{ "id": 9082667, "name": "JACK BRYSON, Employee, Plaintiff v. PHIL CLINE TRUCKING, Employer, SELF-INSURED (Key Risk Management Services), Administrator, Defendants", "name_abbreviation": "Bryson v. Phil Cline Trucking", "decision_date": "2002-06-18", "docket_number": "No. COA01-708", "first_page": "653", "last_page": "662", "citations": [ { "type": "official", "cite": "150 N.C. App. 653" } ], "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": "196 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548479 ], "year": 1973, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0249-01" ] }, { "cite": "537 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 830", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132227, 132133, 132136, 132152, 132318 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0830-01", "/nc/350/0830-02", "/nc/350/0830-03", "/nc/350/0830-04", "/nc/350/0830-05" ] }, { "cite": "513 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "77" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238919 ], "year": 1999, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0505-01" ] }, { "cite": "395 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "163" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0248-01" ] }, { "cite": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "292 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "280" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 643", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525556 ], "year": 1982, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0643-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "528 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "635", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" }, { "page": "635" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094063 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "464-65", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0461-01" ] }, { "cite": "472 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "54-55" } ], "opinion_index": 0 }, { "cite": "343 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798760, 798832, 798902, 798938, 798973 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0516-04", "/nc/343/0516-03", "/nc/343/0516-05", "/nc/343/0516-02", "/nc/343/0516-01" ] }, { "cite": "464 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "485" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915261 ], "year": 1995, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0048-01" ] }, { "cite": "286 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527802 ], "year": 1982, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0663-01" ] }, { "cite": "394 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "192", "parenthetical": "quoting Sparks v. Mountain Breeze Restaurant, 55 N.C. App. 663, 664, 286 S.E.2d 575, 576 (1982)" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525056 ], "year": 1990, "pin_cites": [ { "page": "768", "parenthetical": "quoting Sparks v. Mountain Breeze Restaurant, 55 N.C. App. 663, 664, 286 S.E.2d 575, 576 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0767-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 } ], "analysis": { "cardinality": 724, "char_count": 20722, "ocr_confidence": 0.768, "pagerank": { "raw": 1.1352032558440077e-07, "percentile": 0.5771477410459065 }, "sha256": "c0afd3950801f9ea4943261951e201b76476efa0fb4495bf7d69a92d1c1d8963", "simhash": "1:a4426d075d977835", "word_count": 3123 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and HUNTER concur." ], "parties": [ "JACK BRYSON, Employee, Plaintiff v. PHIL CLINE TRUCKING, Employer, SELF-INSURED (Key Risk Management Services), Administrator, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nJack Bryson (\u201cplaintiff\u201d) and Phil Cline Trucking (\u201cemployer\u201d), along with Key Risk Management Services (\u201cadministrator\u201d) (collectively, \u201cdefendants\u201d), appeal from an opinion and award of the North Carolina Industrial Commission (\u201cthe Commission\u201d). For the reasons stated herein, we affirm the opinion and award of the Industrial Commission.\nThe facts pertinent to the instant appeal are as follows: On 12 March 1994, plaintiff suffered injury to his lower back and left hip while performing maintenance work on a truck leased to employer. As a result of his injury, plaintiff underwent several surgical procedures to improve the condition of his back. By opinion and award filed 26 October 1995, the Commission concluded that plaintiffs injury was compensable under the North Carolina Workers\u2019 Compensation Act and ordered defendants to pay temporary total disability compensation and reasonable medical expenses.