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authoritative.
NO. COA07-681
NORTH CAROLINA COURT OF APPEALS
Filed:
18 March 2008
TIMOTHY RAPER,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 377149
MANSFIELD SYSTEMS, INC.
and FEDERATED MUTUAL
INSURANCE COMPANY,
Employer/Carrier,
Defendants.
Appeal
by defendants and cross-appeal by plaintiff from Opinion and Award of the Full
Commission of the North Carolina Industrial Commission entered 2 February 2007
by Commissioner Dianne C. Sellers.
Heard in the Court of Appeals 29 November 2007.
Anderson
Law Firm by Michael J. Anderson, for plaintiff-appellant/appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Tonya D. Davis, for
defendants-appellants/appellees.
JACKSON,
Judge.
Timothy
Raper (“plaintiff”) and Mansfield Systems, Inc. (“defendant-employer”), along
with its insurance carrier, Federated Mutual Insurance Co. (collectively,
“defendants”), appeal from an Opinion and Award of the Full Commission of the
North Carolina Industrial Commission (“Full Commission”) filed 2 February
2007. For the following reasons, we
affirm in part and remand in part.
Plaintiff
was employed by defendant-employer as a driver of gasoline tankers. On 28 May 2003, after filling a gasoline
storage tank in his usual manner, plaintiff reached down to pick up the hose
and, when he was approximately fifty percent upright, experienced a snapping
sensation in his right shoulder area.
Upon feeling the snapping sensation, instead of placing the hose in the
trough in his usual manner, plaintiff threw the hose onto the trough to avoid
dropping it and the possibility of not being able to pick it up again. Plaintiff described the trough as being
higher than his shoulders.
Thereafter,
plaintiff reported the incident to defendant-employer, and was instructed to
seek treatment at Smithfield Urgent Care (“the Urgent Care”). At the time, plaintiff’s symptoms included pain extending from the right side
of his neck down into his right shoulder and hand. Plaintiff also experienced numbness and tingling of the second,
third, and fourth digits on his right hand as well as weakness in his right
arm. Previously, plaintiff had
presented to the Urgent Care, but plaintiff’s medical records from the Urgent
Care disclosed no prior pain in his neck, right shoulder, or right hand and no
prior numbness or tingling in the fingers on his right hand.
On
29 May 2003, plaintiff presented to the Urgent Care, and medical records from
that date describe plaintiff’s symptoms in his right trapezius muscle and
cervical spine, with the right side being worse than the left. The medical records also indicate that
plaintiff was able to rotate his neck and head only half as much as
normal. On 2 June 2003, plaintiff
returned to the Urgent Care, and was diagnosed as having sustained a cervical
sprain and injury to his trapezius muscle.
On 9 June 2003, plaintiff again presented to the Urgent Care, and was
diagnosed as having cervical radiculopathy.
On
26 September 2003, plaintiff presented to Dr. Carol B. Siegel (“Dr. Siegel”) at
Raleigh Orthopaedic Clinic, who noted that plaintiff was experiencing numbness
and tingling in the fingers on his right hand.
Dr. Siegel conducted numerous diagnostic tests, including an
electromyography and nerve conduction studies of plaintiff’s right upper
extremity, and diagnosed plaintiff as having right carpal tunnel syndrome. Dr. Siegel recorded that because plaintiff
denied having hand and finger symptoms prior to 28 May 2003, she could
attribute his carpal tunnel syndrome only to the injury occurring on that date.
On 3 May 2004, plaintiff presented
to Dr. Josephus T. Bloem (“Dr. Bloem”), stating that he was experiencing
constant discomfort in his right shoulder and pain in his right wrist. Following his examination, Dr. Bloem
diagnosed plaintiff as having right carpal tunnel syndrome and a likely rotator
cuff tear. Dr. Bloem stated that there
was no manner available to determine the extent of any rotator cuff tear
without performing surgery, but with respect to plaintiff’s carpal tunnel
syndrome, Dr. Bloem recommended that plaintiff attempt conservative therapies
before considering surgery. Dr. Bloem
opined that plaintiff’s right carpal tunnel syndrome was likely the result of a
wrist sprain that occurred when plaintiff threw the tanker hose onto the trough
on 28 May 2003. Additionally, while
acknowledging that plaintiff has diabetes, and the potential relationship
between diabetes and carpal tunnel syndrome, Dr. Bloem opined that the trauma
of 28 May 2003 was a more likely cause given that plaintiff had symptoms only
in his right hand.
