Appeal by defendants from opinion and award entered 7 April
2006 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 21 February 2007.
MacRae, Perry & MacRae, L.L.P., by Daniel T. Perry, III, for
Teague, Campbell, Dennis & Gorham, L.L.P., by Dayle A. Flammia
and Bradley G. Inman, for defendants-appellants.
Defendants Cumberland County and Key Risk Management Services
appeal from an opinion and award of the North Carolina Industrial
Commission concluding that plaintiff Day'le Lathon is entitled to
workers' compensation benefits as a result of carpal tunnel
syndrome plaintiff developed while working for defendant Cumberland
County. On appeal, defendants argue that the Commission's opinion
and award is void because it was filed after the terms of two of
the commissioners on the panel deciding plaintiff's case had
expired. Because, however, defendants did not raise this issue
before the Full Commission, it has not been properly preserved for
appellate review. Further, defendants' remaining arguments
regarding the merits of plaintiff's claim address only questions of
credibility and weight to be given evidence and, therefore, under
our standard of review, do not present a basis for reversal.
Consequently, we affirm the opinion and award of the Commission.
Plaintiff, who was 40 years old at the time of the hearing
before the deputy commissioner, had been the Assistant Director of
Pretrial Services for the County since 1999. In this position,
plaintiff prepared reports, supervised other employees, and entered
data. Plaintiff, who is right-handed, began to notice tingling,
numbness, and swelling in her left hand in December 2001.
Defendants referred plaintiff to Occupational Health Serviceson 8 February 2002, where nerve conduction studies were "normal."
Plaintiff was later referred to orthopedist Dr. Louis Clark at the
Cape Fear Orthopaedic Clinic, who examined plaintiff for complaints
related to pain and spasms in both hands and twitching in her
fingers. Dr. Clark did not believe he could help plaintiff
surgically and referred her to a rheumatologist, Dr. Maria Watson.
Dr. Watson concluded that plaintiff did not have rheumatoid or
inflammatory arthritis, but rather diagnosed plaintiff as suffering
from tendinitis. Dr. Watson explained in her deposition:
She actually had tendinitis secondary to
overuse and hand pain, again, using the
keyboard at work. She does not do a lot of
home work that would cause this. My belief is
that her job is the primary cause of her
problem. I have suggested that she will need
to have things changed at work if her
tendinitis is to get better.
After plaintiff's counsel asked her to assume that plaintiff was
"doing keyboarding for 75 to 95 percent of her time," Dr. Watson
testified that plaintiff would be "more prone to [tendinitis] than
someone that did not do keyboarding for that amount of time[.]"
In response to questioning by defendants' counsel, Dr. Watson
testified that she was not aware of any recognizable link between
tendinitis and plaintiff's job as Assistant Director of Pretrial
Services. She then testified as follows:
Q. Do you have an opinion satisfactory
to yourself and to a reasonable degree of
medical certainty whether tendinitis is
characteristic of and peculiar to the position
of assistant director of pre-trial services?
. . . .
A. I don't have anything. I guess no.
Dr. Watson agreed that tendinitis is "an ordinary disease of life."
On 4 May 2004, plaintiff was examined by Dr. James E. Lowe,Jr., who is board certified in plastic surgery. He explained that
his "boards state that [he is] qualified and certified to perform
hand surgery" and that he performs approximately 300 hand surgeries
a year, including carpal tunnel surgeries. Dr. Lowe found that
plaintiff had clinical evidence of carpal tunnel syndrome and
ordered another nerve conduction study. The nerve conduction
study, read by a board certified neurologist, showed "a
polyneuropathy of the upper extremities involving both the median
and the ulnar nerves," which, according to Dr. Lowe, confirmed his
carpal tunnel diagnosis. At first, Dr. Lowe continued plaintiff on
medication and instructed her to wear splints at night. When, on
26 July 2004, Dr. Lowe last treated plaintiff for continued
numbness in both hands, he recommended carpal tunnel surgery on
both of plaintiff's hands.
With respect to the cause of plaintiff's carpal tunnel
syndrome, Dr. Lowe testified:
I do have an opinion to a reasonable degree of
medical certainty that is supported by
essentially all of the literature on carpal
tunnel surgery, that it is causal _ casually
[sic] related to repetitionous [sic] work, and
I feel that in her case that her carpal tunnel
surgery is related to her repetitionous [sic]
work, which causes synovitis.
