An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1016 NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
JESSE L. BOSTIAN, Employee, Plaintiff,
v. North Carolina Industrial Commission MARTIN MARIETTA, I.C. No. 657096 Employer, SPECIALTY RISK SERVICES, Carrier, Defendants.
Appeal by plaintiff and defendants from opinion and award
entered 28 June 2013 by the North Carolina Industrial
Commission. Heard in the Court of Appeals 22 January 2014.
Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff.
Teague Campbell Dennis & Gorham, LLP, by George H. Pender and Brian M. Love, for defendants.
GEER, Judge.
Both plaintiff Jesse L. Bostian and defendants Martin
Marietta and Specialty Risk Services appeal from an opinion and
award of the Industrial Commission awarding plaintiff temporary
partial disability benefits for silicosis. On appeal, -2- defendants challenge the Commission's conclusion -- despite
plaintiff's employment having been terminated for reasons
unrelated to his occupational disease -- that plaintiff's
current employment status is due to his job-related occupational
disease and that he is entitled to temporary partial disability
compensation. However, we hold that the Commission's findings
of fact on this issue are supported by competent evidence and
are, therefore, binding on appeal. Because defendants do not
contest that the findings of fact support the conclusion of law,
we affirm.
With respect to plaintiff's appeal, plaintiff primarily
argues that defendants unreasonably defended plaintiff's claim
by denying and defending plaintiff's claim for five years before
admitting the claim, entitling plaintiff to attorneys' fees and
costs pursuant to N.C. Gen. Stat. § 97-88.1 (2013). We hold
that the Commission's findings of fact fail to show that the
Commission considered all of plaintiff's evidence relating to
his claim of unreasonable defense and fail to resolve conflicts
in the evidence regarding that issue. We, therefore, reverse
the Commission's denial of plaintiff's request for attorneys'
fees and remand for reconsideration.
Facts -3- At the time of the hearing before the deputy commissioner,
plaintiff was 42 years old. Plaintiff completed high school,
but has not had any additional vocational training. He was
employed from 1990 until 2006 by defendant employer Martin
Marietta, a company that engages in mining operations across
North Carolina.
Plaintiff first worked as a truck driver for defendant
employer. He then worked briefly as a crane operator before
being promoted to drill operator, where he operated a large
drilling apparatus that drilled holes into granite to enable
quarry employees to blast. All of these positions exposed
plaintiff to pulverized granite dust.
In 1994, plaintiff was promoted to a lead person position
at defendant employer's Denver rock quarry and became
responsible for maintaining the plant area. In 1997, he was
transferred to the Kannapolis quarry in the same position. Both
of these positions required him to be in a dusty environment
throughout the day.
In 1999, Dr. Gary Bullard, a pulmonologist, diagnosed
plaintiff with pneumoconiosis, a lung condition caused by the
inhalation of mineral dust. He advised plaintiff to avoid
situations in which he would be exposed to dust and encouraged
him to take precautionary measures at work, such as wearing -4- protective masks. Plaintiff continued to work for defendant
employer after his diagnosis, and defendant employer provided
plaintiff with dust masks to wear while working in dusty areas.
Dr. Bullard treated plaintiff until 2006.
In 2000, plaintiff was promoted to a salaried position as a
foreman at the Kannapolis quarry. Between 2000 and 2004, he
worked as a foreman at the Mallard Creek and Charlotte quarries.
In June 2004, plaintiff was involved in a serious safety
violation, resulting in a two-day suspension, demotion to an
hourly truck driver position, and then a transfer from the
Charlotte quarry to the Denver quarry to operate yard and pit
loaders.
From July 2004 until December 2006, plaintiff operated a
yard and pit loader at the Denver and Kannapolis quarries. Pit
loaders are heavy equipment vehicles which are operated while
sitting in an enclosed air-conditioned cab. However, when the
air-conditioning did not work, or the loader did not have air
conditioning, plaintiff opened the windows of the cab, which
exposed him to rock dust.
After his demotion, plaintiff began having work performance
and attitude problems. From 2004 until 2006, plaintiff's job
performance was unsatisfactory due to issues with following
management guidance and conflicts with his co-employees. -5- Because of plaintiff's poor job performance, he was transferred
from the Denver quarry to the Kannapolis quarry in January 2006.
