Poplin v. PPG Industries , 108 N.C. App. 55 ( 1992 )

422 S.E.2d 353 (1992) 108 N.C. App. 55

Vann L. POPLIN, Employee/Plaintiff,
v.
PPG INDUSTRIES, self-insured, Employer/Defendant.

No. 9210IC499.

Court of Appeals of North Carolina.

November 3, 1992.

Wallace and Whitley by Mona Lisa Wallace and David A. Shelby, Salisbury, for plaintiff-appellee.

Wilson, Biesecker, Tripp and Sink by Joe E. Biesecker, Lexington, for defendant-appellant.

WELLS, Judge.

Defendant's only argument is that the Industrial Commission erred by ordering defendant to pay attorneys' fees. Specifically, defendant contends that the order is not supported by adequate conclusions of law or findings of fact and that the findings of fact are not supported by the evidence. We disagree.

N.C.Gen.Stat. § 97-88.1 provides:

If 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.

The decision as to whether to award attorneys' fees pursuant to this statute is a matter within the sound discretion of the Industrial Commission. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681 (1983). "Whether the evidence shows a ``reasonable ground' to defend is, however, a matter reviewable by this court." Robinson v. J.P. Stevens, 57 N.C.App. 619, 627, 292 S.E.2d 144, 149 (1982). "The test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness." Sparks v. Mountain Breeze Restaurant, 55 N.C.App. 663, 286 S.E.2d 575 (1982).

In this case, the record fails to show a "reasonable ground" to defend. Defendant admitted in a letter from counsel that plaintiff "suffered an injury arising out of and in the course and scope of his employment," but later contended there had been no evidence of medical causation brought forward. This contention was made even after defendant was supplied with plaintiff's medical records and a medical report rating plaintiff's disability. As a result, the record was held open for thirty days and a hearing was conducted. At the hearing, defendant offered no evidence. This evidence supports the findings of fact made by the Industrial Commission and the findings of fact support the conclusions of law. We hold that the Industrial Commission did not abuse its discretion in awarding attorneys' fees. The Opinion and Award of the Industrial Commission will be affirmed.

Plaintiff, in his brief, contends that additional attorneys' fees should be awarded due to defendant's appeal, and we agree. N.C.Gen.Stat. § 97-88 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 the cost 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 a part of the bill of costs.

Our decision requires "the insurer to make, or to continue payments of benefits," and we hold that plaintiff is entitled to have his attorneys' fees paid by defendant as part of the costs of his defense of defendant's appeal from the deputy commissioner to the Full Commission and the appeal to this Court. See Mullinax v. Fieldcrest Cannon, Inc., 100 N.C.App. 248, 395 S.E.2d 160 (1990). We have affirmed that defendant had no reasonable basis to appeal the decision of the deputy commissioner to the Full Commission. In its appeal here, defendant has shown no merit in its effort to further delay justice in this case. Therefore, the matter is remanded to the Industrial Commission for entry of an order requiring defendant to pay to plaintiff's attorneys, as part of the costs, a reasonable fee for representing plaintiff in the appeal from the deputy commissioner to the Full Commission and to this Court.

Affirmed and remanded.

EAGLES and ORR, JJ., concur.