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Bryson v. Phil Cline Trucking6/18/2002
PUBLISHED
Jack Bryson ("plaintiff") and Phil Cline Trucking ("employer"), along with Key Risk Management Services ("administrator") (collectively, "defendants"), appeal from an opinion and award of the North Carolina Industrial Commission ("the Commission"). For the reasons stated herein, we affirm the opinion and award of the Industrial Commission.
The facts pertinent to the instant appeal are as follows: On 12 March 1994, plaintiff suffered injury to his lower back and left hip while performing maintenance work on a truck leased to employer. As a result of his injury, plaintiff underwent several surgical procedures to improve the condition of his back. By opinion and award filed 26 October 1995, the Commission concluded that plaintiff's injury was compensable under the North Carolina Workers' Compensation Act and ordered defendants to pay temporary total disability compensation and reasonable medical expenses.
On 24 March 1999, plaintiff filed a Form 33, Request That Claim Be Assigned For Hearing. Plaintiff's dispute with defendants arose from their refusal to authorize his request for a dorsal column stimulator ("stimulator"), a surgical device recommended by plaintiff's anesthesiologist in order to provide improved control of plaintiff's pain and thereby decrease his reliance on medication. Plaintiff asserted that the stimulator was a reasonable and necessary medical treatment and requested attorneys' fees pursuant to section 97-88.1 of the General Statutes for defendants' allegedly unreasonable defense of his claim.
On 28 December 1999, a deputy commissioner for the Commission filed an opinion and award concluding that plaintiff had proven by the greater weight of the evidence that he was entitled to receive the stimulator as a reasonable and necessary medical treatment. The deputy commissioner further concluded that defendants had presented no credible evidence to support their denial of such treatment, and as such, had willfully violated the prior order by the Commission. The deputy commissioner therefore ordered defendants to pay attorneys' fees of $10,500.00, as well as $448.64 in expenses.
Defendants appealed the deputy commissioner's opinion and award to the Full Commission, which affirmed the opinion in all respects except for the award of attorneys' fees. The Commission found that, as a result of defendants' unreasonable denial of treatment, plaintiff had "incurred reasonable attorney's fees in the amount of $200.00." The Commission therefore ordered defendants to pay for the placement of plaintiff's dorsal column stimulator and attorneys' fees of $200.00.
Plaintiff thereafter moved for reconsideration of the Commission's order and for allowance of reasonable attorneys' fees pursuant to section 97-88 of the General Statutes. Upon reconsideration of its order, the Commission concluded that, "plaintiff should be awarded a reasonable attorney's fee in the amount of $2,500, in addition to reasonable expenses of $448.64." Finding that defendants had reasonable grounds to appeal the $10,500.00 award of attorneys' fees by the deputy commissioner, the Commission denied plaintiff's request for attorneys' fees pursuant to section 97-88. This opinion and award was filed 31 January 2001, from which plaintiff appeals and defendants cross-appeal.
The primary issue on appeal is whether the Commission properly awarded to plaintiff attorneys' fees in the amount of $2,500.00. For the reasons stated herein, we affirm the opinion and award of the Industrial Commission.
Under section 97-88.1 of the North Carolina General Statutes, the Commission may award attorneys' fees if it determines that "any hearing has been br
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