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Bryson v. Phil Cline Trucking6/18/2002
defendants' refusal to authorize the requested treatment constituted unfounded litigiousness. Had the Commission assigned real weight to the findings to which plaintiff objects, it would have presumably concluded that defendants' defense of the case was reasonable and would therefore have awarded no attorneys' fees to plaintiff. As stated supra, the award of attorneys' fees under section 97-88.1 is a discretionary matter for the Commission. Because there is no indication that the Commission substantially relied upon the isolated findings of fact which plaintiff contends are unsupported by the record, we overrule plaintiff's assignment of error.
Plaintiff further argues that the Commission improperly considered a previous attorneys' fee award granted to plaintiff pursuant to section 97-90 of the General Statutes when it awarded plaintiff attorneys' fees under section 97-88.1. In its conclusions of law, the Commission stated that:
A prior Opinion and Award filed in this case on 15 January 1998 approved a 25% attorney's fee for plaintiff's counsel as a reasonable fee, in accordance with G.S. 97-90(c). That 25% attorney's fee award is ongoing for the period of plaintiff's total disability and is an issue that was decided by a previous panel and was not appealed in accordance with the Act. G.S. 97-90(c). The award of attorney's fees herein is pursuant to G.S. 97-88.1 and is, therefore, an award left to the sound discretion of the Commission. G.S. 97-88.1.
Plaintiff argues that the Commission improperly considered the earlier award of attorneys' fees granted under section 97-90 in assigning its award in the present case pursuant to section 97-88.1. Again, we must disagree with plaintiff's interpretation of the Commission's opinion.
As in his previous assignment of error, plaintiff makes no showing that the Commission's recognition in its conclusions of law of the earlier award of attorneys' fees granted to plaintiff pursuant to section 97-90 impacted its instant decision to award plaintiff $2,500.00 in attorneys' fees pursuant to section 97-88.1. Indeed, the Commission's conclusion concerning the earlier award of attorneys' fees is more reasonably interpreted in exactly the opposite manner from plaintiff's assertion: namely, that the Commission, well aware of the earlier award of attorneys' fees, made conclusions regarding such award because it wanted to make clear to both parties that the previous award played no role in its decision to impose punitive attorneys' fees. Thus, the Commission took pains to recognize in its opinion the difference between the two statutory sections that authorize the Commission to impose attorneys' fees, as well as the fact that the earlier award had not been appealed and was therefore not under current consideration. Because plaintiff's argument is based on little more than his own conjecture, we overrule this assignment of error.
Plaintiff further contends that the Commission abused its discretion in awarding $2,500.00 in attorneys' fees. Plaintiff argues that, because section 97-88.1 authorizes the Commission to order the entire costs of the proceedings to be paid by an unreasonable party as punishment for its unfounded litigiousness, the statute implies that the amount awarded should be commensurate with the reasonable party's actual expenses. To award less, according to plaintiff, ignores the stated purpose of the statute to punish those who defend or pursue litigation without reasonable grounds. By plaintiff's account, his reasonable attorney expenses amounted to $10,500.00, and the award of only $2,500.00, argues plaintiff, represents "less than a slap on the wrist" to defendants, thereby defeating the purpose of section 97-8
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