{ "id": 11219776, "name": "GREGORY LEE HAUSER, Dependent of the late JANET NOBLE HAUSER, Employee, Plaintiff-Appellee v. ADVANCED PLASTIFORM, INC., Employer; ZENITH INSURANCE COMPANY (f/k/a RISCORP OF NORTH CAROLINA, INC.), Carrier, Defendant-Appellants", "name_abbreviation": "Hauser v. Advanced Plastiform, Inc.", "decision_date": "1999-06-01", "docket_number": "No. 98-904", "first_page": "378", "last_page": "389", "citations": [ { "type": "official", "cite": "133 N.C. App. 378" } ], "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 97-80", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "501 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "365", "parenthetical": "citation omitted" }, { "parenthetical": "citations omitted" }, { "page": "366", "parenthetical": "citation omitted" }, { "page": "365", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652441 ], "year": 1998, "pin_cites": [ { "page": "701", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0695-01" ] }, { "cite": "355 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "161" }, { "page": "162" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170220 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0606-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1991, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "487 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "346 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139655, 139406, 139538, 139508, 139638 ], "year": 1997, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0276-01", "/nc/346/0276-04", "/nc/346/0276-05", "/nc/346/0276-03", "/nc/346/0276-02" ] }, { "cite": "481 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "698", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869933 ], "year": 1997, "pin_cites": [ { "page": "590", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0588-01" ] }, { "cite": "225 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "338", "parenthetical": "citations omitted" }, { "page": "338" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 735", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8557158 ], "year": 1976, "pin_cites": [ { "page": "737-38", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0735-01" ] }, { "cite": "377 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1989, "pin_cites": [ { "page": "781", "parenthetical": "emphasis in original" }, { "page": "780", "parenthetical": "citations omitted" }, { "page": "781", "parenthetical": "citations omitted" }, { "page": "779", "parenthetical": "emphasis in original" }, { "page": "781", "parenthetical": "emphasis in original" }, { "page": "781-82", "parenthetical": "citation omitted" }, { "page": "781-82", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527997 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0242-01" ] }, { "cite": "163 S.E. 576", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "page": "577", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "202 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627178 ], "year": 1932, "pin_cites": [ { "page": "484", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/202/0481-01" ] }, { "cite": "133 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "260 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576353 ], "year": 1963, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0760-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1998, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "510 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "707", "parenthetical": "citation omitted" }, { "page": "707", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237233 ], "year": 1999, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0151-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413-14" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "486 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139373, 139471, 139543, 139546, 139582 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0180-02", "/nc/346/0180-01", "/nc/346/0180-04", "/nc/346/0180-05", "/nc/346/0180-03" ] }, { "cite": "478 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "226" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890320 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0637-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "803", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "year": 1986, "pin_cites": [ { "page": "432", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] } ], "analysis": { "cardinality": 979, "char_count": 26633, "ocr_confidence": 0.747, "pagerank": { "raw": 1.5223560581810546e-07, "percentile": 0.6695058283320765 }, "sha256": "d196fe6abf146f4bf4af291b80bcbcc561f09f2d7f5d53c8082b9bd738507389", "simhash": "1:25047d4854796810", "word_count": 4226 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and WALKER concur." ], "parties": [ "GREGORY LEE HAUSER, Dependent of the late JANET NOBLE HAUSER, Employee, Plaintiff-Appellee v. ADVANCED PLASTIFORM, INC., Employer; ZENITH INSURANCE COMPANY (f/k/a RISCORP OF NORTH CAROLINA, INC.), Carrier, Defendant-Appellants" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff seeks workers\u2019 compensation benefits in the death of his wife, Janet Noble Hauser (Hauser), who was murdered 4 December 1995. Hauser was the office manager for Advanced Plastiform, Inc. (Advanced Plastiform). She was kidnapped and murdered by Leroy Mann (Mann), a former employee of Advanced Plastiform who had recently been laid off. A deputy commissioner of the North Carolina Industrial Commission filed an opinion and award 9 June 1997 denying plaintiff\u2019s claim for benefits, concluding that \u201c[t]he decedent\u2019s death did not arise out of and in the course of her employment with the defendant.\u201d The deputy commissioner also denied plaintiff\u2019s request for attorneys\u2019 fees. Plaintiff appealed to the Full Commission.\nThe Full Commission found as a fact that \u201c[o]n or about Friday, 1 December 1995, [Advanced Plastiform] made a decision to lay off several production personnel, one of whom was Leroy Mann.\u201d Steve Judd and Deborah Judd were co-owners of Advanced Plastiform. Steve Judd testified that after Advanced Plastiform made the layoff decisions, he agreed that Hauser should \u201cput a memo together to explain\u201d to the laid off employees how to obtain unemployment benefits. The Commission found that Hauser, \u201cunder the supervision of Deborah Judd . . . had typed an informational sheet regarding unemployment benefits\u201d to be distributed to the laid off employees. The Commission found that defense witness Albert Tripp (Tripp), Advanced Plastiform\u2019s production manager supervisor, informed Mann by telephone Sunday afternoon, 3 December 1995, that he was being laid off, and \u201creferred Mann to call Janet Hauser ... for further information regarding his unemployment benefits.\u201d\nThe Commission found that \u201c[c]ontemporaneous with leaving to meet Leroy Mann, Janet Hauser informed a person who answered the phone for [Advanced Plastiform] at lunch, Donna Timm[]\u201d of her lunch appointment with Mann at a local restaurant and the fact that she was \u201ccarrying Mann a piece of paper[.]\u201d The Commission found that there was \u201coverwhelming evidence\u201d presented that this piece of paper \u201creferred to the employee informational sheet regarding unemployment benefits previously typed by Janet Hauser and approved by Deborah Judd.\u201d\nThe Full. Commission reversed the opinion and award of the deputy commissioner in an opinion and award filed 20 March 1998, concluding that plaintiff \u201cis entitled to receive all benefits under the Workers\u2019 Compensation Act resulting from [Janet Hauser\u2019s] death.\u201d The Commission concluded that \u201ccritical evidence on the issue of [the] compensability of plaintiff[\u2019]s case\u201d had been suppressed by Advanced Plastiform and the Judds, and that \u201cindependent sanctions for discovery abuse\u201d were justified. The Commission awarded plaintiff attorneys\u2019 fees and $2,000.00 as reimbursement for funeral expenses. Defendants appeal.\nI.\nDefendants argue that the Industrial Commission\u2019s opinion and award should be reversed because \u201cin reversing the Deputy Commissioner\u2019s credibility findings, on a cold record, without explanation, and without good cause, the full Commission failed to follow North Carolina law.\u201d Defendants also argue that Hauser\u2019s murder did not arise out of and occur in the course and-scope of her employment. We disagree.\nThe standard by which we review decisions by the Industrial Commission is stated in Peoples v. Cone Mills Corp., 316 N.C. 426, 432, 342 S.E.2d 798, 803 (1986) (citation omitted): \u201cThe Commission\u2019s fact findings will not be disturbed on appeal if supported by any competent evidence even if there is evidence in the record which would support a contrary finding.\u201d\nOur Supreme Court recently stated:\nWhether the full Commission conducts a hearing or reviews a cold record, N.C.G.S. \u00a7 97-85 places the ultimate fact-finding function with the Commission \u2014 not the hearing officer. It is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. Consequently, in reversing the deputy commissioner\u2019s credibility findings, the full Commission is not required to demonstrate, as Sanders [v. Broyhill Furniture Industries, 124 N.C. App. 637, 478 S.E.2d 223 (1996), disc. review denied, 346 N.C. 180, 486 S.E.2d 208 (1997)] states, \u201cthat sufficient consideration was paid to the fact that credibility may be best judged by a first-hand observer of the witness when that observation was the only one.