The Absent Commissioner: After a hearing, who may render a decision on the claim?

Bentley v. Jonathan Piner Construction (NC Court of Appeals, 9/20/16)

Plaintiff suffered a right eye injury on March 3, 2014, when working on a construction site.  Defendants denied the claim, arguing that plaintiff was not an employee.

The claim was heard by Deputy Commissioner Mary Vilas on December 5, 2014.  Deputy Commissioner Vilas suggested that the jurisdictional issue of whether plaintiff was an employee be bifurcated from the merits of the claim, because she would not be at the Commission after February 1, 2015.  Deputy Commissioner Vilas filed an Order closing the record on January 12, 2015, but did not author an Opinion and Award before she left the Commission.  The claim was reassigned and on February 16, 2015, Deputy Commissioner William Shipley filed an Opinion and Award, finding plaintiff was not an employee.  Plaintiff appealed to the Full Commission, which came to the same conclusion as Deputy Commissioner Shipley.

The Court of Appeals reviewed NCGS §97-84, and found that the plain language of the statute referred to a deputy commissioner in the singular form, showing the intent of the General Assembly that a single deputy should handle a case to completion.  The Court of Appeals noted that if they were to interpret the singular “deputy” as a plural, as NCGS §97-2(17) requires, no one deputy would have a “complete determination of the matters in dispute,” and would render portions of NCGS §97-84 superfluous.

The Court of Appeals did note that Adams v. AVX Corp. renders the Full Commission the sole judge of credibility. 349 N.C. 676, 509 S.E.2d 411 (1998).  Defendants argued that because the Commission could proceed on a “cold” record, the issue of whether the deputy commissioner who issued the opinion and award heard live testimony did not matter.  The Court of Appeals rejected this argument, saying that they could not “ignore the plain language of the statute.”

Takeaway:  If you had a hearing that was heard by a deputy commissioner that left the IC before authoring an Opinion and Award, your case may need to be reheard.