All opinions are subject to modification
and technical correction prior to official publication in the North Carolina
Reports and North Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NO. COA06-912
NORTH CAROLINA COURT OF APPEALS
Filed: 19 June 2007
DAY’LE LATHON,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 217573
CUMBERLAND COUNTY,
Employer,
SELF-INSURED (KEY RISK
MANAGEMENT SERVICES,
Servicing Agent),
Defendants.
Appeal by defendants from opinion and award entered 7 April
2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 21 February 2007.
MacRae,
Perry & MacRae, L.L.P., by Daniel T. Perry, III, for plaintiff-appellee.
Teague,
Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia and Bradley G.
Inman, for defendants-appellants.
GEER,
Judge.
Defendants Cumberland County and Key Risk Management
Services appeal from an opinion and award of the North Carolina Industrial
Commission concluding that plaintiff Day’le Lathon is entitled to workers’
compensation benefits as a result of carpal tunnel syndrome plaintiff developed
while working for defendant Cumberland County.
On appeal, defendants argue that the Commission’s opinion and award is
void because it was filed after the terms of two of the commissioners on the
panel deciding plaintiff’s case had expired.
Because, however, defendants did not raise this issue before the Full
Commission, it has not been properly preserved for appellate review. Further, defendants’ remaining arguments
regarding the merits of plaintiff’s claim address only questions of credibility
and weight to be given evidence and, therefore, under our standard of review,
do not present a basis for reversal.
Consequently, we affirm the opinion and award of the Commission.
Plaintiff, who was 40 years old at the time of the hearing
before the deputy commissioner, had been the Assistant Director of Pretrial
Services for the County since 1999. In
this position, plaintiff prepared reports, supervised other employees, and
entered data. Plaintiff, who is
right-handed, began to notice tingling, numbness, and swelling in her left hand
in December 2001.
Defendants referred plaintiff to Occupational Health
Services on 8 February 2002, where nerve conduction studies were “normal.” Plaintiff was later referred to orthopedist
Dr. Louis Clark at the Cape Fear Orthopaedic Clinic, who examined plaintiff for
complaints related to pain and spasms in both hands and twitching in her
fingers. Dr. Clark did not believe he
could help plaintiff surgically and referred her to a rheumatologist, Dr. Maria
Watson.
Dr. Watson concluded that plaintiff did not have rheumatoid
or inflammatory arthritis, but rather diagnosed plaintiff as suffering from
tendinitis. Dr. Watson explained in her
deposition:
She actually had tendinitis secondary to overuse and hand
pain, again, using the keyboard at work.
She does not do a lot of home work that would cause this. My belief is that her job is the primary
cause of her problem. I have suggested
that she will need to have things changed at work if her tendinitis is to get
better.
After
plaintiff’s counsel asked her to assume that plaintiff was “doing keyboarding
for 75 to 95 percent of her time,” Dr. Watson testified that plaintiff would be
“more prone to [tendinitis] than someone that did not do keyboarding for that
amount of time[.]”
In response to questioning by defendants’ counsel, Dr.
Watson testified that she was not aware of any recognizable link between
tendinitis and plaintiff’s job as Assistant Director of Pretrial Services. She then testified as follows:
Q. Do you have an
opinion satisfactory to yourself and to a reasonable degree of medical
certainty whether tendinitis is characteristic of and peculiar to the position
of assistant director of pre-trial services?
. . . .
A. I don’t have
anything. I guess no.
Dr.
Watson agreed that tendinitis is “an ordinary disease of life.”
On 4 May 2004, plaintiff was examined by Dr. James E. Lowe,
Jr., who is board certified in plastic surgery. He explained that his “boards state that [he is] qualified and
certified to perform hand surgery” and that he performs approximately 300 hand
surgeries a year, including carpal tunnel surgeries. Dr. Lowe found that plaintiff had clinical evidence of carpal
tunnel syndrome and ordered another nerve conduction study. The nerve conduction study, read by a board
certified neurologist, showed “a polyneuropathy of the upper extremities
involving both the median and the ulnar nerves,” which, according to Dr. Lowe,
confirmed his carpal tunnel diagnosis.