\u201d Sanders, 124 N.C. App. at 641, 478 S.E.2d at 226. To the extent that Sanders is inconsistent with this opinion, it is overruled.\nAdams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413-14 (1998). Defendants argue that the \u201cDeputy Commissioner[\u2019s] . . . findings hinge[d] on credibility determinations!,]\u201d and that \u201c[i]t was only by rejecting nearly all of the testimony which [the] Deputy Commissioner . . . found credible and convincing that the Full Commission managed to conclude that Hauser\u2019s murder arose out of and occurred in the course and scope of her employment!.]\u201d\nDefendants further argue that \u201cwhether Hauser\u2019s death is com-pensable is a direct function of one\u2019s interpretation of the evidence presented through the witnesses.\u201d To the contrary, whether Hauser\u2019s death arose out of and in the course of her employment, and is therefore compensable, is a mixed question of fact and law. See Pittman v. International Paper Co., 132 N.C. App. 151, \u2014, 510 S.E.2d 705, 707 (1999) (citation omitted). The findings of the Full Commission tend to show that the Commission based its decision to award plaintiff workers\u2019 compensation benefits on the facts of the case and the law and not, as defendant argues, by merely attempting to interpret the evidence as it was \u201cpresented through the witnesses.\u201d\nThe North Carolina Workers\u2019 Compensation Act defines \u201cinjury\u201d to \u201cmean only injury by accident arising out of and in the course of the employment!.]\u201d N.C. Gen. Stat. \u00a7 97-2(6) (Cum. Supp. 1998). \u201cThe term \u2018arising out of\u2019 refers to the origin of the injury or the causal connection of the injury to the employment, while the term \u2018in the course of\u2019 refers to the time, place and circumstances under which the injury occurred.\u201d Pittman at \u2014, 510 S.E.2d at 707 (citations omitted). In Kiger v. Service Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704 (1963), our Supreme Court stated: \u201cWhere any reasonable relationship to employment exists, or employment is a contributory cause, the court is justified in upholding the award as \u2018arising out of employment.\u2019 \u201d\nDeborah Judd testified that she is the \u201ccorporate president\u201d of Advanced Plastiform and that Hauser \u201creported to\u201d her or her husband, Steve Judd. She further testified that Hauser was an \u201coffice manager\u201d with no managerial responsibility, and that Tripp, while not Hauser\u2019s supervisor, was the \u201cdirect supervisor\u201d of the production workers and was considered a manager.\nThe evidence presented supports the Full Commission\u2019s conclusion of law that Hauser\u2019s death \u201carose out of and in the course of her employment[.]\u201d The following exchange took place on direct examination of Tripp:\nQ. Did you have any discussion with Mr. [Leroy] Mann about what he might do or anybody at the company he might contact about [obtaining] the unemployment benefits?\nA. Yes, I did.\nI said, \u201cIf you do not understand what I\u2019m telling you,\u201d I said, \u201cwe have a form at work that explains how to deal with the unemployment, how to get it, the number to call.\u201d I said, \u201cYou\u2019ll need to get up with Jan [Hauser] to get that form or information you may need. You can give her a call on Monday.\u201d\nTripp testified that he told Mann to \u201ccall or get up with\u201d Hauser because he \u201cdidn\u2019t want to be involved\u201d in the unemployment benefits process, and he was \u201ckind of letting [Hauser] deal with that end of it.\u201d Tripp also testified that on 4 December 1995 Hauser informed him that she was going to meet Mann for lunch. Tripp testified that when he told Mann over the phone that he was being laid off, Mann had seemed \u201cmuch more upset\u201d than other employees Tripp had contacted, and that Mann\u2019s reaction caused him concern. Tripp testified that he did not \u201cwant to run into\u201d Hauser and Mann at lunch and he thought an \u201caltercation\u201d might arise if he did. Tripp stated that he believed that Mann\u2019s layoff and Advanced Plastiform\u2019s layoffs in general were \u201cthe only thing that they would be talking about\u201d over lunch, and that he became concerned for his own safety once he had learned that Hauser was missing.