1. Public Health--vaccine injury act--appeal--full commission--panel of three
The language of N.C.G.S. § 130A-428(b) stating that an appeal be heard by the Industrial
Commission sitting as a full commission does not require the entire seven-member body of the
Industrial Commission to hear all appeals under the Childhood Vaccine-Related Injury
Compensation Program, but instead means a panel of three commissioners.
2. Public Health--vaccine injury act--appeal--consideration by two commissioners--full
panel required
The Industrial Commission erred in an action for damages under the North Carolina
Childhood Vaccine-Related Injury Compensation Program by allowing the case to be reviewed
by only two commissioners and the case is remanded for a new hearing, because: (1) the vaccine
injury act requires that each appeal be decided by a panel of three commissioners, N.C.G.S. §
130A-428(b); (2) the instant case not only involves one commissioner's inability to sign the
decision at the time of filing but also the commissioner's recusal immediately after oral
arguments and absence during review of the appeal; and (3) although a decision may be rendered
by a two-commissioner majority when the third commissioner is unavailable to sign at the time
of filing, the appeal must be heard by the Commission sitting as a full commission, meaning a
panel of three commissioners.
Wallace, Creech & Sarda, L.L.P., by Peter J. Sarda, John R.
Wallace, and Joseph A. Newsome, for claimants-appellants.
Attorney General Roy Cooper, by Assistant Attorney General
Stacey A. Phipps, for respondents-appellees.
CALABRIA, Judge.
Andrew Goetz, Catherine Goetz, and Hayden L. Goetz
(collectively “claimants”) appeal from a decision and order of the
North Carolina Industrial Commission (the “Commission”) denyingtheir claim for damages under the North Carolina Childhood Vaccine-
Related Injury Compensation Program. We vacate and remand.
On 14 May 1993, Hayden L. Goetz (“Hayden”) was born to Andrew
and Catherine Goetz (“Mr. and Mrs. Goetz”). On 6 July, 31 August,
and 19 November 1993, Hayden received doses of
diphtheria/pertussis/tetanus vaccine (“DPT shot”) manufactured by
Wyeth-Lederle Vaccine's predecessor, Lederle Labs. According to
Mr. and Mrs. Goetz, after each DPT shot, Hayden had fevers ranging
from 102-106 degrees and was irritable. The evening after the
second shot, he awoke screaming and screamed inconsolably for
approximately forty-five minutes. After the second and
particularly the third DPT shot, Mr. and Mrs. Goetz and Hayden's
grandmother noticed that Hayden seemed lethargic, limp, less
responsive, and over time appeared to lag in reaching his
developmental milestones. In July 1996, when Hayden was age three,
a pediatric neurologist determined that Hayden had a non-
progressive alteration in brain functioning, termed a “static
encephalopathy,” due to an unknown cause and that he suffered from
some degree of mental retardation.
In March 1999, claimants filed a claim for a vaccine-related
injury in the United States Court of Federal Claims pursuant to the
National Vaccine Injury Compensation Program. In January 2001, the
United States Court of Appeals for the Federal Circuit dismissed
their claim for violation of the applicable statute of limitations.
Having exhausted their federal claims, claimants filed a claim for
vaccine-related injury pursuant to the North Carolina Childhood
Vaccine-Related Injury Compensation Program. On 17 March 2003, adeputy commissioner, sitting for the Commission, denied their
claim. On 24 March 2003, claimants appealed to the Commission. A
panel of three commissioners heard oral arguments in the matter.
Immediately following oral arguments, one commissioner recused
himself from review of the appeal. The remaining two commissioners
reviewed the appeal and entered a “Decision and Order” on 25
November 2003 denying their claim. From this “Decision and Order,”
claimants appeal.
There are no North Carolina appellate court opinions reviewing
the North Carolina Childhood Vaccine-Related Injury Compensation
Program (the “vaccine injury act” or the “act”), N.C. Gen. Stat. §§
130A-422 through 434 (2003). Therefore, a brief overview of the
act is provided. The vaccine injury act became effective 1 October
1986 and “applies to all claims for vaccine-related injuries . . .
.” N.C. Gen. Stat. § 130A-432 (2003). Similar to the National
Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 through
34 (2003), the vaccine injury act is an attempt to address concerns
regarding the inability of the civil tort system to provide
sufficient compensation to children injured by childhood
immunizations and also concerns about maintaining the viability of
a shrinking number of childhood vaccine manufacturers. See Daniel
A. Cantor, Striking a Balance Between Product Availability and
Product Safety: Lessons from the Vaccine Act, 44 Am. U.L. Rev.
1853, 1858-60 (1995) (examining the aims of the National Vaccine
Injury Compensation Program). To these ends, the vaccine injury
act authorizes the Commission “to hear and pass upon all claims
filed pursuant to [the vaccine injury act].” N.C. Gen. Stat. §130A-424 (2003). The act also provides that a claim may be filed
with the Commission only after a claimant has exhausted his
remedies under the National Vaccine Injury Compensation Program or
other federal law. N.C. Gen. Stat. § 130A-423(b1) (2003). In
addition, the rights and remedies provided claimants under the
vaccine injury act's provisions are exclusive. N.C. Gen. Stat. §
130A-423(b) (2003). However, nothing in the act prohibits “a civil
action against a vaccine manufacturer for damages for a vaccine-
related injury or death if the action is not barred by federal law
. . . .” N.C. Gen. Stat. § 130A-423(c) (2003).
