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McLean v. Coca-Cola Bottling Co.12/7/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
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)). " 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 esta
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