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    "judges": [
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    ],
    "parties": [
      "TERRY CAWTHORN, Employee, Plaintiff v. MISSION HOSPITAL, INC., Self-Insured Employer, Defendant"
    ],
    "opinions": [
      {
        "text": "BEASLEY, Judge.\nTerry Cawthorn (Plaintiff) and Mission Hospital, Inc. (Defendant) both appeal from the Commission\u2019s opinion and award entitling Plaintiff to ongoing temporary total disability compensation and payment of related medical treatment, and finding Defendant did not deny Plaintiff\u2019s claim or defend the action without reasonable grounds. For the following reasons, we affirm the Commission\u2019s award of benefits but reverse its finding that Defendant acted reasonably in defending the claim and remand for a determination of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88.1.\nOn 20 October 2008, Plaintiff filed a Form 18 alleging that she sustained a specific traumatic incident, causing injury to her low back, while performing a post-surgical patient transfer in the course of her employment. Defendant denied the claim on the grounds that no specific traumatic event occurred and medical evidence failed to support a conclusion that Plaintiff\u2019s condition was caused by any work-related accident. Plaintiff thereafter requested a hearing seeking payment of compensation for days missed and medical expenses, and an assessment of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88.1 for Defendant\u2019s allegedly unfounded litigiousness. Defendant appealed the deputy commissioner\u2019s opinion and award finding Plaintiff suffered a compensable injury and that the denial of her claim was unreasonable. The Commission reviewed the case and entered an opinion and award on 25 March 2010, affirming the deputy commissioner\u2019s award of temporary total disability compensation in large part but concluding that the defense of Plaintiff\u2019s claim was reasonable and rejecting any assessment of attorney\u2019s fees under \u00a7 97-88.1.\nThe Commission\u2019s findings of fact indicate that Plaintiff had worked for Defendant as a registered nurse for over twenty years and was regularly assigned to the women\u2019s operating room. On 26 February 2008, Plaintiff was asked to assist in post-surgical recovery and transport in a different department. As she helped transfer a patient from the gurney to the bed, Plaintiff felt a pain in her back, which continually increased throughout the evening. She reported the back injury to her supervisor, Beverly Caraway, the next morning and was instructed to go to Staff Health after completing an injury report on Defendant\u2019s computerized system, \u201cRiskMaster.\u201d Plaintiff reported the claim as a workplace injury caused by moving a patient, which became worse during the last hour of her shift. Defendant\u2019s risk management staff reported that the claim fell under the \u201cWorkers\u2019 Comp SIR\u201d insurance policy and listed the type of claim as \u201cMedical Only.\u201d Plaintiff then saw Joshua Klaaren, a Staff Health physician\u2019s assistant, for a scheduled workers\u2019 compensation evaluation. He diagnosed Plaintiff with a low back and SI joint strain and restricted her to light duty work for two days. Ms. Caraway advised her supervisors, Samantha Farmer and Renee Carpenter, of Plaintiff\u2019s injury and work restrictions.\nDespite remaining on restricted duty, Plaintiff re-injured her back on three subsequent occasions while conducting work-related tasks. After two subsequent lifting incidents on 7 March and 10 March 2008, Plaintiff was instructed to go to Staff Health, where she described low back pain, SI joint pain, and secondary spasms. Defendant had scheduled and reported the visit as a follow-up workers\u2019 compensation evaluation for Plaintiff\u2019s 26 February 2008 injury; thus, Mr. Klaaren believed that Defendant considered Plaintiff\u2019s condition to be related to that initial injury. On 11 April 2008, Plaintiff returned to Staff Health after informing Ms. Carpenter that the two occasions of re-aggravation had caused her condition to worsen. She described her continued right SI joint pain to Dr. Paul Martin, who noted Plaintiff\u2019s injury occurred on 26 February 2008 and was work-related. Dr. Martin sent Ms. Carpenter a follow-up email advising her of Plaintiff\u2019s continuing SI joint pain since 26 February. Following a third subsequent lifting incident on 20 May 2008, Plaintiff was again directed to Staff Health, and Defendant\u2019s records likewise reported the visit as a scheduled, follow-up evaluation of Plaintiff\u2019s 26 February injury. The physician\u2019s assistant noted Plaintiff\u2019s discomfort over her bilateral sacral area, placed her on restricted duty, and recommended to Defendant\u2019s workers\u2019 compensation administrator, Mary Silver, that Plaintiff be authorized to see Dr. Daniel Hankley, a physical medicine and rehabilitation specialist.\nAt that point, Defendant\u2019s adjuster, Janet Mikos, became aware of Plaintiff\u2019s claim and interviewed her regarding the injury. During their 27 May 2008 conversation, Ms. Mikos advised Plaintiff that because neither she nor the patient she was assisting slipped, tripped, or fell, the 26 Februaty incident did not qualify for workers\u2019 compensation coverage.\nOn 30 May 2008, Plaintiff was seen by Dr. Hankley, who stated that she aggravated her SI joint during the lifting and patient-assisting movements she had described and indicated that Plaintiff might have some referred pain from her L5-S1 disc. Nevertheless, Defendant denied Plaintiffs claim by letter dated 4 June 2008. On 12 June 2008, after continuing to have low back and bilateral SI joint pain, Plaintiff returned to Dr. Hankley, who observed more low back pain and right SI joint pain. He also noted Plaintiff\u2019s report of back pain and spasms from lifting a casserole out of the oven that were so severe she had to lie on the floor. Dr. Hankley\u2019s diagnosis and the restrictions he imposed remained unchanged. Plaintiff\u2019s pain, however, never resolved and she began to notice trouble with her left thigh at the end of June.