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Coppley v. PPG Industries2/6/2001
Appeal by defendant from opinion and award entered 19 October 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 January 2001.
Plaintiff filed a worker's compensation claims on 24 February 1995 and 9 March 1995, alleging that on 6 January 1995 she sustained a hip injury while moving an object from a conveyor belt to a hand truck at defendant's plant.
A hearing was held on 26 February 1996. Deputy Commissioner George T. Glenn, Jr. awarded temporary total disability benefits to plaintiff on 23 July 1997. On 16 July 1998, the Full Commission affirmed by a vote of two-to-one, with Commissioner Renee C. Riggsbee dissenting. On 15 July 1999, this Court reversed the decision of the Full Commission and remanded the case for further proceedings. On 19 October 1999, the Full Commission made additional findings and voted two-to-one to affirm its award of worker's compensation benefits to plaintiff. Commissioner Thomas J. Bolch authored the opinion, with Chairman J. Howard Bunn concurring. Commissioner Riggsbee again dissented.
Chairman Bunn signed the opinion and award on 22 June 1999. Chairman Bunn left the Commission on 21 September 1999. The opinion was filed on 19 October 1999.
The Commission awarded plaintiff temporary total disability benefits at the rate of $264.09 per week for the period of 31 January 1995 "through the date of this Opinion and Award and continuing until such time as plaintiff has returned to work earning the same or greater wages than she was earning at the time of her injury or further orders of the Industrial Commission." Defendant appeals. We vacate the order and again remand to the Commission.
The issue presented by this appeal is whether the Commission's decision should be vacated because it was filed after the retirement of one of the commissioners, resulting in less than a majority of the Commission concurring in the opinion.
Defendant argues that the 19 October 1999 opinion and award is void because it was filed after Chairman J. Howard Bunn, Jr. left the Commission. The Commission's vote was two-to-one, with Chairman Bunn in the majority. Defendant contends the opinion and award is void because no majority opinion existed when it was filed. We agree.
Chairman Bunn signed the opinion and award on 22 June 1999. Chairman Bunn left the Commission on 21 September 1999. The opinion was not filed until 19 October 1999.
"The Commission acts by a majority of the votes of its qualified members at the time a decision is made . . . a vote of two members constitutes a majority." Estes v. N.C. State University, 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994) (citing Gant v. Crouch, 243 N.C. 604, 607, 91 S.E.2d 705, 707 (1956)).
In Estes, the Commission panel consisted of three commissioners at the time of the original hearing. Estes, supra. Chairman Booker authored the opinion and Commissioner Davis concurred. Commissioner Ward dissented. Id. However, when the opinion and award was signed and filed, Commissioner Davis was no longer a qualified commissioner because his term had expired. Poe v. Raleigh/Durham Airport Authority, 121 N.C. App. 117, 126, 464 S.E.2d 689, 694 (1995) (citing Estes, supra). The decision was held to be void as a mater of law. Id. "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." Leonard T. Jernigan, Jr., North Carolina Workers' Compensation Law and Practice ยง 25-9 (3d ed. 1999).
Plaintiff contends that this case differs from Estes because Chairman Bunn, unlike
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