\nOn 24 March 1999, plaintiff filed a Form 33, Request That Claim Be Assigned For Hearing. Plaintiff\u2019s dispute with defendants arose from their refusal to authorize his request for a dorsal column stimulator (\u201cstimulator\u201d), a surgical device recommended by plaintiff\u2019s anesthesiologist in order to provide improved control of plaintiff\u2019s pain and thereby decrease his reliance on medication. Plaintiff asserted that the stimulator was a reasonable and necessary medical treatment and requested attorneys\u2019 fees pursuant to section 97-88.1 of the General Statutes for defendants\u2019 allegedly unreasonable defense of his claim.\nOn 28 December 1999, a deputy commissioner for the Commission filed an opinion and award concluding that plaintiff had proven by the greater weight of the evidence that he was entitled to receive the stimulator as a reasonable and necessary medical treatment. The deputy commissioner further concluded that defendants had presented no credible evidence to support their denial of such treatment, and as such, had willfully violated the prior order by the Commission. The deputy commissioner therefore ordered defendants to pay attorneys\u2019 fees of $10,500.00, as well as $448.64 in expenses.\nDefendants appealed the deputy commissioner\u2019s opinion and award to the Full Commission, which affirmed the opinion in all respects except for the award of attorneys\u2019 fees. The Commission found that, as a result of defendants\u2019 unreasonable denial of treatment, plaintiff had \u201cincurred reasonable attorney\u2019s fees in the amount of $200.00.\u201d The Commission therefore ordered defendants to pay for the placement of plaintiff\u2019s dorsal column stimulator and attorneys\u2019 fees of $200.00.\nPlaintiff thereafter moved for reconsideration of the Commission\u2019s order and for allowance of reasonable attorneys\u2019 fees pursuant to section 97-88 of the General Statutes. Upon reconsideration of its order, the Commission concluded that, \u201cplaintiff should be awarded a reasonable attorney\u2019s fee in the amount of $2,500, in addition to reasonable expenses of $448.64.\u201d Finding that defendants had reasonable grounds to appeal the $10,500.00 award of attorneys\u2019 fees by the deputy commissioner, the Commission denied plaintiffs request for attorneys\u2019 fees pursuant to section 97-88. This opinion and award was filed 31 January 2001, from which plaintiff appeals and defendants cross-appeal.\nThe primary issue on appeal is whether the Commission properly awarded to plaintiff attorneys\u2019 fees in the amount of $2,500.00. For the reasons stated herein, we affirm the opinion and award of the Industrial Commission.\nUnder section 97-88.1 of the North Carolina General Statutes, the Commission may award attorneys\u2019 fees if it determines that \u201cany hearing has been brought, prosecuted, or defended without reasonable ground[.]\u201d N.C. Gen. Stat. \u00a7 97-88.1 (2001). The purpose of this section is to \u201cprevent \u2018stubborn, unfounded litigiousness\u2019 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) (quoting Sparks v. Mountain Breeze Restaurant, 55 N.C. App. 663, 664, 286 S.E.2d 575, 576 (1982)). The Commission, therefore, may assess the entire cost of litigation, including attorneys\u2019 fees, against any party who prosecutes or defends a hearing without reasonable grounds. See Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 54, 464 S.E.2d 481, 485 (1995), disc. review denied, 343 N.C. 516, 472 S.E.2d 26 (1996). \u201cThe 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.\u201d Id. at 54-55, 464 S.E.2d at 486. An abuse of discretion results only where a decision is \u201c \u2018manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Long v. Harris, 137 N.C. App. 461, 464-65, 528 S.E.2d 633, 635 (2000) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). With this standard in mind, we examine plaintiff\u2019s assignments of error.\nPlaintiff\u2019s Appeal\nPlaintiff first contends that the Commission erred as a matter of law in considering certain factors in determining whether to award attorneys\u2019 fees to plaintiff. Specifically, plaintiff objects to the following two findings by the Commission: (1) that \u201c[d]orsal column stimulators are controversial and expensive\u201d and that (2) \u201cDefendant had a reasonable basis to question the efficacy of a dorsal column stimulator in this case.\u201d Plaintiff asserts that these findings are unsupported by any evidence in the record and as such, cannot support the Commission\u2019s decision concerning the attorneys\u2019 fees awarded to plaintiff. We disagree.\nAlthough the Commission found that the requested medical treatment was \u201ccontroversial and expensive\u201d and that defendants\u2019 initial questioning of its efficacy was reasonable, the Commission further found that \u201cat some point prior to the hearing before the deputy commissioner, defendant did not make sufficient efforts to substantiate its opposition to this form of treatment.