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Poe v. Raleigh/Durham Airport Authority12/19/1995
panel in Estes consisted of three Full Commissioners at the time of the original hearing. However, when the Opinion and Award was signed and filed, one of the Commissioners who had participated in the decision was no longer a qualified Commissioner because his term had expired. Our Court, therefore, held that the decision of the Full Commission was void as a matter of law. Estes, 117 N.C. App. 126, 449 S.E.2d 762.
In the instant case, the presiding panel of the Commission consisted of Chairman J. Howard Bunn, Jr., Deputy Commissioner W. Joey Barnes, and Special Deputy Commissioner Clay. Unlike Estes, all of the panel members in this case, were duly vested with authority to render a decision. Plaintiff argues, however, that while the Commissioner may have had authority to replace one commissioner with a designated deputy commissioner, he did not have the authority to replace two commissioners, as was the case herein. Plaintiff is correct in his statement that there is no express statutory authority for the substitution of two Commissioners, but then neither is there a statutory provision in the Workers' Compensation Act expressly prohibiting such action. We must believe that if our legislators intended such restrictions on the Commissioner's authority, they would have expressly provided for such. We simply should not interpret section 97-85 to give it such a stringent and confining meaning, which is arguably in contravention of legislative intent. Thus, we find plaintiff's argument, with regards to this issue, to be without merit.
Plaintiff argues in his final assignment of error that the Commission applied an improper standard in evaluating his claim. First, plaintiff contends that North Carolina General Statutes section 97-47 does not apply to the instant case, as a final award has not been entered. Additionally and/or alternatively, plaintiff argues that additional expert testimony was not necessary to show a change in his condition.
Section 97-47, entitled "Change of condition; modification of award," provides in pertinent part:
Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article . . . .
N.C. Gen. Stat. ยง 97-47 (1991). In Watkins v. Motor Lines, our Supreme Court specifically stated, "the Commission's authority under this statute is limited to review of prior awards, and the statute is inapplicable in instances where there has been no previous final award." 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971) (citing Biddix v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777 (1953); Pratt v. Upholstery Co., 252 N.C. 716, 115 S.E.2d 27 (1960)). However, this Court, in Weaver v. Swedish Imports Maintenance, Inc., found that the "substantial change in condition" standard in section 97-47 was applicable, where plaintiff, who had received temporary total disability benefits under section 97-29 for a compensable heart attack, was awarded permanent partial disability under section 97-30 when he applied for modification of his prior award following three additional heart attacks. 80 N.C. App. 432, 343 S.E.2d 205 (1986), modified, 319 N.C. 243, 354 S.E.2d 477 (1987).
The facts in the instant case indicate that plaintiff sustained an injury to his back on 3 May 1988 while performing certain tasks for employer, defendant RDU. Defendant RDU has paid plaintiff disability benefits for periods of temporary total disability pursuant to I.C. Forms 21 and 26 (five in total). All of these agreements betwe
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