{ "id": 4162118, "name": "BILLY MEARES, Employee, Plaintiff v. DANA CORPORATION, Employer, and Self-Insured SPECIALITY RISK SERVICES, Third-Party Administrator, Defendants", "name_abbreviation": "Meares v. Dana Corp.", "decision_date": "2008-10-07", "docket_number": "No. COA07-1401", "first_page": "86", "last_page": "95", "citations": [ { "type": "official", "cite": "193 N.C. App. 86" } ], "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": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "646 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638857 ], "year": 2007, "pin_cites": [ { "page": "608", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0604-01" ] }, { "cite": "653 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639956 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "409", "parenthetical": "citation omitted" }, { "page": "409", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0400-01" ] }, { "cite": "615 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633432 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "915" }, { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0912-01" ] }, { "cite": "N.C. 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App.", "case_ids": [ 11240206 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "274" }, { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0270-01" ] }, { "cite": "472 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "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": 3, "year": 1995, "pin_cites": [ { "page": "484" }, { "page": "486" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915261 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "50-51" }, { "page": "54-55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0048-01" ] }, { "cite": "546 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "138", "parenthetical": "citation, quotation marks and brackets omitted" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433042 ], "year": 2001, "pin_cites": [ { "page": "62", "parenthetical": "citation, quotation marks and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0055-01" ] }, { "cite": "115 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "pin_cites": [ { "page": "34" }, { "page": "34" } ], "opinion_index": 0 }, { "cite": "252 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625537 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "722" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0716-01" ] }, { "cite": "296 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "459", "parenthetical": "citations, quotation marks and ellipses omitted" }, { "page": "459" } ], "opinion_index": 0 }, { "cite": "307 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560726 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "103-04", "parenthetical": "citations, quotation marks and ellipses omitted" }, { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0099-01" ] }, { "cite": "477 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "192" }, { "page": "192" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889667 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "423" }, { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0420-01" ] }, { "cite": "577 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491599 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0044-01" ] }, { "cite": "562 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "149 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125102 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/149/0001-01" ] }, { "cite": "559 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "280", "parenthetical": "citation and quotation marks omitted" }, { "page": "282", "parenthetical": "concluding that no change in condition had occurred when the plaintiff presented no medical evidence of a change in circumstances and the \"plaintiffs testimony about her physical restrictions [was] virtually identical to that of the [earlier] hearing\"" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367907 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "670", "parenthetical": "citation and quotation marks omitted" }, { "page": "674" }, { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0667-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-47", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "year": 2005, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "184 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8186439 ], "year": 2007, "pin_cites": [ { "page": "503", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0497-01" ] }, { "cite": "561 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125602 ], "year": 2002, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0105-01" ] }, { "cite": "362 