Coppley v. PPG Industries, Inc. , 142 N.C. App. 196 ( 2001 )

TYSON, Judge.

Plaintiff filed 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. Jemigan, Jr., North Carolina Workers’ Compensation Law and Practice § 25-9 (3d ed. 1999).

Plaintiff contends that this case differs from Estes because Chairman Bunn, unlike 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. C.P Buckner Steel Erection, 139 N.C. App. 394, 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 accord-anee 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. § 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.