{
  "id": 8522354,
  "name": "VANN L. POPLIN, Employee/Plaintiff v. PPG INDUSTRIES, self-insured, Employer/Defendant",
  "name_abbreviation": "Poplin v. PPG Industries",
  "decision_date": "1992-11-03",
  "docket_number": "No. 9210IC499",
  "first_page": "55",
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  "last_updated": "2023-07-14T21:33:37.144077+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges EAGLES and ORE, concur."
    ],
    "parties": [
      "VANN L. POPLIN, Employee/Plaintiff v. PPG INDUSTRIES, self-insured, Employer/Defendant"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant\u2019s only argument is that the Industrial Commission erred by ordering defendant to pay attorneys\u2019 fees. Specifically, defendant contends that the order is not supported by adequate conclusions of law or findings of fact and that the findings of fact are not supported by the evidence. We disagree.\nN.C. Gen. Stat. \u00a7 97-88.1 provides:\nIf 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\u2019s attorney or plaintiffs attorney upon the party who has brought or defended them.\nThe decision as to whether to award attorneys\u2019 fees pursuant to this statute is a matter within the sound discretion of the Industrial Commission. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681 (1983). \u201cWhether the evidence shows a \u2018reasonable ground\u2019 to defend is, however, a matter reviewable by this court.\u201d Robinson v. J.P. Stevens, 57 N.C. App. 619, 627, 292 S.E.2d 144, 149 (1982). \u201cThe test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness.\u201d Sparks v. Mountain Breeze Restaurant, 55 N.C. App. 663, 286 S.E.2d 575 (1982).\n, In this case, the record fails to show a \u201creasonable ground\u201d to defend. Defendant admitted in a letter from counsel that plaintiff \u201csuffered an injury arising out of and in the course and scope of his employment,\u201d but later contended there had been no evidence of medical causation brought forward. This contention was made even after defendant was supplied with plaintiff\u2019s medical records and a medical report rating plaintiff\u2019s disability. As a result, the record was held open for thirty days and a hearing was conducted. At the hearing, defendant offered no evidence. This evidence supports the findings of fact made by the Industrial Commission and the findings of fact support the conclusions of law. We hold that the Industrial Commission did not abuse its discretion in awarding attorneys\u2019 fees. The Opinion and Award of the Industrial Commission will be affirmed.\nPlaintiff, in his brief, contends that additional attorneys\u2019 fees should be awarded due to defendant\u2019s appeal, and we agree. N.C. Gen. Stat. \u00a7 97-88 provides:\nIf the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits, including compensation for medical expenses, to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney\u2019s fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.\nOur decision requires \u201cthe insurer to make, or to continue payments of benefits,\u201d and we hold that plaintiff is entitled to have his attorneys\u2019 fees paid by defendant as part of the costs of his defense of defendant\u2019s appeal from the deputy commissioner to the Full Commission and the appeal to this Court. See Mullinax v. Fieldcrest Cannon, Inc., 100 N.C. App. 248, 395 S.E.2d 160 (1990). We have affirmed that defendant had no reasonable basis to appeal the decision of the deputy commissioner to the Full Commission. In its appeal here, defendant has shown no merit in its effort to further delay justice in this case. Therefore, the matter is remanded to the Industrial Commission for entry of an order requiring defendant to pay to plaintiff\u2019s attorneys, as part of the costs, a reasonable fee for representing plaintiff in the appeal from the deputy commissioner to the Full Commission and to this Court.\nAffirmed and remanded.\nJudges EAGLES and ORE, concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Wallace and Whitley, by Mona Lisa Wallace and David A. Shelby, for plaintiff-appellee.",
      "Wilson, Biesecker, Tripp and Sink, by Joe E. Biesecker, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "VANN L. POPLIN, Employee/Plaintiff v. PPG INDUSTRIES, self-insured, Employer/Defendant\nNo. 9210IC499\n(Filed 3 November 1992)\nMaster and Servant \u00a7 99 (NCI3d)\u2014 workers\u2019 compensation \u2014case defended without reasonable grounds \u2014award of attorneys\u2019 fees proper \u2014 attorneys\u2019 fees for appeal awarded\nThe trial court properly awarded plaintiff attorneys\u2019 fees pursuant to N.C.G.S. \u00a7 97-88.1 where defendant accepted liability, received evidence addressing medical causation, and therefore defended the case without reasonable grounds; furthermore, pursuant to N.C.G.S. \u00a7 97-88 plaintiff is awarded additional reasonable attorneys\u2019 fees for the appeal from the deputy commissioner to the Full Commission and to the Court of Appeals.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 725.\nAttorneys\u2019 fees: obduracy as basis for state-court award. 49 ALR4th 825.\nAppeal by defendant from Opinion and Award of the Industrial Commission entered 24 February 1992. Heard in the Court of Appeals 19 October 1992.\nPlaintiff instituted this action against defendant seeking workers\u2019 compensation benefits due to an accident which occurred on 4 July 1988. Following a hearing held on 26 March 1990, a deputy commissioner of the Industrial Commission entered an order on 1 June 1990 finding inter alia: that defendant\u2019s counsel agreed that defendant would accept liability; that as a result of defendant\u2019s acceptance of liability, a hearing scheduled for 10 April 1989 was not held; that although liability had been accepted, defendant withheld settlement because no evidence addressing medical causation had been received; that defendant received numerous medical records and a medical report rating plaintiff\u2019s disability; that although the record was left open for thirty days at the request of defendant\u2019s counsel, defendant offered no additional evidence on medical causation; that defendant acted in bad faith in accepting liability and thereafter refusing to pay expenses which were clearly compensable; and that the case was defended without reasonable grounds.\nBased on the findings of fact, the deputy commissioner made conclusions of law as follows:\n1. The plaintiff sustained an injury by accident while in the capacity of employee of the employer on July 4, 1988, which arose out of and in the course of his employment.\n2. As a result of said injury, the plaintiff has a 10 percent permanent partial disability to his back.\n3. Plaintiff has incurred various medical expenses, travel expenses, lost wages, and other compensable expenses as a direct result of the injury.\n4. Claimant is entitled to attorney fees paid as the case was defended without reasonable cause pursuant to N.C.G.S. \u00a7 97-88.1.\nBased on. the findings of fact and conclusions of law, the deputy commissioner awarded plaintiff compensation for the permanent partial disability, medical expenses, and attorneys\u2019 fees. Defendant appealed to the Full Commission, and on 24 February 1992, the Full Commission affirmed and adopted the deputy commissioner\u2019s decision. Defendant appealed.\nWallace and Whitley, by Mona Lisa Wallace and David A. Shelby, for plaintiff-appellee.\nWilson, Biesecker, Tripp and Sink, by Joe E. Biesecker, for defendant-appellant."
  },
  "file_name": "0055-01",
  "first_page_order": 83,
  "last_page_order": 86
}