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Payne v. Charlotte Heating & Air Conditioning8/16/2005
pplication for Review," specifically assigned as error the deputy commissioner's decision to "sustain the Defendant's objection on the issue of death benefits being a part of the claim since Plaintiff died subsequent to the hearing, since the death certificate was admitted into evidence and since Plaintiff filed an Amended I.C. Form 18B specifically alleging death benefits on account of his asbestosis." It is well established that "the full Commission has the duty and responsibility to decide all matters in controversy between the parties, and, if necessary, the full Commission must resolve matters in controversy even if those matters were not addressed by the deputy commissioner." Crump v. Independence Nissan, 112 N.C. App. 587, 589, 436 S.E.2d 589, 592 (1993) (internal citations omitted). Specifically, a "plaintiff, having appealed to the full Commission pursuant to G.S. 97-85 and having filed his Form 44 'Application for Review,' is entitled to have the full Commission respond to the questions directly raised by his appeal." Vieregge v. N.C. State Univ., 105 N.C. App. 633, 639, 414 S.E.2d 771, 774 (1992).
Thus, once plaintiff included the issue of death benefits in her Form 44, defendants were on notice that the Full Commission would be required to address that issue. At that point, defendants had a strategic choice to make. They could (1) rest on their contention _ accepted by the deputy commissioner _ that the question of death benefits was not properly before the Commission or (2) request that the Full Commission allow them an opportunity to present evidence with respect to death benefits. "The Commission, when reviewing an award by a deputy commissioner, may receive additional evidence, even if it was not newly discovered evidence." Cummins v. BCCI Constr. Enters., 149 N.C. App. 180, 183, 560 S.E.2d 369, 371-72, disc. review denied, 356 N.C. 611, 574 S.E.2d 678 (2002). If the Full Commission chose to address the issue of death benefits on the merits and determined that the transcript and record were insufficient to resolve that issue, then the Commission would have been required to "conduct its own hearing or remand the matter for further hearing." Crump, 112 N.C. App. at 589, 436 S.E.2d at 592.
Defendants, however, chose not to ask the Commission for the opportunity to present additional evidence. The record contains no request by defendants at any time (1) for an opportunity to supplement the record with medical evidence or other testimony regarding death benefits, (2) for a remand to the deputy commissioner for a hearing on that issue, or (3) for an evidentiary hearing before the Full Commission. In defendants' brief to the Full Commission, included in the record on appeal, defendants argue only (1) that the death benefits issue was not properly before the Commission because Mr. Payne died after the hearing before the deputy commissioner and (2) that plaintiff's evidence was insufficient to support an award of death benefits. Defendants' brief contains no suggestion that additional evidence should be taken on the death benefits issue.
The record thus reflects that defendants had notice that death benefits would be at issue at a time when they still could have offered evidence. Defendants have not established that they were denied an opportunity to be heard because they did not ask to present additional evidence. See Cummins, 149 N.C. App. at 185, 560 S.E.2d at 373 (defendants were not denied an opportunity to be heard when they had a doctor's records for two years and made no motion to depose that doctor until after the Full Commission entered its opinion and award). Compare Allen v. K-Mart, 137 N.C. App. 298, 302, 528 S.E.2d 60, 63-64 (2000) (defendants were denied an opport
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