Dr.
Bloem opined that performing the duties associated with plaintiff’s position
with defendant-employer would be problematic for plaintiff. He assigned plaintiff restrictions on the
use of his right arm, including limitations on over-head work, lifting,
pushing, and pulling. Dr. Bloem
ultimately assigned plaintiff a ten percent permanent partial impairment rating
to his right arm due to the shoulder injury and carpal tunnel syndrome, and he
opined that plaintiff has reached maximum medical improvement.
Plaintiff
originally filed his claim for the 28 May 2003 injury against Mansfield Oil Co.
(“Mansfield Oil”) and St. Paul Travelers Insurance Co. (“Travelers”). Travelers initially paid indemnity and
medical compensation through 1 October 2003, but on 12 November 2003, Travelers
denied compensability of plaintiff’s claim on the grounds that plaintiff was
not an employee of Mansfield Oil at the time of the accident but instead was an
employee of defendant-employer.
Plaintiff amended his request for hearing, properly identifying defendants
as parties. Defendants filed a response,
admitting the employment relationship but denying plaintiff’s claim, contending
that because Travelers had accepted plaintiff’s claim, Travelers was estopped
from denying further responsibility for plaintiff’s injury. After defendants’ response but prior to the
hearing, plaintiff reached a settlement with Mansfield Oil and Travelers in the
amount of $8,000.00, and this settlement was approved by Deputy Commissioner
Bradley W. Houser (“Deputy Commissioner Houser”) on 17 August 2005.
A
hearing was held before Deputy Commissioner Houser on 28 October 2005, and
Deputy Commissioner Houser entered an Opinion and Award in plaintiff’s favor on
6 February 2006. Defendants filed
notice of appeal to the Full Commission.
By Opinion and Award entered 2 February 2007, the Full Commission
affirmed with modifications Deputy Commissioner Houser’s Opinion and Award;
Commissioner Thomas J. Bolch dissented without written opinion. In its Opinion and Award, the Full
Commission found that on 28 May 2003, plaintiff sustained an injury by accident
arising out of and in the course of his employment with defendant-employer in
the form of a specific traumatic incident to his cervical spine. The Full Commission also found that plaintiff
sustained a compensable injury when he threw the hose and sprained his wrist,
resulting in carpal tunnel syndrome.
With respect to plaintiff’s shoulder injury, however, the Full
Commission found that (1) the medical evidence failed to show that plaintiff’s
right shoulder injury was related to the injury by accident or the specific
traumatic incident that occurred on 28 May 2003; and (2) the shoulder injury
was not the result of an injury by accident arising out of and in the course of
his employment. Thereafter, both
plaintiff and defendants filed timely notice of appeal.
On
appeal, defendants contend that the Full Commission erred by concluding that
plaintiff’s right carpel tunnel syndrome is compensable, and plaintiff contends
that the Full Commission erred by (1) finding that plaintiff did not suffer a
shoulder injury as a result of the 28 May 2003 incident; (2) denying plaintiff
disability benefits after 3 May 2004; and (3) failing to award plaintiff
attorneys’ fees as a result of defendants’ unreasonable defense of his claim.
“[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.”
Johnson v. S. Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508,
512 (2004). “In weighing the evidence,
the Commission is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony, and the Commission may reject entirely
any testimony which it disbelieves.” Hedrick v. PPG Indus., 126 N.C.
