Opinion
I.C. No. 588987.
Filed 4 May 2000.
After review by the Full Commission on 17 August 1999 upon the appeal of defendants from an Opinion and Award filed on 17 February 1999 by Deputy Commissioner Pamela T. Young, an Opinion and Award denying plaintiffs claim was filed on 9 March 2000 in this matter by a majority Full Commission panel consisting of two Commissioners. This matter was initially reviewed on 17 August 1999 by three panel members of the Full Commission, Renee C. Riggsbee, Dianne C. Sellers and J. Howard Bunn, Jr. However, former Chairman Bunn retired before the filing of the Opinion and Award and did not participate in the final majority decision filed by Commissioners Riggsbee and Sellers.
Plaintiff filed a Motion to Set Aside the Opinion and Award and to Reconsider the Case on the grounds that the Commissions two member decision violated N.C.G.S. 97-85. Additionally, plaintiff objects to the Full Commission replacing the Deputy Commissioners findings and conclusions when issues of credibility are concerned. Defendants objected and responded that plaintiffs motion lacks merit.
Plaintiff: Ronald Barbee, Attorney, Greensboro, North Carolina; Ronald Barbee, counsel of record.
Defendants: Cranfill, Sumner Hartzog, Attorneys, Raleigh, North Carolina; Jonathan Anders, counsel of record.
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N.C.G.S. 97-85 does not prohibit the Full Commission from deciding cases by a majority of two Commissioners. Case law is well settled that "[t]he Commission acts by a majority of the votes of its qualified members at the time the decision is made. Furthermore, a vote of two Commissioners constitutes a majority. Gant v. Crouch, 243 N.C. 604, 607, 91 S.E.2d 705, 707 (1956). This law was reiterated in both Estes v. N.C. State University, 117 N.C. App. 126, 449 S.E.2d 762 (1994) and Poe v. Raleigh/Durham Airport Authority, 121 N.C. App. 117, 464 S.E.2d 689 (1995).
Furthermore, the Full Commission retains the authority to judge credibility without deference to the Deputy Commissioners decision regarding credibility. Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).
In view of the foregoing, plaintiffs motion is Hereby Denied and the Opinion and Award as filed on 9 March 2000 remains in full force and effect. No costs are assessed at this time.
This the _____ day of April 2000.
S/_______________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/______________________ RENEE C. RIGGSBEE COMMISSIONER