LAWRENCE CHAVIS,
Employee, Plaintiff,
v.
THETFORD PROPERTY MANAGEMENT, INC.,
Employer, and LEGION INSURANCE COMPANY (Managed
Care USA, Servicing Agent), Carrier, Defendants.
Goodwin Law Offices, by George Wayne Goodwin, for plaintiff
appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Jennifer
Ingram Mitchell, for defendant appellants.
McCULLOUGH, Judge.
Plaintiff Lawrence Chavis was working as a maintenance
supervisor for defendant-employer, Thetford Property Management,
Inc., on 4 December 1997. On this date, as plaintiff backed down
steps holding a paint can in his left hand, he slipped and fell,
injuring his left knee. He informed his supervisor of the injury,
and the employer filed a Form 19, “Employer's Report of Injury to
Employee” on the same date. Plaintiff filed a Form 18, “Notice of
Accident to Employer” on 19 February 1998, and on 23 February 1998,
filed a request that his claim be assigned for hearing. He alleged
that defendants had not paid any benefits or accepted his claim as
compensable. Defendants filed a response in which they denied that
plaintiff sustained an injury by accident arising out of and in thecourse of the employment.
Deputy Commissioner Theresa B. Stephenson conducted a hearing
on 24 March 2000 and after receiving deposition testimony of two
other witnesses, filed an opinion and award on 30 January 2001
awarding compensation for temporary total disability from 4
December 1997 through 16 February 1998 and again from 25 May 1999
until further order of the Commission. The opinion and award
reflected, as a stipulation, that just before the hearing,
defendants informed the Deputy Commissioner they would accept the
claim as compensable.
Defendants filed an application for review of the Deputy
Commissioner's decision on 19 October 2001. The Commission entered
the same award of compensation for temporary total disability as
the Deputy Commissioner. The Commission additionally found that
defendants defended the claim without reasonable ground. It
awarded a fee pursuant to N.C. Gen. Stat. § 97-88 (2001) in the
amount of $1,000 to plaintiff's attorney for defending the appeal
to the Commission. It also ordered defendants to pay an amount
equal to 25% of all compensation amounts “without deduction from
the compensation to be paid to plaintiff, to plaintiff's attorney
as reasonable attorney fees pursuant to N.C. Gen. Stat. § 97-88.1
and such amounts are hereby taxed as costs to defendants.” The
Commission also directed that defendants pay directly to
plaintiff's counsel “at the same time defendants pay every fourth
check to plaintiff (and this does NOT mean that defendants do not
make weekly payments of compensation to plaintiff) they shall paya like amount directly to plaintiff's attorney.”
Defendants' sole contention on appeal is that the Commission
abused its discretion by making the above award of attorney fees
pursuant to N.C. Gen. Stat. § 97-88.1. The Commission may award
attorney fees if it determines that “any hearing has been brought,
prosecuted, or defended without reasonable ground[.]” N.C. Gen.
Stat. § 97-88.1. The purpose of this statute is to prevent
stubborn, unfounded litigiousness which is inharmonious with the
primary purpose of the Workers' Compensation Act to provide
compensation to injured workers. Beam v. Floyd's Creek Baptist
Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990). The
decision whether to make such award, and the amount, is in the
discretion of the Commission and will not be disturbed on appeal
absent an abuse of discretion. Troutman v. White & Simpson, Inc.,
121 N.C. App. 48, 54-55, 464 S.E.2d 481, 486 (1995), disc. review
denied, 343 N.C. 516, 472 S.E.2d 26 (1996). An abuse of discretion
will be found only when the decision is manifestly unsupported by
reason or is so arbitrary that it could not have been the product
of a reasoned decision. Long v. Harris, 137 N.C. App. 461, 464-65,
528 S.E.2d 633, 635 (2000).
Defendants argue that since they have not appealed or
contested the Commission's award of benefits to plaintiff, the
award of a fifth check to plaintiff's attorney constituted an abuse
of discretion. We disagree.
The Full Commission assessed defendants with the attorney fee,
not for bringing the present appeal, but for appealing to the FullCommission and for not paying a claim defendants admitted was
compensable just before the hearing before the Deputy Commissioner.
Defendants in their brief to this Court do not offer any reasonable
ground for defending the claim. They do not cite any evidence to
support a reasonable defense. In fact, they do not include any of
the evidence in the record on appeal.
In Harrison v. Tobacco Transp., Inc., 139 N.C. App. 561, 533
S.E.2d 871, disc. review denied, 353 N.C. 263, 546 S.E.2d 96
(2000), the Commission awarded attorney fees pursuant to N.C. Gen.
Stat. § 97-88.1, finding the defendant-employer had not raised
credible evidence to dispute the nature and extent of the
plaintiff's compensable injury. The Commission stated that the
plaintiff should not have been denied compensation while the
employer and the carrier litigated an issue as to whether the
carrier's policy covered plaintiff's injury in North Carolina.
This Court upheld the award, noting that plaintiff endured six
years without receiving any compensation from the employer for an
admittedly compensable injury.
Here, although the Commission did not make an express finding
that defendants failed to present credible evidence to dispute the
nature and extent of the injury, it did find that the testimony of
defendants' vocational rehabilitation counselor had little weight
because the counselor failed to perform a functional capacity
examination, failed to obtain plaintiff's current physical
abilities, failed to obtain any specific job descriptions, or
failed to engage in any active search for jobs plaintiff couldperform and actually obtain. Based upon the record before us, it
appears that as of the date of the Commission hearing, 11 December
2001, defendants had not paid any compensation, neither medical nor
indemnity, to plaintiff. The Commission's findings of fact reflect
that plaintiff was out of work from 4 December 1997 through 16
February 1998 and again from 25 May 1999 through the date of the
Commission hearing. During this time period, plaintiff subsisted
on six weeks of disability insurance payments and 26 weeks of
unemployment. Under these circumstances, we do not find the
Commission abused its discretion by ordering defendants to pay the
attorney fee.
The opinion and award is affirmed.
Affirmed.
Chief Judge EAGLES and Judge HUDSON concur.
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