According to Dr. Lowe, synovitis is the most common cause of carpal
tunnel syndrome. He concluded that repetitious activity was "the
most significant contributing factor" to plaintiff's carpal tunnel
syndrome. Dr. Lowe explained that his diagnosis was consistent
with Dr. Watson's diagnosis because tendinitis is the same as
synovitis. Dr. Lowe further testified that the general public at
large, who does not do repetitive keyboarding to the degree of
plaintiff, would not be at equal risk of developing carpal tunnelsyndrome as someone who does perform the repetitive activity.
Defendants denied plaintiff's claim and, following a hearing,
Deputy Commissioner Theresa Stephenson filed an opinion and award
on 21 December 2004 denying plaintiff's claim. The deputy
commissioner did not find Dr. Lowe's testimony credible, and,
therefore, concluded plaintiff had failed to establish that she
suffered from an occupational disease. Plaintiff appealed to the
On 7 April 2006, in an opinion and award authored by
Commissioner Laura Kranifeld Mavretic and joined by Commissioner
Thomas J. Bolch, the Full Commission reversed the decision of the
deputy commissioner. The Commission found "that plaintiff's
repetitious work caused synovitis, which led her to develop
bilateral carpal tunnel syndrome;" that "plaintiff contracted an
occupational disease to both of her hands as a result of her job;"
that "[p]laintiff's condition is the result of a disease that is
characteristic of and peculiar to her particular trade, occupation
or employment;" and that "[p]laintiff's disease is not an ordinary
disease of life to which the public is equally exposed outside the
employment." Based on these findings, the Commission concluded
that plaintiff had contracted a compensable occupational disease.
Commissioner Dianne C. Sellers dissented on the grounds that the
majority erred by finding Dr. Lowe's testimony credible.
Defendants timely appealed to this Court.
 We turn first to defendants' argument that the
Commission's opinion and award is void because it was filed after
the terms of Commissioners Bolch and Mavretic had expired. Defendants rely upon Estes v. N.C. State Univ.
, 117 N.C. App. 126,
128, 449 S.E.2d 762, 764 (1994), in which this Court vacated an
opinion and award of the Industrial Commission when it was filed
after the term of one of the two commissioners joining in the
majority opinion had expired.
Here, the terms for Commissioners Bolch and Mavretic _ the two
members of the majority _ expired on 30 June 2004 and 30 April 2005
N.C. Gen. Stat. § 97-77(a) (2005) ("[T]he
Governor shall appoint [commissioners] for a term of six years, and
thereafter the term of office of each commissioner shall be six
years."). Defendants assert that we are, therefore, required under
to vacate and remand the Commission's decision filed on 7
Plaintiff responds that Estes
is at odds with a state
constitutional provision that "[i]n the absence of any contrary
provision, all officers in this State, whether appointed or
elected, shall hold their positions until other appointments are
or, if the offices are elective, until their successors are
chosen and qualified." N.C. Const. art. VI, § 10 (emphasis added).
Our Supreme Court considered a similarly worded provision applying
to judges, N.C. Const. art. IV, § 16, and held: "Where, as here,
the incumbents' terms end without successors having been elected
and qualified, and new terms of office have not begun, the
Constitution's 'hold over' provision operates and allows the
incumbents to continue serving in the interim. The constitutional
provision . . . allows the judges to remain in office." State ex
rel. Martin v. Preston
, 325 N.C. 438, 455, 385 S.E.2d 473, 482
(1989) (internal citation omitted). This principle has also beencodified by our General Assembly in N.C. Gen. Stat. § 128-7 (2005)
("All officers shall continue in their respective offices until
their successors are elected or appointed, and duly qualified.").
Under the state constitution, N.C. Gen. Stat. § 128-7, and Preston
it would appear that Commissioners Mavretic and Bolch were still
nor defendants address N.C. Const. art. VI, §
10. We need not, however, resolve the apparent conflict between
and N.C. Const. art. VI, § 10 _ and the analysis of our
Supreme Court in Preston
_ since defendants have failed to preserve
this issue for appellate review.
