             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-62

                             Filed: 20 September 2016

Industrial Commission, I.C. No. 14-721965

THOMAS BENTLEY, Employee, Plaintiff,

            v.

JONATHAN PINER CONSTRUCTION, Alleged Employer, and STONEWOOD
INSURANCE COMPANY, Alleged Carrier, Defendants.


      Appeal by Plaintiff from opinion and award of the North Carolina Industrial

Commission entered 9 October 2015. Heard in the Court of Appeals 8 August 2016.


      Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, and
      Robert C. Dodge, P.A., by Robert C. Dodge, for Plaintiff-Appellant.

      Dickie, McCamey & Chilcote, P.C., by Martin R. Jernigan and Michael W.
      Ballance, for Defendants-Appellees.


      McGEE, Chief Judge.


      Thomas Bentley (“Plaintiff”) appeals from an opinion and award of the North

Carolina Industrial Commission (“the Commission”) determining he was not an

“employee” of Jonathan Piner Construction (“Piner Construction”), as that term is

used in the North Carolina Workers’ Compensation Act, N.C. Gen. Stat. § 97-1 et seq.

On appeal, Plaintiff contends, inter alia, that the Commission erred by basing its

opinion and award on an opinion and order by a deputy commissioner who was not
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                                  Opinion of the Court



present at the hearing and did not hear the evidence.         We agree, vacate the

Commission’s opinion and award, and remand for a new hearing.

                                   I. Background

      Piner Construction, a residential and commercial contractor, hired Plaintiff to

work as a framer at one of its construction sites. While working at the construction

site on 3 March 2014, Plaintiff was injured when a nail he was prying from a board

broke loose and struck him in the right eye. Following the injury, Plaintiff filed a

workers’ compensation claim with the Commission on 25 March 2014.               Piner

Construction, along with its insurance carrier, Stonewood Insurance Company

(collectively, “Defendants”) denied the claim for compensation, contending the injury

was non-compensable under the Workers’ Compensation Act because Plaintiff was

not an employee of Piner Construction on the date of the accident. The claim was

assigned for a hearing before Deputy Commissioner Mary C. Vilas (“Deputy Vilas”).

      A hearing before Deputy Vilas occurred on 5 December 2014. Near the end of

the hearing, Deputy Vilas suggested that the jurisdictional question of whether

Plaintiff was an employee of Piner Construction be bifurcated from the merits of

Plaintiff’s claim, because she would no longer be at the Commission after 1 February

2015. Deputy Vilas noted that she had many cases to write, but she would “try” to

decide the jurisdictional question in the present case before she left the Commission.

An order bifurcating the jurisdictional and merits issues was filed 9 December 2014



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by Deputy Vilas, and stated that bifurcation “was appropriate given the issues for

hearing and that medical testimony by deposition is not scheduled until 26 January

2015 and [Deputy Vilas] will not be at the Commission after 1 February 2015.”

Deputy Vilas filed an order closing the record and declaring that the jurisdictional

issue was “ready for a decision” on 12 January 2015.

       An opinion and order was entered 16 February 2015 by Deputy Commissioner

William H. Shipley (“Deputy Shipley”). Deputy Shipley concluded as a matter of law

that the Commission lacked jurisdiction over Plaintiff’s claim because he was not an

employee of Piner Construction at the time his injury was sustained.                      Plaintiff

appealed to the full Commission, which came to the same conclusion in an opinion

and award entered 9 October 2015. Plaintiff appeals.

                                           II. Analysis

       Plaintiff argues the Commission erred in basing its decision on an opinion and

award of a deputy commissioner who did not hear the evidence.1 Whether N.C. Gen.

Stat. § 97-84 permits one deputy commissioner to consider the evidence and another

to render an opinion and award is a question of statutory interpretation, which we

review de novo. See In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010) (stating




       1  Plaintiff raises two other arguments in his brief regarding the merits of the Commission’s
decision. Because we agree that a plain reading of N.C. Gen. Stat. § 97-84 requires a single deputy
commissioner to both hear the evidence and render an opinion and award, we do not reach the
remaining issues presented for adjudication.