At first, Dr. Lowe continued plaintiff on medication and instructed her
to wear splints at night. When, on 26
July 2004, Dr. Lowe last treated plaintiff for continued numbness in both
hands, he recommended carpal tunnel surgery on both of plaintiff’s hands.
With respect to the cause of plaintiff’s carpal tunnel
syndrome, Dr. Lowe testified:
I do have an
opinion to a reasonable degree of medical certainty that is supported by
essentially all of the literature on carpal tunnel surgery, that it is causal —
casually [sic] related to repetitionous [sic] work, and I feel that in her case
that her carpal tunnel surgery is related to her repetitionous [sic] work,
which causes synovitis.
According
to Dr. Lowe, synovitis is the most common cause of carpal tunnel syndrome. He concluded that repetitious activity was
“the most significant contributing factor” to plaintiff’s carpal tunnel
syndrome. Dr. Lowe explained that his
diagnosis was consistent with Dr. Watson’s diagnosis because tendinitis is the
same as synovitis. Dr. Lowe further
testified that the general public at large, who does not do repetitive
keyboarding to the degree of plaintiff, would not be at equal risk of
developing carpal tunnel syndrome as someone who does perform the repetitive
activity.
Defendants denied plaintiff’s claim and, following a
hearing, Deputy Commissioner Theresa Stephenson filed an opinion and award on
21 December 2004 denying plaintiff’s claim.
The deputy commissioner did not find Dr. Lowe’s testimony credible, and,
therefore, concluded plaintiff had failed to establish that she suffered from
an occupational disease. Plaintiff
appealed to the Full Commission.
On 7 April 2006, in an opinion and award authored by
Commissioner Laura Kranifeld Mavretic and joined by Commissioner Thomas J.
Bolch, the Full Commission reversed the decision of the deputy
commissioner. The Commission found
“that plaintiff’s repetitious work caused synovitis, which led her to develop
bilateral carpal tunnel syndrome;” that “plaintiff contracted an occupational
disease to both of her hands as a result of her job;” that “[p]laintiff’s
condition is the result of a disease that is characteristic of and peculiar to
her particular trade, occupation or employment;” and that “[p]laintiff’s disease
is not an ordinary disease of life to which the public is equally exposed
outside the employment.” Based on these
findings, the Commission concluded that plaintiff had contracted a compensable
occupational disease. Commissioner
Dianne C. Sellers dissented on the grounds that the majority erred by finding
Dr. Lowe’s testimony credible.
Defendants timely appealed to this Court.
I
We turn first to defendants’ argument that the Commission’s
opinion and award is void because it was filed after the terms of Commissioners
Bolch and Mavretic had expired.
Defendants rely upon Estes v. N.C. State Univ., 117 N.C. App.
126, 128, 449 S.E.2d 762, 764 (1994), in which this Court vacated an opinion
and award of the Industrial Commission when it was filed after the term of one
of the two commissioners joining in the majority opinion had expired.
Here, the terms for Commissioners Bolch and Mavretic — the
two members of the majority — expired on 30 June 2004 and 30 April 2005
respectively. See N.C. Gen.
Stat. §97-77(a) (2005) (“[T]he Governor shall appoint [commissioners] for a
term of six years, and thereafter the term of office of each commissioner shall
be six years.”). Defendants assert that
we are, therefore, required under Estes to vacate and remand the
Commission’s decision filed on 7 April 2006.
