Harwell v. Groves Thread , 1985 N.C. App. LEXIS 4333 ( 1985 )

HEDRICK, Chief Judge.

Plaintiffs sole contention on this appeal is that the Industrial Commission refused to award attorney’s fees pursuant to G.S. 97-88 under a misapprehension of the law. G.S. 97-88 states:

Expenses of appeals brought by insurers. 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.

Plaintiff argues that the Industrial Commission denied her claim for attorney’s fees under the mistaken belief that the Commission could not award attorney’s fees in a case in which the plaintiff as well as a defendant insurer appealed. The pertinent part of the Commission’s order denying attorney’s fees is as follows:

G.S. 97-88 specifically provides that an attorney fee may be assessed against the defendants when the “proceedings were brought by the insurer.” Inasmuch as the appeals herein were entered by both plaintiff and the defendants, the Full Commission is of the opinion that it would be improper to assess the attorney fee for plaintiffs counsel under the provisions of G.S. 97-88. Plaintiffs motion for assessment of fees under the provisions of the cited statute is hereby, Denied.

“[G.S. 97-88] was written to enable the Industrial Commission to award attorneys’ fees in those cases it deems proper.” Taylor v. J. P. Stevens Co., 307 N.C. 392, 398, 298 S.E. 2d 681, 685 (1983). In its sound discretion, the Industrial Commission may award claimant attorney’s fees in cases defendant insurer appealed. G.S. 97-88. However, the Industrial Commission may not award attorney’s fees pursuant to G.S. 97-88 in cases in which only the claimant appealed. Id.

The language in the Commission’s order regarding G.S. 97-88 is so ambiguous as to preclude review as to whether the Commission believed it lacked authority to award attorney’s fees in this case where both the insurer and the claimant appealed. We cannot discern whether the Industrial Commission exercised its discretion in denying attorney’s fees or believed it was compelled to deny attorney’s fees due to a misapprehension of the law. We therefore remand this case to the Industrial Commission for a discretionary determination consistent with this opinion.

Reversed and remanded.

Judges Eagles and Martin concur.