{ "id": 8184092, "name": "DAY'LE LATHON, Employee, Plaintiff v. CUMBERLAND COUNTY, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent), Defendants", "name_abbreviation": "Lathon v. Cumberland County", "decision_date": "2007-06-19", "docket_number": "No. COA06-912", "first_page": "62", "last_page": "76", "citations": [ { "type": "official", "cite": "184 N.C. App. 62" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "117 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524468 ], "year": 1994, "opinion_index": -1, "case_paths": [ "/nc-app/117/0126-01" ] }, { "cite": "325 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491477 ], "year": 1989, "opinion_index": -1, "case_paths": [ "/nc/325/0438-01" ] }, { "cite": "634 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636690 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/634/0888-01" ] }, { "cite": "622 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634482 ], "year": 2005, "pin_cites": [ { "page": "151", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0145-01" ] }, { "cite": "619 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633945, 12633946, 12633947 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/619/0408-01", "/se2d/619/0408-02", "/se2d/619/0408-03" ] }, { "cite": "636 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636953 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/636/0192-01" ] }, { "cite": "630 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635856 ], "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0234-01" ] }, { "cite": "643 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638084 ], "year": 2007, "pin_cites": [ { "page": "456", "parenthetical": "holding that when party to civil proceeding failed to move at trial level to recuse judge for bias and prejudice, Rule 10(b)(1) precluded appellate review" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0452-01" ] }, { "cite": "619 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633956 ], "year": 2005, "pin_cites": [ { "page": "499", "parenthetical": "quoting State v. Canady, 330 N.C. 398, 401, 410 S.E.2d 875, 878 (1991)" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0497-01" ] }, { "cite": "541 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "744-45", "parenthetical": "voiding majority opinion and award entered on remand because concurring commissioner had retired prior to filing" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440322 ], "year": 2001, "pin_cites": [ { "page": "197-99", "parenthetical": "voiding majority opinion and award entered on remand because concurring commissioner had retired prior to filing" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0196-01" ] }, { "cite": "360 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3786195 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0584-01" ] }, { "cite": "174 N.C. App. 735", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353158 ], "year": 2005, "pin_cites": [ { "page": "743-44", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0735-01" ] }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "365", "parenthetical": "quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "pin_cites": [ { "page": "93", "parenthetical": "quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "pin_cites": [ { "page": "(13)" }, { "page": "(13)" } ], "opinion_index": 0 }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "116-17" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "610 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797423 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0403-01" ] }, { "cite": "603 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "558", "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 563", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412225 ], "year": 2004, "pin_cites": [ { "page": "573", "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0563-01" ] }, { "cite": "359 N.C. 851", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799266, 3802596, 3802504, 3800488, 3793931, 3799639, 3796090 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0851-04", "/nc/359/0851-01", "/nc/359/0851-05", "/nc/359/0851-06", "/nc/359/0851-07", "/nc/359/0851-03", "/nc/359/0851-02" ] }, { "cite": "460 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790215, 790222, 790226, 790197, 790075 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0569-02", "/nc/340/0569-05", "/nc/340/0569-04", "/nc/340/0569-01", "/nc/340/0569-03" ] }, { "cite": "456 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920912 ], "year": 1995, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0727-01" ] }, { "cite": "609 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468908 ], "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0173-01" ] }, { "cite": "599 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "512" } ], "opinion_index": 0 }, { "cite": "358 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987216 ], "year": 2004, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0701-01" ] }, { "cite": "360 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788640, 3789850, 3787278, 3790639, 3791831, 3791385, 3792666, 3793692, 3791071 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0580-07", "/nc/360/0580-04", "/nc/360/0580-02", "/nc/360/0580-03", "/nc/360/0580-08", "/nc/360/0580-01", "/nc/360/0580-06", "/nc/360/0580-09", "/nc/360/0580-05" ] }, { "cite": "177 