Plaintiff responds that Estes is at odds with a state
constitutional provision that “[i]n the absence of any contrary provision, all
officers in this State, whether appointed or elected, shall hold their
positions until other appointments are made or, if the offices are
elective, until their successors are chosen and qualified.” N.C. Const. art. VI, §10 (emphasis
added). Our Supreme Court considered a
similarly worded provision applying to judges, N.C. Const. art. IV, §16, and
held: “Where, as here, the incumbents’ terms end without successors having been
elected and qualified, and new terms of office have not begun, the
Constitution’s ‘hold over’ provision operates and allows the incumbents to
continue serving in the interim. The
constitutional provision . . . allows the judges to remain in office.” State ex rel. Martin v. Preston, 325
N.C. 438, 455, 385 S.E.2d 473, 482 (1989) (internal citation omitted). This principle has also been codified by our
General Assembly in N.C. Gen. Stat. §128-7 (2005) (“All officers shall continue
in their respective offices until their successors are elected or appointed,
and duly qualified.”). Under the state
constitution, N.C. Gen. Stat. §128-7, and Preston, it would appear that
Commissioners Mavretic and Bolch were still properly serving.
Neither Estes nor defendants address N.C. Const. art.
VI, §10. We need not, however, resolve
the apparent conflict between Estes and N.C. Const. art. VI, §10 — and
the analysis of our Supreme Court in Preston — since defendants have
failed to preserve this issue for appellate review.
Rule 10(b)(1) of the Rules of Appellate Procedure provides:
“In order to preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” As our Supreme Court has observed with respect to N.C.R. App. P.
10(b)(1), its purpose “‘is to require a party to call the [trial] court’s
attention to a matter upon which he or she wants a ruling before he or she can
assign error to the matter on appeal.’“
Reep v. Beck, 360 N.C. 34, 37, 619 S.E.2d 497, 499 (2005)
(quoting State v. Canady, 330 N.C. 398, 401, 410 S.E.2d 875, 878
(1991)).
In the present case, nothing in the record indicates that
defendants raised the issue of the validity of Commissioners Bolch’s and
Mavretic’s ongoing tenures in office before the Full Commission. The record includes a calendar for the 8
June 2005 docket before the Full Commission, identifying Commissioners Sellers,
Mavretic, and Bolch as the panel before which this case would be heard. The record, however, contains no indication
that defendants at any time prior to appeal objected to the presence of
Commissioners Bolch and Mavretic even though, under Estes, it would be
impossible to have an opinion joined by two Commissioners with unexpired terms.
This failure is particularly significant given that the Commission
— had it agreed with defendants’ argument under Estes — could have
remedied the situation by convening another panel comprised of individuals
whose terms had not yet similarly expired.
See N.C. Gen. Stat. §97-85 (2005) (“Provided further, the chairman
of the Industrial Commission shall have the authority to designate a deputy
commissioner to take the place of a commissioner on the review of any case, in
which event the deputy commissioner so designated shall have the same authority
and duty as does the commissioner whose place he occupies on such
review.”). We decline to construe Estes
so as to permit defendants to circumvent this well-established rule of
appellate practice and obtain a ruling on the issue from this Court without
first calling it to the attention of the Commission.
Estes presented a materially different set of
circumstances. In Estes,
Commissioner Davis’ term expired eight months after oral argument before
the panel, but before entry of the opinion and award. 117 N.C. App. at 128, 449 S.E.2d at 764. Thus, the parties did not have a meaningful
opportunity to object. It is also
apparent that the question of the propriety of Commissioner Davis’ joining in
the opinion was considered by the panel since Commissioner Davis attached an affidavit
to the opinion and award stating that he had joined the opinion prior to his
term’s expiration. Id. The issue had, therefore, been preserved for
appellate review.
This case does not involve a question of jurisdiction that
can be raised at any time. Even under Estes,
Commissioners Mavretic and Bolch could be considered de facto
officers. As this Court has explained:
“De facto status arises where a person assumes office ‘under color
of authority’ or where one ‘exercises the duties of the office so long or under
such circumstances as to raise a presumption of his right; in which cases his
necessary official acts are valid as to the public and third persons; but he
may be ousted by a direct proceeding.’“
Kings Mountain Bd. of Educ. v. N.C. State Bd. of Educ., 159 N.C.
App. 568, 575, 583 S.E.2d 629, 635 (quoting Norfleet v. Staton, 73 N.C.