\nNeurosurgeon Dr. Ralph Loomis evaluated Plaintiff on 16 July 2008 and reported diffuse weakness in her left leg. Upon review of Plaintiff\u2019s MRI, Dr. Loomis diagnosed spondylolisthesis at L5-S1, lumbar stenosis and foraminal stenosis, low back pain, left leg weakness, and radiculopathy. Even after a nerve root block provided significant relief of Plaintiff\u2019s symptoms, she continued to work on light duty. On 9 September 2008, however, Defendant notified Plaintiff that light duty work was no longer being made available to her, and she was taken out of work as of that date. Plaintiff saw Dr. Loomis for a follow-up examination on 16 September 2008. His diagnosis remained unchanged, and Plaintiff was evaluated for a second opinion by Dr. Jon Silver on 22 October 2008. Dr. Silver noted the lifting injury aggravated the spondylolisthesis and opined that Plaintiff was incapable of performing her duties as a nurse for Defendant, opinions with which Dr. Loomis agreed. Dr. Silver thereafter referred Plaintiff to Dr. Margaret Burke to undergo rehabilitation to try to avoid a surgical fusion, but on 1 December 2008, Dr. Loomis performed a lumbar interbody fusion at L5-S1. Defendant terminated Plaintiff on 3 December 2008.\nFollowing surgery, Plaintiff continued under the care of Drs. Loomis and Burke, who indicated follow-up treatment and a functional capacity evaluation were required to determine her safe working limitations. Dr. Burke, however, stated that it would be months before Plaintiff would be released at maximum medical improvement. The Commission found that \u201cPlaintiff has been and continues to be disabled from any employment\u201d and concluded such was caused by \u201ca specific traumatic incident of the work assigned on February 26, 2008, which was aggravated by [three later incidents] arising out of and in the course of her employment with [Defendant]\u201d and resulted in injury to her low back. Defendant was required to pay ongoing temporary total disability compensation at a rate of $786.00 per week from 10 September 2008 until Plaintiff returns to work or further order of the Commission. The opinion and award also entitled Plaintiff to payment by Defendant for all related medical treatment related to the 26 February incident and resulting physical injuries and to attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88, but not under \u00a7 97-88.1. Both parties gave timely notice of appeal.\nDefendant\u2019s Appeal\nDefendant argues for reversal of the Commission\u2019s decision to award ongoing indemnity benefits and future medical treatment, contending \u201cthat the competent evidence demonstrates that [Plaintiff\u2019s current condition, need for surgery, and resulting disability, is due to the non-work related casserole lifting event and that, but for this incident, [P]laintiff would be capable of engaging in gainful employment and would not require surgical intervention and future medical treatment.\u201d\nOn appeal from an opinion and award of the Commission, our task is \u201climited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). \u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (internal quotation marks omitted). Where our \u201cduty goes no further than to determine whether the record contains any evidence tending to support the finding,\u201d this Court \u201cdoes not have the right to weigh the evidence and decide the issue on the basis of its weight.\u201d Deese, 352 N.C. at 115, 530 S.E.2d at 552 (internal quotation marks and citations omitted). However, conclusions of law are reviewed de novo. Ramsey v. Southern Indus. Constructors, Inc., 178 N.C. App. 25, 30, 630 S.E.2d 681, 685 (2006).\nThe Commission\u2019s award of disability benefits was based, in part, on expert testimony that Plaintiff\u2019s 26 February 2008 lifting injury aggravated her pre-existing spondylolisthesis and that the three subsequent incidents on 7 March, 10 March, and 20 May 2008, further aggravated her condition to a point necessitating surgical intervention. While acknowledging that issues of credibility are left to the Commission, Defendant argues that the Commission erred in affording greater weight to the opinions of Drs. Loomis, Silver, and Burke \u2014 and less to Dr. Hankley \u2014 because the former are not supported by any competent evidence. Defendant continues that the only competent evidence demonstrates that Plaintiff\u2019s left-sided symptoms and radicular pain in her lower extremities were unrelated to her work injuries but, rather, were the direct result of the intervening casserole-lifting event. We disagree.\nWhere an injury is compensable only if it is one \u201carising out of and in the course of the employment,\u201d N.C. Gen. Stat. \u00a7 97-2(6) (2009), \u201cthe term \u2018arising out of\u2019 refers to the origin or causal connection of the accidental injury to the employment.\u201d Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 532 (1977).\nA subsequent injury is compensable if it is the direct and natural result of a compensable primary injury. As long as the primary injury is shown to have arisen out of and in the course of employment, then every natural consequence flowing from that injury likewise arises out of the employment. The subsequent injury is not compensable if it is the result of an independent, intervening cause.