Lead Opinion

The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Dollar. Upon review of the competent evidence of record, and finding no good grounds to receive further evidence or rehear the parties or their representatives, the Full Commission, upon reconsideration of the evidence, affirms the Opinion and Award of the Deputy Commissioner with minor modifications.

*********** The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing as:

STIPULATIONS 1. The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.

2. Zenith Insurance Company was the carrier on the risk.

3. The employee-employer relationship existed between the parties at all relevant times.

4. Deceased employee (hereafter "decedent") sustained an admittedly compensable injury on 27 January 2000, which resulted in his death on 27 January 2000.

5. Decedent's average weekly wage was $469.68, which yields a compensation rate of $313.12 per week.

6. The issue for determination is to whom shall death benefits be paid in this case?

7. The parties entered into the record and stipulated to the following documentary evidence:

a. I.C. Forms 19, 22, 29, and 42,

b. Certificate of Death,

c. Birth Certificate for Fallon Brooklyn Cook,

d. DNA Results,

e. Certificate of Parentage,

f. Affidavit of Non-Access,

g. Affidavit of Non-Paternity, and

h. Judgment of Paternity.

*********** Based upon the competent evidence of record, the Full Commission makes the following additional:

FINDINGS OF FACT 1. At the time of the admittedly compensable injury, the decedent was employed by defendant-employer as a Deputy Sheriff. The decedent had never been married. He resided with his mother, JoAnn Cook; however, Ms. Cook was not wholly or partially dependent upon decedent for her support at the time of the fatal injury.

2. Fallon Brooklyn Cook was born to Kimberly S. Hamilton on 3 February 1999. Ms. Hamilton has been the custodial parent and legal guardian for said child since her birth.

3. Fallon Brooklyn Cook is the biological child of the decedent and Ms. Hamilton. The decedent openly acknowledged the child as his own during his life. The Superior Court of Davidson County in 00 CVD 1681 IV-D#3866743 entered a Judgment of Paternity finding decedent is the biological father of Fallon Brooklyn Cook. There were no other children born to or adopted by the decedent. As such, Fallon Brooklyn Cook is the sole heir of the decedent.

4. Fallon Brooklyn Cook was wholly dependent upon the decedent for her support and maintenance on 27 January 2000. There were no other persons wholly or partially dependent upon the decedent for their support and maintenance on 27 January 2000.

5. At the time of the hearing before the Deputy Commissioner, the funeral expenses for decedent had not been paid to Sechrest Funeral Service, Thomasville, North Carolina.

*********** Based upon the foregoing stipulations and findings of fact, the Full Commission makes the following:

CONCLUSIONS OF LAW 1. On 27 January 2000, the decedent sustained an injury by accident arising out of and in the course of his employment with defendant, and decedent died as a proximate cause of the injuries sustained in the admittedly compensable injury. N.C. Gen. Stat. §§ 97-2(6), -38.

2. On 27 January 2000, Fallon Brooklyn Cook was conclusively presumed to be wholly dependent upon the decedent. N.C. Gen. Stat. § 97-39.

3. The minor child Fallon Brooklyn Cook is entitled to receive death benefits at the rate of $313.12 per week beginning 27 January 2000 for a period of 400 weeks or until she reaches the age of eighteen, whichever occurs last. N.C. Gen. Stat. § 97-38 et seq. Defendants shall pay said benefits to Kimberly S. Hamilton, the parent and natural guardian of Fallon Brooklyn Cook, for the use and maintenance of Fallon Brooklyn Cook.

4. Defendants shall pay $2,000.00 in funeral expenses to Sechrest Funeral Service, Thomasville, North Carolina, or, if the funeral expenses have already been paid, to the person who paid for these expenses. N.C. Gen. Stat. § 97-40.

*********** Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following:

AWARD 1. Defendants shall pay death benefits to Kimberly S. Hamilton, parent and natural guardian of Fallon Brooklyn Cook, a minor, for the use, benefit, and maintenance of Fallon Brooklyn Cook at a rate of $313.12 per week beginning 27 January 2000 for a period of 400 weeks or until the child attains the age of eighteen, whichever occurs last. As much of said compensation as has accrued shall be paid in a lump sum.

2. Defendants shall pay $2,000.00 in funeral expenses to Sechrest Funeral Home, Thomasville, North Carolina, or, if already paid, to the person who paid for these expenses.

4. Defendants shall pay the costs.

This ___ day of October, 2001.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

S/_______________ RENEE C. RIGGSBEE COMMISSIONER

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Concurrence Opinion

I concur with the majority Opinion that the minor child Fallon Brooklyn Cook is entitled to the death benefits for the tragic death of her father. I file this separate Opinion to express what I view as the proper method of protecting both the minor child's right to the benefits and defendant's discharge from further liability.