546, 550 (1875)), disc. review denied, 588 S.E.2d 476 (2003). See also N.C. Gen. Stat. §128-6
(2005) (“Any person who shall, by the proper authority, be admitted and sworn
into any office, shall be held, deemed, and taken, by force of such admission,
to be rightfully in such office until, by judicial sentence, upon a proper
proceeding, he shall be ousted therefrom, or his admission thereto be, in due
course of law, declared void.”).
Here, there is no dispute that Commissioners Mavretic and
Bolch were properly appointed as Commissioners of the Industrial
Commission. As a result, even if, under
Estes, they were unable to continue serving after their terms expired,
the fact that they continued to publicly discharge their duties as
Commissioners rendered them de facto officers. See State ex rel. Duncan v. Beach, 294 N.C. 713,
720, 242 S.E.2d 796, 800 (1978) (holding that “[a] judge de facto is
defined as one who occupies a judicial office under some color of right, and
for the time being performs its duties with public acquiescence, though having
no right in fact” (internal quotation marks omitted)). Further, “[t]he acts of a de facto
officer are valid in law in respect to the public whom he represents and to
third persons with whom he deals officially.”
State v. Porter, 272 N.C. 463, 465-66, 158 S.E.2d 626, 628
(1968).[Note 1]
Thus, as at least de facto officers, the public acts
of Commissioners Mavretic and Bolch are deemed valid and their presence on the
panel cannot give rise to a jurisdictional challenge that eliminates the need
to comply with N.C.R. App. P. 10.[Note 2] Because defendants do not contend that they raised this issue
below, we may not consider this assignment of error. A contrary conclusion would allow a party to wait and see whether
a panel would rule favorably, secure in the knowledge that any unfavorable
ruling could be voided on appeal. This
Court has previously rejected such an approach in the analogous area of
judicial recusal. See In re
Key, __ N.C. App. __, __, 643 S.E.2d 452, 456 (2007) (holding that when
party to civil proceeding failed to move at trial level to recuse judge for
bias and prejudice, Rule 10(b)(1) precluded appellate review); State v. Love,
__ N.C. App. __, __, 630 S.E.2d 234, 243 (“There was no request, objection or
motion made by defendant at trial [to recuse the trial judge] and therefore the
question was not properly preserved for appeal.”), disc. review denied,
360 N.C. 580, 636 S.E.2d 192-93 (2006).
We see no basis for applying a different rule when a party fails to
object to a “holding over” commissioner.
II
We turn now to defendants’ arguments challenging the
Commission’s findings of fact and conclusions of law. “[A]ppellate review of an award from the Commission is generally
limited to two issues: (1) whether the findings of fact are supported by
competent evidence, and (2) whether the conclusions of law are justified by the
findings of fact.” Johnson v.
Southern Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512
(2004). Findings of fact by the
Commission are conclusive on appeal “‘when supported by competent evidence,
even when there is evidence to support a finding to the contrary.’“ Gutierrez v. GDX Auto., 169 N.C. App.
173, 176, 609 S.E.2d 445, 448 (quoting Plummer v. Henderson Storage Co.,
118 N.C. App. 727, 730, 456 S.E.2d 886, 888, disc. review denied, 340
N.C. 569, 460 S.E.2d 321 (1995)), disc. review denied, 359 N.C. 851, 619
S.E.2d 408 (2005).
Defendants first assert that the Commission erred by finding
that “[n]inety-five percent of plaintiff’s job is keyboarding or handwriting
affidavits.” Defendants concede that
this finding is supported by plaintiff’s own testimony. Defendants’ assertion “that plaintiff’s
claim in this regard is not credible given her title, admitted duties, and
total lack of corroborating evidence” was an argument for the Commission. Since this finding is supported by
plaintiff’s testimony, it cannot be disturbed on appeal regardless whether
there is also evidence to the contrary.
See Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563,
573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting) (noting that if “there
is any evidence at all, taken in the light most favorable to the plaintiff, the
finding of fact stands, even if there is substantial evidence to the
contrary”), adopted per curiam, 359 N.C. 403, 610 S.E.2d 374 (2005).
