2. Workers' Compensation_findings_injury arising out of employment
The Industrial Commission's findings in a workers' compensation case sufficiently
indicated that plaintiff's injuries arose out of his employment where it found that he fell as he
approached a piece of machinery.
3. Workers' Compensation_company doctor_ex parte compensation
There was competent evidence in a workers' compensation case to support a finding that
a company doctor had engaged in ex parte communications at defendant employer's request
when he contacted plaintiff's other doctors about plaintiff's ability to work.
4. Workers' Compensation_credibility of witness_Commission as sole judge
The Industrial Commission is the sole judge of the credibility and weight of the evidence
and testimony before it, and the contention that the Commission should have denied a workers'
compensation claim because plaintiff was not a credible witness was without merit.
5. Workers' Compensation_attorney fees_findings
The award of attorney fees in a workers' compensation case under N.C.G.S. § 97-88
(expenses of appeals brought by insurers) was remanded for additional findings where the
Commission did not make findings regarding the costs associated with defendants' appeal of the
deputy commissioner's opinion and award.
6. Workers' Compensation_attorney fees_denied
The Industrial Commission did not abuse its discretion by deciding against an award of
attorney fees under N.C.G.S. § 97_88.1 where defendant employer initially defended upon
unfounded allegations of fraud but also defended reasonably upon the basis of causation.
MCANGUS, GOUDELOCK & COURIE, P.L.L.C., by John T. Jeffries,
for defendants.
Anne R. Harris for plaintiff.
WYNN, Judge.
From the Industrial Commission's award in favor of Plaintiff-
employee John M. Hodges, Defendants Equity Group and Sedgwick-CMS
argue on appeal that: (I) Plaintiff's fall neither related to nor
arose out of his employment; (II) the Commission erroneously based
its findings of fact and conclusions of law upon incredible
evidence; (III) the Commission's findings of fact regarding Dr.
Guarino's ex parte communication were unsupported by evidence and
(IV) attorney's fees pursuant to N.C. Gen. Stat. § 97-88 were
inappropriate. By cross-appeal, Plaintiff contends an award of
attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1 was
appropriate in this matter. We conclude the Commission's findings
of fact and conclusions of law regarding the compensability of
Plaintiff's claim were supported by competent evidence and the
applicable law. We further hold that the Commission's award of
attorney's fees under N.C. Gen. Stat. § 97-88 was unsupported by
appropriate findings of fact, and uphold the Commission's decision
to not award attorney's fees under N.C. Gen. Stat. § 97-88.1.
Accordingly, we remand to the Commission for entry of findings of
fact to support the award of attorney's fees under N.C. Gen. Stat.
§ 97-88
.
The record shows that Plaintiff fell at work on 16 April 2001.
On this date, Plaintiff, a mechanic at Equity Group, worked
overtime as the factory was closed for the Easter holidays. He had
volunteered to work the second shift, from 2:30 to 11:00 p.m., andwas in the process of preparing the machines for the manufacture of
a new product the next day.
At the beginning of his shift, Plaintiff worked in the
maintenance shop fixing machine guards, which prevent the lines
from hooking together and breaking. After he had prepared one of
the guards, he decided to install it on a machine to make sure it
worked properly. He left the maintenance shop, started onto the
factory floor, and as he turned a corner, his “feet came out from
under him” and he landed on his right hip and back. As he was
gathering himself, his co-worker asked him if he was okay.
Although Plaintiff testified he felt pain after the fall, he
“shrugged it off” and kept working. No supervisor was on duty that
evening and only one other person was working.
The next morning he felt stiffness in his hip and numbness in
his leg. Upon arriving to work, he reported the injury to one of
his supervisors who directed Plaintiff's immediate supervisor to
fill out an accident report. He worked his entire shift that day.
The next day, Wednesday, the pain had worsened. He talked with his
immediate supervisor and another individual about seeing a doctor.
An accident report was filled out and human resources scheduled an
appointment with Dr. Joseph Guarino.
Dr. Guarino examined Plaintiff and indicated his back and hip
was bruised. He prescribed an anti-inflammatory drug and ordered
Plaintiff to work on light-duty tasks. No pain medication was
prescribed. The following Sunday, Plaintiff went to the emergency
department at Morehead Hospital because he was hurting badly.
After indicating he had slipped and fallen at work, the hospitalprescribed some pain medication and ordered light-duty work. The
next Tuesday, Plaintiff returned home from work and was unable to
get out of his car due to the pain. Plaintiff's wife drove him to
the emergency room at Martinsville Memorial Hospital. The
emergency room doctors scheduled an MRI for the following Saturday
and ordered three days leave from work. The MRI revealed Plaintiff
had a ruptured disc in his back. The next Monday, Plaintiff saw
Dr. Guarino who opined the disc herniation was not causing
Plaintiff's pain
because the disc herniation was on the left side
and the pain was in Plaintiff's right leg and hip. Dr. Guarino
told Plaintiff to return to work and he would try to obtain
authorization for physical therapy. Thereafter, Plaintiff sought
treatment with his family physician, Dr. M. Edward Eller, who told
Plaintiff not to return to work and to see Dr. James M. Vasick, a
neurosurgeon.