After a claim is filed under the act, the Commission conducts
a hearing, and a member of the Commission or a deputy thereof,
sitting for the Commission, determines whether a claimant sustained
a vaccine-related injury. N.C. Gen. Stat. § 130A-424. If the
commissioner or deputy determines “that a claimant has sustained a
vaccine-related injury, the Commission [must] make an award
providing compensation or services . . . .” N.C. Gen. Stat. §
130A-427(a) (2003). The monetary compensation for an injured
individual may not exceed $300,000, and any services provided are
not included as a part of the monetary compensation but are in
addition to it. N.C. Gen. Stat. § 130A-427(b) (2003). After the
commissioner or deputy makes a decision, any party to the
proceedings has fifteen days to appeal the decision to the
Commission. N.C. Gen. Stat. § 130A-428(b) (2003). The appeal must
“be heard by the Commission, sitting as a full commission, on the
basis of the record in the matter and upon oral argument of the
parties . . . .” Id. Any party may appeal the Commission'sdecision to this Court for errors of law within thirty days. N.C.
Gen. Stat. § 130A-428(c) (2003).
[1] Claimants first assert the plain language of N.C. Gen.
Stat. § 130A-428(b), that an appeal “be heard by the Commission,
sitting as a full commission . . . [,]” requires the entire seven
member body of the Commission to hear all appeals under the act.
Claimants, however, failed to properly preserve this issue for
appellate review. Under N.C. R. App. P. 10(b)(1), “[i]n order to
preserve a question for appellate review, a party must have
presented . . . a timely request, objection or motion, stating the
specific grounds for the ruling the party desired . . . .” The
record contains no evidence that claimants objected to the size or
composition of the three commissioner panel at any time prior to
the close of the hearing. Moreover, were we to consider this
issue, the clear statutory requirement that a panel of three
commissioners review awards under the Worker's Compensation Act,
N.C. Gen. Stat. § 97-85 (2003), and the Commission's practice of
sitting in panels of three to hear appeals under the Tort Claims
Act, which requires that appeals “be heard by the Industrial
Commission, sitting as a full Commission . . . [,]” N.C. Gen. Stat.
§ 143-292, make unpersuasive claimants' assertion that the
legislature's use of the term “full commission” in N.C. Gen. Stat.
§ 130A-428(b) was intended to mean something other than a panel of
three commissioners.
[2] In the alternative, claimants assert the panel's “Decision
and Order” are invalid because only two commissioners reviewed
their appeal. As noted above, both the vaccine injury act and theWorker's Compensation Act require that each appeal be decided by a
panel of three commissioners. N.C. Gen. Stat. § 130A-428(b); N.C.
Gen. Stat. § 97-85. Based on this similarity, we may obtain
guidance from worker's compensation precedent in addressing
claimants' assertion.
In two worker's compensation cases, Pearson v. C.P. Buckner
Steel Erection, 139 N.C. App. 394, 533 S.E.2d 532 (2000), and Tew
v. E.B. Davis Elec. Co., 142 N.C. App. 120, 541 S.E.2d 764 (2001),
this Court was faced with an opinion by the Commission signed by
only two of three commissioners. The third commissioner in each
case had participated in the review of the appeal but had been
unavailable to sign the opinion before filing. Pearson, 139 N.C.
App. at 400, 533 S.E.2d at 535; Tew, 142 N.C. App. at 122, 541
S.E.2d at 766. In both cases, this Court upheld the Commission's
opinion because each opinion “had been reviewed by three
commissioners and rendered by a majority of the members of that
panel . . . .” Tew, 142 N.C. App. at 122, 541 S.E.2d at 766.
The instant case not only involves one commissioner's
inability to sign the decision at the time of filing but also the
commissioner's recusal immediately after oral arguments and absence
during review of the appeal. Although a decision may be rendered
by a two commissioner majority when the third commissioner is
unavailable to sign at the time of filing, the appeal must
nonetheless “be heard by the Commission, sitting as a full
commission . . . [,]” meaning a panel of three commissioners. N.C.
Gen. Stat. § 130A-428(b) (emphasis added). The review of an appeal
by only two commissioners does not constitute a hearing by “a fullcommission.” Id. Therefore, in the instant case, the review of
claimants' appeal by only two commissioners violated N.C. Gen.
Stat. § 130A-428(b) and made the “Decision and Order” invalid as a
matter of law. Accordingly, the Commission's “Decision and Order”
are vacated, and the cause is remanded for a new hearing. Having
so held, we need not address claimants' remaining assignments of
error.
Vacated and remanded.
Judges HUNTER and LEVINSON concur.
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