Defendants next contend that the Commission “erred in
finding that Dr. Lowe’s testimony was credible” rather than agreeing with the
deputy commissioner that the testimony should not be accepted as credible. It is well-established that “‘[t]he
Commission is the sole judge of the credibility of the witnesses and the weight
to be given their testimony.’“ Adams
v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson
v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274
(1965)). Consequently, this Court may
not review the Commission’s credibility determination. Deese v. Champion Int’l Corp., 352
N.C. 109, 116-17, 530 S.E.2d 549, 553 (2000).
Finally, defendants argue that the Commission erred in
concluding that plaintiff contracted an occupational disease from her work
duties. Because carpal tunnel syndrome
is not specifically listed as an occupational disease in N.C. Gen. Stat. §97-53
(2005), it falls instead within the catchall provision of N.C. Gen. Stat.
§97-53(13). Under §97-53(13), an
occupational disease includes “[a]ny disease . . . which is proven to be due to
causes and conditions which are characteristic of and peculiar to a particular
trade, occupation or employment, but excluding all ordinary diseases of life to
which the general public is equally exposed outside of the employment.”
As the Supreme Court has explained, in order to be
considered an occupational disease under N.C. Gen. Stat. §97-53(13), a
condition must be:
(1)
characteristic of persons engaged in the particular trade or occupation in
which the claimant is engaged; (2) not an ordinary disease of life to which the
public generally is equally exposed with those engaged in that particular trade
or occupation; and (3) there must be “a causal connection between the disease
and the [claimant’s] employment.”
Rutledge
v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (quoting Hansel
v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)). The first two elements “are satisfied if, as
a matter of fact, the employment exposed the worker to a greater risk of
contracting the disease than the public generally.” Id. at 93-94, 301 S.E.2d at 365.
Defendants assert that “plaintiff failed to elicit credible
expert medical testimony in support of her position, and therefore [has] failed
to prove the existence of an occupational disease . . . .” Defendants suggest that the testimony of Dr.
Watson is more credible and supports their position that plaintiff did not have
a compensable occupational disease.
Defendants do not dispute that Dr. Lowe’s testimony — found credible by
the Commission — supports the Commission’s findings (1) “that plaintiff
contracted an occupational disease to both of her hands as a result of her job
with defendant,” (2) that “[p]laintiff’s condition is the result of a disease
that is characteristic of and peculiar to her particular trade, occupation or
employment,” and (3) “[p]laintiff’s disease is not an ordinary disease of life
to which the public is equally exposed outside the employment.”
Because the Commission’s findings are supported by Dr.
Lowe’s testimony, they are binding even though defendants have pointed to
contrary testimony. Further those
findings of fact support the Commission’s conclusion that plaintiff has
contracted a compensable occupational disease.
See, e.g., Terasaka v. AT&T, 174 N.C. App. 735, 743-44,
622 S.E.2d 145, 151 (2005) (plaintiff carried burden of showing carpal tunnel
syndrome was an occupational disease when doctors testified that extensive
typing like plaintiff testified she routinely performed placed plaintiff at
increased risk), aff’d per curiam and disc. review improvidently allowed,
360 N.C. 584, 634 S.E.2d 888 (2006).
We, therefore, affirm the opinion and award of the Commission.
Affirmed.
Judge ELMORE concurs.
Judge TYSON dissents in a separate opinion.
NO. COA06-912
NORTH CAROLINA COURT OF APPEALS
Filed: 19 June 2007
DAY’LE LATHON,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 217573
CUMBERLAND COUNTY,
Employer,
SELF-INSURED (KEY RISK
MANAGEMENT SERVICES,
Servicing Agent),
Defendants.
TYSON, Judge dissenting.
The majority’s opinion ignores binding precedent from this
Court that the Commission’s opinion and award is void when entered after the
expiration of two of the Commissioner’s terms.