Dr. Vasick had operated on Plaintiff's back in 1998 in the
same location as the current rupture. Plaintiff had a 100%
recovery from the 1998 surgery. After reviewing Plaintiff's
present condition, Dr. Vasick gave Plaintiff a range of treatment
options. As Plaintiff had a successful surgery in 1998, he opted
for surgery. In May and June 2001, Plaintiff underwent two
surgeries to correct the disc herniation. Although the back pain
subsided after the surgery, Plaintiff still experienced pain in his
right hip and leg.
At the time of the hearing, Plaintiff used a cane,
participated in limited exercise and daily activities and was on
Social Security disability. He had been terminated from hisemployment with Equity Group in August 2001 and was not presently
working. Dr. Vasick opined Plaintiff could not work and would need
further treatment in the future. The Commission found and
concluded Plaintiff sustained a compensable injury by accident as
a result of his fall and suffered a disc herniation. He was
awarded temporary total disability compensation. Defendants
appeal.
______________________________________________________
[1] Defendants first argue that because Plaintiff's “legs went
out from under him” the risk of a resulting fall was not a hazard
related to or arising out of Plaintiff's employment. We disagree.
“To be compensable under the Workmen's Compensation Act an
injury must result from an accident arising out of and in the
course of the employment.” Taylor v. Twin City Club, 260 N.C. 435,
437, 132 S.E.2d 865, 867 (1963). “With respect to back injuries,
however, where injury to the back arises out of and in the course
of the employment and is the direct result of a specific traumatic
incident of the work assigned, 'injury by accident' shall be
construed to include any disabling physical injury to the back
arising out of and causally related to such incident.” N.C. Gen.
Stat. § 97-2(6)(2003). The “claimant has the burden of showing
such injury.” Taylor, 260 N.C. at 437, 132 S.E.2d at 867.
Defendants concede in their brief that:
there is no question as to whether Plaintiff-
Appellee's fall occurred in the course of his
employment given that he was at work during
working hours. Moreover, the fall was an
unusual and unforeseen occurrence.
However, Defendants argue, Plaintiff failed to prove the fall aroseout of his employment and the Commission failed to make any
findings on the issue.
“Where any reasonable relationship to the employment exists,
or employment is a contributory cause, the court is justified in
upholding the award as 'arising out of employment.'” Janney v.
J.W. Jones Lumber Co., Inc., 145 N.C. App. 402, 404, 550 S.E.2d
543, 545-46 (2001). “An accident has a reasonable relationship to
the employment when it is the result of a risk or hazard incident
to the employment. When the employee's idiopathic condition is the
sole cause of the injury, the injury does not arise out of the
employment. The injury does arise out of the employment if the
idiopathic condition of the employee combines with 'risks
attributable to the employment' to cause the injury.” Id. An
idiopathic condition is “one arising spontaneously from the mental
or physical condition of the particular employee.” Calhoun v.
Kimbrell's Inc., 6 N.C. App. 386, 391, 170 S.E.2d 177, 180 (1969).
“The question of whether an injury 'arises out of employment' is a
mixed question of law and fact and our review is limited to whether
the findings and conclusions are supported by competent evidence.”
Janney, 145 N.C. App. at 404, 550 S.E.2d at 546.
Defendants contend that because Plaintiff could not explain
the circumstances surrounding his fall and because an idiopathic
condition could have caused Plaintiff's fall, his injury did not
arise out of his employment. Indeed, Plaintiff testified he did
not stumble or trip, there were no obstructions in his way, and he
did not believe he slipped. He indicated his “feet just came out
from under him.” Our case law explains that where the facts indicate that at
the time of an accident, an employee “was within his orbit of duty
on the business premises of the employer, [and] was engaged in the
duties of his employment or some activity incident thereto, was
exposed to the risks inherent in his work environment and related
to his employment, and the only active force involved was the
employee's exertions in the performance of his duties,” an
“inference that the fall had its origin in the employment” is
permitted. Slizewski v. International Seafood, Inc., 46 N.C. App.
228, 232-33, 264 S.E.2d 810, 813 (1980).
In this case, Plaintiff fell when he was walking to a machine
in order to install a guard. Although the factory was closed for
the Easter holiday, plant management had asked for volunteers to
work overtime on this particular day and had left a list of jobs to
complete during the shift. Even though Plaintiff can not explain
what caused him to fall, as stated in Slizewski, an inference that
the fall had its origin in employment is permitted in this case
because “the only active force involved was the employee's
exertions in the performance of his duties.” Id.