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301914 ], "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0614-01" ] }, { "cite": "182 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8176080 ], "year": 2007, "pin_cites": [ { "page": "719", "parenthetical": "holding that when party to civil proceeding failed to move at trial level to recuse judge for bias and prejudice, Rule 10(b)(1) precluded appellate review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0714-01" ] }, { "cite": "158 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "272 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573381 ], "year": 1968, "pin_cites": [ { "page": "465-66" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0463-01" ] }, { "cite": "242 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "800", "parenthetical": "holding that \"[a] judge defacto 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)" } ], "opinion_index": 0 }, { "cite": "294 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574337 ], "year": 1978, "pin_cites": [ { "page": "720", "parenthetical": "holding that \"[a] judge defacto 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)" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0713-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 128-6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "588 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "73 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696378 ], "year": 1875, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc/73/0546-01" ] }, { "cite": "583 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "635" }, { "page": "635", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957398 ], "weight": 2, "pin_cites": [ { "page": "575" }, { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0568-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "410 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "330 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512114 ], "year": 1991, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0398-01" ] }, { "cite": "360 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798151 ], "year": 2005, "pin_cites": [ { "page": "37", "parenthetical": "quoting State v. Canady, 330 N.C. 398, 401, 410 S.E.2d 875, 878 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0034-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 128-7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "\"All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.\"" } ], "opinion_index": 0 }, { "cite": "385 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "482", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-77", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)", "parenthetical": "\"[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.\"" } ], "opinion_index": 0 }, { "cite": "449 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "764" }, { "page": "764" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524468 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "128" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0126-01" ] }, { "cite": "325 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491477 ], "year": 1989, "pin_cites": [ { "page": "455", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0438-01" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "789-90", "parenthetical": "quoting Black's Law Dictionary 856 (7th ed. 1999)" }, { "page": "790", "parenthetical": "quotation omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "91 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "707", "parenthetical": "emphasis supplied" }, { "page": "707" } ], "opinion_index": 1 }, { "cite": "243 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626270 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "607", "parenthetical": "emphasis supplied" }, { "page": "607" } ], "opinion_index": 1, "case_paths": [ "/nc/243/0604-01" ] }, { "cite": "302 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "793" }, { "page": "793" } ], "opinion_index": 1 }, { "cite": "308 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707437 ], "year": 1983, "pin_cites": [ { "page": "491" } ], "opinion_index": 1, "case_paths": [ "/nc/308/0488-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "590", "parenthetical": "quoting Black's Law Dictionary 856 (7th ed. 1999)" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "37" }, { "page": "37" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "598 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "133-34" }, { "page": "133-34" } ], "opinion_index": 1 }, { "cite": "358 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986601 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "487" }, { "page": "487" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0473-01" ] }, { "cite": "541 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2001, "pin_cites": [ { "page": "743" }, { "page": "744" }, { "page": "744" } ], "opinion_index": 1 }, { "cite": "142 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440322 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "198" } ], "opinion_index": 1, "case_paths": [ "/nc-app/142/0196-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-77", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 1 }, { "cite": "449 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1994, "pin_cites": [ { "page": "764" }, { "page": "764" } ], "opinion_index": 1 }, { "cite": "117 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524468 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "128" }, { "page": "128" } ], "opinion_index": 1, "case_paths": [ "/nc-app/117/0126-01" ] } ], "analysis": { "cardinality": 1239, "char_count": 32546, "ocr_confidence": 0.742, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20122196313375798 }, "sha256": "b0b12eaedd5456d678ac315516538b44e2bc9ee1a7f8e317f4c75875b6e73606", "simhash": "1:a92364407aaf6ec6", "word_count": 5277 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "DAY\u2019LE LATHON, Employee, Plaintiff v. CUMBERLAND COUNTY, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent), Defendants" ], "opinions": [ { "text": "GEER, Judge.