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150039 ], "year": 2007, "pin_cites": [ { "page": "40", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0027-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "172 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319630 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "293" }, { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0291-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 864, "char_count": 22618, "ocr_confidence": 0.763, "pagerank": { "raw": 1.2572659547416156e-07, "percentile": 0.6115773545098575 }, "sha256": "d1f83dddc8b4aa8292d42a2027b44fa1b1fd4e2a5ec8765a132db41a99a66438", "simhash": "1:8e416962aebf4f55", "word_count": 3559 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ELMORE concur." ], "parties": [ "BILLY MEARES, Employee, Plaintiff v. DANA CORPORATION, Employer, and Self-Insured SPECIALITY RISK SERVICES, Third-Party Administrator, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nThe issues presented by defendants are: (1) whether there was a change in condition such that the Industrial Commission should have changed its prior award and declared plaintiff to be permanently disabled under N.C. Gen. Stat. \u00a7 97-29, and (2) whether the award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88.1 was appropriate. As to the first issue, we conclude that there was competent evidence to support the Industrial Commission\u2019s findings of fact, and the Industrial Commission\u2019s conclusions of law were supported by its findings of fact and based upon a correct understanding of the law; therefore the Industrial Commission did not err in declining to change its prior award to declare plaintiff permanently disabled as a result of a compensable injury. As to the second issue, we conclude defendants did not have reasonable grounds for requesting a hearing to determine whether plaintiff was permanently disabled; therefore the Industrial Commission did not err in awarding attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1. Accordingly, for the reasons that follow, we affirm.\nI. Factual and Procedural Background\nBilly Meares (\u201cplaintiff\u2019) was employed by the Dana Corporation (\u201cdefendant-employer\u201d) for twenty-nine years, from 1972 to 2001. On 26 October 1999, plaintiff suffered an injury to his right knee while moving some boxes at work. On or about 2 October 2001, plaintiff filed Form 18, seeking workers\u2019 compensation benefits on account of the knee injury.\nIn an Opinion and Award issued on 13 July 2004 (\u201cMeares /\u201d), the Industrial Commission found that plaintiff \u201csuffered a compensable injury to his right knee\u201d and \u201cplaintiff\u2019s right leg problems aggravated or exacerbated plaintiff\u2019s left knee arthritis to the extent that it became symptomatic and is in need of treatment.\u201d The Commission also found that \u201c[p]laintiff ha[d] not reached maximum medical improvement and [was] in need of further treatment to both legs.\u201d Accordingly, the Commission concluded that plaintiff was entitled to continuing temporary total disability benefits and medical treatment for both legs. In the Meares I award, the Commission further concluded, inter alia, that defendants were \u201centitled to a credit for amounts paid to plaintiff as a severance package for the period 18 June 2001 through 31 December 2001.\u201d\nPlaintiff appealed the Commission\u2019s award in Meares I to this Court, case No. COA04-1196, solely on the issue of defendants\u2019 credit for the severance package. Meares v. Dana Corp./WIXDiv., 172 N.C. App. 291, 293, 615 S.E.2d 912, 915 (2005). The record on appeal in Meares I was filed on 8 September 2004. This Court heard Meares I on 24 March 2005, reversing and remanding in a published opinion filed 2 August 2005 on the grounds that the severance package paid to plaintiff was not compensation for his injury and thus defendant-employer was not entitled to a credit for it. Meares, 172 N.C. App. at 300, 615 S.E.2d at 919.\nWhile the appeal in Meares I was pending, defendants filed Form 33 with the Industrial Commission on 15 September 2004 (\u2018Meares IF), which gives rise to the instant appeal, requesting a hearing on the basis that \u201cthe Plaintiff is unwilling to stipulate that he [is] permanently and totally disabled as defined by North Carolina General Statute \u00a7 97-29.