{ "id": 11915076, "name": "CLAUDETTE EVANS (now HINNANT), Employee-Plaintiff v. YOUNG-HINKLE CORPORATION, Employer-Defendant, Self-Insured (Associated Risk Services Corporation, Administering Agent)", "name_abbreviation": "Evans v. Young-Hinkle Corp.", "decision_date": "1996-09-03", "docket_number": "No. COA95-987", "first_page": "693", "last_page": "697", "citations": [ { "type": "official", "cite": "123 N.C. App. 693" } ], "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": "52 ALR2d 1217", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "58 ALR Fed. 834", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "21 ALR3d 912", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "292 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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, "opinion_index": 0, "case_paths": [ "/nc-app/57/0619-01" ] }, { "cite": "286 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "665" }, { "page": "576" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "year": 1982, "opinion_index": 0 }, { "cite": "400 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "328 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541066 ], "year": 1991, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0254-01" ] }, { "cite": "412 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "338-339", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "330 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508834 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0644-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "472 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "343 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798976, 798784, 798958, 798834, 798940 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0514-02", "/nc/343/0514-04", "/nc/343/0514-03", "/nc/343/0514-01", "/nc/343/0514-05" ] }, { "cite": "468 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915554 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0083-01" ] }, { "cite": "389 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "326 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308491 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0326-01" ] } ], "analysis": { "cardinality": 498, "char_count": 9272, "ocr_confidence": 0.734, "pagerank": { "raw": 2.3669467906619689e-07, "percentile": 0.7949449948626348 }, "sha256": "a826af2199066bbf56b6d76553f4180a7b577c93ccb2627ea21725e7c5655691", "simhash": "1:812a2e8dcc4b4813", "word_count": 1429 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MCGEE concur." ], "parties": [ "CLAUDETTE EVANS (now HINNANT), Employee-Plaintiff v. YOUNG-HINKLE CORPORATION, Employer-Defendant, Self-Insured (Associated Risk Services Corporation, Administering Agent)" ], "opinions": [ { "text": "LEWIS, Judge.\nPlaintiff Claudette Evans (now and hereinafter \u201cHinnant\u201d) appeals from an Opinion and Award of the North Carolina Industrial Commission (hereinafter \u201cCommission\u201d).\nWhile employed with defendant Young Hinkle Corporation plaintiff suffered a compensable injury arising out of and in the course of her employment. Defendant accepted the claim and agreed to pay temporary total disability from 7 February through 8 April 1990 pursuant to a Form 21 Agreement which was approved by the Commission on 28 August 1990. Defendant further agreed to pay plaintiff ten (10) weeks compensation for a twenty-five percent (25%) permanent partial loss to the second finger (long finger) pursuant to N.C. Gen. Stat. section 97-31(3) in a Form 26 Agreement approved by the Commission on 12 September 1990.\nOn 2 April 1992, plaintiff filed a Form 33 Request for Hearing seeking additional compensation for permanent partial loss to her hand pursuant to N.C. Gen. Stat. section 97-31(12). Defendant opposed this request and filed a motion requesting costs and attorney\u2019s fees. By letter dated 23 October 1992, plaintiff moved for an order prohibiting defense counsel\u2019s ex parte contact with plaintiff\u2019s treating physician. Deputy Commissioner William L. Haigh denied this request by order filed 2 November 1992.\nOn 15 January 1993, Deputy Commissioner Haigh filed an Opinion and Award denying plaintiff\u2019s claim for additional compensation for loss to the hand and awarding attorney\u2019s fees and costs against plaintiff\u2019s counsel. In addition, Deputy Commissioner Haigh set aside the Form 26 Agreement pursuant to N.C. Gen. Stat. section 97-17 upon a finding of mutual mistake. On 30 March 1993, plaintiff filed a Form 44 application for Full Commission review. The Full Commission adopted the Deputy Commissioner\u2019s decision on 28 April 1995. Plaintiff appeals.\nOn appeal, plaintiff contends the Commission erred by: (1) denying her 23 October 1992 motion to preclude defendant\u2019s ex parte contact with her treating physician; (2) setting aside the Form 26 Agreement; (3) denying her request for additional compensation; and (4) awarding attorney\u2019s fees and costs against her attorney.\nWe first consider plaintiff\u2019s assertion that the Commission erred by denying her motion to preclude defense counsel\u2019s ex parte contact with plaintiff\u2019s treating physician. In Crist v. Moffat, 326 N.C. 326, 389 S.E.2d 41 (1990), our Supreme Court held, in a medical malpractice case, that defense counsel may not interview plaintiff\u2019s treating physician privately without the plaintiff\u2019s express consent. Id. at 336, 389 S.E.2d at 47. In Salaam v. N. C. Dept. of Transportation, 122 N.C. App. 83, 468 S.E.2d 536, disc. review allowed, 343 N.C. 514, 472 S.E.2d 20 (1996), we applied Crist in the worker\u2019s compensation context and held that the Commission erred when it admitted a doctor\u2019s deposition testimony taken after defense counsel engaged in ex parte contact with the plaintiff\u2019s physician without the consent of plaintiff\u2019s counsel. Id. at 88, 468 S.E.2d at 539.