Rule 10(b)(1) of the Rules of Appellate Procedure provides:
"In order to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context." As our Supreme Court has observed with respect
to N.C.R. App. P. 10(b)(1), its purpose "'is to require a party to
call the [trial] court's attention to a matter upon which he or she
wants a ruling before he or she can assign error to the matter on
appeal.'" Reep v. Beck
, 360 N.C. 34, 37, 619 S.E.2d 497, 499
(2005) (quoting State v. Canady
, 330 N.C. 398, 401, 410 S.E.2d 875,
In the present case, nothing in the record indicates that
defendants raised the issue of the validity of Commissioners
Bolch's and Mavretic's ongoing tenures in office before the Full
Commission. The record includes a calendar for the 8 June 2005
docket before the Full Commission, identifying CommissionersSellers, Mavretic, and Bolch as the panel before which this case
would be heard. The record, however, contains no indication that
defendants at any time prior to appeal objected to the presence of
Commissioners Bolch and Mavretic even though, under Estes
, it would
be impossible to have an opinion joined by two Commissioners with
This failure is particularly significant given that the
Commission _ had it agreed with defendants' argument under Estes
could have remedied the situation by convening another panel
comprised of individuals whose terms had not yet similarly expired.
N.C. Gen. Stat. § 97-85 (2005) ("Provided further, the chairman
of the Industrial Commission shall have the authority to designate
a deputy commissioner to take the place of a commissioner on the
review of any case, in which event the deputy commissioner so
designated shall have the same authority and duty as does the
commissioner whose place he occupies on such review."). We decline
to construe Estes
so as to permit defendants to circumvent this
well-established rule of appellate practice and obtain a ruling on
the issue from this Court without first calling it to the attention
of the Commission.
presented a materially different set of circumstances.
, Commissioner Davis' term expired eight months after
argument before the panel, but before entry of the opinion and
award. 117 N.C. App. at 128, 449 S.E.2d at 764. Thus, the parties
did not have a meaningful opportunity to object. It is also
apparent that the question of the propriety of Commissioner Davis'
joining in the opinion was considered by the panel since
Commissioner Davis attached an affidavit to the opinion and awardstating that he had joined the opinion prior to his term's
The issue had, therefore, been preserved for
This case does not involve a question of jurisdiction that can
be raised at any time. Even under Estes
, Commissioners Mavretic
and Bolch could be considered de facto
officers. As this Court has
explained: "De facto
status arises where a person assumes office
of authority' or where one 'exercises the duties of
the office so long or under such circumstances as to raise a
presumption of his right; in which cases his necessary official
acts are valid as to the public and third persons; but he may be
ousted by a direct proceeding.'" Kings Mountain Bd. of Educ. v.
N.C. State Bd. of Educ.
, 159 N.C. App. 568, 575, 583 S.E.2d 629,
635 (quoting Norfleet v. Staton
, 73 N.C. 546, 550 (1875)), disc.
, 588 S.E.2d 476 (2003). See also
N.C. Gen. Stat. §
128-6 (2005) ("Any person who shall, by the proper authority, be
admitted and sworn into any office, shall be held, deemed, and
taken, by force of such admission, to be rightfully in such office
until, by judicial sentence, upon a proper proceeding, he shall be
ousted therefrom, or his admission thereto be, in due course of
law, declared void.").
Here, there is no dispute that Commissioners Mavretic and
Bolch were properly appointed as Commissioners of the Industrial
Commission. As a result, even if, under Estes
, they were unable to
continue serving after their terms expired, the fact that they
continued to publicly discharge their duties as Commissioners
rendered them de facto
officers. See State ex rel. Duncan v.
, 294 N.C. 713, 720, 242 S.E.2d 796, 800 (1978) (holding that"[a] judge de facto
is defined as one who occupies a judicial
office under some color of right, and for the time being performs
its duties with public acquiescence, though having no right in
fact" (internal quotation marks omitted)). Further, "[t]he acts of
a de facto
officer are valid in law in respect to the public whom
he represents and to third persons with whom he deals officially."
State v. Porter
, 272 N.C. 463, 465-66, 158 S.E.2d 626, 628 (1968).
(See footnote 1)
Thus, as at least de facto
officers, the public acts of
Commissioners Mavretic and Bolch are deemed valid and their
presence on the panel cannot give rise to a jurisdictional
challenge that eliminates the need to comply with N.C.R. App. P.