\u201d A hearing on Meares II was held before Deputy Commissioner Ronnie E. Rowell on 24 October 2005. In an Opinion and Award filed 30 August 2006, Deputy Commissioner Rowell found that plaintiff had not reached maximum medical improvement (\u201cMMI\u201d) for all injury-related conditions and concluded on that basis plaintiff was not permanently disabled. Deputy Commissioner Rowell ordered defendants to continue paying plaintiff disability compensation until further order of the Commission and awarded fees to plaintiff\u2019s attorney pursuant to N.C. Gen. Stat. \u00a7 97-88.1.\nDefendants appealed to the Full Commission. The Commission admitted the 16 December 2005 deposition of Dixon Gerber, M.D. as additional evidence and heard defendants\u2019 appeal on 14 June 2007. The Commission found as fact that plaintiff \u201cwas not at maximum medical improvement for all of his injury-related impairments, specifically the left knee.\u201d Accordingly, the Commission concluded that \u201cdefendant\u2019s [sic] request for the Commission to declare the plaintiff to be permanently disabled is premature.\u201d The Commission also concluded that because nothing had changed in regard to plaintiff\u2019s condition \u201cthe present hearing was unnecessary!.]\u201d The Commission ordered defendants to continue to pay temporary total disability and medical compensation to plaintiff. The Commission also taxed five thousand dollars ($5,000.00) as costs against defendants for reasonable attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88. The Commission further found that \u201cdefendant did not have reasonable grounds for prosecuting this claim[,]\u201d and taxed an additional ten thousand dollars ($10,000.00) as costs against defendants for reasonable attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1. Defendants appeal.\nII. Disability Benefits\nA. Standard of Review\nAppellate review of an award of the Industrial Commission is generally limited to a determination of \u201c(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact.\u201d Gore v. Myrtle/Mueller, 362 N.C. 27, 40, 653 S.E.2d 400, 409 (2007) (citation omitted). \u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.\u201d Id. at 40-41, 653 S.E.2d at 409 (citation and quotation marks omitted). Therefore \u201c[t]he Commission\u2019s findings of fact are conclusive on appeal when supported by competent evidence, even if there is evidence to support contrary findings.\u201d Effingham v. Kroger Co., 149 N.C. App. 105, 109, 561 S.E.2d 287, 291 (2002).\nThe Commission\u2019s legal conclusions are reviewed de novo. Id. \u201c[W]here there are sufficient findings of fact based on competent evidence to support the [Commission\u2019s] conclusions of law, the [award] will not be disturbed because of other erroneous findings which do not affect the conclusions.\u201d Estate of Gainey v. Southern Flooring and Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608 (2007) (citation and quotation marks omitted). However, \u201c[i]f the conclusions of the Commission are based upon a deficiency of evidence or misapprehension of the law, the case should be remanded ....\u201d Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). Whether or not \u201ca change of condition pursuant to N.C. Gen. Stat. \u00a7 97-47 [has occurred] is a question of law, and thus, is subject to de novo review.\u201d Shingleton v. Kobacker Grp., 148 N.C. App. 667, 670, 559 S.E.2d 277, 280 (2002) (citation and quotation marks omitted).\nB. Analysis\nDefendants contend that the evidence that plaintiff has been permanently and totally disabled since his right knee replacement surgery in 2001 is plenary, therefore the Commission erred in concluding plaintiff was temporarily totally disabled. Defendants, citing Knight v. Wal-Mart Stores, Inc, 149 N.C. App. 1, 562 S.E.2d 434 (2002), aff\u2019d per curiam, 357 N.C. 44, 577 S.E.2d 620 (2003), argue plaintiff sought benefits under section 97-29, not section 97-31, therefore whether or not plaintiff has reached maximum medical improvement for all injury-related conditions is irrelevant. Defendants reason from this premise that the Commission found the facts under a misapprehension of law, and therefore, the case must be remanded.\nAs a threshold matter, we must determine if the facts before the Commission supported the reexamination and alteration of its prior award. The reopening of a workers\u2019 compensation case subsequent to a prior award by the Industrial Commission is governed by N.C. Gen. Stat. \u00a7 97-47, which states in pertinent part:\nUpon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article ....\nN.C. Gen. Stat. \u00a7 97-47 (2005) (emphasis added); Shingleton, 148 N.C. App. at 674, 559 S.E.2d at 282 (concluding that no change in condition had occurred when the plaintiff presented no medical evidence of a change in circumstances and the \u201cplaintiffs testimony about her physical restrictions [was] virtually identical to that of the [earlier] hearing\u201d). \u201cIn all instances the burden is on the party seeking the modification to prove the existence of the new condition and that it is causally related to the injury that is the basis of the award the party seeks to modify.