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                                   Opinion of the Court



that “[q]uestions of statutory interpretation are questions of law and are reviewed de

novo” (citing Brown v. Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998))).

      Statutory interpretation “properly begins with an examination of the plain

words of the statute.” Correll v. Division of Social Services, 332 N.C. 141, 144, 418

S.E.2d 232, 235 (1992) (citation omitted). “When the language of a statute is clear

and unambiguous, there is no room for judicial construction, and the courts must give

it its plain and definite meaning.” Lemons v. Old Hickory Council, 322 N.C. 271, 276,

367 S.E.2d 655, 658 (1988) (citations omitted); see also State v. Wiggins, 272 N.C. 147,

153, 158 S.E.2d 37, 42 (1967) (“It is elementary that in the construction of a statute

words are to be given their plain and ordinary meaning unless the context, or the

history of the statute, requires otherwise.” (citation omitted)).

      The statute at issue in this case, N.C.G.S. § 97-84, provides:

             The Commission or any of its members 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 and issue findings of
             fact 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


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               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.

N.C. Gen. Stat. § 97-84 (2015) (emphasis added). Considering the words in the

statute as they appear, and giving those words their plain and ordinary meaning, we

find that if a dispute in the Industrial Commission is heard by a deputy, N.C.G.S. §

97-84 requires “said deputy” to both arrive at a “complete determination of the

matters in dispute,” and “file his [or her] written opinion[.]”2 The statute refers to a

deputy commissioner in the singular form throughout the statute, stating that “a

deputy” may hear the dispute in the same manner as “a member” of the Commission,

and that “said deputy” shall proceed to a complete determination of the case, file an

opinion, and “the deputy” shall cause an award to be issued.

       We believe the context in which “a deputy,” “said deputy,” and “the deputy” are

used in N.C.G.S. § 97-84 evidences the General Assembly’s intent that a single deputy

handle a case from its outset to its completion. We recognize that, under the Workers’

Compensation Act, we are to read the singular to include the plural unless the context

requires otherwise.       See    N.C. Gen. Stat. § 97-2(17) (2015) (providing that “the



       2  This question is one of first impression. In Crawford v. Board of Education, 3 N.C. App. 343,
164 S.E.2d 748 (1968), the defendant argued the Commission erred in allowing a hearing officer to
preside at the hearing in which the majority of the evidence was presented, when another hearing
officer presided over the first day of the hearing and ultimately issued the opinion and award. 3 N.C.
App at 347-48, 164 S.E.2d at 751. However, this Court found the defendant’s argument on the issue
to be waived, and did not reach the merits. Id.

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                                  Opinion of the Court



singular includes the plural” unless “the context otherwise requires”). However,

reading the singular to include the plural in this instance – reading “a deputy” as

“deputies,” “said deputy” as “said deputies,” and “the deputy” as “the deputies” –

would permit a panel of deputies to hear the dispute and, taken to its logical

conclusion, would also permit one deputy to issue preliminary orders, another deputy

to hear the testimony, another to close the record, and yet another to render a

decision. In the latter circumstance, no one deputy would have come to a “complete

determination of the matters in dispute,” rendering that portion of the statute

superfluous. See Estate of Jacobs v. State, ___ N.C. App. ___, ___, 775 S.E.2d 873,

877, disc. review denied, ___ N.C. ___, 778 S.E.2d 93 (2015) (declining to adopt an

interpretation that would have rendered portions of a statute “superfluous or

nonsensical”).

      We believe the context in which “a deputy,” “said deputy,” and “the deputy” are

used requires that the entire process be handled by a single deputy commissioner,

and that a contrary interpretation would contravene the manifest intent of the

General Assembly. N.C.G.S. § 97-2(17); see also N.C. Gen. Stat. § 12-3(1) (2015)

(providing that in the interpretation of statutes, “[e]very word importing the singular

number only shall extend and be applied to several persons or things,” unless “such

construction would be inconsistent with the manifest intent of the General

Assembly.”).