\nThe evidence before the Full Commission tended to show that Tripp knew that Hauser had prepared the memorandum concerning unemployment compensation and had \u201cdistributed [the memorandum] to the employees\u201d on the Friday preceding the Monday of Hauser\u2019s murder. Tripp also knew that Mann had not been at work that Friday and thus had not received the memorandum. This evidence supports the Full Commission\u2019s finding of fact that the \u201cpiece of paper\u201d Hauser was carrying to Mann was the \u201cemployee informational sheet regarding unemployment benefits previously typed by\u201d her.\n\u201cThe mere fact that the injury is the result of the willful or criminal assault of a third person does not prevent the injury from being accidental.\u201d Goodwin v. Bright, 202 N.C. 481, 484, 163 S.E. 576, 577 (1932) (citation omitted). In Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777 (1989), a waitress employed at a resort filed a workers\u2019 compensation claim to recover for injuries sustained when she tried to escape from a guest of the resort who kidnapped and sexually assaulted her. The attack occurred after the employee\u2019s work day had ended and she had stopped on a resort road to assist the guest with apparent car trouble. Our Court stated that \u201c[b]ecause [plaintiff\u2019s] decision to stop [on the roadside and assist the resort guest] had its origin in her employment, we hold that her actions were sufficiently \u2018work-connected\u2019 to warrant a conclusion that her injuries arose out of the employment.\u201d Id. at 249, 377 S.E.2d at 781 (emphasis in original). \u201cInjuries resulting from an assault are caused by \u2018accident\u2019 within the meaning of the [Workers\u2019 Compensation] Act when, from the employee\u2019s perspective, the assault was unexpected and was without design on her part.\u201d Culpepper at 247, 377 S.E.2d at 780 (citations omitted). We further stated in Culpepper that:\nThe words \u201carising out of . . . the employment\u201d refer to the origin or cause of the accidental injury. Thus, our first inquiry \u201cis whether the employment was a contributing cause of the injury.\u201d Second, a contributing proximate cause of the injury must be a risk inherent or incidental to the employment, and must be one to which the employee would not have been equally exposed apart from the employment. Under this \u201cincreased risk\u201d analysis, the \u201ccausative danger must be peculiar to the work and not com mon to the neighborhoodFinally, an injury will be deemed to \u201carise out of\u2019 the employment if the employee\u2019s acts on behalf of a third person are of \u201cappreciable benefit\u201d to the employer.\nId. at 248, 377 S.E.2d at 781 (citations omitted) (emphasis in original). The evidence in Culpepper tended to show that plaintiff \u201cwas instructed when she was hired \u2018to be very cordial and friendly and nice and [to] offer any assistance that [she] could\u2019 to members and guests[.]\u201d Id. at 244, 377 S.E.2d at 779 (emphasis in original). Our Court concluded that \u201cthe only reason [plaintiff] stopped on the resort road . . . was to offer a guest assistance, as her employer instructed her to do.\u201d Id. at 248, 377 S.E.2d at 781 (emphasis in original). We further stated that \u201c[compensation should be denied only if the circumstances surrounding an assault will not permit a reasonable inference that the nature of the employment, rather than some personal relationship, created the risk of attack.\u201d Id. at 249, 377 S.E.2d at 781-82 (citation omitted) (emphasis in original).\nIn Stewart v. Dept. of Corrections, 29 N.C. App. 735, 737-38, 225 S.E.2d 336, 338 (1976) (citations omitted), this Court stated:\nWhere the fruit of certain labor accrues either directly or indirectly to the benefit of an employer, employees injured in the course of such work are entitled to compensation under the Workmen\u2019s Compensation Act.\nThis result obtains especially where an employee is called to action by some person superior in authority to him.\nThe order or request need not be couched in the imperative. It is sufficient for compensation purposes that the suggestion, request or even the employee\u2019s mere perception of what is expected of him under his job classification, serves to motivate undertaking an injury producing activity. So long as ordered to perform by a superior, acts beneficial to the employer which result in injury to performing employees are within the ambit of the act.