(See footnote 2)
Because defendants do not contend that they raised this issue
below, we may not consider this assignment of error. A contrary
conclusion would allow a party to wait and see whether a panel
would rule favorably, secure in the knowledge that any unfavorable
ruling could be voided on appeal. This Court has previously
rejected such an approach in the analogous area of judicial
recusal. See In re Key
, 182 N.C. App. 714, __, 643 S.E.2d 452, 456
(2007) (holding that when party to civil proceeding failed to move
at trial level to recuse judge for bias and prejudice, Rule10(b)(1) precluded appellate review); State v. Love
, 177 N.C. App.
614, 628, 630 S.E.2d 234, 243 (2006) ("There was no request,
objection or motion made by defendant at trial [to recuse the trial
judge] and therefore the question was not properly preserved for
appeal."), disc. review denied
, 360 N.C. 580, 636 S.E.2d 192-93
(2006). We see no basis for applying a different rule when a party
fails to object to a "holding over" commissioner.
We turn now to defendants' arguments challenging the
Commission's findings of fact and conclusions of law. "[A]ppellate
review of an award from the Commission is generally limited to two
issues: (1) whether the findings of fact are supported by competent
evidence, and (2) whether the conclusions of law are justified by
the findings of fact." Johnson v. Southern Tire Sales & Serv.
N.C. 701, 705, 599 S.E.2d 508, 512 (2004). Findings of fact by the
Commission are conclusive on appeal "'when supported by competent
evidence, even when there is evidence to support a finding to the
contrary.'" Gutierrez v. GDX Auto.
, 169 N.C. App. 173, 176, 609
S.E.2d 445, 448 (quoting Plummer v. Henderson Storage Co.
, 118 N.C.
App. 727, 730, 456 S.E.2d 886, 888, disc. review denied
, 340 N.C.
569, 460 S.E.2d 321 (1995)), disc. review denied
, 359 N.C. 851, 619
S.E.2d 408 (2005).
 Defendants first assert that the Commission erred by
finding that "[n]inety-five percent of plaintiff's job is
keyboarding or handwriting affidavits." Defendants concede that
this finding is supported by plaintiff's own testimony.
Defendants' assertion "that plaintiff's claim in this regard is not
credible given her title, admitted duties, and total lack ofcorroborating evidence" was an argument for the Commission. Since
this finding is supported by plaintiff's testimony, it cannot be
disturbed on appeal regardless whether there is also evidence to
the contrary. See Alexander v. Wal-Mart Stores, Inc.
, 166 N.C.
App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting)
(noting that if "there is any evidence at all, taken in the light
most favorable to the plaintiff, the finding of fact stands, even
if there is substantial evidence to the contrary"), adopted per
, 359 N.C. 403, 610 S.E.2d 374 (2005).
 Defendants next contend that the Commission "erred in
finding that Dr. Lowe's testimony was credible" rather than
agreeing with the deputy commissioner that the testimony should not
be accepted as credible. It is well-established that "'[t]he
Commission is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.'" Adams v. AVX Corp.
349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson v.
Lincoln Constr. Co.
, 265 N.C. 431, 433-34, 144 S.E.2d 272, 274
(1965)). Consequently, this Court may not review the Commission's
credibility determination. Deese v. Champion Int'l Corp.
, 352 N.C.
109, 116-17, 530 S.E.2d 549, 553 (2000).
 Finally, defendants argue that the Commission erred in
concluding that plaintiff contracted an occupational disease from
her work duties. Because carpal tunnel syndrome is not
specifically listed as an occupational disease in N.C. Gen. Stat.
§ 97-53 (2005), it falls instead within the catchall provision of
N.C. Gen. Stat. § 97-53(13). Under § 97-53(13), an occupational
disease includes "[a]ny disease . . . which is proven to be due to
causes and conditions which are characteristic of and peculiar toa particular trade, occupation or employment, but excluding all
ordinary diseases of life to which the general public is equally
exposed outside of the employment."
As the Supreme Court has explained, in order to be considered
an occupational disease under N.C. Gen. Stat. § 97-53(13), a
condition must be:
(1) characteristic of persons engaged in the
particular trade or occupation in which the
claimant is engaged; (2) not an ordinary
disease of life to which the public generally
is equally exposed with those engaged in that
particular trade or occupation; and (3) there
must be "a causal connection between the
disease and the [claimant's] employment."