\u201d Blair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996).\nIn applying N.C. Gen. Stat. \u00a7 97-47, the North Carolina Supreme Court has stated:\nChange of condition refers to conditions different from those existent when the award was made; and a continued incapacity of the same kind and character and for the same injury is not a change of condition. [T]he change must be actual, and not a mere change of opinion with respect to a pre-existing condition. Change of condition is a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, of earnings.\nMcLean v. Roadway Express, 307 N.C. 99, 103-04, 296 S.E.2d 456, 459 (1982) (citations, quotation marks and ellipses omitted) (an increase in the plaintiffs disability rating following surgery is a change in condition within the meaning of N.C. Gen. Stat. \u00a7 97-47). Stated negatively, \u201c[c]hanges of condition occurring during the healing period and prior to the time of maximum recovery and the permanent disability, if any, found to exist at the end of the period of healing are not changes of condition within the meaning of G.S. 97-47.\u201d Pratt v. Central Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 34 (1960). Furthermore, this Court has held that \u201ca mere change of the doctor\u2019s opinion with respect to claimant\u2019s preexisting condition does not constitute a change of condition required by G.S. 97-47.\u201d Allen v. Roberts Elec. Contr\u2019rs., 143 N.C. App. 55, 62, 546 S.E.2d 133, 138 (2001) (citation, quotation marks and brackets omitted).\nWe first note that defendants\u2019 Form 33, which requested reconsideration by the Commission, did not allege any change of plaintiff\u2019s medical condition. Defendants\u2019 Form 33 requested a hearing solely on the grounds that \u201cthe Plaintiff is unwilling to stipulate that he [is] permanently and totally disabled as defined by North Carolina General Statute \u00a7 97-29.\u201d Nevertheless, at the hearing before the Commission, defendants offered into evidence a deposition taken on 16 December 2005 from Dr. Dixon Gerber, plaintiffs treating physician, which they contend is \u201cnew evidence.\u201d\nDefendants argue that the testimony of Dr. Gerber supports their assertion that conditions had changed since the Commission\u2019s 13 June 2004 Opinion and Award in Meares I. Specifically, they cite Dr. Gerber\u2019s testimony that \u201cI do not see him returning to that job ever, whether he has . . . the left knee done or not[,]\u201d and Dr. Gerber\u2019s agreement with the statement that \u201c[e]ven if [plaintiff] has the additional [left] knee replacement, it\u2019s really not going to change his status of being disabled as far as returning to work[.]\u201d\nHowever, in finding plaintiff has yet to reach maximum medical improvement for all injury-related conditions, the Commission also cited Dr. Gerber\u2019s 16 December 2005 deposition testimony. The Commission specifically found that \u201cDr. Gerber was of the opinion, and the Full Commission finds as fact, that the plaintiff was not at maximum medical improvement for all of his injury-related impairments, specifically the left knee.\u201d This finding is supported by Dr. Gerber\u2019s testimony, which stated that plaintiff \u201chas the same degenerative arthritic condition in his left knee that he had in his right knee prior to his [compensable] injury[,]\u201d and that \u201cyou can\u2019t say he\u2019s at maximum medical improvement for his left knee because he still has an arthritic knee.\u201d (Emphasis added.) The Commission\u2019s findings in turn support its conclusion of law: \u201cThere is no evidence suggesting that the plaintiff has ever reached maximum medical improvement for all of his injury-related conditions, and in particular his left knee. Since nothing has changed in this regard since the Full Commission\u2019s Opinion and Award on July 13, 2004, the present hearing was unnecessary . . . .