{ "id": 11915261, "name": "JOHN PAUL TROUTMAN, Employee-Plaintiff v. WHITE & SIMPSON, INC., Employer-Defendant, and EMPLOYERS MUTUAL CASUALTY COMPANY, Carrier-Defendant", "name_abbreviation": "Troutman v. White & Simpson, Inc.", "decision_date": "1995-12-05", "docket_number": "No. COA95-4", "first_page": "48", "last_page": "55", "citations": [ { "type": "official", "cite": "121 N.C. App. 48" } ], "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": "N.C. Gen. Stat. \u00a7 97-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "422 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "108 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522354 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/108/0055-01" ] }, { "cite": "395 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "163", "parenthetical": "requiring that defendant pay the plaintiff's attorney's fee" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526616 ], "year": 1990, "pin_cites": [ { "page": "253", "parenthetical": "requiring that defendant pay the plaintiff's attorney's fee" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0248-01" ] }, { "cite": "203 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "285 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562562 ], "year": 1974, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0135-01" ] }, { "cite": "449 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "764" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524468 ], "year": 1994, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0126-01" ] }, { "cite": "366 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523207 ], "year": 1988, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0507-01" ] }, { "cite": "349 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "74", "parenthetical": "citations omitted; emphasis supplied" }, { "page": "88" }, { "page": "74", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358065 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "87-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0084-01" ] }, { "cite": "394 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "192" }, { "page": "191-92", "parenthetical": "upholding an award of the Commission based on prosecution of a hearing without reasonable grounds" }, { "page": "192" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525056 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "768" }, { "page": "768", "parenthetical": "upholding an award of the Commission based on prosecution of a hearing without reasonable grounds" }, { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0767-01" ] }, { "cite": "292 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "149" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525498 ], "year": 1982, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0619-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 } ], "analysis": { "cardinality": 667, "char_count": 15511, "ocr_confidence": 0.764, "pagerank": { "raw": 6.601551202004483e-07, "percentile": 0.9617358000408518 }, "sha256": "8d6c7b8b7b7f3adc9365c2b7b950e6082a5b1b9b9745e1045d5ebd355c85aac9", "simhash": "1:0e0df9463d79d410", "word_count": 2428 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and EAGLES concur." ], "parties": [ "JOHN PAUL TROUTMAN, Employee-Plaintiff v. WHITE & SIMPSON, INC., Employer-Defendant, and EMPLOYERS MUTUAL CASUALTY COMPANY, Carrier-Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff, John Troutman, was injured on 24 April 1991 while working as a floor sander for defendant, White & Simpson, Inc. Mr. Troutman was seventy-one years old at the time of his injury and had worked for White & Simpson, Inc. in the same position for fifty years. After reaching the age of sixty-five, he continued to work at that company for 40 hours per week, earning the same salary that he had before turning sixty-five.\nDefendants acknowledged that plaintiff suffered an injury by accident arising out of and in the course of his employment, and began paying workers\u2019 compensation benefits to the plaintiff. Nonetheless, defendants requested a hearing before the North Carolina Industrial Commission contending that plaintiff was not entitled to lifetime benefits under N.C. Gen. Stat. \u00a7 97-29 (1991) because the plaintiff had already retired at the time of his injury. At the hearing on 3 November 1992, plaintiff initially testified that he \u201cretired\u201d at age sixty-five. Plaintiff later testified that his work schedule changed \u201cvery little if any\u201d when he turned sixty-five.