\nDefendants Cumberland County and Key Risk Management Services appeal from an opinion and award of the North Carolina Industrial Commission concluding that plaintiff Day\u2019le Lathon is entitled to workers\u2019 compensation benefits as a result of carpal tunnel syndrome plaintiff developed while working for defendant Cumberland County. On appeal, defendants argue that the Commission\u2019s opinion and award is void because it was filed after the terms of two of the commissioners on the panel deciding plaintiff\u2019s 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\u2019 remaining arguments regarding the merits of plaintiff\u2019s 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.\nFacts\nPlaintiff, 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.\nDefendants referred plaintiff to Occupational Health Services on 8 February 2002, where nerve conduction studies were \u201cnormal.\u201d 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.\nDr. 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:\nShe 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.\nAfter plaintiff\u2019s counsel asked her to assume that plaintiff was \u201cdoing keyboarding for 75 to 95 percent of her time,\u201d Dr. Watson testified that plaintiff would be \u201cmore prone to [tendinitis] than someone that did not do keyboarding for that amount of time[.]\u201d\nIn response to questioning by defendants\u2019 counsel, Dr. Watson testified that she was not aware of any recognizable link between tendinitis and plaintiff\u2019s job as Assistant Director of Pretrial Services. She then testified as follows:\nQ. 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?\nA. I don\u2019t have anything. I guess no.\nDr. Watson agreed that tendinitis is \u201can ordinary disease of life.\u201d\nOn 4 May 2004, plaintiff was examined by Dr. James E. Lowe, Jr., who is board certified in plastic surgery. He explained that his \u201cboards state that [he is] qualified and certified to perform hand surgery\u201d 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 \u201ca polyneuropathy of the upper extremities involving both the median and the ulnar nerves,\u201d 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\u2019s hands.\nWith respect to the cause of plaintiff\u2019s carpal tunnel syndrome, Dr. Lowe testified:\nI 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 \u2014 casually [sic] related to repeti-tionous [sic] work, and I feel that in her case that her carpal tunnel surgery is related to her repetitionous [sic] work, which causes synovitis.\nAccording to Dr. Lowe, synovitis is the most common cause of carpal tunnel syndrome. He concluded that repetitious activity was \u201cthe most significant contributing factor\u201d to plaintiffs carpal tunnel syndrome. Dr. Lowe explained that his diagnosis was consistent with Dr. Watson\u2019s 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 tunnel syndrome as someone who does perform the repetitive activity.\nDefendants denied plaintiff\u2019s claim and, following a hearing, Deputy Commissioner Theresa Stephenson filed an opinion and award on 21 December 2004 denying plaintiff\u2019s claim. The deputy commissioner did not find Dr. Lowe\u2019s testimony credible, and, therefore, concluded plaintiff had failed to establish that she suffered from an occupational disease. Plaintiff appealed to the Full Commission.\nOn 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 \u201cthat plaintiff\u2019s repetitious work caused synovitis, which led her to develop bilateral carpal tunnel syndrome\u201d; that \u201cplaintiff contracted an occupational disease to both of her hands as a result of her job\u201d; that \u201c[p]laintiff\u2019s condition is the.result of a disease that is characteristic of and peculiar to her particular trade, occupation or employment\u201d; and that \u201c[p]laintiff\u2019s disease is not an ordinary disease of life to which the public is equally exposed outside the employment.\u201d 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\u2019s testimony credible. Defendants timely appealed to this Court.\nI\nWe turn first to defendants\u2019 argument that the Commission\u2019s 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.\nHere, the terms for Commissioners Bolch and Mavretic \u2014 the two members of the majority \u2014 expired on 30 June 2004 and 30 April 2005 respectively. See N.C. Gen. Stat. \u00a7 97-77(a) (2005) (\u201c[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.\u201d). Defendants assert that we are, therefore, required under Estes to vacate and remand the Commission\u2019s decision filed on 7 April 2006.