Rutledge v. Tultex Corp.
, 308 N.C. 85, 93, 301 S.E.2d 359, 365
(1983) (quoting Hansel v. Sherman Textiles
, 304 N.C. 44, 52, 283
S.E.2d 101, 105-06 (1981)). The first two elements "are satisfied
if, as a matter of fact, the employment exposed the worker to a
greater risk of contracting the disease than the public generally."
at 93-94, 301 S.E.2d at 365.
Defendants assert that "plaintiff failed to elicit credible
expert medical testimony in support of her position, and therefore
[has] failed to prove the existence of an occupational disease . .
. ." Defendants suggest that the testimony of Dr. Watson is more
credible and supports their position that plaintiff did not have a
compensable occupational disease. Defendants do not dispute that
Dr. Lowe's testimony _ found credible by the Commission _ supports
the Commission's findings (1) "that plaintiff contracted an
occupational disease to both of her hands as a result of her job
with defendant," (2) that "[p]laintiff's condition is the result of
a disease that is characteristic of and peculiar to her particular
trade, occupation or employment," and (3) "[p]laintiff's disease isnot an ordinary disease of life to which the public is equally
exposed outside the employment."
Because the Commission's findings are supported by Dr. Lowe's
testimony, they are binding even though defendants have pointed to
contrary testimony. Further those findings of fact support the
Commission's conclusion that plaintiff has contracted a compensable
occupational disease. See, e.g.
, Terasaka v. AT&T
, 174 N.C. App.
735, 743-44, 622 S.E.2d 145, 151 (2005) (plaintiff carried burden
of showing carpal tunnel syndrome was an occupational disease when
doctors testified that extensive typing like plaintiff testified
she routinely performed placed plaintiff at increased risk), aff'd
per curiam and disc. review improvidently allowed
, 360 N.C. 584,
634 S.E.2d 888 (2006). We, therefore, affirm the opinion and award
of the Commission.
Judge ELMORE concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge dissenting.
The majority's opinion ignores binding precedent from this
Court that the Commission's opinion and award is void when entered
after the expiration of two of the Commissioner's terms. Coppley
v. PPG Industries, Inc., 142 N.C. App. 196, 541 S.E.2d 743 (2001);
Estes v. N.C. State Univ., 117 N.C. App. 126, 449 S.E.2d 762
(1994). Neither of these precedents have been overturned by our
Supreme Court. Where a panel of the Court of Appeals has decided
the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has beenoverturned by a higher court. State v. Jones, 358 N.C. 473, 487,
598 S.E.2d 125, 133-34 (2004); In re Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 37 (1989). I respectfully dissent.
This case was heard before a panel of the Full Commission
consisting of Commissioners Bolch, Mavretic, and Sellers on 8 June
2005. The opinion and award was signed by the Commissioners on 3
August 2005 and filed on 7 April 2006. Commissioner Mavretic
authored the opinion and award and Commissioner Bolch concurred.
Commissioner Sellers dissented. Defendant asserts the terms of
Commissioners Bolch and Mavretic expired on 30 June 2004 and 30
April 2005 respectively.
This issue is properly before this Court. Rule 10(a) of the
North Carolina Rules of Appellate Procedure provides:
[U]pon any appeal duly taken from a final
judgment any party to the appeal may present
for review, by properly making them the basis
of assignments of error, the questions whether
the judgment is supported by the verdict or by
the findings of fact and conclusions of law,
whether the court had jurisdiction of the
subject matter, and whether a criminal charge
is sufficient in law.
N.C.R. App. P. 10(a) (2007) (emphasis supplied). Jurisdiction is
'[t]he legal power and authority of a court to make a decision that
binds the parties to any matter properly brought before it.' In
re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 789-90 (2006)
(quoting Black's Law Dictionary 856 (7th ed. 1999)). [A] court
must also have subject matter jurisdiction, or jurisdiction over
the nature of the case and the type of relief sought, in order to
decide a case. Id. at 590, 636 S.E.2d at 790 (quotation omitted).