\u201d The Commission also found that \u201cDefendant has not offered sufficient medical evidence to contradict Dr. Gooding\u2019s recommendation that the stimulator is reasonable and necessary to attempt to control plaintiff\u2019s pain[,]\u201d and further that, \u201cDefendant\u2019s continued refusal to authorize the treatment with the dorsal column stimulator, and to force the issue to a hearing, constituted unfounded litigiousness.\u201d The Commission therefore concluded that, \u201cPlaintiff is entitled to a reasonable attorney\u2019s fee as a result of defendant\u2019s unfounded litigiousness in the amount of $2,500.00, and expenses in the amount of $448.64.\u201d\nPlaintiff has not shown that the findings to which he objects played any role, significant or otherwise, in the Commission\u2019s decision to award attorneys\u2019 fees in the amount of $2,500.00. Although the Commission found that plaintiff\u2019s medical treatment was controversial and expensive, this statement appears to primarily relate to the Commission\u2019s next sentence in the same finding, which states that \u201cDefendant had a reasonable basis to question the efficacy of a dorsal column stimulator in this case.\u201d Despite these findings, however, the Commission made numerous additional findings condemning defendants\u2019 subsequent behavior, ultimately concluding that defendants\u2019 refusal to authorize the requested treatment constituted unfounded litigiousness. Had the Commission assigned real weight to the findings to which plaintiff objects, it would have presumably concluded that defendants\u2019 defense of the case was reasonable and would therefore have awarded no attorneys\u2019 fees to plaintiff. As stated supra, the award of attorneys\u2019 fees under section 97-88.1 is a discretionary matter for the Commission. Because there is no indication that the Commission substantially relied upon the isolated findings of fact which plaintiff contends are unsupported by the record, we overrule plaintiff\u2019s assignment of error.\nPlaintiff further argues that the Commission improperly considered a previous attorneys\u2019 fee award granted to plaintiff pursuant to section 97-90 of the General Statutes when it awarded plaintiff attorneys\u2019 fees under section 97-88.1. In its conclusions of law, the Commission stated that:\nA prior Opinion and Award filed in this case on 15 January 1998 approved a 25% attorney\u2019s fee for plaintiff\u2019s counsel as a reasonable fee, in accordance with G.S. 97-90(c). That 25% attorney\u2019s fee award is ongoing for the period of plaintiff\u2019s total disability and is an issue that was decided by a previous panel and was not appealed in accordance with the Act. G.S. 97-90(c). The award of attorney\u2019s fees herein is pursuant to G.S. 97-88.1 and is, therefore, an award left to the sound discretion of the Commission. G.S. 97-88.1.\nPlaintiff argues that the Commission improperly considered the earlier award of attorneys\u2019 fees granted under section 97-90 in assigning its award in the present case pursuant to section 97-88.1. Again, we must disagree with plaintiff\u2019s interpretation of the Commission\u2019s opinion.\nAs in his previous assignment of error, plaintiff makes no showing that the Commission\u2019s recognition in its conclusions of law of the earlier award of attorneys\u2019 fees granted to plaintiff pursuant to section 97-90 impacted its instant decision to award plaintiff $2,500.00 in attorneys\u2019 fees pursuant to section 97-88.1. Indeed, the Commission\u2019s conclusion concerning the earlier award of attorneys\u2019 fees is more reasonably interpreted in exactly the opposite manner from plaintiff\u2019s assertion: namely, that the Commission, well aware of the earlier award of attorneys\u2019 fees, made conclusions regarding such award because it wanted to make clear to both parties that the previous award played no role in its decision to impose punitive attorneys\u2019 fees. Thus, the Commission took pains to recognize in its opinion the difference between the two statutory sections that authorize the Commission to impose attorneys\u2019 fees, as well as the fact that the earlier award had not been appealed and was therefore not under current consideration. Because plaintiff\u2019s argument is based on little more than his own conjecture, we overrule this assignment of error.\nPlaintiff further contends that the Commission abused its discretion in awarding $2,500.00 in attorneys\u2019 fees. Plaintiff argues that, because section 97-88.1 authorizes the Commission to order the entire costs of the proceedings to be paid by an unreasonable party as punishment for its unfounded litigiousness, the statute implies that the amount awarded should be commensurate with the reasonable party\u2019s actual expenses. To award less, according to plaintiff, ignores the stated purpose of the statute to punish those who defend or pursue litigation without reasonable grounds. By plaintiffs account, his reasonable attorney expenses amounted to $10,500.00, and the award of only $2,500.00, argues plaintiff, represents \u201cless than a slap on the wrist\u201d to defendants, thereby defeating the purpose of section 97-88.1. Plaintiff therefore argues that the Commission abused its discretion in making its award. We disagree.