\nPlaintiff responds that Estes is at odds with a state constitutional provision that \u201c[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 made or, if the offices are elective, until their successors are chosen and qualified.\u201d N.C. Const, art. VI, \u00a7 10 (emphasis added). Our Supreme Court considered a similarly worded provision applying to judges, N.C. Const, art. IV, \u00a7 16, and held: \u201cWhere, as here, the incumbents\u2019 terms end without successors having been elected and qualified, and new terms of office have not begun, the Constitution\u2019s \u2018hold over\u2019 provision operates and allows the incumbents to continue serving in the interim. The constitutional provision . . . allows the judges to remain in office.\u201d 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 been codified by our General Assembly in N.C. Gen. Stat. \u00a7 128-7 (2005) (\u201cAll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.\u201d). Under the state constitution, N.C. Gen. Stat. \u00a7 128-7, and Preston, it would appear that Commissioners Mavretic and Bolch were still properly serving.\nNeither Estes nor defendants address N.C. Const, art. VI, \u00a7 10. We need not, however, resolve the apparent conflict between Estes and N.C. Const, art. VI, \u00a7 10 \u2014 and the analysis of our Supreme Court in Preston \u2014 since defendants have failed to preserve this issue for appellate review.\nRule 10(b)(1) of the Rules of Appellate Procedure provides: \u201cIn 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.\u201d As our Supreme Court has observed with respect to N.C.R. App. P. 10(b)(1), its purpose \u201c \u2018is to require a party to call the [trial] court\u2019s attention to a matter upon which he or she wants a ruling before he or she can assign error to the matter on appeal.\u2019 \u201d 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, 878 (1991)).\nIn the present case, nothing in the record indicates that defendants raised the issue of the validity of Commissioners Bolch\u2019s and Mavretic\u2019s ongoing tenures in office before the Full Commission. The record includes a calendar for the 8 June 2005 docket before the Full Commission, identifying Commissioners Sellers, 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 unexpired terms.\nThis failure is particularly significant given that the Commission \u2014 had it agreed with defendants\u2019 argument under Estes \u2014 could have remedied the situation by convening another panel comprised of individuals whose terms had not yet similarly expired. See N.C. Gen. Stat. \u00a7 97-85 (2005) (\u201cProvided 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.\u201d). 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.\nEstes presented a materially different set of circumstances. In Estes, Commissioner Davis\u2019 term expired eight months after oral 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\u2019 joining in the opinion was considered by the panel since Commissioner Davis attached an affidavit to the opinion and award stating that he had joined the opinion prior to his term\u2019s expiration. Id. The issue had, therefore, been preserved for appellate review.\nThis 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: \u201cDefacto status arises where a person assumes office \u2018under color of authority\u2019 or where' one \u2018exercises 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.\u2019 \u201d 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. review denied, 588 S.E.2d 476 (2003). See also N.C. Gen. Stat. \u00a7 128-6 (2005) (\u201cAny 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.\u201d).\nHere, 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. Beach, 294 N.C. 713, 720, 242 S.E.2d 796, 800 (1978) (holding that \u201c[a] judge defacto 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\u201d (internal quotation marks omitted)). Further, \u201c[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.\u201d State v. Porter, 272 N.C. 463, 465-66, 158 S.E.2d 626, 628 (1968).\nThus, 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. 10. 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, 719, 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, Rule 10(b)(1) precluded appellate review); State v. Love, 177 N.C. App. 614, 628, 630 S.E.2d 234, 243 (\u201cThere 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.\u201d), 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 \u201cholding over\u201d commissioner.\nII\nWe turn now to defendants\u2019 arguments challenging the Commission\u2019s findings of fact and conclusions of law. \u201c[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.\u201d Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512 (2004). Findings of fact by the Commission are conclusive on appeal \u201c \u2018when supported by competent evidence, even when there is evidence to support a finding to the contrary.\u2019 \u201d 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).\nDefendants first assert that the Commission erred by finding that \u201c[n]inety-five percent of plaintiff\u2019s job is keyboarding or handwriting affidavits.\u201d Defendants concede that this finding is supported by plaintiff\u2019s own testimony. Defendants\u2019 assertion \u201cthat plaintiff\u2019s claim in this regard is not credible given her title, admitted duties, and total lack of corroborating evidence\u201d was an argument for the Commission. Since this finding is supported by plaintiffs 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 \u201cthere 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\u201d), adopted per curiam, 359 N.C. 403, 610 S.E.2d 374 (2005).