\nIn Salaam, we further held that admission of testimony given after this type of ex parte contact occurred is reversible error in spite of any opportunities the plaintiff\u2019s attorney had to cure the resulting prejudice. Id. In accordance with Salaam, we therefore conclude that the Commission committed reversible error by denying plaintiff\u2019s motion for an order prohibiting the ex parte contact between the defense counsel and the plaintiff\u2019s treating physician. Pursuant to Salaam, as Dr. Naso\u2019s deposition testimony followed and was tainted by the improper contact, we remand this case to the Commission to strike this testimony, to reopen the case to receive further evidence, and to reconsider plaintiffs claim for additional compensation.\nWe now consider the allegation that the Commission erred in ordering that defendant\u2019s costs and attorney\u2019s fees be paid by plaintiff\u2019s counsel. Where a hearing is brought, prosecuted or defended without reasonable ground, N.C. Gen. Stat. section 97-88.1 provides the Commission with the authority to assess the whole cost of the proceedings, including attorney\u2019s fees, upon the party who has brought or defended the proceeding. It states that the Commission may assess such costs (including attorney\u2019s fees) \u201cupon a party. . . .\u201d N.C. Gen. Stat. \u00a7 97-88.1 (1991) (emphasis added). The statutory language does not expressly provide the Commission with the authority to assess these costs and fees against a party\u2019s counsel.\nIn Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992), our Supreme Court found that the language of N.C. Gen. Stat. section 6-21.5 refers in every instance to the party with no hint of including the attorney. Id. at 665-666, 412 S.E.2d at 338-339 (emphasis added). In Bryson, the Court held that \u201c \u2018because statutes awarding an attorney\u2019s fee to the prevailing party are in derogation of the common law, N.C. Gen Stat. \u00a7 6-21.5 must be strictly construed\u2019 \u201d and therefore the statute does not authorize the Court to require counsel to pay attorney\u2019s fees to the prevailing party. Id. (quoting Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 257, 400 S.E.2d 435, 437 (1991)). We conclude that the same considerations stated in Bryson are applicable to G.S. section 97-88.1, the statutory provision at issue here.\nFurthermore, G.S. section 97-88.1 reads in pertinent part: \u201cIf 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.\u201d G.S. \u00a7 97-88.1 (1991). In Sparks v. Mountain Breeze Restaurant, 65 N.C. App. 663, 286 S.E.2d 575 (1982), we established a test to determine whether attorney\u2019s fees should be awarded in a hearing brought before the Industrial Commission. In Sparks, we stated: \u201cThe test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness.\u201d Id. at 665, 286 S.E.2d at 576. In Robinson v. J.P. Stephens & Co., 57 N.C. App. 619, 292 S.E.2d 144 (1982), we stated that this Court has the right to review whether the evidence shows a reasonable ground to defend. Id. at 627, 292 S.E.2d at 149. In her claim, plaintiff asserts that she is entitled to compensation under G.S. section 97-31(12) for disability to her hand in addition to compensation she has already received for disability to her second (long) finger under G.S. Section 97-31(3). Considering the evidence presented, we find that the claim is not based on unfounded litigiousness and therefore conclude that the awarding of attorney\u2019s fees is unwarranted.\nGiven the disposition of this case, we do not address plaintiff\u2019s other assignments of error. We reverse the Opinion and Award filed 28 April 1995 and remand this case to the Commission with directions to strike the deposition testimony of Dr. Stephen J. Naso, Jr., reverse the award of attorney\u2019s fees and costs against plaintiff\u2019s attorney, reopen the case to receive further evidence and reconsider plaintiff\u2019s request for additional compensation.\nReversed and remanded.\nJudges EAGLES and MCGEE concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Walden & Walden, by Daniel S. Walden, for plaintiff-appellant.", "Hedrick, Eatman, Gardner & Kincheloe, by Paige E. Williams, for defendant-appellee." ], "corrections": "", "head_matter": "CLAUDETTE EVANS (now HINNANT), Employee-Plaintiff v. YOUNG-HINKLE CORPORATION, Employer-Defendant, Self-Insured (Associated Risk Services Corporation, Administering Agent)\nNo. COA95-987\n(Filed 3 September 1996)\n1. Workers\u2019 Compensation \u00a7 372 (NCI4th)\u2014 ex parte communication with plaintiffs treating physician \u2014 error\nThe Industrial Commission committed reversible error by denying plaintiff\u2019s motion for an order prohibiting the ex parte contact between defense counsel and plaintiff\u2019s treating physician. Therefore, the deposition testimony of the physician was improperly admitted.\nAm Jur 2d, Witnesses \u00a7 470.\nCommencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege. 21 ALR3d 912.\nPropriety of ex parte communication made in connection with administrative proceeding by interested party or by member or employee of agency (5 USCS \u00a7 557(B)(1)). 58 \u00c1LR Fed. 834.\n2. Workers\u2019 Compensation \u00a7 471 (NCI4th)\u2014 award of attorney fees to defendant \u2014 error\nThe Industrial Commission erred in ordering that defendant\u2019s costs and attorney\u2019s fees be paid by plaintiff\u2019s counsel, since N.C.G.S. \u00a7 97-88.1 provides that costs may be assessed against a party, not his counsel; however, plaintiff\u2019s claim was not based on unfounded litigiousness where she sought compensation for disability to her hand in addition to compensation she had already received for disability to her finger, and the awarding of attorney\u2019s fees was unwarranted.\nAm Jur 2d, Attorneys at Law \u00a7 48; Pleading \u00a7 26.\nDisciplinary proceedings against an attorney predicated upon malicious prosecution or similar tort action. 52 ALR2d 1217.\nAttorney\u2019s liability for abuse of process. 46 AJLR4th 249.\nAppeal by plaintiff from Opinion and Award of the North Carolina Industrial Commission filed 28 April 1995. Heard in the Court of Appeals 24 April 1996.\nWalden & Walden, by Daniel S. Walden, for plaintiff-appellant.\nHedrick, Eatman, Gardner & Kincheloe, by Paige E. Williams, for defendant-appellee." }, "file_name": "0693-01", "first_page_order": 727, "last_page_order": 731 }