\nAs emphasized heretofore, an award under section 97-88.1 is \u201cin the sound discretion of the Commission\u201d and we may not overturn such a decision unless it is \u201cmanifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Long, 137 N.C. App. at 465, 528 S.E.2d at 635. Although defendants\u2019 behavior in denying plaintiff\u2019s medical treatment was unreasonable, there were no findings to indicate that defendants\u2019 actions were otherwise particularly egregious or outrageous. Based on these facts, we are not prepared to hold that the Commission\u2019s decision to award plaintiff approximately one quarter of his reasonable attorney expenses as a punitive measure against defendants was, as a matter of law, completely without basis or reason. We therefore overrule this assignment of error.\nFinally, plaintiff argues that the Commission erred in denying his request for attorneys\u2019 fees pursuant to section 97-88 for the costs of the appeal from the deputy commissioner to the Full Commission. Section 97-88 of the General Statutes, entitled \u201cExpenses of appeals brought by insurers,\u201d provides that:\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.\nN.C. Gen. Stat. \u00a7 97-88 (2001) (emphasis added). As clearly indicated in the statute, the decision to award attorneys\u2019 fees attributable to the appeal rests within the discretion of the Commission, and its decision must be upheld unless there is an abuse of that discretion. See Taylor v. J.P. Stevens, 57 N.C. App. 643, 648, 292 S.E.2d 277, 280 (1982), modified and affirmed, 307 N.C. 392, 298 S.E.2d 681 (1983). An award of attorneys\u2019 fees is proper where the Commission finds that the defendant had no reasonable basis for appealing the decision of the deputy commissioner to the Full Commission. See Mullinax v. Fieldcrest Cannon, Inc., 100 N.C. App. 248, 253, 395 S.E.2d 160, 163 (1990).\nIn the case at bar, the Commission found that, although defendants\u2019 unreasonable refusal to authorize plaintiff\u2019s medical treatment forced the issue to a hearing and therefore constituted unfounded litigiousness, \u201cDefendant had reasonable grounds to appeal the deputy commissioner\u2019s award of attorney\u2019s fees.\u201d The Commission also found that, \u201cDefendant has prevailed, in part, on the attorney\u2019s fees issue[.]\u201d The Commission therefore concluded that \u201cPlaintiff is not entitled to attorney\u2019s fees for the current appeal to the full Commission pursuant to G.S. 97-88, because defendant has prevailed, in part, on the sole issue on appeal.\u201d\nWhether defendants were liable for attorneys\u2019 fees as a punitive measure for their unfounded litigiousness concerning their refusal to authorize plaintiff\u2019s medical treatment was clearly a separate issue from whether defendants had reasonable grounds to appeal the $10,500.00 in attorneys\u2019 fees initially awarded by the deputy commissioner. Where the Commission found that defendants had reasonable grounds to appeal the issue of attorneys\u2019 fees, we discern no abuse of discretion by the Commission in denying plaintiff\u2019s request for attorneys\u2019 fees pursuant to section 97-88. We therefore overrule plaintiff\u2019s final assignment of error. We now address defendants\u2019 cross-appeal.\nDefendants\u2019 Cross-Appeal\nDefendants argue that the Commission erred in finding that defendants\u2019 behavior constituted unfounded litigiousness and in awarding plaintiff $2,500.00 in attorneys\u2019 fees. Defendants contend that there was evidence in the record supporting their denial of payment for the stimulator, and that the Commission therefore erred in finding that defendants\u2019 behavior was unreasonable.\nAppellate review of decisions by the Commission is strictly limited to (1) whether there is competent evidence to support the Commission\u2019s findings of fact; and (2) whether these findings of fact support the Commission\u2019s conclusions of law. See Foster v. Carolina Marble and Tile Co., 132 N.C. App. 505, 507, 513 S.E.2d 75, 77, disc. review denied, 350 N.C. 830, 537 S.E.2d 822 (1999). \u201cIf there is any evidence of substance which directly or by reasonable inference tends to support the findings, the court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.\u201d Russell v. Yarns, Inc., 18 N.C. App. 249, 252, 196 S.E.2d 571, 573 (1973).