App. 354, 357, 484 S.E.2d 853, 856, disc. rev. denied, 346 N.C. 546, 488
S.E.2d 801 (1997). “The findings of the
Commission are conclusive on appeal when such competent evidence exists, even
if there is plenary evidence for contrary findings.” Hardin v. Motor Panels,
Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc. rev. denied,
351 N.C. 473, 543 S.E.2d 488 (2000).
“This Court ‘does not have the right to weigh the evidence and decide
the issue on the basis of its weight.
The court’s duty goes no further than to determine whether the record
contains any evidence tending to support the finding.’” Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), reh’g
denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Additionally, “failure to assign error to the Commission’s
findings of fact renders them binding on appellate review.” Estate of Gainey
v. S. Flooring & Acoustical Co., Inc., __ N.C. App. __, __, 646 S.E.2d
604, 607 (2007). “This Court reviews
the Commission’s conclusions of law de novo.” Britt v. Gator Wood,
Inc., __ N.C. App. __, __, 648 S.E.2d 917, 920 (2007).
In
their sole argument on appeal, defendants contend that Dr. Siegel’s and Dr.
Bloem’s opinions as to the causation of plaintiff’s right carpal tunnel
syndrome constituted incompetent evidence and that the Full Commission,
therefore, erred in awarding workers’ compensation benefits for plaintiff’s right
carpal tunnel syndrome. We disagree.
“A
claimant in a workers’ compensation case bears the burden of proving, by a
preponderance of the evidence, a causal relationship between the injury and the
claimant’s employment.” Legette v. Scotland Mem’l Hosp., 181 N.C. App.
437, 455, 640 S.E.2d 744, 756 (2007), appeal dismissed and disc. rev. denied,
__ N.C. __, __ S.E.2d __ (Jan. 24, 2008) (159P07). When the causation of a particular “‘injury involves complicated
medical questions far removed from the ordinary experience and knowledge of
laymen, only an expert can give competent opinion evidence as to the cause of
the injury.’” Id. (quoting Click v. Pilot Freight Carriers, Inc.,
300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)). Expert testimony based upon speculation and conjecture “is not
sufficiently reliable to qualify as competent evidence on issues of medical
causation.” Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538
S.E.2d 912, 915 (2000). Therefore,
the Supreme Court has
allowed “could” or “might” expert testimony as probative and competent evidence
to prove causation. However, “could” or “might” expert testimony is
insufficient to support a causal connection when there is additional evidence
or testimony showing the expert’s opinion to be a guess or mere
speculation. An expert witness’
testimony is insufficient to establish causation where the expert witness is
unable to express an opinion to any degree of medical certainty as to the cause
of an illness. Likewise, where an expert witness expressly bases his opinion as
to causation of a complex medical condition solely on the maxim post hoc
ergo propter hoc (after it, therefore because of it), the witness provides
insufficient evidence of causation.
Adams
v. Metals USA,
168 N.C. App. 469, 476, 608 S.E.2d 357, 362 (internal quotation marks,
citations, and alterations omitted), aff’d, 360 N.C. 54, 619 S.E.2d 495
(2005) (per curiam).
In
the instant case, defendants contend that Dr. Bloem’s testimony as to causation
was incompetent on the grounds that it was based upon (1) the maxim post hoc
ergo propter hoc and (2) facts not in evidence, specifically, the existence
of a wrist sprain suffered by plaintiff when he threw the tanker hose onto the
trough.
In
formulating his opinion, Dr. Bloem considered electrodiagnostic tests performed
by Dr. Siegel as well as plaintiff’s description of the symptoms and mechanism
of the injury. As this Court has stated
previously, “[a] physician’s diagnosis often depends on the patient’s
subjective complaints, and this does not render the physician’s opinion
incompetent as a matter of law.” Jenkins v. Pub. Serv. Co., 134 N.C.
App. 405, 410, 518 S.E.2d 6, 9 (1999), rev’d in part on other grounds and
disc. rev. improvidently allowed in part, 351 N.C. 341, 524 S.E.2d 805
(2000) (per curiam). Based upon the
tests and plaintiff’s accounts, Dr. Bloem confirmed Dr. Siegel’s diagnosis of
carpal tunnel syndrome, and on appeal, defendants have disputed only the issue
of causation, not the diagnosis itself.
