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COA Vacates Industrial Comm'n Award Because Commissioner Wasn't Qualified

By Sean E. Andrussier

Today the Court of Appeals (COA), in an opinion by Judge Bryant, held that the Industrial Commission's 2-1 decision against an employer had to be vacated because one of the commissioners in the majority was not qualified to serve, since the Governor had named his successor three days before the decision was filed. The case is Baxter v. Danny Nicholson, Inc.

Commissioner Bolch's term had ended in June 2004, and he began serving in a hold-over capacity for years thereafter. He signed the Opinion and Award and award in this case on Feb. 2 2007, concurring in the majority of a 2-1 split decision. The same day, however, the Governor issued a letter informing Commissioner Bolch that his successor had been appointed, effective immediately. The Opinion and Award was filed three days later, on Feb. 5, 2007. Thus, on that day of filing--which is the key date--he no longer was a commissioner, since his successor had been appointed. Therefore, the Opinion and Award had to be vacated, since the elimination of his vote left a 1-1 split, with no majority.

Full post as published by North Carolina Appellate Blog on June 17, 2008 (boomark / email).