\nNale v. Ethan Allen, 199 N.C. App. 511, 515, 682 S.E.2d 231, 235 (2009) (internal quotation marks and citations omitted). Still, \u201cthe employment-related accident need not be the sole causative force to render an injury compensable\u201d so long as competent evidence proves it to be a \u201ccausal factor.\u201d Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003) (internal quotation marks and citations omitted); see also Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 466, 470 S.E.2d 357, 359 (1996) (\u201cIf the work-related accident \u2018contributed in some reasonable degree\u2019 to plaintiff\u2019s disability, she is entitled to compensation.\u201d). Moreover, the aggravation of a preexisting condition which results in loss of wage earning capacity is compensable. See Smith v. Champion Int\u2019l, 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999) (holding work-related specific traumatic incident aggravating the plaintiffs severe preexisting back problems was a compensable injury). While Plaintiff bears the burden of proving causation by a preponderance of the evidence, if any competent evidence supports the Commission\u2019s findings of fact, we must accept them as true, Everett v. Well Care & Nursing Servs., 180 N.C. App. 314, 318, 636 S.E.2d 824, 827 (2006), even if some evidence would support contrary findings, Deese, 352 N.C. at 115, 530 S.E.2d at 552-53.\nEvidence \u201ctending to show a proximate causal relation\u201d is competent if it \u201ctake[s] the case out of the realm of conjecture and remote possibility!)]\u201d Everett, 180 N.C. App. at 319, 636 S.E.2d at 828 (internal quotation marks and citation omitted). Only an expert can give competent opinion evidence as to causation in complicated cases, and \u201cwhen such expert opinion testimony is based merely upon speculation and conjecture, ... it is not sufficiently reliable to qualify as competent evidence on issues of medical causation.\u201d Holley, 357 N.C. at 232, 581 S.E.2d at 753 (internal quotation marks omitted). Still, medical opinions may be \u201cbased either on personal knowledge or observation or on information supplied him by others, including the patient,\u201d as \u201c[statements made by a patient to his physician for the purposes of treatment and medical information obtained from a fellow-physician who has treated the same patient are \u2018inherently reliable.\u2019 \u201d Booker v. Medical Center, 297 N.C. 458, 479, 256 S.E.2d 189, 202 (1979) (internal citations omitted).\nThe Commission made several findings of fact addressing the status of Plaintiff\u2019s condition following all of the incidents at issue \u2014 the initial trauma, the subsequent work-related incidents, and the casserole-lifting event \u2014 and the cause thereof:\n20. Plaintiff returned to Dr. Hankley on June 12, 2008, when he reported she had been working under restricted duty and her pain was getting worse, specifically noting more low back pain and right SI joint pain. He further noted plaintiff reported significant back pain and spasms after simply lifting a casserole out of the oven and that her spasms were so severe that she had to lie on the floor. These were the very same complaints plaintiff made to Staff Health on February 27, 2008. Dr. Hankley\u2019s diagnosis did not change and he reported her SI joint pain could be referred from her low back and spondylolisthesis. Dr. Hankley recommended an MRI scan and left plaintiffs restrictions unchanged.\n23. On June 26, 2008, plaintiff returned to Dr. Hankley with continued complaints of severe low back pain and bilateral lower extremity pain, left worse than right. Dr. Hankely reviewed the MRI scan and diagnosed bilateral pars defect with Grade I spondylolisthesis and severe left and mild right neuroforaminal encroachment, which confirmed her earlier x-rays of May 20, 2008. No disc herniation or other cause for her leg pain was noted. Dr. Hankley continued work restrictions and recommend[ed] an epidural injection. Dr. Hankley did not indicate that plaintiff had sustained any new injury or intervening incident.\n24. On July 16, 2008, plaintiff was evaluated by Dr. Ralph Loomis, a board certified neurosurgeon, at which time she again reported the onset of her symptoms in February when \u201cshe was assisting a patient move from a gurney to bedside post surgically and felt a little twinge in her back about 30 minutes later her low back began hurting\u201d which got progressively worse over the next few hours. It was noted her pain never resolved and at the end of June she began to notice trouble with her left thigh. On exam Dr. Loomis reported diffuse weakness in her left leg and, after review of her MRI, diagnosed spondylolisthesis at L5-S1, lumbar stenosis and foraminal stenosis, low back pain, left leg weakness and radiculopathy. A nerve root block was recommended which was done on August 14, 2008, and which provided significant relief of her symptoms.\n27. Plaintiff was next evaluated for a second opinion by Dr. Jon Silver ... on October 22, 2008, at which time she was noted on exam to have mild tenderness to palpation in the lower lumbar region with moderate left sciatic notch tenderness. . . . Based on his examination, Dr. Silver noted that the lifting injury aggravated the spondylolisthesis in that plaintiff already had some nerve root compression and this lifting injury irritated the root. Plaintiff was thereafter referred to Dr. Margaret Burke, a specialist in physical medicine and rehabilitation, to undergo rehabilitation to try to avoid a surgical fusion. 28. In a letter dated October 23, 2008, Dr. Loomis agreed with Dr. Silver\u2019s opinion that plaintiffs lifting injury aggravated her spondylolisthesis and that she was incapable of performing her duties as a nurse for defendant.\n29. Plaintiff ultimately underwent a lumbar interbody fusion at L5-S1 on December 1, 2008 with Dr. Loomis. . . .