\nFollowing the hearing, Deputy Commissioner Scott Taylor issued an Opinion and Award finding that:\n13. Defendants brought the hearing of the above-captioned matter contending that plaintiffs age, health and status as a retired employee indicate that he would not be working for the balance of his life and, therefore, would be precluded from receiving lifetime compensation benefits under the North Carolina Workers\u2019 Compensation Act.\n14. Based upon defendants\u2019 theory for bringing this matter for hearing, the undersigned finds that the hearing of this matter was brought without reasonable ground, and was based in stubborn, unfounded litigiousness.\nHaving found that the hearing was brought without reasonable ground, and based in stubborn, unfounded litigiousness, Deputy Commissioner Taylor awarded attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88.1 (1991) under the following terms: \u2022\n1. Defendants shall pay total and permanent disability compensation for the remainder of plaintiffs life or until defendants obtain permission from the Industrial Commission to cease payment of compensation, whichever first occurs, at the rate of $281.01 per week, beginning 6 October 1992. . . .\n3. A reasonable attorney fee of twenty-five percent of the compensation due plaintiff under Paragraph 1 of this AWARD is approved for plaintiff\u2019s counsel and shall be paid as follows: [I]n addition to the weekly sums due plaintiff, defendants are assessed and shall pay to plaintiff\u2019s counsel an amount equal to every fourth compensation check due plaintiff. Said assessed sums shall be paid to plaintiff\u2019s counsel concurrently with the sums due plaintiff.\nDefendants appealed to the Full Commission (hereinafter Commission) which modified and affirmed the opinion of the Deputy Commissioner. The Commission found that the defendants did not stop payments to the plaintiff during the pendency of the hearing, as found by the Deputy Commissioner, and thereby reversed that portion of attorney\u2019s fee award based on payments owed as of 3 November 1992. Defendants do not challenge this portion of the Commission\u2019s opinion.\nThere are two issues on appeal: (I) Whether the Commission erred by finding that defendants brought this matter for hearing \u201cwithout reasonable ground, and based in stubborn, unfounded litigiousness;\u201d and (II) If not, whether the Commission exceeded its authority by awarding attorney\u2019s fees in the. amount of 25% of the plaintiff\u2019s recovery. We affirm the opinion of the Commission in all respects.\nI\nAppellant first contends that the Commission erred in finding that defendants brought the hearing before the Commission without reasonable ground. We disagree.\nWhether the defendant had a reasonable ground to bring a hearing is reviewable by this Court de novo. Robinson v. J.P. Stevens, 57 N.C. App. 619, 627, 292 S.E.2d 144, 149 (1982). This requirement ensures that defendants do not bring hearings out of \u201cstubborn, unfounded litigiousness.\u201d Beam v. Floyd\u2019s Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990).\nIn the case sub judice, defendants argued at the hearing below that the plaintiff was not entitled to receive lifetime workers\u2019 compensation benefits because he had \u201cretired.\u201d In support of this argument, defendant cited Larson\u2019s treatise on workmen\u2019s compensation. The section cited by defendant states:\n[I]f a workman undergoes a period of wage loss due to [physical disability, economic unemployment and old age] it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit.\n4, Larson, Workmen\u2019s Compensation Law \u00a7 97.10. This passage deals with the situation where the plaintiff is injured and unable to work due to old age, and receives social security and workers\u2019 compensation benefits. In such a situation there is an unfair double recovery since old age is the reason for unemployment rather than an injury suffered during employment. In the instant case, there is no evidence in the record that Mr. Troutman would be unable to work were he not injured. As such, the above quoted section is inapplicable.\nIn addition, this Court has previously rejected an argument similar to the one presented in the instant case. In Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70 (1986) this Court stated what a plaintiff must prove before the Commission may award disability compensation:\nIn order for the Commission to award disability compensation, the plaintiff must prove: (1) that he was incapable of earning the same wages he had earned before his injury in the same employment, (2) that he was incapable of earning the same wages he had earned before his injury in any other employment, and (3) that his incapacity was caused by his injury or occupational disease.