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      In so finding, we rely only on the plain language of the statute, and reject

Plaintiff’s argument that State v. Bartlett, 368 N.C. 309, 776 S.E.2d 672 (2015)

controls this case. In Bartlett, our Supreme Court interpreted a provision of the North

Carolina Criminal Procedure Act, N.C. Gen. Stat. § 15A-977, as requiring a trial judge

who presides at a suppression hearing to also issue the findings of fact. 368 N.C. at

313, 776 S.E.2d at 647. This is so, the Court reasoned, because “[t]he trial judge who

presides at a suppression hearing ‘sees the witnesses, observes their demeanor as

they testify and by reason of his more favorable position, he is given the responsibility

of discovering the truth.’” Id. (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d

597, 601, cert. denied, 403 U.S. 934, 29 L. Ed. 2d 715 (1971)). Plaintiff reasons that,

because a deputy commissioner hearing evidence in the Industrial Commission

functions like a trial judge at a suppression hearing, Bartlett’s holding should be read

to mandate that a single deputy commissioner both hear the evidence and render a

decision.

      Clear precedent from our Supreme Court allows us to reject this reasoning. As

Defendants point out, in Adams v. AVX Corp, 349 N.C. 676, 509 S.E.2d 411 (1998),

our Supreme Court stated that under the Workers’ Compensation Act, “the

Commission is the fact finding body” and is the “sole judge of the credibility of the

witnesses and the weight to be given their testimony.” Id. at 680, 509 S.E.2d at 413

(citation omitted). Defendants correctly note that under Adams, the full Commission



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reviewing the opinion and award of the hearing officer may either conduct a new

hearing or proceed on the cold record, and unlike N.C.G.S. § 15A-977, which entrusts

the trial court to be the fact finder, N.C. Gen. Stat. § 97-85 “places the ultimate fact-

finding function with the Commission – not the hearing officer.” Id. at 681, 509

S.E.2d at 413.

      We are cognizant of Adams and its instruction that the full Commission is the

sole judge of the credibility of witnesses. Id. Defendants argue that, because the

Commission may proceed on a cold record in reviewing the hearing officer’s decision,

whether the deputy commissioner issuing the original opinion and order heard live

testimony or proceeded on a cold record is of no moment. However, we cannot ignore

the plain language of a statute. Our decision does not question the Commission’s

ability to review the hearing officer’s decision on a cold record – under our precedents

it unquestionably can. In the present case, we simply examine whether the plain

language of N.C.G.S. § 97-84 permits a deputy commissioner to issue an opinion and

order in a case over which he or she did not personally preside. As noted, we find

said language to unambiguously dictate that when “a deputy” commissioner presides

over a dispute, “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,”

and “cause to be issued an award pursuant to such determination.” N.C.G.S. § 97-84

(emphasis added).



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      In the present case, Deputy Vilas presided over the hearing, issued a

preliminary order bifurcating the jurisdictional and merits issues, and closed the

record on the issue of the employment relationship, while Deputy Shipley issued the

opinion and order finding that the Commission had no jurisdiction because Plaintiff

was not an employee of Piner Construction. Neither Deputy Vilas nor Deputy Shipley

“proceed[ed] to a complete determination of the matters in dispute,” “file[d] [a]

written opinion,” and “cause[d] to be issued an award pursuant to such

determination.” N.C.G.S. § 97-84. We therefore conclude that the proceedings before

Deputy Vilas resulting in an opinion and order by Deputy Shipley violated N.C.G.S.

§ 97-84.

                                  III. Conclusion

      For the reasons stated, the Commission’s opinion and award is vacated, and

this case is remanded for a new hearing.

      VACATED AND REMANDED.

      Judges CALABRIA and STROUD concur.




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