\n31. Both Dr. Burke and Dr. Loomis are of the opinion, and the Full Commission finds, that plaintiff\u2019s back complaints beginning in February, 2008, were a direct result of her lifting incident on February 26, 2008, and her condition was further aggravated by her incidents of March 7, March 10, and May 20, 2008, all of which necessitated her surgery and resulted in her disability.\n32. Mr. Klaaren, defendants\u2019 [sic] own Staff Health physician\u2019s assistant, indicated that plaintiff\u2019s complaints remained consistent and in his opinion her low back and SI complaints were the same complaints caused by her initial injury of February 26, 2008, and were treated as such during all evaluations by Staff Health personnel.\n33. Dr. Hankley agreed that plaintiff\u2019s low back and bilateral SI joint pain and symptoms were referred from the aggravation of her spondylolisthesis. However, Dr. Hankley testified that such complaints somehow resolved without explanation. He believed that plaintiff\u2019s complaints of left legs [sic] symptoms were a result of picking up a casserole in late June 2008 and therefore her subsequent symptoms were unrelated to her injury. However, Dr. Hankley admitted that in reaching such opinion, he was not aware of plaintiff\u2019s post-injury consistent bilateral SI join pain and could not reach an opinion about the significance of such complaints.\n34. Greater weight is afforded to the opinions of Dr. Burke, Dr. Silver and most specifically Dr. Loomis than to Dr. Hankley. Dr. Loomis actually performed plaintiff\u2019s surgery and was given the complete history of plaintiff\u2019s complaints from February 26, 2008 until his surgical recommendation.\nDefendant contends that \u201cDr. Loomis\u2019 opinion is based on assumptions he made about plaintiff\u2019s symptoms following the 26 February 2008 incident that are not supported by the record, as well as incorrect information provided by plaintiff herself, rather than the objective medical evidence documenting plaintiff\u2019s symptoms.\u201d Dr. Loomis testified to the significance of Plaintiff\u2019s bilateral SI joint pain arising in February 2008 and aggravated by specific incidents in March and May 2008: \u201cMost patients with spondylolisthesis, affect both nerve roots left and right. So though it can occur, it would be rare for the patient to present with unilateral symptoms.\u201d Dr. Loomis also confirmed that patients often describe the symptoms as being bilateral at certain times and worse on one side than the other at other times: \u201cThey almost always say it\u2019s worse on one side or the other.\u201d Dr. Loomis found it significant that Plaintiff had reported experiencing bilateral SI joint pain on at least two occasions prior to seeing him.\nWhile Defendant challenges Dr. Loomis\u2019 reliance on Plaintiff\u2019s own \u201csubjective\u201d reports of her injuries and symptoms, it is well-established that a patient\u2019s statements to her treating physician are reliable. See, e.g., Booker v. Medical Center, 297 N.C. at 479, 256 S.E.2d at 202 (1979); Cherry v. Harrell, 84 N.C. App. 598, 606, 353 S.E.2d 433, 438 (1987); see also Adams v. Metals USA, 168 N.C. App. 469, 476, 608 S.E.2d 357, 362 (2005) (\u201cThe opinion of a physician is not rendered incompetent merely because it is based wholly or in part on statements made to him by the patient in the course of treatment or examination.\u201d). Moreover, Defendant fails to challenge several aspects of the opinion and award indicating Plaintiff was indeed having bilateral SI joint pain on several occasions prior to the casserole event, including findings of fact that: (1) Mr. Klaaren noted Plaintiff had spasms, low back pain, and \u201cbilateral SI joint area pain\u201d when he examined her the day after the 26 February injury; (2) Ms. Hawes at Staff Health saw Plaintiff on 22 May 2008 and noted Plaintiff\u2019s \u201cdiscomfort over the bilateral sacral area\u201d; and (3) after seeing Dr. Hankley on 30 May 2008 and Defendant\u2019s denial her claim on 4 June 2008, Plaintiff \u201ccontinued to work in the operating room [on light duty] and continued to have low back and bilateral SI joint pain.\u201d As such, these findings are deemed supported by competent evidence, are binding on appeal, and further prove that Dr. Loomis was entitled to rely on Plaintiff\u2019s history of bilateral pain following the 26 February event in forming his opinion as to causation.\nDr. Loomis went on to testify that the bilateral SI joint pain would be considered referred pain from her spondylolisthesis grade one L5-Sl. He opined that the cause of her condition, which led him to recommend surgery, was Plaintiff\u2019s \u201clifting event where she helped move a patient from a gurney to a bedside in February of \u201908.\u201d This opinion was based on Plaintiff\u2019s history of bilateral SI problems; her neurologic exam, MR scan, and cystometrogram; and her responses to conservative management and steroidal injection. Dr. Loomis also flatly rejected having any different opinion if Plaintiff \u201cwas complaining of left-sided low back and leg symptoms greater than right,\u201d noting that \u201cit\u2019s affected on both sides.\u201d When pressed by defense counsel that Plaintiff\u2019s symptoms reported in late June were \u201csubstantially different than those she reported prior to [the date she discussed lifting a casserole],\u201d Dr. Loomis would not agree that \u201ca left thigh weakness and radiation [were] different than SI joint pain.\u201d Rather, he believed the \u201cSI joint pain [was] radiating pain. It\u2019s referred pain.\u201d He repeated that even if Plaintiff \u201cspecifically had denied radiating symptoms prior to that date[,] . . . [i]t would not change [his] opinion,\u201d clearly stating: \u201cI think it was from the original [incident].