\nDefendants next contend that the Commission \u201cerred in finding that Dr. Lowe\u2019s testimony was credible\u201d rather than agreeing with the deputy commissioner that the testimony should not be accepted as credible. It is well-established that \u201c \u2018[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d 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\u2019s credibility determination. Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116-17, 530 S.E.2d 549, 553 (2000).\nFinally, 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. \u00a7 97-53 (2005), it falls instead within the catchall provision of N.C. Gen. Stat. \u00a7 97-53(13). Under \u00a7 97-53(13), an occupational disease includes \u201c[a]ny disease ... which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.\u201d\nAs the Supreme Court has explained, in order to be considered an occupational disease under N.C. Gen. Stat. \u00a7 97-53(13), a condition must be:\n(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 \u201ca causal connection between the disease and the [claimant\u2019s] employment.\u201d\nRutledge 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 \u201care satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally.\u201d Id. at 93-94, 301 S.E.2d at 365.\nDefendants assert that \u201cplaintiff 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\u2019s testimony \u2014 found credible by the Commission \u2014 supports the Commission\u2019s findings (1) \u201cthat plaintiff contracted an occupational disease to both of her hands as a result of her job with defendant,\u201d (2) that \u201c[p]laintiff\u2019s condition is the result of a disease that is characteristic of and peculiar to her particular trade, occupation or employment,\u201d and (3) \u201c[plaintiff\u2019s disease is not an ordinary disease of life to which the public is equally exposed outside the employment.\u201d\nBecause the Commission\u2019s findings are supported by Dr. Lowe\u2019s testimony, they are binding even though defendants have pointed to contrary testimony. Further, those findings of fact support the Commission\u2019s 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\u2019d 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.\nAffirmed.\nJudge ELMORE concurs.\nJudge TYSON dissents in a separate opinion.\n.' We note that this Court has also held that \u201c[t]he validity of the title or an act of a defacto officer may be challenged only through an action of quo wan'anto.\" Kings Mountain, 159 N.C. App. at 575, 583 S.E.2d at 635 (emphasis added).\n. Defendants also cite Coppley v. PPG Indus., Inc., 142 N.C. App. 196, 197-99, 541 S.E.2d 743, 744-45 (2001) (voiding majority opinion and award entered on remand because concurring commissioner had retired prior to filing). In Coppley, however, one of the commissioners in the majority had actually left the Commission prior to the filing of the opinion and, therefore, the panel was composed of only two commissioners. Further, the appellant in Coppley would have had no opportunity to raise the issue prior to appeal.", "type": "majority", "author": "GEER, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion ignores binding precedent from this Court that the Commission\u2019s opinion and award is void when entered after the expiration of two of the Commissioner\u2019s 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. \u201cWhere 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 been overturned by a higher court.\u201d 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.\nThis 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.\nI. Appellate Rule lOfa'i\nThis issue is properly before this Court. Rule 10(a) of the North Carolina Rules of Appellate Procedure provides:\n[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.\nN.C.R. App. P. 10(a) (2007) (emphasis supplied). \u201cJurisdiction is \u2018[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it.\u2019 \u201d In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 789-90 (2006) (quoting Black\u2019s Law Dictionary 856 (7th ed. 1999)). \u201c[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.\u201d Id. at 590, 636 S.E.2d at 790 (quotation omitted). Subject matter jurisdiction is \u201cthe power to pass on the merits of the case.\u201d Boyles v. Boyles, 308 N.C. 488, 491, 302 S.E.2d 790, 793 (1983).\nDefendant 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\u2019s opinion and award is void. Defendant\u2019s assignment of error numbered 7 states, \u201cThe Commission erred as a matter of law in filing its Opinion and Award without a sufficient number of Commissioners concurring.\u201d 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).\nII. Estes and Cormlev\nThe proper holding in this case is controlled by this Court\u2019s 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\u2019s term had expired. Id. This Court unanimously held the Full Commission\u2019s decision was void as a matter of law. Id.\nThis 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, \u201c \u2018Where a commissioner\u2019s 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.