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Coppley v. PPG Industries2/6/2001
Commissioner Davis, reviewed and signed the opinion and award before his retirement. This argument ignores the fact that Commissioner Davis attached an affidavit to the opinion and award stating he participated in the review of the case and that his decision had been made prior to the expiration of his term. Estes at 128, 449 S.E.2d at 764. This Court held that to give binding effect to Commissioner Davis' vote "would be to render meaningless the opinion and award signed and filed by the commissioners." Id. "Because the vote was two-to-one, and Davis was in the majority . . . the opinion and award was not rendered by a majority of the commission" and thus void as a matter of law. Id. at 127-28, 449 S.E.2d at 764.
In Pearson v. Buckner Steel, ___ N.C. App. ___, 533 S.E.2d 532 (2000), 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. Id. The opinion and award was rendered and filed by a majority of the commission regardless of the decision of the third commissioner. In contrast, Chairman Bunn and Commissioner Davis were part of two-to-one majorities. Without their respective concurrences, the vote is one-to- one, short of the required majority.
Because Chairman Bunn left office prior to the opinion being filed, no majority existed at the time of filing. Therefore, in accordance with our holding in Estes, the 19 October 1999 opinion and award is void as a matter of law. (By analogy, Rule 58 of the North Carolina Rules of Civil Procedure provides that "a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court." N.C.G.S. ยง 1A-1, Rule 58, (1999)(emphasis added)).
For the reasons stated, the 19 October 1999 opinion and award is vacated. The case is remanded to the Commission. Upon remand the Commission shall make specific findings based on the evidence in the record, proper conclusions therefrom and enter an appropriate order in accordance with this Court's prior holding in Coppley v. PPG Industries, Inc., 133 N.C. App. 631, 516 S.E.2d 184 (1999). In Coppley I, Chief Judge Eagles wrote, "to ensure effective appellate review, the Commission's findings must sufficiently reflect that plaintiff produced specific evidence to prove all three Hilliard factors." Id. at 635, 516 S.E.2d at 187. Findings not supported by competent evidence in the record are insufficient to support an award for benefits. Id. On remand the "Commission must make specific findings of fact as to each material fact upon which the rights of the parties . . . depend." Id.
Vacated and Remanded.
Judge HORTON concurs.
Judge GREENE dissents.
GREENE, Judge, dissenting.
I read the majority as holding that an opinion and award (opinion) of the full Commission is valid if two of the commissioners, who are authorized to act (i.e. have not retired), indicate their written concurrence to the opinion at the time of its filing. This is so, according to my reading of the majority's opinion, even if the third commissioner is no longer authorized to act as a commissioner at the time of the filing. I disagree with this holding and I, therefore, dissent.
In my opinion, there must be three commissioners authorized to act at the time the opinion is signed and at the time the opinion
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