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Tew v. E.B. Davis Electric Co.2/6/2001
Appeal by defendant from opinion and award entered by the North Carolina Industrial Commission on 3 February 2000. Heard in the Court of Appeals 9 January 2001.
Defendant, E.B. Davis Electric Company ("Davis Electric"), contracted with Pembroke State University to serve as electrical contractor for construction of a new building. Davis Electric hired Mr. Junius Burney ("Burney") as a subcontractor for this project. Davis Electric failed to secure a certificate of compliance or written waiver regarding workers' compensation coverage from Burney.
Plaintiff, Mitchell Tew ("Tew"), had worked with Burney doing side jobs on four or five occasions in the previous nine or ten years. Burney asked Tew on 10 February 1995 to work with him on the Pembroke State University project. Tew agreed.
Tew went to Burney's home on the morning of 11 February 1995. Burney drove Tew to the work site in Burney's truck. Burney and Tew worked at the site for about eight hours, and left the job site together late that afternoon. Burney made a U-turn on the way home. A collision occurred as a result of the U-turn, killing Burney, and injuring Tew.
Tew filed a worker's compensation claim for the injuries he sustained from the accident. Hearing was held on 28 January 1998. Deputy Commissioner Teresa B. Stephenson awarded benefits to Tew on 26 June 1998. On 3 February 2000, the Full Industrial Commission ("Commission") affirmed. The award was filed with the signatures of only two commissioners. Chairman J. Howard Bunn participated in the review of the case, but retired before the decision was filed.
The Commission awarded Tew disability benefits at the rate of "$400.00 per week from 11 February 1995 for the remainder of plaintiff's life, barring change in condition." Davis Electric appeals.
The issues presented by this appeal are: (1) whether the opinion and award is valid when signed by two commissioners, and (2) whether any competent evidence exists to support the Commission's finding that Tew's injuries arose out of and in the course of his employment.
I.
Davis Electric contends that the opinion and award of the Commission is invalid as it was only signed and filed by two commissioners voting in the majority. We disagree.
Commissioner Bernadine S. Ballance authored the opinion, and Commissioner Laura K. Mavretic concurred. Former Commissioner J. Howard Bunn, Jr. participated in the review of the case but retired before the decision was filed.
This Court was faced with similar facts in Pearson v. Buckner Steel, ___ N.C. App. ___, 533 S.E.2d 532 (2000). In Pearson, only two commissioners signed the opinion and award. It was noted that the third commissioner had participated in the review of the case, but was unavailable at the time of filing because of illness. Id. Appellant in Pearson argued that the commission lacked jurisdiction because "two commissioners cannot constitute a panel." Id. This Court upheld the opinion and award because the case had been reviewed by three commissioners and rendered by a majority of the members of that panel, as required by N.C.G.S. ยง 97-85. Id.
II.
Next, we consider whether competent evidence exists to support the Commission's finding that Tew's injuries are compensable under the Workers' Compensation Act ("the Act"). Davis Electric contends that Tew's claim is not compensable under the Act because Tew was injured while commuting between work and home. We agree and reverse the ruling of the Commission.
An injury must arise out of and in the course of employment in order to be compensable under the Act. Hardy v. Small, 246 N.C. 581, 9
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