Coppley v. PPG Industries, Inc., 142 N.C. App. 196, 541 S.E.2d
743 (2001); Estes v. N.C. State Univ., 117 N.C. App. 126, 449 S.E.2d 762
(1994). Neither of these precedents
have been overturned by our Supreme Court.
“Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is bound by
that precedent, unless it has been overturned by a higher court.” State v. Jones, 358 N.C. 473, 487,
598 S.E.2d 125, 133-34 (2004); In re Civil Penalty, 324 N.C. 373, 384,
379 S.E.2d 30, 37 (1989). I
respectfully dissent.
This case was heard before a panel of the Full Commission
consisting of Commissioners Bolch, Mavretic, and Sellers on 8 June 2005. The opinion and award was signed by the
Commissioners on 3 August 2005 and filed on 7 April 2006. Commissioner Mavretic authored the opinion
and award and Commissioner Bolch concurred.
Commissioner Sellers dissented.
Defendant asserts the terms of Commissioners Bolch and Mavretic expired
on 30 June 2004 and 30 April 2005 respectively.
I.
Appellate Rule 10(a)
This issue is properly before this Court. Rule 10(a) of the North Carolina Rules of
Appellate Procedure provides:
[U]pon any
appeal duly taken from a final judgment any party to the appeal may present for
review, by properly making them the basis of assignments of error, the
questions whether the judgment is supported by the verdict or by the findings
of fact and conclusions of law, whether the court had jurisdiction of the
subject matter, and whether a criminal charge is sufficient in law.
N.C.R.
App. P. 10(a) (2007) (emphasis supplied).
“Jurisdiction is ‘[t]he legal power and authority of a court to make a
decision that binds the parties to any matter properly brought before it.’” In re T.R.P., 360 N.C. 588, 590, 636
S.E.2d 787, 789-90 (2006) (quoting Black’s Law Dictionary 856 (7th ed.
1999)). “[A] court must also have
subject matter jurisdiction, or jurisdiction over the nature of the case and
the type of relief sought, in order to decide a case.” Id. at 590, 636 S.E.2d at 790
(quotation omitted). Subject matter
jurisdiction is “the power to pass on the merits of the case.” Boyles v. Boyles, 308 N.C. 488, 491,
302 S.E.2d 790, 793 (1983).
Defendant argues Commissioners Bolch and Mavretic had no
jurisdiction, subject matter or otherwise, to rule upon this case after their
terms had expired prior to the case being heard and that the Commission’s
opinion and award is void. Defendant’s
assignment of error numbered 7 states, “The Commission erred as a matter of law
in filing its Opinion and Award without a sufficient number of Commissioners
concurring.” Defendant has properly
raised and argued this issue through an assignment of error. This issue is properly before this
Court. N.C.R. App. P. 10(a).
II. Estes
and Coppley
The proper holding in this case is controlled by this
Court’s prior precedents. In Estes,
the Full Commission panel consisted of three commissioners at the time of the
original hearing. 117 N.C. App. at 128,
449 S.E.2d at 764. Chairman Booker
authored the opinion and award and Commissioner Davis concurred. Id.
Commissioner Ward dissented. Id. However, when the opinion and award was
signed and filed, Commissioner Davis’s term had expired. Id.
This Court unanimously held the Full Commission’s decision was void as a
matter of law. Id.
This Court also considered this issue in Coppley, 142
N.C. App. 196, 541 S.E.2d 743.
Commissioner Bolch authored the opinion and award and Commissioner Bunn
concurred. Id. Commissioner Riggsbee dissented. Id. at 197, 541 S.E.2d at 743. Chairman Bunn signed the opinion and award
on 22 June 1999 and left the Commission on 21 September 1999. Id.
The opinion and award was filed on 19 October 1999. Id.
This Court stated, “‘Where a commissioner’s vote was taken before the
expiration of his term of office, but the decision was not issued until after
the term expired, the decision of the Commission is void as a matter of law.’” Id. at 198, 541 S.E.2d at 744 (quoting
Leonard T. Jernigan, Jr., North Carolina Workers’ Compensation Law and Practice
§25-9 (3d ed. 1999)). The opinion and
award was held to be void because no majority of the Commission existed when it
was filed. Id.