\u201d\nDefendant, however, disputes this evidence as incompetent \u2014 and simultaneously challenges finding of fact 34 that Dr. Loomis \u201cwas given the complete history of plaintiff\u2019s complaints from February 26, 2008\u201d before recommending surgery \u2014 by arguing that \u201che did not review any of plaintiffs prior medicals\u201d or \u201chave any firsthand knowledge of her symptoms from February of 2008 until July of 2008\u201d when he treated her. This argument ignores that, in soliciting Dr. Loomis\u2019 opinion as to causation, counsel for both parties apprised him of all the information Defendant now contends the expert needed, but lacked, in attributing Plaintiff\u2019s disability to her 26 February 2008 work injury rather than the casserole-lifting event:\n[Plaintiff\u2019s counsel] [I]f . . . the medical records had indicated [Plaintiff] had bilateral SI joint problems in February, again bilateral SI joint problems May 22nd, that she saw Dr. Hankley on . . . May 30th for right low back and SI joint problems, according to his notes; and that she went back to see him approximately a week later, and reported in his notes chief complaint low back pain, right SI pain; and also says \u201cshe has pain over the right SI area, but also having more and more low back pain, this is actually worse on the left side.\u201d Then she recites that she was having difficulty doing her job at Mission Hospital, and that Dr. Hankley stated in fact she stated she was lifting a heavy \u2014 lifting a casserole at home and felt back pain; had spasms and had to lay on the floor. Does that sound like something that dramatically altered her medical course?\n[Dr. Loomis] I don\u2019t think so, no.\n[Plaintiff\u2019s counsel] I mean the fact she recited she lifted a casserole?\n[Dr. Loomis] No.\nDr. Loomis further indicated that fact would neither \u201caffect [his] evaluation and recommendation for treatment of [Plaintiff]\u201d nor alter his \u201copinions that [he had] stated with regard to what caused her problems.\u201d Acknowledging that he did not have firsthand knowledge of Plaintiff\u2019s symptoms prior to July 2008, Dr. Loomis testified that he did not only rely on Plaintiff\u2019s reports to him but also on his practical experience that SI joint pain can be referred from the L5-S1 level. He agreed that Plaintiff\u2019s left-sided radicular symptom and left leg weakness indeed contributed to his ultimate decision to perform surgery but again emphasized that his opinion remained unchanged even when asked by defense counsel to assume the following factors: (1) Plaintiff was diagnosed with a lumbar strain and history consistent with secondary spasm on 27 February 2008, the day after the original incident; (2) her pain on 10 March 2008 was localized to the right SI joint and during subsequent evaluation by Dr. Hankley on 30 May 2008, she reported \u201cSI joint pain with no radiation to her lower extremities, no numbness, tingling or weakness,\u201d leading to a diagnosis of \u201cright SI joint pain and grade one spondylolisthesis L5 on SI with probable L5 spondylosis\u201d; (3) Plaintiff\u2019s chiropractor documented right SI joint pain from March to early June 2008 but in late June noted severe left buttock and anterior thigh pain; and (4) Plaintiff reported more low back pain specifically on the left side to Dr. Hankley on 12 June 2008, the date she discussed lifting a casserole out of the oven, and subsequently observed \u201csevere low back pain radiating into her posterior and anterior thigh on the left side.\u201d Thus, prior to restating his opinion that Plaintiff\u2019s current condition was caused by the 26 February injury, Dr. Loomis was repeatedly presented with the very \u201cobjective medical evidence documenting plaintiff\u2019s symptoms\u201d that Defendant suggests was necessary to make his testimony competent. Moreover, Dr. Loomis was given every opportunity to agree that the casserole-lifting event was an intervening event, causing Plaintiff\u2019s radicular symptoms and left leg pain entirely independently of the 26 February lifting injury, but maintained his position that her current condition flowed from the original incident, such that Plaintiff\u2019s left side and radicular injuries likewise arose out of her employment.\nWe conclude the evidence above provides ample, competent support for the Commission\u2019s findings accepting Dr. Loomis\u2019 opinion that Plaintiff\u2019s condition, necessitating her surgery and causing her disability, was the direct result of her 26 February injury and the three subsequent work-related aggravations. Where Dr. Loomis\u2019 competent opinion testimony is, in itself, sufficient to substantiate the Commission\u2019s findings regarding causation, we need not review Defendant\u2019s challenges to the findings related to the testimony of Drs. Burke and Silver. Moreover, we do not engage in any review of the Commission\u2019s decision to afford particularly greater weight to Dr. Loomis\u2019 opinion while discounting Dr. Hankley\u2019s belief that Plaintiff\u2019s symptoms demanding surgery were unrelated to the original injury. The Commission\u2019s conclusion that Plaintiff\u2019s current medical condition was causally related to her compensable injuries is likewise supported by these findings of fact. Therefore, we affirm the Commission\u2019s award, including ongoing temporary disability compensation until Plaintiff returns to work or further order by the Commission and all incurred and future medical expenses related to treatment of her condition.