\u2019 \u201d Id. at 198, 541 S.E.2d at 744 (quoting Leonard' T. Jernigan, Jr., North Carolina Workers\u2019 Compensation Law and Practice \u00a7 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.\nThe 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\u2019s Motion for Addition to Record on Appeal filed on 24 August 2006 as exhibits to the record \u2022 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, \u201cIt 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 SO, 2004.\u201d (Emphasis supplied).\nThe 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, \u201cIt 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.\u201d (Emphasis supplied).\nNothing in the record shows either Commissioners Bolch or Mavretic were reappointed to the Commission after their terms of office expired on \u201cJune 30, 2004,\u201d and \u201cApril 30, 2005,\u201d respectively. According to the Commission\u2019s 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.\nDefendant 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. \u00a7 97-77 (2005) mandates \u201cthe Governor shall appoint a successor for a term of six years, and thereafter the term of office of each commissioner shall be six years.\u201d (Emphasis supplied).\nThis 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. \u201cAs a commission it acts by a majority of its qualified members at the time decision is made.\u201d Gant v. Crouch, 243 N.C. 604, 607, 91 S.E.2d 705, 707 (1956) (emphasis supplied).\nIII. Conclusion\nDefendant\u2019s appeal challenges the jurisdictional members of the Commission to hear this appeal. N.C.R. App. P. 10(a). Following Gant, Estes, and Coppley, no majority of the Commission possessed \u201cthe power to pass on the merits of the case\u201d or concur in the opinion and award entered. Boyles, 305 N.C. at 491, 302 S.E.2d at 793. The opinion and award is void and must be vacated. Gant, 243 N.C. at 607, 91 S.E.2d at 707; Coppley, 142 N.C. App. at 198, 541 S.E.2d at 744; Estes, 117 N.C. App. at 128, 449 S.E.2d at 764. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "MacRae, Perry & MacRae, L.L.P., by Daniel T Perry, III, for :plaintiff-appellee.", "Teague, Campbell, Dennis & Gorham, L.L.P, by Dayle A. Flammia and Bradley G. Inman, for defendants-appellants." ], "corrections": "", "head_matter": "DAY\u2019LE LATHON, Employee, Plaintiff v. CUMBERLAND COUNTY, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent), Defendants\nNo. COA06-912\n(Filed 19 June 2007)\n1. Workers\u2019 Compensation\u2014 opinion filed after term of commissioner expired \u2014 validity\u2014holdover\u2014de facto officers\nThe Industrial Commission\u2019s opinion and award in a workers\u2019 compensation case was not void even though it was filed after the terms of two of the commissioners on the panel deciding plaintiff\u2019s case had expired, because: (1) under N.C. Const, art. VI, \u00a7 10, N.C.G.S. \u00a7 128-7, and State ex rel. Martin v. Preston, 325 N.C. 438 (1989), the two commissioners were still properly serving since they continue to hold their positions upon expiration of their term until other appointments are made; (2) nothing in the record indicated that defendants raised the issue of the validity of the commissioners\u2019 ongoing tenures in office before the full Commission as required by N.C. R. App. P. 10(b)(1); and (3) even if under As \u00edes v. N.C. State Univ., 117 N.C. App. 126 (1994), the Commissioners 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.\n2. Workers\u2019 Compensation\u2014 findings of fact \u2014 ninety-five percent of job is keyboarding or handwriting affidavits\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that ninety-five percent of plaintiff employee\u2019s job is keyboarding or handwriting affidavits, because: (1) defendants concede that this finding is supported by plaintiff\u2019s own testimony; and (2) the finding cannot be disturbed on appeal regardless of whether there is also evidence to the contrary.\n3. Workers\u2019 Compensation\u2014 findings of fact \u2014 credibility of doctor\u2019s testimony\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that a doctor\u2019s testimony was credible rather than agreeing with the deputy commissioner that the testimony should not be accepted as credible, because: (1) the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony; and (2) the Court of Appeals cannot review the Commission\u2019s credibility determination.\n4. Workers\u2019 Compensation\u2014 findings of fact \u2014 occupational disease \u2014 carpal tunnel syndrome\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff employee contracted an occupational disease from her work duties, because: (1) although carpal tunnel syndrome is not specifically listed as an occupational disease in N.C.G.S. \u00a7 97-53, it falls within the catchall provision of N.C.G.S. \u00a7 97-53(13); (2) the Commission\u2019s findings are supported by a doctor\u2019s testimony even though defendants have pointed to contrary testimony; and (3) the findings of fact support the Commission\u2019s conclusion.\nJudge Tyson dissenting.\nAppeal 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.\nMacRae, Perry & MacRae, L.L.P., by Daniel T Perry, III, for :plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P, by Dayle A. Flammia and Bradley G. Inman, for defendants-appellants." }, "file_name": "0062-01", "first_page_order": 94, "last_page_order": 108 }