\u201d\nDefendants also argue that the fact that plaintiff has reached MMI in his right knee is a substantial change which merits review and alteration of the Meares I Opinion and Award. The Commission\u2019s finding that \u201cplaintiff ha[d] reached maximum medical improvement with respect to his right knee injury\u201d is uncontroverted. However, merely reaching MMI with respect to plaintiff\u2019s right knee is not a substantial change which can sustain alteration of Meares I, (1) because the incapacity is \u201cof the same kind and character\u201d as the incapacity for which plaintiff was previously awarded benefits, (2) because there has been no change in plaintiff\u2019s \u201cphysical capacity to earn,\u201d McLean, 307 N.C. at 103-04, 296 S.E.2d at 459, and (3) because it occurred \u201cduring the healing period and prior to the time of maximum recoveryf,]\u201d Pratt, 252 N.C. at 722, 115 S.E.2d at 34. In sum, defendants have offered no evidence of any change in plaintiffs condition which would support a reopening of the case. We conclude therefore that the Commission correctly determined that defendants had not met their burden of \u201cproving] the existence of the new condition,\u201d Blair, 124 N.C. App. at 423, 477 S.E.2d at 192, and accordingly denied defendants\u2019 request to change its previous award.\nIII. Attorney\u2019s Fees Pursuant to N.C. Gen. Stat. \u00a7 97-88.1\nDefendants contend they had reasonable grounds for requesting a hearing regarding the permanence of plaintiff\u2019s disability, therefore the Commission\u2019s award of attorney fees under N.C. Gen. Stat. \u00a7 97-88.1 was an abuse of discretion. We disagree.\nN.C. Gen. Stat. \u00a7 97-88.1 states:\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.\nN.C. Gen. Stat. \u00a7 97-88.1 (2005).\nThe Commission concluded defendants did not have reasonable grounds for prosecuting the claim sub judice after finding:\n17. . . . Since nothing has changed in [] regard [to maximum medical improvement for all of plaintiff\u2019s'injury conditions] since the Full Commission\u2019s Opinion and Award on July 13, 2004, the present hearing was unnecessary and did not involve an issue that was ripe for adjudication.\nReview of an award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1 requires a two-part analysis. First, \u201c[w]hether the [party] had a reasonable ground to bring a hearing is reviewable by this Court de novo.\u201d Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 50-51, 464 S.E.2d 481, 484 (1995), disc. review denied, 343 N.C. 516, 472 S.E.2d 26 (1996). For a reviewing court to determine whether a defendant had reasonable ground to bring a hearing, it must consider the evidence introduced at the hearing. Ruggery v. N. C. Dep\u2019t of Correction, 135 N.C. App. 270, 274, 520 S.E.2d 77, 80 (1999). The determination of reasonable grounds is not whether the party prevails in its claim, but whether the claim \u201cis based on reason rather than stubborn, unfounded litigiousness.\u201d Ruggery, 135 N.C. App. at 274, 520 S.E.2d at 80 (citation and quotation marks omitted).\nIf this Court concludes that the party requesting the hearing lacked reasonable grounds, \u201c[t]he 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 Troutman, 121 N.C. App. at 54-55, 464 S.E.2d at 486. \u201cAn abuse of discretion results only where a decision is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Bryson v. Phil Cline Trucking, 150 N.C. App. 653, 656, 564 S.E.2d 585, 587 (2002) (citation and quotation marks omitted) (affirming the Industrial Commission\u2019s award of attorney\u2019s fees as a punitive sanction for unfounded litigiousness). On the other hand, if the party requesting the hearing had reasonable grounds to request the hearing, any award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1 will be reversed by this Court. Cooke v. P.H. Glatfelter/Ecusta, 130 N.C. App. 220, 225-26, 502 S.E.2d 419, 423 (1998).\nWe concluded supra that defendants did not introduce any evidence which would prove the existence of a change in condition and thereby sustain its request for alteration of Meares I. Therefore, we also conclude that defendants lacked reasonable grounds to litigate the permanence of plaintiff\u2019s disability. Because defendants lacked reasonable grounds to litigate this case, the Commission\u2019s decision to tax attorney\u2019s fees as costs against defendants \u201cwill not be disturbed absent an abuse of discretion.\u201d Troutman, 121 N.C. App. at 55, 464 S.E.2d at 486.\nThe Commission found as fact:\n18. . . . One apparent reason why the defendant would ask the Commission to declare the plaintiff to be permanently and totally disabled is to expedite the running of the limitations period in N.C. Gen. Stat. \u00a797-38 with a \u2018final determination\u2019 of the plaintiff\u2019s disability in order to deprive the plaintiff\u2019s dependents of compensation under that statute[.]\u201d\n(Footnote added.)\nDr. Gerber testified that plaintiff had developed complications from his right knee replacement surgery, including deep venous thrombosis and a pulmonary embolus and was at risk for developing the same conditions if he had replacement surgery on his left knee. Dr. Gerber also testified that a pulmonary embolus is a \u201cpotentially life threatening complication of surgery.