\nIn the present case, the evidence tends to show that the reason Hauser met Mann for lunch was to give him the memorandum she had drafted pertaining to unemployment benefits. Steve Judd agreed that Hauser should prepare this work-related document, and Tripp told Mann to \u201cget up with [Hauser]\u201d if he had any questions about unemployment benefits. Thus there is sufficient evidence to allow \u201ca reasonable inference that the nature of the [plaintiffs decedent\u2019s] employment, rather than some personal relationship, created the risk of [her] attack.\u201d Culpepper at 249, 377 S.E.2d at 781-82 (citation omitted) (emphasis in original). Moreover, this evidence tends to show that Hauser was \u201ccalled to action by some person superior in authority to [her].\u201d Stewart at 737, 225 S.E.2d at 338. The Full Commission did not err in concluding that Hauser\u2019s death \u201carose out of and in the course of her employment].]\u201d\nII.\nDefendants argue that the Commission\u2019s award of attorneys\u2019 fees should be reversed because (1) the issue was not preserved on appeal to the Full Commission, (2) the ruling was not supported by the evidence, and (3) \u201creversing the Deputy Commissioner\u2019s denial of plaintiff\u2019s motion for attorney fees, on a cold record, without explanation, and without good cause,\u201d is contrary to North Carolina law. We disagree. It was within the Full Commission\u2019s discretion to address the issue of attorneys\u2019 fees.\nWe first note that \u201c[a]n abuse of discretion standard of review is applied in an award of attorney fees by the Industrial Commission.\u201d Childress v. Trion, Inc., 125 N.C. App. 588, 590, 481 S.E.2d 697, 698, disc. review denied, 346 N.C. 276, 487 S.E.2d 541 (1997) (citation omitted).\nIn the case before us, the Full Commission found as fact that:\n21. [The] information[] that Janet Hauser was carrying a work-related paper to Leroy Mann on 4 December 1995 [] was known or reasonably should have been known to the Judds, the owners of [Advanced Plastiform], but in response to discovery, the Judds, on behalf of [Advanced Plastiform], failed to disclose this information to the plaintiff. This information was material to one of the most important issues involved in this case, i.e., the work-related nexus of Janet Hauser\u2019s trip to meet with Leroy Mann. Failure to disclose this information regarding such a material fact, explained by Ms. Judd as being because Ms. Timm did not actually \u201csee\u201d the document, demonstrates bad faith on the part of the Judds and [Advanced Plastiform] as well as an unfounded stubborn, litigiousness in defense of this case before the Deputy Commissioner. On the other hand, defense counsel were unaware of this information until the hearing when the testimony of Ms. Timm was taken by telephone.\nThe Commission also stated that \u201c[a]s a result of the Judds\u2019 failure to respond to discovery... plaintiff was forced to prove and did, in fact, prove the existence of the evidence suppressed by the Judds, which was material to this case, i.e., the work-related nexus of Janet Hauser\u2019s trip.\u201d The Full Commission awarded plaintiff \u201c25% of the benefits awarded herein as attorney fees.\u201d\nDefendants\u2019 answers to plaintiff\u2019s first set of interrogatories, dated 6 August 1996, particularly interrogatory number six, support the Full Commission\u2019s finding of fact that in response to discovery' defendants demonstrated bad faith in defending this case. Plaintiff asked defendant the following question:\n6. Identify each document regarding which you have information may have been transported by decedent, Janet Noble Hauser, to Leroy Mann on Monday, December 4, 1995.\nDespite \u201coverwhelming evidence\u201d that Hauser had prepared an \u201cemployee informational sheet regarding unemployment benefits\u201d and was carrying that document to Mann, defendants responded:\nAnswer: Defendants are not aware of any work-related documents that Mrs. Hauser transported to Mr. Mann on or about December 4, 1995. Defendants object to the remainder of Interrogatory #6 which asks defendants to speculate as to what \u201cmay have been transported\u201d by Mrs. Hauser to Mr. Mann.\nPlaintiff also asked defendants through interrogatories to: (1) \u201cidentify any person\u201d who knew that Hauser was \u201ccarrying any type of document^ associated with\u201d Mann\u2019s employment to Mann when she met him for lunch on 4 December 1995, and (2) identify anyone aware that on the date Hauser met Mann, she was \u201cintending to help him with applying for unemployment benefits [.]\u201d To each of these interrogatories defendants responded that \u201cno such person exists.