In
discussing the issue of causation, Dr. Bloem noted that plaintiff may
have suffered a sprain, and that such a sprain, more than likely, would have
caused plaintiff’s carpal tunnel syndrome.
The Full Commission found that plaintiff was injured when he “sprained
his wrist, resulting in carpal tunnel syndrome,” but as defendants correctly
argue, the record contains no evidence that plaintiff, in fact, experienced a
wrist sprain. Dr. Bloem also
acknowledged that plaintiff’s carpal tunnel syndrome could have been
caused by his diabetes or by the repetitive vibrations he experienced while
driving trucks. Ultimately, the record
fails to contain evidence that precisely identifies the initial cause of
plaintiff’s carpal tunnel syndrome.
Nevertheless,
the record does contain evidence that, even if plaintiff’s carpal tunnel
syndrome was a pre-existing condition, the carpal tunnel syndrome was
aggravated by the 28 May 2003 injury.
Dr. Bloem testified that plaintiff may have “had silent carpal tunnel surgery
[sic] based on his diabetes, maybe.
Well, maybe, but if so then it was aggravated by the injury and
you’re still back at the injury that’s doing it.” (Emphasis added). It is well-established that “[a]ggravation
of a pre-existing condition caused by a work-related injury is compensable under
the Workers’ Compensation Act.” Moore v. Fed. Express, 162 N.C. App.
292, 297, 590 S.E.2d 461, 465 (2004).[Note 1] Dr. Bloem did not base his opinion solely upon facts not in
evidence or the maxim post hoc ergo propter hoc. Whether caused by a wrist sprain, diabetes,
or vibrations experienced while driving trucks, competent evidence supports the
Full Commission’s award of workers’ compensation benefits for plaintiff’s
carpal tunnel syndrome.
Because
we hold that Dr. Bloem’s testimony constituted competent evidence to support
the Full Commission’s finding that plaintiff’s 28 May 2003 injury caused his
carpal tunnel syndrome, we need not reach plaintiff’s arguments concerning the
competency of Dr. Siegel’s opinions as to causation. See Gore v. Myrtle/Mueller,
362 N.C. 27, 42, 653 S.E.2d 400, 410 (2007) (“Since appellate courts are
‘limited to reviewing whether any competent evidence supports the Commission’s
findings of fact and whether the findings of fact support the Commission’s
conclusions of law,’ our review must stop there.” (quoting Deese v. Champion
Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000))). Accordingly, defendants’ assignments of
error are overruled.
With
respect to plaintiff’s appeal, plaintiff first contends that the Full Commission
erred by finding that plaintiff did not suffer a shoulder injury as a result of
the incident of 28 May 2003. We
disagree.
Pursuant
to North Carolina General Statutes, section 97-2(6), a compensable injury
“shall mean only injury by accident arising out of and in the course of the
employment . . . .” N.C. Gen. Stat. §97-2(6) (2005). It is well-established that
[a]n accident is an
unlooked for event and implies a result produced by a fortuitous cause. If an employee is injured while carrying on
his usual tasks in the usual way the injury does not arise by accident. However, if an interruption of the work
routine occurs introducing unusual conditions likely to result in unexpected
consequences, an accidental cause will be inferred.
Lineback
v. Wake County Bd. of Comm’rs, 126 N.C. App. 678, 681, 486 S.E.2d 252, 25455
(1997) (internal quotation marks and citations omitted). As this Court has explained,
“[a]n ‘accident’ is not
established by the mere fact of injury but is to be considered as a separate
event preceding and causing the injury.
No matter how great the injury, if it is caused by an event that
involves both an employee’s normal work routine and normal working conditions
it will not be considered to have been caused by accident.”
Renfro
v. Richardson Sports Ltd. Partners, 172 N.C. App. 176, 180, 616 S.E.2d 317, 322
(2005) (quoting Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App.