Subject matter jurisdiction is the power to pass on the merits ofthe case. Boyles v. Boyles, 308 N.C. 488, 491, 302 S.E.2d 790,
Defendant argues Commissioners Bolch and Mavretic had no
jurisdiction, subject matter or otherwise, to rule upon this case
after their terms had expired prior to the case being heard and
that the Commission's opinion and award is void. Defendant's
assignment of error numbered 7 states, The Commission erred as a
matter of law in filing its Opinion and Award without a sufficient
number of Commissioners concurring. Defendant has properly raised
and argued this issue through an assignment of error. This issue
is properly before this Court. N.C.R. App. P. 10(a).
The proper holding in this case is controlled by this Court's
prior precedents. In Estes, the Full Commission panel consisted of
three commissioners at the time of the original hearing. 117 N.C.
App. at 128, 449 S.E.2d at 764. Chairman Booker authored the
opinion and award and Commissioner Davis concurred. Id.
Commissioner Ward dissented. Id. However, when the opinion and
award was signed and filed, Commissioner Davis's term had expired.
Id. This Court unanimously held the Full Commission's decision was
void as a matter of law. Id.
This Court also considered this issue in Coppley, 142 N.C.
App. 196, 541 S.E.2d 743. Commissioner Bolch authored the opinion
and award and Commissioner Bunn concurred. Id. Commissioner
Riggsbee dissented. Id. at 197, 541 S.E.2d at 743. Chairman Bunn
signed the opinion and award on 22 June 1999 and left the
Commission on 21 September 1999. Id. The opinion and award was
filed on 19 October 1999. Id. This Court stated, 'Where acommissioner'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.' Id. at 198, 541 S.E.2d at 744 (quoting Leonard T. Jernigan,
Jr., North Carolina Workers' Compensation Law and Practice § 25-9
(3d ed. 1999)). The opinion and award was held to be void because
no majority of the Commission existed when it was filed. Id.
The facts of this case are more egregious than either of the
facts in Estes or Coppley. Defendant argues that unlike the facts
in Estes and Coppley, Commissioners Bolch and Mavretic comprised
the total majority and both their terms had expired before the
panel convened, the case was heard, and the opinion and award was
entered. On 8 September 2006, this Court allowed defendant's
Motion for Addition to Record on Appeal filed on 24 August 2006 as
exhibits to the record on appeal. Attached to the motion as
Exhibit A were copies of two letters, both signed by former
Governor James B. Hunt, Jr. One letter, dated 10 June 1999, is
addressed to Mr. Thomas J. Bolch. The first paragraph of the
letter states in full, It gives me great pleasure to reappoint you
as a member of the North Carolina Industrial Commission. Pursuant
to General Statute 97-77, your appointment is effective
immediately. Your term will expire on June 30, 2004. (Emphasis
The second letter, dated 21 July 2000, is also signed by
former Governor Hunt and is addressed to Ms. Laura K. Mavretic.
The first paragraph of this letter states in full, It gives me
great pleasure to appoint you to serve as a member of the North
Carolina Industrial Commission. Pursuant to General Statute 97-77,your appointment is effective August 1, 2000 and will expire on
April 30, 2005. (Emphasis supplied).
Nothing in the record shows either Commissioners Bolch or
Mavretic were reappointed to the Commission after their terms of
office expired on June 30, 2004, and April 30, 2005,
respectively. According to the Commission's website, Commissioner
Bolch was replaced by Mr. Danny Lee McDonald, who was sworn into
office on 9 February 2007. Commissioner Mavretic was administered
the oath of office on 8 February 2007. See News Release dated 2
February 2007, http://www.comp.state.nc.us/ncic/pages/020207nr.htm.
Defendant argues Commissioners Bolch and Mavretic purported to
convene the Commission to hear this case, and signed and entered
the opinion and award after their terms had expired and without a
current commission issued by the Governor to renew their terms.
N.C. Gen. Stat. § 97-77 (2005) mandates the Governor shall appoint
a successor for a term of six years, and thereafter the term of
office of each commissioner shall be six years. (Emphasis
This Court is bound by both Estes and Coppley. Jones, 358
N.C. at 487, 598 S.E.2d at 133-34; In re Civil Penalty, 324 N.C. at
384, 379 S.E.2d at 37. As a commission it acts by a majority of
its qualified members at the time decision is made. Gant v.
Crouch, 243 N.C. 604, 607, 91 S.E.2d 705, 707 (1956) (emphasis