\u201d However, the evidence before the Commission showed that limm, who answered Advanced Plastiform\u2019s telephones at lunch, and Tripp, Advanced Plastiform\u2019s production manager supervisor, were aware of Hauser\u2019s work-related reason for meeting Mann.\nN.C. Gen. Stat. \u00a7 97-88.1 (1991) states: \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 Rule 802 of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission provides that \u201cfailure to comply\u201d with the Workers\u2019 Compensation Rules \u201cmay subject the violator to any of the sanctions outlined in Rule 37 of the North Carolina Rules of Civil Procedure, including reasonable attorney fees to be taxed against the party or his counsel whose conduct necessitates the order.\u201d Rule 37 provides for various sanctions, including attorneys\u2019 fees, against parties who, among other things, provide \u201cevasive or incomplete answer[s]\u201d in response to discovery requests. N.C.R. Civ. P. 37(a)(3). Defendants\u2019 responses to plaintiff\u2019s interrogatories were clearly \u201cevasive and incomplete.\u201d\nDefendants argue that \u201cby failing to appeal from [the] Deputy Commissioner's] . . . ruling by identifying this issue on his Form 44[,]\u201d plaintiff has \u201cwaived this issue].]\u201d The record on appeal reflects that plaintiff did raise the issue of attorneys\u2019 fees in his brief to the deputy commissioner; the deputy commissioner denied plaintiff\u2019s motion; plaintiff appealed to the Full Commission from the deputy commissioner\u2019s opinion and award in accordance with the requirements of N.C. Gen. Stat. \u00a7 97-85 (1991); and the Full Commission reversed the deputy commissioner, awarding plaintiff workers\u2019 compensation benefits and attorneys\u2019 fees. However, in his assignments of error in his Form 44, plaintiff did not specifically address the issue of attorneys\u2019 fees.\nRule 701 of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission is entitled \u201cAppeal to the Full Commission.\u201d Rule 701(2) states:\n(2) After receipt of notice of appeal, the Industrial Commission will supply to the appellant Form 44 upon which he must state the grounds for his appeal. The grounds must be stated in particularity, including the specific errors allegedly committed by the Commissioner or Deputy Commissioner and the pages in the transcript on which the alleged errors are recorded. Failure to state with particularity the grounds for appeal shall result in abandonment of such grounds].]\nIn Joyner v. Rocky Mount Mills, 85 N.C. App. 606, 355 S.E.2d 161 (1987), the deputy commissioner awarded plaintiff $8,000.00 per lung for loss of lung function as a result of an occupational disease. Defendants appealed the award to the Full Commission. The Commission affirmed the opinion and award of the deputy commissioner but modified the amount payable to $4,000.00 per lung. The Full Commission also reduced the deputy commissioner\u2019s award of attorneys\u2019 fees from $4,000.00 to $2,000.00. Plaintiff argued on appeal to this Court that \u201cthe full commission erred in failing to address\u201d the issue of future medical expenses in its opinion and award. Joyner at 607, 355 S.E.2d at 161. We dismissed plaintiff\u2019s appeal pursuant to Rule 701 of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission. Our Court stated:\n[T]he Deputy Commissioner made no award for medical expenses pursuant to G.S. 97-59 and plaintiff never appealed from that opinion and award. Only the defendants appealed to the full Commission and the record before us states that the sole issue on appeal was whether the commissioner \u201cerred in awarding plaintiff compensation in the amount of $8,000.00 per lung pursuant to G.S. 97-31(24).\u201d\nPlaintiff has failed to properly preserve his right to appeal the failure of the Deputy Commissioner to order payment of medical expenses under G.S. 97-59. The record must in some way reflect that the matter was before the full Commission.\nId. at 607-08, 355 S.E.2d at 162.\nIn the present case, however, the opinion and award of the Full Commission indicates that the issue of attorneys\u2019 fees was before the Commission. Unlike the chronology of events in Joyner, the deputy commissioner denied plaintiff\u2019s motion for attorneys\u2019 fees and plaintiff appealed to the Full Commission in a notice of appeal dated 12 June 1997, well within the time limits proscribed by N.C. Gen. Stat. \u00a7 97-85, which states:\nIf application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award[.]