\nPlaintiff here presented significant medical evidence before the Commission tending to show that the treatment he sought was reasonably necessary to lessen the pain caused by the injury he suffered while in defendants\u2019 employment. Dr. Daniel E. Gooding, a physician specializing in pain management and relief, testified that plaintiff was a \u201cgood candidate\u201d for a trial placement of the stimulator, and that such a treatment would \u201cmake a significant difference in [plaintiff\u2019s] life.\u201d Specifically, Dr. Gooding opined that the stimulator could lessen plaintiff\u2019s pain by fifty percent. Dr. Gooding also testified that none of the other, more conservative medical treatments had effectively lessened plaintiff\u2019s pain. Dr. Bruce V. Darden, II, an orthopedic surgeon who treated plaintiff, testified that he referred plaintiff to the Mid-Atlantic Pain Center in order to address plaintiff\u2019s continued difficulties managing his pain. Dr. Darden stated that a dorsal column stimulator would be \u201ca worthwhile undertaking\u201d and that he had \u201ca lot of faith\u201d in Dr. Gooding and the physicians at the pain management center. Defendants did not undertake an independent medical evaluation of plaintiff, nor did they present any medical evidence to rebut the testimony by plaintiff\u2019s physicians.\nWe conclude that the above-stated evidence adequately supports the Commission\u2019s finding that \u201cDefendant has not offered sufficient medical evidence to contradict Dr. Gooding\u2019s recommendation that the stimulator is reasonable and necessary to attempt to control plaintiff\u2019s pain\u201d and that \u201cDefendant\u2019s continued refusal to authorize the treatment with the dorsal column stimulator, and to force the issue to a hearing, constituted unfounded litigiousness.\u201d The Commission\u2019s conclusion that plaintiff was entitled to reasonable attorneys\u2019 fees of $2,500.00 as a punitive measure was therefore properly supported by its findings and by substantial evidence of record and fully within the Commission\u2019s discretion to grant. We therefore overrule defendants\u2019 assignment of error.\nIn conclusion, we detect no error and no abuse of discretion by the Commission in its opinion and award. The opinion and award by the Industrial Commission is therefore affirmed in all respects.\nAffirmed.\nJudges GREENE and HUNTER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Donaldson & Black, P.A., by Anne R. Harris, for plaintiff appellant.", "Morris York Williams Surles & Barringer, L.L.P., by C. Michelle Sain, for defendant appellees." ], "corrections": "", "head_matter": "JACK BRYSON, Employee, Plaintiff v. PHIL CLINE TRUCKING, Employer, SELF-INSURED (Key Risk Management Services), Administrator, Defendants\nNo. COA01-708\n(Filed 18 June 2002)\nCosts; Workers\u2019 Compensation\u2014 attorney fees \u2014 unfounded litigiousness\nAlthough both parties in a workers\u2019 compensation case appeal the Industrial Commission\u2019s award of attorney fees under N.C.G.S. \u00a7 97-88.1 to plaintiff in the amount of $2,500, approximately one quarter of plaintiff\u2019s reasonable attorney expenses, as a punitive measure for defendant\u2019s unfounded litigiousness based on defendant\u2019s refusal to authorize a dorsal column stimulator to control plaintiff\u2019s pain, the Industrial Commission did not abuse its discretion, because: (1) there is no indication that the Commission substantially relied upon the isolated findings of fact which plaintiff contends are unsupported by the record; (2) plaintiff made no showing that the Commission\u2019s recognition in its conclusions of law of the earlier award of attorney fees granted to plaintiff under N.C.G.S. \u00a7 97-90 impacted its decision to award plaintiff $2,500 under N.C.G.S. \u00a7 97-88.1; (3) although plaintiff contends the amount awarded was less than a slap on the wrist to defendants, there were no findings to indicate that defendants\u2019 actions were otherwise particularly egregious or outrageous; (4) defendant had reasonable grounds to appeal the deputy commissioner\u2019s award of $10,500 in attorney fees, and defendant prevailed in part on the sole issue of attorney fees on appeal; and (5) the evidence adequately supports the Commission\u2019s finding that defendant has not offered sufficient medical evidence to contradict the doctor\u2019s recommendation that the requested treatment is reasonable and necessary to control plaintiff\u2019s pain, and that defendant\u2019s continued refusal to authorize the treatment and to force the issue to a hearing constituted unfounded litigiousness.\nAppeal by plaintiff and cross-appeal by defendants from opinion and award entered 31 January 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 March 2002.\nDonaldson & Black, P.A., by Anne R. Harris, for plaintiff appellant.\nMorris York Williams Surles & Barringer, L.L.P., by C. Michelle Sain, for defendant appellees." }, "file_name": "0653-01", "first_page_order": 683, "last_page_order": 692 }