Defendants contend, however, that Plaintiff's fall was solely
caused by an idiopathic condition--either the onset of his disc
herniation or problems with his diabetes and high blood pressure.
This contention is unsupported by the record. Dr. James M. Vasick,
Plaintiff's neurosurgeon, was asked:
Based upon what you said, that a disc can
occur in the absence of trauma, if a disc had
occurred in the absence of trauma, could one
of the problems that would occur be that a
person's feet just might come out from under
them for no reason that we can deduce.
Dr. Vasick responded “I can't say no, but I think that it would be
unusual.” He further explained, “I think that it would be highly
unusual that his disc rupture would have occurred just as he was
falling, and I don't think that he fell because he had a new disc
rupture” based upon Plaintiff's reports of the pain beginning after
the fall and not before. He also opined to a reasonable degree of
medical certainty that the April 2001 injury was the cause of his
current disability.
As for Plaintiff's diabetes and high blood
pressure, Dr. M. Edward Eller, Plaintiff's family physician,
testified Plaintiff's blood pressure and diabetes was under control
in May 2001, shortly after the injury. Accordingly, the Commission
properly found and concluded Plaintiff's back injury and hip and
leg pain were compensable work-related injuries arising out of his
employment.
[2] Defendants also argue the Commission's findings of fact do
not sufficiently indicate Plaintiff's injuries arose out of his
employment. In Finding of Fact 2, the Commission stated:
On April 16, 2001, the plaintiff was working
overtime as the plant was closed over Easter.
As the plaintiff was approaching a piece of
machinery on which he was going to place a
guard, the plaintiff's feet went out from
under him and he fell. The plaintiff did not
recall any slippery substances or obstructions
on the floor. The plaintiff landed on his
right side and back. The plaintiff felt
immediate pain when he fell but “shook it off”
and continued to work.
In this finding, the Commission specifically stated that as
Plaintiff was approaching a piece of machinery on which he was
going to place a guard, Plaintiff fell. Based upon this finding,
the Commission could conclude Plaintiff's fall and resultinginjuries had a reasonable relationship to his employment thereby
justifying the conclusion that the incident and injuries arose out
of Plaintiff's employment. Moreover, this finding of fact is
supported by competent evidence. Plaintiff testified that after he
finished repairing one of the guards in the maintenance shop, he
decided to try it out on one of the machines. As he was walking
towards the machine, Plaintiff fell. Accordingly, we conclude the
Commission's findings of fact were adequate.
[3] Defendants also contend the Commission's finding of fact
that Dr. Guarino engaged in ex-parte communication at the request
of Defendants is unsupported by competent evidence. We disagree.
In Finding of Fact 12, the Commission found:
Dr. Guarino, at defendant-employer's request,
as the company doctor for defendant-employer
initiated ex parte communications with other
physicians who had written the plaintiff out
of work. The purpose of these communications
was to convince the plaintiff's physicians to
change the plaintiff's work restrictions and
allow him to work. The plaintiff was not made
aware of these communications and certainly
did not authorize them.
Dr. Guarino and Laura Hale, Equity Group's Human Resources Manager,
testified that Dr. Guarino was Equity Group's company doctor. Ms.
Hale testified that she contacted Dr. Guarino and asked him to
contact other physicians regarding Plaintiff's ability to work. As
explained by Dr. Guarino, he was asked to help Equity Group
establish a consensus among all of the doctors regarding
Plaintiff's ability to work and he asked Dr. Eller to rescind his
recommendation that Plaintiff refrain from working. Dr. Guarino
also contacted the Martinsville Hospital emergency room physiciansand, pursuant to Ms. Hale's request, informed the doctors that
modified work was available for Plaintiff and asked whether they
would allow him to go back to work on modified duty restrictions.
He testified that Plaintiff was unaware of his contacts with other
physicians and did not ask for Plaintiff's consent to make these
contacts. This testimony constitutes competent evidence supporting
Finding of Fact 12.
[4] Defendants next contend the Commission should have denied
Plaintiff's claim because he was not a credible witness. As
indicated by our Supreme Court, however, the Commission is “the
sole judge of the credibility and weight to be accorded to the
evidence and testimony before it.” Click v. Pilot Freight
Carriers, Inc., 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980).
Accordingly, we conclude this assignment of error is without merit.
[5] Finally, Defendants contend the Commission abused its
discretion in awarding Plaintiff's attorney's fees pursuant to N.C.
Gen. Stat. § 97-88 (2001). Specifically, Defendants argue the
Commission failed to render findings of fact supporting the award
and that the Commission does not have discretionary authority under
N.C. Gen. Stat. § 97-88 to award attorney's fees without inquiring
as to the litigation costs of the injured employee. We agree.