78, 7980, 239 S.E.2d 847, 849 (1978)), disc. rev. denied, 360 N.C. 535,
633 S.E.2d 821 (2006).
Section
97-2(6) provides a different test for back injuries:
[W]here injury to the
back arises out of and in the course of the employment and is the direct result
of a specific traumatic incident of the work assigned, “injury by accident”
shall be construed to include any disabling physical injury to the back arising
out of and causally related to such incident.
N.C.
Gen. Stat. §97-2(6) (2005). Therefore,
the “statute provides two theories on which a back injury claimant can proceed:
(1) that claimant was injured by accident; or (2) that the injury arose from a
specific traumatic incident.” Fish v. Steelcase, Inc., 116 N.C. App.
703, 707, 449 S.E.2d 233, 237 (1994), cert. denied, 339 N.C. 737, 454
S.E.2d 650 (1995). “[T]o prove a
‘specific traumatic incident,’ a worker must only show that the injury occurred
at a ‘judicially cognizable’ point in time.” Zimmerman v. Eagle Elec. Mfg.
Co., 147 N.C. App. 748, 754, 556 S.E.2d 678, 681 (2001), disc. rev.
improvidently allowed, 356 N.C. 425, 571 S.E.2d 587 (2002) (per curiam). As this Court observed, by providing the
separate definition of “injury by accident,” “the General Assembly intended to
relax the requirement that there be some unusual circumstance that accompanied
the [back] injury.” Bradley v. E.B. Sportswear, Inc., 77 N.C. App. 450,
452, 335 S.E.2d 52, 53 (1985).
In
the case sub judice, Dr. Bloem testified and plaintiff’s medical records
demonstrate that plaintiff experienced, inter alia, a trapezius strain
and a cervical strain. Defendants
concede that plaintiff’s injury to his cervical spine was a back injury and,
therefore, compensable as an injury “arising out of and causally related to [a
specific traumatic] incident.” N.C. Gen. Stat. §97-2(6) (2005); see also
Zimmerman, 147 N.C. App. at 75354, 556 S.E.2d at 681 (discussing similar
symptoms in terms of a back injury compensable upon a showing of a causal
relation to a specific traumatic incident).
Plaintiff’s trapezius strain, however, was a “neck injury and/or shoulder
injury,” as the trapezius “is the muscle between the neck and the shoulder that
makes the flare of the neck.” Although
plaintiff argues in his brief that “[t]he only medical evidence of
record demonstrates that Plaintiff’s shoulder injury is, indeed, related to the
specific traumatic incident of May 28, 2003,” (emphasis in original),
the “specific traumatic incident” test only applies to back injuries, not to
shoulder injuries. Therefore, plaintiff
was required to show that his trapezius strain was caused by an accident and
not “an event that involves both an employee’s normal work routine and normal
working conditions.” Renfro, 172 N.C. App. at 180, 616 S.E.2d at 322
(internal quotation marks and citation omitted).
Here,
the evidence demonstrated that plaintiff’s trapezius strain was caused by his
shoulder injury and that his shoulder injury, in turn, occurred while
performing his normal work routine under normal working conditions. Specifically, plaintiff, while lifting a
hose in a standard fashion after unloading gasoline, felt a snapping sensation
in his shoulder, which Dr. Bloem explained resulted in irritation of
plaintiff’s labrum and, likely, a rotator cuff tear. Only after feeling the snapping sensation did plaintiff throw the
hose in an unusual manner. Although Dr.