\nPlaintiff\u2019s Anneal\nPlaintiff argues that the Commission erred in finding that \u201c[t]he defense of this claim was reasonable and not stubborn, unfounded litigiousness,\u201d where the findings of fact and conclusions of law allegedly ignore certain evidence specified in Plaintiff\u2019s brief, and in declining to award Plaintiff attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88.1. Pursuant to this statute, \u201c[i]f 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.\u201d N.C. Gen. Stat. \u00a7 97-88.1 (2009). \u201cThis statute applies to an original hearing and its purpose is to prevent stubborn, unfounded litigiousness which is inharmonious with the primary purpose of the Workers\u2019 Compensation Act to provide compensation to injured employees.\u201d Price v. Piggy Palace, \u2014 N.C. App. \u2014, \u2014, 696 S.E.2d 716, 723 (2010) (internal quotation marks and citation omitted).\nWe review an award or denial of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88.1 pursuant to a two-part analysis. Meares v. Dana Corp., 193 N.C. App. 86, 93, 666 S.E.2d 819, 825 (2008). \u201cFirst, \u2018[w]hether the [defendant] had a reasonable ground to bring a hearing is reviewable by this Court de novo.' \u201d Id. (quoting Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 50-51, 464 S.E.2d 481, 484 (1995)). If this Court concludes that a party did not have reasonable ground to bring or defend a hearing, then we review the decision of whether to make an award and the amount of the award for an abuse of discretion. Troutman, 121 N.C. App. at 54-55, 464 S.E.2d 486. In conducting the first step of the analysis, we consider the evidence presented at the hearing to determine the reasonableness of a defendant\u2019s claim. See Cooke v. P.H. Glatfelter/Ecusta, 130 N.C. App. 220, 225, 502 S.E.2d 419, 422 (1998) (instructing that \u201cthe Commission (and a reviewing court) must look to the evidence introduced at the hearing\u201d to determine whether a hearing has been defended without reasonable ground). As such, \u201c[t]he burden [is] on the defendant to place in the record evidence to support its position that it acted on \u2018reasonable grounds.\u2019 \u201d Shah v. Howard Johnson, 140 N.C. App. 58, 64, 535 S.E.2d 577, 581 (2000). Mindful that \u201cthe test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness,\u201d Cooke, 130 N.C. App. at 225, 502 S.E.2d at 422 (internal quotation marks and citations omitted), we conclude, as discussed below, that Defendant\u2019s denial of Plaintiff\u2019s claim and defense of the hearing was not reasonable.\nThe Commission\u2019s opinion and award contains findings of fact, which have not been challenged on appeal, detailing Plaintiff\u2019s February 2008 injury and Defendant\u2019s undisputed knowledge thereof, including: (1) while Plaintiff was assisting in post-surgical patient transfer on 26 February 2008, she \u201cleaned across the bed and reached out her hand . . . felt a pain in her back\u201d; (2) her back pain became more severe after finishing the patient transfer during the remaining hour of her shift; (3) immediately upon arrival the next morning, she \u201creported the back injury of the previous day to her supervisor,\u201d Ms. Caraway, and obliged Ms. Caraway\u2019s instructions to complete an injury report on RiskMaster; (4) Plaintiff \u201creported the claim as a workplace injuryf,]... noted that the cause of her injury was moving a patient,\u201d and described her pain as becoming \u201cworse during the last hour of her shift\u201d; (5) Defendant\u2019s own \u201crisk management staff then reported that the claim fell under the \u2018Workers Comp SIR\u2019 insurance policy\u201d; (6) when Mr. Klaaren restricted Plaintiff to light duty on 27 February 2008, Ms. Caraway advised her own supervisors \u201cof plaintiff\u2019s injury and limited work status,\u201d and \u201cMs. Farmer confirmed at the hearing before the Deputy Commissioner that Ms. Caraway advised her of plaintiff\u2019s report of injury shortly after the incident occurred\u201d; (7) Plaintiff reported three precise incidents thereafter\u2014 including holding a large abdominal apron of a 300-pound patient on 7 March 2008, \u201cattempting to remove the base from an operating room table\u201d on 10 March 2008, and \u201cattempting to move a Bookwalter ring weighing approximately 50 pounds\u201d on 20 May 2008 \u2014 which re-aggravated her back injury; (8) each of Plaintiffs Staff Health visits described in the record was scheduled and reported by defendant as a \u201cworkers\u2019 compensation evaluation\u201d or \u201ca follow-up workers\u2019 compensation evaluation for plaintiff\u2019s February 26, 2008 injury\u201d; (9) Ms. Carpenter, Defendant\u2019s operating room director, was informed of Plaintiff\u2019s condition several times, including: by Ms. Caraway right after the initial injury; by email from Plaintiff on 13 March 2008, detailing her 7 and 10 March re-injuries; and on 11 April 2008 by Dr. Martin, who noted Plaintiff\u2019s date of injury as 26 February 2008, described her injury as \u201cwork related,\u201d and \u201cadvis[ed] [Ms. Carpenter] of plaintiff\u2019s continuing SI joint pain since [that date]\u201d; and (10) \u201cPlaintiff reported her injury assisting a patient, followed by severe low back pain and SI joint pain 30 minutes later, as well as her re-aggravation a week later\u201d to Dr. Hankley, who \u201cstated that plaintiff aggravated her SI joint during her two lifting and patient assisting movements which \u2018continues to aggravate it while she is doing full duty.\u2019 \u201d\nNotwithstanding these facts, Defendant, through its adjuster Ms. Mikos, informed Plaintiff that it was denying her claim because she had not reported an accident or specific traumatic injury.\nUnder the specific traumatic incident provision of section 97-2(6) of the North Carolina General Statutes, a plaintiff must prove an injury at a judicially cognizable point in time. N.C. Gen. Stat. \u00a7 97-2(6) (2003). The term \u201cjudicially cognizable\u201d requires a showing by plaintiff which enables the Industrial Commission to determine when, within a reasonable period, the specific injury occurred.