\u201d Thus, the evidence before the Commission indicated that if plaintiff were to have replacement surgery on his left knee and he again developed serious complications, it would be foreseeable that plaintiff might die as a proximate result of his compensable injury. Therefore, we conclude the Commission\u2019s inference as to defendants\u2019 motives in asking the Commission to declare plaintiff permanently disabled was based on reason. In fact, it is somewhat unusual for the defendants in a workers\u2019 compensation case to request that an employee be declared permanently and totally disabled \u2014 normally the defendants oppose such a determination. Accordingly, we conclude that the Commission did not abuse its discretion when it taxed attorney\u2019s fees against defendants as costs pursuant to N.C. Gen. Stat. \u00a7 97-88.U\nIV. Conclusion\nBecause defendants submitted no evidence of a change in plaintiff\u2019s condition, we conclude the Commission did not err when it did not alter its previous award of benefits to plaintiff to declare.him permanently disabled. We also conclude that the Commission did not abuse its discretion in awarding plaintiff\u2019s attorney fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1, because defendants did not have reasonable grounds for requesting the hearing on the permanency of plaintiff\u2019s disability and because the Commission\u2019s inference as to defendants\u2019 motive for requesting a hearing was based on reason. Accordingly, the award of the Industrial Commission is affirmed.\nAffirmed.\nJudges HUNTER and ELMORE concur.\n. This conclusion is labeled as finding of fact number 17. Nevertheless, whether or not there has been a change in condition is a conclusion of law. Shingleton v. Kobacker Grp., 148 N.C. App. 667, 670, 559 S.E.2d 277, 280 (2002).\n. Defendants have not cited any statute or case that would require any party to a workers\u2019 compensation case to stipulate to any fact or legal conclusion, and we are unaware of any such rule. Stipulations are by definition voluntary and not mandatory. See Black\u2019s Law Dictionary 1455 (8th ed. 2004) (defining stipulation as \u201c[a] voluntary agreement between opposing parties concerning some relevant point[.]\u201d).\n. N.C. Gen. Stat. \u00a7 97-38 states in pertinent part:\nIf death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation equal to sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased employee at the time of the accident].]\nN.C. Gen. Stat. \u00a7 97-38 (2005).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "The Sumwalt Law Firm, by Vernon Sumwalt and Mark T. Sumwalt, for plaintiff-appellee.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Paul C. Lawrence, Adam E. Whitten and Margaret M. Kingston, for defendant-appellants." ], "corrections": "", "head_matter": "BILLY MEARES, Employee, Plaintiff v. DANA CORPORATION, Employer, and Self-Insured SPECIALITY RISK SERVICES, Third-Party Administrator, Defendants\nNo. COA07-1401\n(Filed 7 October 2008)\n1. Workers\u2019 Compensation\u2014 alteration of prior award refused\u2014 disability status \u2014 iiyured knee and related conditions\nThe Industrial Commission in a workers\u2019 compensation case correctly denied defendants\u2019 request to change a prior award where defendant did not present evidence that would support reopening the case and changing the award from temporary total disability to permanent disability. Plaintiff was not required to stipulate to the change and, while his injured right knee had reached maximum medical improvement, there was medical testimony that he was not at maximum medical improvement for all of his injury-related conditions, including his other knee.\n2. Workers\u2019 Compensation\u2014 attorney fees \u2014 motion to alter prior award \u2014 no reasonable grounds\nThe Industrial Commission did not abuse its discretion by awarding plaintiff attorney fees on defendant\u2019s motion to change a prior award of benefits where defendants did not have reasonable grounds for requesting the change and the Commission\u2019s inference about defendants\u2019 motion was based on reason. N.C.G.S. \u00a7 97-88.1.\nAppeal by defendants from Opinion and Award entered 1 August 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 2 April 2008.\nThe Sumwalt Law Firm, by Vernon Sumwalt and Mark T. Sumwalt, for plaintiff-appellee.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Paul C. Lawrence, Adam E. Whitten and Margaret M. Kingston, for defendant-appellants." }, "file_name": "0086-01", "first_page_order": 118, "last_page_order": 127 }