding held before the Industrial Commission to determine the amount and duration of death benefits payable to the dependent survivors of an employee under the Workers\u2019 Compensation Act. The essential facts underlying the resulting legal controversy are summarized in the Court of Appeals\u2019 opinion as follows:\nAfter a hearing, Commissioner Robert S. Brown found that on 28 October 1978, Charles W. Deese died as a result of an injury from an accident arising out of and in the course of his employment; that he had a wife and three minor children at the time of his death; that his weekly wages at the time of his death were $265.44; that the parties were subject to the Workers\u2019 Compensation Act; and that his widow and three minor children were entitled to total compensation of $176.97 per week. Commissioner Brown awarded compensation of $44.25 per week for 400 weeks to the decedent\u2019s widow and $44.25 per week to each of his minor children until he or she reached 18 years of age. Bracy Deese, guardian for the three minor children, appealed to the Full Commission which affirmed Commissioner Brown\u2019s award.\n53 N.C. App. at 607-08, 281 S.E. 2d at 463.\nOn plaintiffs\u2019 further appeal, the Court of Appeals upheld the opinion and award of the Commission which, in pertinent part, stated that: \u201cthere is nothing in the statute [G.S. 97-38] which calls for there to be an increase or decrease in the weekly benefit rate based on an increase or decrease in the number of whole dependents.\u201d Record at 14. In our Court, plaintiffs argue again for an interpretation of G.S. 97-38 whereby compensation would be paid \u201cfollowing the initial 400 weeks, at the rate of $176.97 per week [the entire amount] for such additional time until such time as all of the minor children of the deceased shall have attained the age of 18 years . . . .\u201d Plaintiffs\u2019 Brief at 6.\nRoberts, Cogburn & Williams, by James W. Williams and Isaac N. Northup, Jr., for plaintiff-appellants.\nVanwinkle, Buck, Wall, Starnes and Davis, by Phillip J. Smith, for defendant-appellees." }, "file_name": "0275-01", "first_page_order": 303, "last_page_order": 313 }