However, at the Kannapolis quarry he continued to have problems
including being late for work, low quarry productivity, and
quality control issues with customers. As a result, his hourly
rate of pay was reduced by $4.00 in August 2006.
On 7 September 2006, plaintiff filed a Form 18B claiming he
was suffering from an occupational disease. Defendant employer
filed a Form 61 on 3 November 2006 denying the claim on the
grounds that it had incomplete information. Plaintiff was
terminated due to his poor work performance in December 2006.
After plaintiff filed a Form 33 request for hearing on 9 May
2011, defendants, on 23 May 2011, filed a Form 60 admitting
plaintiff's right to compensation.
On 25 January 2012, the matter was heard by Deputy
Commissioner J. Brad Donovan. Given defendants' admission of
the compensability of plaintiff's occupational disease, the
issues litigated at the hearing were limited to plaintiff's
entitlement to disability benefits, including temporary total
disability benefits; disability benefits under N.C. Gen. Stat. §
97-61.5 for removal from a dusty trade; and the assessment of a
10% penalty under N.C. Gen. Stat. § 97-12. The deputy
commissioner filed an opinion and award determining that -6- plaintiff was entitled to temporary partial disability
compensation, attorneys' fees, medical expenses, and costs.
All parties appealed to the Full Commission. In an opinion
and award filed 28 June 2013, the Commission affirmed the deputy
commissioner's opinion and award with minor modifications. The
Commission concluded that plaintiff had contracted silicosis, an
occupational disease, as a result of his employment with
defendant employer. The Commission further concluded that "the
greater weight of the evidence shows that Plaintiff's
termination from employment constituted [a] constructive refusal
to accept suitable employment[.]"
Nevertheless, the Commission concluded that "it is also
evident that because of the effect on his health, Plaintiff
should not have been working for Defendant-Employer, or any
other mining business in any capacity, for some period of time
prior to his termination." The Commission, therefore,
determined "as a matter of law that Plaintiff's current
employment status is due to the job-related occupational disease
which prevents him from obtaining employment in the only field
he has worked in most of his adult life, and not to the
unrelated misconduct which resulted in his termination."
Based on this conclusion, the Commission further concluded
that "the decrease in Plaintiff's wages is due in part to his -7- inability to continue working in the field where he has
established his greatest amount of experience." The Commission
then determined that plaintiff was entitled to temporary partial
disability compensation.
However, because, according to the Commission, plaintiff
had caused his removal from the trade that led to his silicosis,
he was not eligible for removal from the dusty trade pursuant to
N.C. Gen. Stat. § 97-61.5 or to any compensation under that
statute. The Commission also concluded that defendants did not
unreasonably defend the action or willfully fail to comply with
any statutory requirement or any lawful order of the Commission,
within the meaning of N.C. Gen. Stat. § 97-12. Both plaintiff
and defendants timely appealed to this Court.
Discussion
"The scope of this Court's review of an Industrial
Commission decision is limited 'to reviewing whether any
competent evidence supports the Commission's findings of fact
and whether the findings of fact support the Commission's
conclusions of law.'" Wooten v. Newcon Transp., Inc., 178 N.C.
App. 698, 701, 632 S.E.2d 525, 528 (2006) (quoting Deese v.
Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553
(2000)). Findings of fact made by the Commission "are
conclusive on appeal if supported by competent evidence, -8- notwithstanding evidence that might support a contrary finding."
Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d
860, 862 (2002). "The Commission's conclusions of law are
subject to de novo review." Id.
Defendants' Appeal
Defendants challenge the Commission's award of temporary
partial disability benefits under N.C. Gen. Stat. § 97-30
(2009). Defendants first assert that the 2009 version of N.C.
Gen. Stat. § 97-30, which is applicable to plaintiff's claim,
only allows the payment of temporary partial disability benefits
for a period of 300 weeks from the date of injury, which they
assert is the date of diagnosis. Defendants contend that since
plaintiff was first diagnosed with silicosis in 1999, any award
of temporary partial disability benefits would fall outside the
300-week period.