Bloem testified that plaintiff’s “having to throw [the hose] back on the trough
in an unusual manner” more likely than not caused plaintiff’s carpal tunnel
syndrome, there is no evidence that this caused or aggravated plaintiff’s
shoulder injury. Instead, the shoulder
injury appears to have occurred while plaintiff was lifting the hose in a
normal manner, and therefore, the Full Commission’s finding that plaintiff’s
shoulder injury was not the result of an “injury by accident” as defined in
section 97-2(6) is supported by competent evidence. This finding, in turn, supports the conclusion that plaintiff did
not sustain a compensable injury to his shoulder. See, e.g., Harrison
v. Lucent Techs., 156 N.C. App. 147, 153, 575 S.E.2d 825, 829, disc.
rev. denied, 357 N.C. 164, 580 S.E.2d 365 (2003). Accordingly, plaintiff’s assignment of error is overruled.
Plaintiff
next contends that the Full Commission erred by denying plaintiff disability
benefits after 3 May 2004. We hold that
the Full Commission failed to make sufficient findings on this issue, and
therefore, we remand for additional findings of fact.
“‘Disability,’
within the North Carolina Workers’ Compensation Act, ‘means incapacity because
of injury to earn the wages which the employee was receiving at the time of
injury in the same or any other employment.’” Clark v. Wal-Mart, 360
N.C. 41, 43, 619 S.E.2d 491, 493 (2005) (quoting N.C. Gen. Stat.
§97-2(9)). The burden of proving a
disability as well as the extent of the disability lies with the employee
seeking compensation under the Act. See id. (citing Hendrix v.
Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). In order for a plaintiff to establish a
claim for disability, whether temporary or permanent, under the Act,
the Commission must
find: (1) that plaintiff was incapable after his injury of earning the same
wages he had earned before his injury in the same employment, (2) that
plaintiff was incapable after his injury of earning the same wages he had
earned before his injury in any other employment, and (3) that this
individual’s incapacity to earn was caused by plaintiff’s injury.
Hilliard
v. Apex Cabinet Co.,
305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
This Court has explained that
[t]he employee may meet
this burden in one of four ways: (1) the production of medical evidence that he
is physically or mentally, as a consequence of the work related injury,
incapable of work in any employment; (2) the production of evidence that he is
capable of some work, but that he has, after a reasonable effort on his part,
been unsuccessful in his effort to obtain employment; (3) the production of
evidence that he is capable of some work but that it would be futile because of
preexisting conditions, i.e., age, inexperience, lack of education, to seek other
employment; or (4) the production of evidence that he has obtained other
employment at a wage less than that earned prior to the injury.
Russell
v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)
(internal citations omitted). “If an
employee presents substantial evidence he or she is incapable of earning wages,
the employer must then ‘come forward with evidence to show not only that
suitable jobs are available, but also that the plaintiff is capable of getting
one, taking into account both physical and vocational limitations.’” Barber
v. Going W. Transp. Inc., 134 N.C. App. 428, 435, 517 S.E.2d 914, 920
(1999) (quoting Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33,
398 S.E.2d 677, 682 (1990)).
In
the case sub judice, plaintiff has confined his argument to the second
and third prongs of the Russell test.
Dr. Bloem testified that plaintiff’s “cervical spine injury . . . had
resolved by the time [he] examined [plaintiff] on May 3rd, 2004,” and that
“there was no permanent impairment associated with that cervical spine
injury.” Although Dr. Bloem assigned
plaintiff certain work restrictions, the record demonstrates that plaintiff was
capable of at least some work after 3 May 2004. Therefore, for plaintiff to demonstrate disability beyond 3 May
2004, plaintiff must have satisfied his burden under the balance of the second
and third prongs of the Russell test — specifically, plaintiff must have
demonstrated either that (1) he made a reasonable effort to obtain employment
but was unsuccessful, or (2) any effort to obtain employment would have been
futile because of preexisting conditions. See Russell, 108 N.C. App. at
765, 425 S.E.2d at 457. In its Opinion
and Award, however, “the Commission made no findings regarding either of these
two factors. Plaintiff argues he
presented evidence that he sought employment, but was unsuccessful in obtaining
a job. The Commission entered no
findings of fact on this evidence.” Workman v. Rutherford Elec. Membership
Corp., 170 N.C. App. 481, 490, 613 S.E.2d 243, 250 (2005). Accordingly, we must remand to the Full
Commission to make findings concerning plaintiff’s disability, pursuant to the
second and third prongs of the Russell test, for the period following 3
May 2004. See Britt, __ N.C. App. at __, 648 S.E.2d at 922.
