Gentry v. Reaves Construction Co.
I.C. NO. 495399.
| N.C. Indus. Comm. | Dec 20, 2010Background
- William Rick Smith died in a compensable accident on January 17, 2005; his average weekly wage was $320, yielding a compensation rate of $213.31.
- Tyler Jordan Gentry, born October 15, 1995, was 9 at the death and conclusively presumed wholly dependent; awarded one-half of the compensation for 400 weeks or until age 18.
- Brandon Carroll Smith, born July 1, 1989, was 15 at the death and conclusively presumed wholly dependent; awarded one-half of the compensation for 400 weeks.
- Heather Pierce was partially dependent and not entitled to benefits under N.C. Gen. Stat. §§ 97-38; 97-39.
- The Full Commission found OSHA willful violation by Reaves Construction, imposing a 10% penalty payable to the two dependents in addition to compensation, and awarded 15% attorney fees to counsel for each dependent.
- Tyler Jordan Gentry died on April 5, 2009, leaving Brandon Carroll Smith as the sole remaining wholly dependent; the dependents had received benefits for 220 weeks, with 180 weeks remaining.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of dependent pool decrease | Gentry's death reduces pool, triggering reapportionment. | Pool change requires reconsideration per Deese. | Full award reapportioned to remaining dependent. |
| Who receives full award after Tyler's death | Brandon inherits remaining full award as sole remaining dependent. | Allocation fixed to Brandon from date of death onward. | Brandon entitled to full weekly benefit starting April 5, 2009. |
| Amount of weekly benefit after 4/5/2009 | Brandon receives $213.31 weekly plus 10% penalty. | Penalty and principal follow prior award structure. | Total weekly benefit $234.64 (including 10% penalty). |
| Attorneys' fees allocation | Fees allocated per Amended Opinion; 15% of compensation and penalty. | Fees deducted and paid to both attorneys as specified. | Fees split equally between Tyler's and Brandon's counsel for 400 weeks. |
Key Cases Cited
- Deese v. Southeastern Lawn and Tree Expert Co., 306 N.C. 275 (N.C. 1982) (decrease in dependent pool requires reapportionment of full award)