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Sims v. Charmes/Arby's Roast Beef2/6/2001
had failed to prove his temporary total disability because he had earned income from self- employment businesses during the time period in which he collected payments from defendants. Finally, plaintiff assigns as error the Commission's method for calculating plaintiff's average weekly wage based on G.S. § 97-2(5).
In their separate appeal from the 22 June 1999 order, defendants assert the Industrial Commission erred when it granted plaintiff's request to reconsider the matter sitting en banc, and assign error to the provisions of the en banc order purporting to extend the deadline for filing an appeal from the Commission's earlier orders.
We begin by addressing defendants' assignment of error regarding the Industrial Commission's authority to sit en banc. The Industrial Commission is an administrative agency of the State and has only the limited power and jurisdiction either expressly or impliedly granted by the legislature to enable it to administer the Workers' Compensation Act. Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985). The procedure for the Full Commission to hear cases is established by G.S. § 97-85. The statute provides:
If application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award: Provided, however, when application is made for review of an award, and such an award has been heard and determined by a commissioner of the North Carolina Industrial Commission, the commissioner who heard and determined the dispute in the first instance, as specified by G.S. 97-84, shall be disqualified from sitting with the full Commission on the review of such award, and the chairman of the Industrial Commission shall designate a deputy commissioner to take such commissioner's place in the review of the particular award. The deputy commissioner so designated, along with the two other commissioners, shall compose the full Commission upon review. 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.
The statute does not provide the Commission with the express authority to sit en banc to hear cases nor does it evince any intent by the legislature that the Commission do so. Indeed, the statute is explicit in setting forth that, for the purposes of reviewing awards, the Full Commission shall be composed of three member panels, appeals from which are taken to the Court of Appeals.
Because the Commission is without authority to sit en banc, it follows that its 22 June 1999 order, including the provisions extending the time for filing an appeal from the earlier orders, is a nullity and must be vacated. Nevertheless, in the exercise of the discretion granted us by N.C.R. App. P. 2, we treat plaintiff's purported appeal as a petition for writ of certiorari, allow the petition, and proceed to consider plaintiff's appeal on the merits.
Plaintiff argues the Commission erred when it concluded that plaintiff was not entitled to a presumption of continuing temporary total disability based on defendants' filing of the Industrial Commission Form 60, entitled "Employer's Admission of Employee's Right To Compensation Pursuant to N.C. Gen. Stat. 97-18(b)." Form 60, plaintiff argues, carries with it the same pre
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