The Commission does not have jurisdiction to entered an Award ordering the payment of benefits to Kimberly S. Hamilton for Fallon Brooklyn Cook, her minor child. Kimberly S. Hamilton appeared before the Commission as the Guardian ad Litem for the beneficiary Fallon Brooklyn Cook, a minor. Rule 604 of the Industrial Commission expressly states:

"(2) In no event, however, shall any compensation be paid directly to the guardian ad litem."

Similarly, the Form 42 filed in this case by Fallon's mother provides:

"THE GUARDIAN AD LITEM HAS NO AUTHORITY TO RECEIVE OR ACCEPT ANY FUNDS IN BEHALF OF HIS WARD. Only the Clerk of Superior Court or a general¹ guardian appointed under the Clerk's jurisdiction has the authority to receive funds and disburse them for an incompetent or infant."

(Record at 26-27). Payment to the minor's mother, rather than implementing the protections afforded under a guardianship of the estate, and contrary to the direction contained in Rule 604 and Form 42, does not appear to be appropriate in this or many other cases.

North Carolina law has established procedures which provide for the protection of minor beneficiaries. In particular, North Carolina law recognizes the creation of a guardian of the estate for a minor who is not otherwise capable of handling her affairs. North Carolina law recognizes at least three forms of guardianships. A "general guardian" is the guardian for both the person and the estate. N.C. Gen. Stat. § 35A-1202(7). A "guardian of the person" is a guardian appointed solely for the purpose of performing duties relating to the care, custody, and control of a ward. Id. at § 35A-1202(10). A "guardian of the estate" is a guardian appointed solely for the purpose of managing the property, estate, and business affairs of a ward. Id. at §35A-1202(9). A "ward" includes a minor for whom a guardianship has been created. Id. at § 35A-1202(15). Section 97-49 of the Act, Commission Rule 604, and NCIC Form 42 specifically allow the Commission to instruct the parties to seek the appointment of a guardian (of the estate) of the minor beneficiary.

The authority of the Commission to appoint a guardian was explained inde Portillo v. D.H. Griffin Wrecking Co., 134 N.C. App. 714,518 S.E.2d 555, rev. denied, 351 N.C. 188, 541 S.E.2d 727 (1999). In that case, the appellate court explained that the Commission was not authorized to appoint a general guardian and could not order the Clerk of Superior Court to appoint a general guardian when a natural guardian (the biological mother) existed. The Court, however, found that the Commission could request the Clerk of Superior Court to appoint a guardian of the estate of the minor beneficiary, and the Commission's order was modified, on appeal, to convert the guardianship to that of the estate.

The majority is correct that the Commission often orders payment of benefits to the surviving parent. This practice is specifically provided in Section 97-48(a) of the Act when the surviving parent is the widow or widower of the deceased employee. Like the beneficiary in de Portillo, however, Fallon Brooklyn Cook is a minor whose mother is not the widow of the decedent. Therefore, the provision of § 97-48(a) allowing payment to the widow for the use of the children is not applicable here.Id. The legislature did not expressly authorize the payment to the parent of the minor beneficiary when the parent is not the widow or widower. N.C. Gen. Stat. § 97-48(a); de Portillo v. D.H. GriffinWrecking Co., supra.

Because of the unusual circumstances of this case, which include the fact that Fallon Brooklyn Cook's mother, at the time of Fallon's birth, was married to a man other than Fallon's biological father and Fallon Brooklyn Cook has Downs Syndrome, I do not find any reason to dispense with the protections afforded to her and to the defendants by the guardianship system. First, Kimberly S. Hamilton is not a beneficiary directly entitled to receive the funds from this case and she expressly acknowledged that she was not entitled to receive the benefits for her daughter by execution of the Form 42. Second, the funds awarded in this case are solely for the use and benefit of Fallon Brooklyn Cook. Third, payment to Kimberly S. Hamilton could potentially expose defendants to liability for additional sums should it be later determined that the funds were not properly received and expended for Fallon Brooklyn Cook's benefit. Therefore, it is in the best interest of the minor beneficiary, defendants, and the Commission that defendants pay the sums awarded herein to the Clerk of Superior Court with the request that Kimberly S. Hamilton or some other proper person be named as the guardian of the estate of Fallon Brooklyn Cook and that subsequent payment be made to this estate. I also recommend that defendants request and fund the payment for a bond for the guardian to make certain that defendant is protected from further liability in the event that the sums are not properly used for Fallon Brooklyn Cook's benefit.

Although the majority does not hereby order the defendants to create the guardianship and post the bond for the appointed guardian, I do not believe that defendants would be violating this Award by making payment consistent with this concurring opinion as I believe the Act and Rules of the Commission prescribe.

S/______________ RENE C. RIGGSBEE COMMISSIONER

¹ It appears that the language of the Form 42 should be revised either to delete the term "general" or to use the phrase "appropriate guardian" to clarify that a general guardian is not appropriate when a natural guardian exists. See de Portillo v. D.H. Griffin Wrecking Co.,134 N.C. App. 714, 518 S.E.2d 555, review denied, 351 N.C. 188,541 S.E.2d 717 (1999).