\nHeffner, 83 N.C. App. at 87-88, 349 S.E.2d at 74 (citations omitted; emphasis supplied). In the instant case, the defendants stipulated that the plaintiff had met this burden of proof. There, however, is no further requirement that the plaintiff\u2019s benefits be limited because of retirement. Rather, in Heffner the Court stated:\nBecause disability measures an employee\u2019s present ability to earn wages, . . . and is unrelated to a decision to withdraw from the labor force by retirement, the Commission may not deny disability benefits because the claimant retired where there is evidence of diminished earning capacity caused by an occupational disease. So long as the disease has, in some way, diminished the employee\u2019s ability to earn wages, he may recover disability compensation.\nId. at 88, 349 S.E.2d at 74 (citations omitted). This rule of law applies to workplace injuries as well. Therefore, at the time of the hearing in this case, the law in North Carolina was unequivocal that a claimant\u2019s entitlement to a workers\u2019 compensation disability award is unrelated to either the claimant\u2019s eligibility to retire or his decision to retire.\nDefendants nevertheless contended at oral argument before this Court that since they were unaware of the holding in Heffner, they should be excused for having advanced their position at the hearing below. That is absurd. Defendant\u2019s ignorance of a 1986 North Carolina case directly on point provides no support for their contention that grounds for requesting a hearing in 1991 were reasonable. Such a construction would encourage incompetence and thwart the legislative purpose of N.C.G.S. \u00a7 97-88.1. We affirm the Commission\u2019s conclusion that defendant brought the subject hearing without a reasonable ground. See Beam v. Floyd\u2019s Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 191-92 (1990) (upholding an award of the Commission based on prosecution of a hearing without reasonable grounds).\nII\nDefendant next contends that the Commission erred in concluding that an award of attorney\u2019s fees in the amount of 25% of the compensation accruing to the plaintiff in the future was reasonable. We disagree.\nAs a general rule, each side bears the cost of its own attorney\u2019s fees, and attorney\u2019s fees may only be awarded when expressly authorized by statute. Joines v. Herman, 89 N.C. App. 507, 510, 366 S.E.2d 606, 608 (1988).\nIn the instant case, there are two statutory provisions under which the Commission could have awarded payment of plaintiffs attorney\u2019s fees by defendants; N.C. Gen Stat. \u00a7 97-88 (1991), and N.C. Gen Stat. \u00a7 97-88.1 (1991). N.C.G.S. \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.\n(emphasis supplied).\nN.C.G.S. \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 plaintiff\u2019s attorney upon the party who has brought or defended them.\n(emphasis supplied).\nN.C.G.S. \u00a7 \u00a7 97-88 and 97-88.1 are supplementary in nature. N.C.G.S. \u00a7 97-88 allows an injured employee to move that its attorney\u2019s fees be paid whenever an insurer appeals to the Full Commission, or to a court of the appellate division, and the insurer is required to make payments to the injured employee. Estes v. N.C. State University, 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994). There is no requirement that the appeal be brought without reasonable ground. Under N.C.G.S. \u00a7 97-88, the Commission may only award \u201cthe cost to the injured employee of such hearings or proceedings including therein [a reasonable attorney\u2019s fee].\u201d Consequently, under N.C.G.S. \u00a7 97-88, the Commission is empowered to award to the injured employee attorney\u2019s fees only for the portion of the case attributable to the insurer\u2019s appeal(s).\nBy contrast, an award of attorney\u2019s fees under N.C.G.S. \u00a7 97-88.1 requires that the litigation be brought, prosecuted, or defended without reasonable ground. The purpose of this section is to prevent \u201cstubborn, unfounded litigiousness which is inharmonious with the primary purpose of the Workers\u2019 Compensation Act to provide compensation to injured employees.\u201d Beam v. Floyd\u2019s Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990). (citations omitted). In such cases, the Commission is empowered to award: the whole cost of the proceedings including [reasonable attorney\u2019s fees]. As such, the Commission may assess the whole costs of litigation, including attorney fees, against any party who prosecutes or defends a hearing without reasonable grounds.