Finally,
plaintiff contends that the Full Commission erred by failing to award plaintiff
attorneys’ fees as a result of defendants’ unreasonable defense of his
claim. We disagree.
Pursuant
to North Carolina General Statutes, section 97-88.1, “[i]f the Industrial
Commission shall determine that any hearing has been brought, prosecuted, or
defended without reasonable ground, it may assess the whole cost of the
proceedings including reasonable fees for defendant’s attorney or plaintiff’s
attorney upon the party who has brought or defended them.” N.C. Gen. Stat.
§97-88.1 (2005). “The purpose of this
section is to prevent ‘stubborn, unfounded litigiousness which is inharmonious
with the primary purpose of the Workers’ Compensation Act to provide
compensation to injured employees.’” Troutman v. White & Simpson, Inc.,
121 N.C. App. 48, 54, 464 S.E.2d 481, 485 (1995) (quoting Beam v. Floyd’s
Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990)), disc.
rev. denied, 343 N.C. 516, 472 S.E.2d 26 (1996). “The decision whether to award or deny attorney’s fees rests
within the sound discretion of the Commission and will not be overturned absent
a showing that the decision was manifestly unsupported by reason.” Thompson
v. Fed. Express Ground, 175 N.C. App. 564, 570, 623 S.E.2d 811, 815 (2006).
In
the instant case, the deputy commissioner found that defendants’ defense of the
claim was unreasonable and awarded attorneys’ fees pursuant to section
97-88.1. The Full Commission, however,
is not bound by a deputy commissioner’s findings and award, see Strezinski
v. City of Greensboro, __ N.C. App. __, __, 654 S.E.2d 263, 267 (2007), and
here, the Full Commission disagreed with the deputy commissioner and found that
defendants did “not engage[] in stubborn, unfounded litigiousness during the
course of defending this claim.” The
Full Commission, therefore, properly concluded that “defendants are not subject
to sanctions in the form of attorney’s fees.”
On appeal, plaintiff has failed to cite any authority supporting his
contention that defendants’ defense was unreasonable or that the Commission’s
decision was an abuse of discretion, see N.C. R. App. P. 28(b)(6)
(2006), and “[o]ur review of the record fails to disclose an abuse of discretion”
on the issue of attorneys’ fees pursuant to section 97-88.1. Thompson,
175 N.C. App. at 570, 623 S.E.2d at 815; accord Donnell v. Cone Mills Corp.,
60 N.C. App. 338, 344, 299 S.E.2d 436, 439, disc. rev. denied, 308 N.C.
190, 302 S.E.2d 243 (1983). Therefore,
this assignment of error is overruled.
Accordingly,
we remand the instant matter to the Full Commission for findings and
conclusions as to the second and third prongs of the Russell test with
respect to plaintiff’s alleged disability following 3 May 2004, and we affirm
the remainder of the Full Commission’s Opinion and Award.
Affirmed
in part; Remanded in part.
Judges
TYSON and ARROWOOD concur.
1. Our Supreme Court recently held that
“‘evidence tending to show that the employment simply aggravated or contributed
to the employee’s condition goes only to the issue of causation’” and an
employee still must “‘establish[] that the employment placed him at a greater
risk for contracting the condition than the general public.’” Chambers v.
Transit Mgmt., 360 N.C. 609, 613, 636 S.E.2d 553, 556 (2006) (quoting Futrell
v. Resinall Corp., 151 N.C. App. 456, 460, 566 S.E.2d 181, 184 (2002), aff’d,
357 N.C. 158, 579 S.E.2d 269 (2003) (per curiam)), reh’g denied, 361
N.C. 227, 641 S.E.2d 801 (2007). As noted
supra, however, defendants have confined their argument to the issue of
causation, and therefore, we limit our analysis accordingly.