\nGoforth v. K-Mart Corp., 167 N.C. App. 618, 622, 605 S.E.2d 709, 712 (2004) (internal quotation marks omitted). The Commission made the following pertinent findings of fact-\nid. On or about May 27, 2008, Janet Mikos, defendant\u2019s adjuster, became aware of plaintiff\u2019s claim and interviewed plaintiff about her February 26, 2008, incident. Ms. Mikos had been working for defendant for approximately one month. Ms. Mikos did not record the conversation with plaintiff, but entered a summary of her notes of the conversation into defendant\u2019s claims management system, Risk Master, on May 27, 2008. Ms. Mikos had access to plaintiff\u2019s initial February 27, 2008, Risk Master report in which plaintiff reported the cause of her injury was moving a patient and in a separate section noted her pain became more severe in the last hour of her shift. Ms. Mikos was further aware that this claim had been timely and properly reported and entered into the Risk Master system as a \u201cmedical only\u201d workers\u2019 compensation claim.\n15. During their conversation on May 27, 2008, plaintiff explained to Ms. Mikos that she had been asked to assist in transferring a post-surgical patient to an upstairs room, which was not her regular job. Plaintiff reached out across a bed and let the patient grab her arm to assist the 300-pound patient transfer into a bed, at which time she felt pain in her low back. Plaintiff also told Ms. Mikos that she returned downstairs to her normal work station, sat at a desk during the last hour of her shift, and had increasing back pain until she left for home. . . .\n16. Ms. Mikos advised plaintiff that since neither she nor the patient she was assisting slipped, tripped or fell, such incident did not qualify for workers\u2019 compensation coverage. This statement is confirmed by Ms. Mikos\u2019s Risk Master entry which reported \u201cthere is no specific traumatic event, no fall, no trip, no stumbling o[f] either the clmt [claimant] or any patient that she may have been assisting.\u201d\n17. By letter to plaintiff dated June 4, 2008, defendant denied plaintiff\u2019s claim based on that portion of the Risk Master report which reported plaintiff\u2019s lower back started hurting during the last hour of her shift; Ms. Mikos\u2019 mistaken opinion that because plaintiff did not report a trip or fall, no injury by accident occurred; and because the initial Staff Health report stated that plaintiff experienced no clear inciting event. Defendant reached the decision to deny the claim without consulting or interviewing plaintiff\u2019s supervisor Ms. Caraway, who left defendant\u2019s employment in June 2008. Defendant acknowledged on their [sic] Form 19 that Ms. Caraway first knew of plaintiff\u2019s injury on February 27, 2008.\nNotwithstanding the undisputed evidence that on 27 February 2008, Plaintiff reported the cause of her injury as moving a patient; that Ms. Mikos had access to this initial RiskMaster report and was further aware that the claim had been timely and properly reported and entered into the system as a workers\u2019 compensation claim; that Plaintiff reported both the initial and subsequent, re-aggravating \u201cinciting events\u201d to her supervisors and Staff Health; that Defendant\u2019s own records documented each of Plaintiff\u2019s visits to Staff Health as part of continuous treatment from the 26 February injury; and that during Ms. Mikos\u2019 own conversation with Plaintiff, Plaintiff fully detailed her initial pain from assisting with patient transfer and the three specific subsequent incidents, Ms. Mikos advised Plaintiff that her claim was being denied because there was no specific traumatic event.\nOur review of other testimony and the exhibits introduced at the hearing confirms that Defendant intentionally disregarded information identifying not just one, but four, clearly compensable work-related injuries sustained by Plaintiff and that its denial of compensation was not based on any mistaken opinion held by Ms. Mikos. In deciding to deny Plaintiff\u2019s claim, even after reviewing the RiskMaster report and hearing first-hand accounts from Plaintiff regarding her initial and aggravating injuries, Ms. Mikos made no effort to confirm Plaintiff\u2019s report of injury from moving a patient with Ms. Caraway. There was no attempt to consult with Mr. Klaaren, who treated Plaintiff after the original injury and subsequent incidents and testified to his opinion that each of the 26 February, 7 March, 10 March, and 20 May 2008 injuries were all valid workers\u2019 compensation claims. And although Ms. Mikos was clearly aware of the subsequent, \u201cspecific traumatic\u201d lifting incidents, she completely neglected to look into them further. Thus, when Ms. Mikos advised Plaintiff by letter on 4 June 2008 that her claim was being denied solely \u201cbased on [Defendant\u2019s] investigation [which revealed] there was no \u2018accident,\u2019 \u201d no honest investigation had in fact taken place. Plaintiff emailed Ms. Mikos on 19 July 2008 for reconsideration of her claim, reminding the adjuster that Staff Health employees and Dr. Hankley had all reported Plaintiff\u2019s back pain as work-related injury. Ms. Mikos responded by email on 25 July 2008, wherein she reiterated Defendant\u2019s position that \u201cthere was no \u2018specific traumatic accident\u2019 \u201d and also further misstated the facts by writing:\nWe also have the issue of late reporting. Per my conversation with Renee Carpenter, she was not aware of the injury until May 22, 2008 when the event was entered into our claim handling system (RiskMaster). A thorough and immediate investigation is necessary to fully document the file to support any compensability decision. We were prejudiced by the passing of three months.