Update on Bentley and N.C. Gen. Stat. § 97-84
The North Carolina Court of Appeals left the Industrial Commission scrambling when it issued its September 20, 2016, Opinion in Bentley v. Jonathan Piner Construction, holding the plain language of N.C. Gen. Stat. § 97-84 was violated when the Commission based its Opinion and Award on an Opinion issued by a deputy commissioner who was not present at the original hearing and did not hear the evidence. The defendants in Bentley petitioned the Court for a rehearing, which was granted. On July 18, 2017, the Court of Appeals issued a new decision that superseded and replaced their prior decision. In its new Opinion, the Court held that Plaintiff was barred from raising this issue as a defense because he failed to raise the issue before the Commission.
Following the release of the new Bentley decision, Senate Bill 489 was signed into law by Governor Roy Cooper on July 20, 2017. As part of the new legislation, § 97-84 was revised to allow the Commission to assign another deputy to decide a case and issue an Award if the deputy that appeared at the hearing and heard the evidence was no longer available. The new § 97-84 reads as follows:
“§ 97‑84. Determination of disputes by Commission or deputy.
The Commission or any of its members or deputies shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary manner. The Commission shall decide the case shall be decided and issue findings of fact issued based upon the preponderance of the evidence in view of the entire record. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue shall be filed with the record of the proceedings, within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and a copy of the award shall immediately be sent to the parties in dispute. The parties may be heard by a deputy, in which event the hearing shall be conducted in the same way and manner prescribed for hearings which are conducted by a member of the Industrial Commission, and said deputy shall proceed to a complete determination of the matters in dispute, file his written opinion within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and the deputy shall cause to be issued an award pursuant to such determination. If the deputy or member of the Commission that heard the parties at issue and their representatives and witnesses is unable to determine the matters in dispute and issue an award, the Commission may assign another deputy or member to decide the case and issue an award.“
RISK HANDLING HINT: The new legislation is effective and applies to claims pending on or after the effective date of the act. The legislative fix is intended to resolve any potential dispute over the Commission’s ability to reassign a file to a different deputy when the hearing deputy is unable to issue an Opinion and Award. This is an important legislative fix, since it will eliminate the need to retry cases before a second deputy when the case had previously been tried before the original deputy commissioner. Retrying cases in this manner would have created significant additional litigation costs, created significant confusion between which transcript (the first hearing, the second hearing or both hearings) would be used during any appeal to the Full Commission or Court of Appeals and was not necessary given that the Full Commission is the ultimate finder of fact in workers’ compensation claims.