\nIn Tucker v. Workable Company, 129 N.C. App. 695, 701, 501 S.E.2d 360, 365 (1998) (citation omitted) (emphasis in original), our Court stated:\nAlthough Rule 701 provides that the appellant must state with particularity the grounds for appeal, \u201c[t]his Court has held that when the matter is \u2018appealed\u2019 to the full Commission pursuant to G.S. 97-85, it is the duty and responsibility of the full Commission to decide all of the matters in controversy between the parties.\"\nWe further stated, \u201c \u2018[i]nasmuch as the Industrial Commission decides claims without formal pleadings, it is the duty of the Commission to consider every aspect of plaintiff s claim whether before a hearing officer or on appeal to the full Commission.\u2019 \u201d Id. (citations omitted) (emphasis in original).\n[T]he Commission is allowed to award attorneys\u2019 fees to the employee, in addition to the compensation amount originally awarded. Furthermore, N.C. Gen. Stat. \u00a7 97-80 (1991) provides the Industrial Commission with certain powers, including the taxing of costs and contempt powers; and N.C. Gen. Stat. \u00a7 97-88.1 (1991) allows the Industrial Commission to assess the entire costs, including attorneys\u2019 fees, when a case is unreasonably defended.\nTucker at 704, 501 S.E.2d at 366 (citation omitted).\nPlaintiff appealed the issue of attorneys\u2019 fees in accordance with the guidelines set forth in N.C. Gen. Stat. \u00a7 97-85. As Tucker indicates, it is incumbent upon \u201cthe full Commission to decide all of the matters in controversy between the parties.\" Tucker at 701, 501 S.E.2d at 365 (citation omitted) (emphasis in original). Upon careful examination of the opinion and award of the Full Commission, we find no abuse of discretion in awarding plaintiff attorneys\u2019 fees. The opinion and award of the Full Commission is affirmed.\nAffirmed.\nJudges JOHN and WALKER concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Lore & McClearen, by R. James Lore, for plaintiff-appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by G.D. Taylor Pace and W. Scott Fuller, for defendant-appellants." ], "corrections": "", "head_matter": "GREGORY LEE HAUSER, Dependent of the late JANET NOBLE HAUSER, Employee, Plaintiff-Appellee v. ADVANCED PLASTIFORM, INC., Employer; ZENITH INSURANCE COMPANY (f/k/a RISCORP OF NORTH CAROLINA, INC.), Carrier, Defendant-Appellants\nNo. 98-904\n(Filed 1 June 1999)\n1. Workers\u2019 Compensation\u2014 employee murdered \u2014 course and scope of employment\nThe full Industrial Commission in a workers\u2019 compensation action did not err by concluding that an employee\u2019s death arose out of and in the course of her employment where the employee was an office manager who was kidnapped and murdered by a recently laid off employee. There was sufficient evidence to allow a reasonable inference that the nature of decedent\u2019s employment created the risk of attack rather than some personal relationship and the evidence tends to show that decedent was called to action by some person superior in authority. Although defendants argued that the compensability of decedent\u2019s death depended upon interpretation of the evidence presented through witnesses, the Commission based its decision on the facts and the law.\n2. Workers\u2019 Compensation\u2014 attorney fees \u2014 evasive and incomplete interrogatories\nThe Industrial Commission in a workers\u2019 compensation action did not err by awarding attorney fees where the Commission found bad faith, unfounded, stubborn litigiousness, and that plaintiff was forced to prove the existence of material evidence suppressed by defendants. N.C.G.S. \u00a7 1A-1, Rule 37 provides sanctions including attorney fees to parties who provide evasive or incomplete answers to discovery requests.\n3. Workers\u2019 Compensation\u2014 appeal from deputy commissioner \u2014 issues raised\nThe issue of attorney fees in a workers\u2019 compensation action was properly before the full Commission even though defendants argued that plaintiff waived the issue by failing to identify it on his Form 44. Plaintiff raised the issue in his brief to the deputy commissioner and, inasmuch as the Commission decides claims without formal pleadings, it is the duty of the Commission to consider every aspect of plaintiffs claim whether before a hearing officer or on appeal to the full Commission. Plaintiff appealed the issue in accordance with the guidelines in N.C.G.S. \u00a7 97-85.\nAppeal by defendants from opinion and award of the North Carolina Industrial Commission filed 20 March 1998. Heard in the Court of Appeals 18 March 1999.\nLore & McClearen, by R. James Lore, for plaintiff-appellee.\nCranfill, Sumner & Hartzog, L.L.P., by G.D. Taylor Pace and W. Scott Fuller, for defendant-appellants." }, "file_name": "0378-01", "first_page_order": 408, "last_page_order": 419 }