\nIt is logical that the Legislature would fashion a more encompassing remedy in N.C.G.S. \u00a7 97-88.1 than is found in N.C.G.S. \u00a7 97-88. N.C.G.S. \u00a7 97-88.1 only applies when one side brings or continues litigation before the Commission or a court without reasonable grounds. If the remedy were the same under both statutory sections, defendant insurers would have no greater disincentive to pursue frivolous appeals, than that already present under N.C.G.S. \u00a7 97-88 against pursuing meritorious appeals. The Legislature must have intended that defendant insurers pursuing appeals without reasonable grounds face a potentially harsher penalty than defendant insurers pursuing appeals with reasonable grounds.\nIn addition, if N.C.G.S. \u00a7 97-88.1 provided the same remedy as N.C.G.S. \u00a7 97-88, then N.C.G.S. \u00a7 97-88.1 would be mere surplusage, since N.C.G.S. \u00a7 97-88 already grants the Commission the authority to award the injured employee attorney\u2019s fees without regard to whether the matter was brought on reasonable grounds. The presumption is that no part of a statute is mere surplusage, but each provision adds something which would not otherwise be included in its terms. Electric Service v. City of Rocky Mount, 285 N.C. 135, 143, 203 S.E.2d 838, 843 (1974).\nWe hold, therefore, that the Commission is authorized under N.C.G.S. \u00a7 97-88.1 to assess attorney\u2019s fees, and other costs, for the entire case, against a party prosecuting or defending a hearing without reasonable grounds. See, e.g., Mullinax v. Fieldcrest Cannon, Inc., 100 N.C. App. 248, 253, 395 S.E.2d 160, 163 (1990) (requiring that defendant pay the plaintiff\u2019s attorney\u2019s fee); Poplin v. PPG Industries, 108 N.C. App. 55, 422 S.E.2d 353 (1992). The decision of whether to make such an award, and the amount of the award, is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion. Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683 (1983); N.C. Gen. Stat. \u00a7 97-90 (1991).\nThe opinion of the Commission is,\nAffirmed.\nJudges JOHNSON and EAGLES concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Chandler, deBrun & Fink, by Steven B. Hayes for plaintiff-appellee.", "Caudle & Spears, P.A., by Lloyd C. Caudle and Sean M. Phelan for defendants-appellants." ], "corrections": "", "head_matter": "JOHN PAUL TROUTMAN, Employee-Plaintiff v. WHITE & SIMPSON, INC., Employer-Defendant, and EMPLOYERS MUTUAL CASUALTY COMPANY, Carrier-Defendant\nNo. COA95-4\n(Filed 5 December 1995)\n1. Workers\u2019 Compensation \u00a7 476 (NCI4th)\u2014 seventy-one-year-old claimant \u2014 eligibility for lifetime benefits \u2014 hearing brought without reasonable ground\nThe Industrial Commission did not err in concluding that defendant brought the subject hearing without a reasonable ground where defendant argued that plaintiff was not entitled to receive lifetime workers\u2019 compensation benefits because he had \u201cretired\u201d and therefore was receiving double recovery where the evidence showed that after reaching the age. of sixty-five, plaintiff continued to work for defendant for forty hours per week at the same salary; there was no evidence that the seventy-one-year-old plaintiff would be unable to work were he not injured; and at the time of the hearing in this case, the law in North Carolina was unequivocal that a claimant\u2019s entitlement to a workers\u2019 compensation disability award is unrelated to either the claimant\u2019s eligibility to retire or his decision to retire.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 414, 725.\n2. Workers\u2019 Compensation \u00a7 476 (NCI4th)\u2014 hearing brought without reasonable ground \u2014 attorney\u2019s fees and other costs assessed against party bringing hearing\nThe Industrial Commission is authorized under N.C.G.S. \u00a7 97-88.1 to assess attorney\u2019s fees and other costs for the entire case against a party prosecuting or defending a hearing without reasonable grounds. Therefore, where defendant brought this hearing without a reasonable ground, the Commission properly concluded that an award of attorney\u2019s fees of 25% of the compensation accruing to plaintiff in the future was reasonable.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 414, 725.\nAppeal by employer-defendant from opinion and award entered 14 July 1994 by the North Carolina Industrial Commission, Coy M. Vance, Deputy Commissioner. Heard in the Court of Appeals 4 October, 1995.\nChandler, deBrun & Fink, by Steven B. Hayes for plaintiff-appellee.\nCaudle & Spears, P.A., by Lloyd C. Caudle and Sean M. Phelan for defendants-appellants." }, "file_name": "0048-01", "first_page_order": 82, "last_page_order": 89 }