N.C. Gen. Stat. § 97-88 (2001) provides:
If 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 thecost to the injured employee of such hearing
or proceedings including therein reasonable
attorney's fee to be determined by the
Commission shall be paid by the insurer as
part of the bill of costs.
This provision “allows an injured employee to move that its
attorney's fees be paid whenever an insurer appeals to the Full
Commission, or to a court of the appellate division, and the
insurer is required to make payments to the injured employee.”
Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 53, 464 S.E.2d
481, 485 (1995). Whether to award attorney's fees is within the
sound discretion of the Industrial Commission. See Taylor v. J.P.
Stevens Company, 307 N.C. 392, 397, 298 S.E.2d 681, 684 (1983).
In Conclusion of Law 8, the Commission stated:
Defendant appealed the Deputy Commissioner's
Opinion and Award, and the Full Commission
affirmed said opinion with compensation being
paid to the plaintiff. In the discretion of
the Full Commission, counsel for the plaintiff
is entitled to have defendants pay an
attorney's fee in the amount of $5,000.00
which is in addition to the amount awarded as
a percentage of the plaintiff's compensation.
N.C.G.S. § 97-88.
“Under N.C.G.S. § 97-88, the Commission may only award 'the cost
to the injured employee of such hearings or proceedings including
therein [a reasonable attorney's fee].' Consequently, under
N.C.G.S. § 97-88, the Commission is empowered to award to the
injured employee attorney's fees only for the portion of the case
attributable to the insurer's appeal(s).” Troutman, 121 N.C. App.
at 53, 464 S.E.2d at 485 (emphasis in original); see also Buck v.
Procter & Gamble Mfg. Co., 58 N.C. App. 804, 806, 295 S.E.2d 243,
245 (1982). As the Commission did not render any findings
regarding the costs associated with defending Defendants' appeal ofthe deputy commissioner's opinion, this cause must be remanded to
the Commission for further findings of fact and an entry of
attorney's fees award reflective of Plaintiff's costs in defending
the appeal.
[6] Plaintiff contends the Commission should have affirmed the
deputy commissioner's award of attorney fees in the amount of
$5,000 pursuant to N.C. Gen. Stat. § 97-88.1 (2001). The deputy
commissioner's opinion and award concluded:
11. Although defendant defended this claim
alleging that plaintiff committed fraud in
prosecuting his claim, there was ample
testimony that there was no evidence of
plaintiff committing fraud and that these
fraudulent allegations were unfounded.
However, even though defendant did not list
causation as a defense, they also in fact
defended the case on causation grounds. While
these grounds were found insufficient by the
undersigned and were not persuasive, the
causation issue was a valid, good faith
defense. Considering the defendant's ultimate
defense on a genuine issue but its initial
defense, which showed a stubborn unfounded
litigiousness in addition to a desire solely
to prejudice plaintiff's claim and cast him in
an unfavorable light, plaintiff is entitled to
attorney fees in the amount of $5,000.00.
On appeal to the Full Commission, instead of affirming the deputy
commissioner's award under N.C. Gen. Stat. § 97-88.1, the
Commission awarded the same amount, $5,000, pursuant to its
authority under N.C. Gen. Stat. § 97-88.
By cross-appeal, Plaintiff contends an award of attorney's
fees under N.C. Gen. Stat. § 97-88.1 was appropriate because
Defendants' unfounded allegations of fraud and their baseless
attacks upon Plaintiff's credibility indicate they brought,
prosecuted or defended without reasonable ground. Under N.C. Gen.Stat. § 97-88.1,
[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's
attorney or plaintiff's attorney upon the
party who has brought or defended them.
Although the Commission's decision to award attorney's fees under
N.C. Gen. Stat. § 97-88.1 is discretionary, see Taylor, 307 N.C.
at 397, 298 S.E.2d at 684,
“[w]hether the defendant had a
reasonable ground to bring a hearing is reviewable by this Court de
novo. This requirement ensures that defendants do not bring
hearings out of stubborn, unfounded litigiousness.” Troutman, 121
N.C. App. at 50-51, 464 S.E.2d at 484.
As stated by the deputy commissioner and as evidenced by the
record, Defendants defended reasonably upon the basis of causation.
Indeed, Plaintiff's prior back problems and the lack of any
explanation of how the fall occurred constituted a sufficient basis
for defending on the grounds of causation as the injuries may have
been caused by an idiopathic condition unrelated to Plaintiff's
employment. While we find it problematic that Defendants initially
defended upon unfounded allegations of fraud, we conclude the
Commission did not abuse its discretion in deciding against an
award of attorney's fees under N.C. Gen. Stat. § 97-88.1.
Affirmed in part, reversed in part and remanded for further
proceedings.
Judges CALABRIA and STEELMAN concur.
*** Converted from WordPerfect ***