\nBoth statements as to when Ms. Carpenter became aware of Plaintiffs injury and when the event was entered into RiskMaster are false. In fact, Defendant acknowledged in its Form 19 that the \u201c[d]ate [Defendant] or the supervisor [Ms. Caraway] first knew of [the] injury\u201d was \u201c2/27/08.\u201d Even still, Defendant maintained its position that its denial of the claim was based on Plaintiffs failure to report any specific accident and its unawareness of such incidents until 27 May 2008, answering Plaintiffs interrogatories: \u201c [Defendants [sic] contend that plaintiff did not relate her back injury to moving a patient until after the denial of her claim.\u201d This position seems further implausible where the RiskMaster report describing the 26 February incident ascribes \u201cCause Code: MP Moving Patient\u201d to the event complaint of by Plaintiff.\nWhile it is reasonable for \u201can employer with legitimate doubt regarding the employee\u2019s credibility, based on substantial evidence of conduct by the employee inconsistent with his alleged claim\u201d to defend a hearing, Sparks v. Mountain Breeze Restaurant, 55 N.C. App. 663, 664, 286 S.E.2d 575, 576 (1982) (emphasis added), the overwhelming evidence in this case \u2014 not just from Plaintiff but also from Staff Health personnel, Defendant\u2019s own internal records, and other medical experts treating Plaintiff \u2014 leaves no room for any legitimate doubt. Rather, Defendant\u2019s intentional disregard of information indisputably known to it in this matter and its affirmative failure to investigate obvious avenues that would have clarified the events surrounding each of Plaintiff\u2019s reported injuries were certainly not reasonable. Not only was its defense of this matter unreasonable, but the tactics in which Defendant engaged constituted a conscious attempt to mislead Plaintiff as to her entitlement to workers\u2019 compensation benefits. Accordingly, we conclude that the Commission erred in finding Defendant\u2019s denial of benefits and defense of this action reasonable and remand for a determination of the amount of attorney\u2019s fees to be awarded Plaintiff under \u00a7 97-88.1.\nWe affirm the Commission\u2019s decision awarding Plaintiff ongoing temporary total disability benefits until further order. We reverse the portion of the opinion and award finding Defendant acted reasonably in this matter and remand for the imposition of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 97-88.1 to be taxed against Defendant.\nAffirmed in part; Reversed and remanded in part.\nJudges BRYANT and STROUD concur.\n. Even assuming Ms. Mikos did make a mistake in deciding what was required to trigger workers\u2019 compensation coverage, the Commission\u2019s finding of fact 17 regarding Ms. Mikos\u2019 mistaken beliefs would not support the Commission\u2019s conclusion that the defense of Plaintiff\u2019s claim was reasonable. This Court has held that a denial of benefits based on misapplication or unawareness of the law is not reasonable and justifies the imposition of sanctions under \u00a7 97-88.1. See Troutman, 121 N.C. App. at 52, 464 S.E.2d at 484 (\u201cDefendant\u2019s ignorance of a 1986 North Carolina case directly on point provides no support for their contention that grounds for requesting a hearing in 1991 were reasonable. Such a construction would encourage incompetence and thwart the legislative purpose of N.C.G.S. \u00a7 97-88.1.\u201d); see also Goforth, 167 N.C. App. at 623-24, 605 S.E.2d at 713 (affirming Commission\u2019s sanction of attorney\u2019s fees under \u00a7 97-88.1 where the employer\u2019s causation argument, that plaintiff\u2019s injury was the result of his preexisting back condition, was unsupported by North Carolina law).",
        "type": "majority",
        "author": "BEASLEY, Judge."
      }
    ],
    "attorneys": [
      "Ganly & Ramer, PLLC, by Thomas F. Ramer, for Plaintiff-Appellant.",
      "Brooks, Stevens & Pope, P.A., by Joy H. Brewer and Ginny P. Lanier, for Defendant-Appellee/Cross-Appellant."
    ],
    "corrections": "",
    "head_matter": "TERRY CAWTHORN, Employee, Plaintiff v. MISSION HOSPITAL, INC., Self-Insured Employer, Defendant\nNo. COA10-748\n(Filed 19 April 2011)\n1. Workers\u2019 Compensation\u2014 temporary total disability\u2014 incurred and future medical treatment\nThe Industrial Commission did not err in a workers\u2019 compensation case by awarding ongoing temporary total disability benefits and all incurred and future medical treatment. The evidence supported a doctor\u2019s opinion that plaintiff\u2019s condition necessitating her surgery and causing her disability was the direct result of her 26 February injury and the three subsequent work-related aggravations.\n2. Attorney Fees\u2014 workers\u2019 compensation \u2014 stubborn unfounded litigiousness\nThe Industrial Commission erred in a workers\u2019 compensation case by finding that the defense of this claim was reasonable and not stubborn, unfounded litigiousness where the findings of fact and conclusions of law ignored certain evidence and declined to award attorney fees under N.C.G.S. \u00a7 97-88.1. The case was remanded for a determination of the amount of attorney fees.\nAppeal by Plaintiff and cross-appeal by Defendant from opinion and award entered 25 March 2010 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 30 November 2010.\nGanly & Ramer, PLLC, by Thomas F. Ramer, for Plaintiff-Appellant.\nBrooks, Stevens & Pope, P.A., by Joy H. Brewer and Ginny P. Lanier, for Defendant-Appellee/Cross-Appellant."
  },
  "file_name": "0042-01",
  "first_page_order": 50,
  "last_page_order": 68
}