The facts of this case are more egregious than either of the
facts in Estes or Coppley.
Defendant argues that unlike the facts in Estes and Coppley,
Commissioners Bolch and Mavretic comprised the total majority and both their
terms had expired before the panel convened, the case was heard, and the
opinion and award was entered. On 8
September 2006, this Court allowed defendant’s Motion for Addition to Record on
Appeal filed on 24 August 2006 as exhibits to the record on appeal. Attached to the motion as Exhibit A were
copies of two letters, both signed by former Governor James B. Hunt, Jr. One letter, dated 10 June 1999, is addressed
to Mr. Thomas J. Bolch. The first
paragraph of the letter states in full, “It gives me great pleasure to
reappoint you as a member of the North Carolina Industrial Commission. Pursuant to General Statute 97-77, your
appointment is effective immediately.
Your term will expire on June 30, 2004.” (Emphasis supplied).
The second letter, dated 21 July 2000, is also signed by
former Governor Hunt and is addressed to Ms. Laura K. Mavretic. The first paragraph of this letter states in
full, “It gives me great pleasure to appoint you to serve as a member of the
North Carolina Industrial Commission.
Pursuant to General Statute 97-77, your appointment is effective August
1, 2000 and will expire on April 30, 2005.” (Emphasis supplied).
Nothing in the record shows either Commissioners Bolch or
Mavretic were reappointed to the Commission after their terms of office expired
on “June 30, 2004,” and “April 30, 2005,” respectively. According to the Commission’s website,
Commissioner Bolch was replaced by Mr. Danny Lee McDonald, who was sworn into
office on 9 February 2007. Commissioner
Mavretic was administered the oath of office on 8 February 2007. See News Release dated 2 February
2007, http://www.comp.state.nc.us/ncic/pages/020207nr.htm.
Defendant argues Commissioners Bolch and Mavretic purported
to convene the Commission to hear this case, and signed and entered the opinion
and award after their terms had expired and without a current commission issued
by the Governor to renew their terms.
N.C. Gen. Stat. §97-77 (2005) mandates “the Governor shall
appoint a successor for a term of six years, and thereafter the term of office
of each commissioner shall be six years.” (Emphasis supplied).
This Court is bound by both Estes and Coppley. Jones, 358 N.C. at 487, 598 S.E.2d at
133-34; In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37. “As a commission it acts by a majority of
its qualified members at the time decision is made.” Gant v. Crouch, 243 N.C. 604, 607, 91
S.E.2d 705, 707 (1956) (emphasis supplied).
III.
Conclusion
Defendant’s appeal challenges the jurisdictional members of
the Commission to hear this appeal.
N.C.R. App. P. 10(a). Following Gant, Estes, and Coppley,
no majority of the Commission possessed “the power to pass on the merits of the
case” or concur in the opinion and award entered. Boyles, 305 N.C. at 491, 302 S.E.2d at 793. The opinion and award is void and must be
vacated. Gant, 243 N.C. at 607,
91 S.E.2d at 707; Coppley, 142 N.C. App. at 198, 541 S.E.2d at 744; Estes,
117 N.C. App. at 128, 449 S.E.2d at 764.
I respectfully dissent.
1. We note that this Court has also
held that “[t]he validity of the title or an act of a de facto
officer may be challenged only through an action of quo warranto.” Kings Mountain, 159 N.C. App. at 575,
583 S.E.2d at 635 (emphasis added).
2. Defendants also cite Coppley v.
PPG Indus., Inc., 142 N.C. App. 196, 197-99, 541 S.E.2d 743, 744-45 (2001)
(voiding majority opinion and award entered on remand because concurring
commissioner had retired prior to filing).
In Coppley, however, one of the commissioners in the majority had
actually left the Commission prior to the filing of the opinion and, therefore,
the panel was composed of only two commissioners. Further, the appellant in Coppley would have had no
opportunity to raise the issue prior to appeal.