Because defendants did not raise this specific argument
before the Industrial Commission, they may not properly argue it
for the first time on appeal. See Carey v. Norment Sec. Indus.,
194 N.C. App. 97, 107, 669 S.E.2d 1, 7 (2008) (holding
defendant's failure to argue to Commission whether defendant was
entitled to credit for short-term disability benefits already
paid to plaintiff resulted in waiver of the issue). -9- Although defendants contend that the issue was preserved
because they argued generally that plaintiff was not entitled to
temporary partial disability benefits, it is well established
that the precise theory argued on appeal in challenging a
decision must have been presented to the trial tribunal. See,
e.g., Piraino Bros., LLC v. Atl. Fin. Grp., Inc., 211 N.C. App.
343, 348, 712 S.E.2d 328, 332 (2011) ("'Our Supreme Court has
long held that where a theory argued on appeal was not raised
before the trial court, the law does not permit parties to swap
horses between courts in order to get a better mount in the
appellate courts.'" (quoting State v. Holliman, 155 N.C. App.
120, 123, 573 S.E.2d 682, 685 (2002)). Because defendants
failed to present this argument to the Commission, we do not
address it.
Defendants next contend that the Commission erroneously
concluded that plaintiff was eligible for continuing temporary
partial disability benefits under the test established in
Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472
S.E.2d 397 (1996), for determining whether an injured employee
has the right to continuing workers' compensation benefits after
being terminated for misconduct. Our Supreme Court has
explained:
[U]nder the Seagraves' test, to bar payment of benefits, an employer must demonstrate -10- initially that: (1) the employee was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to the employee's compensable injury.
McRae v. Toastmaster, Inc., 358 N.C. 488, 493, 597 S.E.2d 695,
699 (2004).
"An employer's successful demonstration of such evidence is
'deemed to constitute a constructive refusal' by the employee to
perform suitable work, a circumstance that would bar benefits
for lost earnings, 'unless the employee is then able to show
that his or her inability to find or hold other employment . . .
at a wage comparable to that earned prior to the injury[] is due
to the work-related disability.'" Id. at 493-94, 597 S.E.2d at
699 (quoting Seagraves, 123 N.C. App. at 234, 472 S.E.2d at
401). Thus, an employee is "entitled to benefits if he or she
can demonstrate that work-related injuries, and not the
circumstances of the employee's termination, prevented the
employee from either performing alternative duties or finding
comparable employment opportunities." Id. at 494, 597 S.E.2d at
699.
Here, the Commission found -- and plaintiff does not
contest -- that the initial three requirements under Seagraves
were satisfied and the termination of plaintiff's employment
constituted a constructive refusal to accept suitable -11- employment. However, based upon its finding that plaintiff
"should not have been working for Defendant-Employer, or any
other mining business in any capacity, for some period of time
prior to his termination," the Commission concluded that
"Plaintiff's current employment status is due to his job-related
occupational disease which prevents him from obtaining
employment in the only field he has worked in most of his adult
life, and not to the unrelated misconduct which resulted in his
termination."
Defendants argue only that the record does not contain
competent evidence to support the Commission's determination
that "Plaintiff's current employment status is due to his job-
related occupational disease which prevents him from obtaining
employment in the only field he has worked in most of his adult
life, and not to the unrelated misconduct which resulted in his
termination." Specifically, defendants challenge the
Commission's finding that "given the zero tolerance to dust
recommended by Dr. Bullard, there were no jobs offered by
Defendant-Employer that Plaintiff could perform in which there
was not some exposure to dust and so constituted a significant
hazard to his long-term health."
Defendants note that Dr. Bullard only restricted
plaintiff's exposure to dust from drilling granite and -12- pulverized granite dust (because it produces silicon dust), but
did not restrict plaintiff's exposure to dust from inert rocks
or pit gravel. Defendant contends that Dr. Bullard's zero
tolerance recommendation applied to the harmful silicon dust and
not gravel dust and that because plaintiff's exposure to
pulverized granite dust ended in 1994 when he stopped working as
a drill operator, he was no longer exposed to any harmful dust.
Defendants assert that this distinction in types of dust
explains why Dr. Bullard never recommended that plaintiff stop
working for defendant employer. We disagree.
Defendants do not specifically challenge the Commission's
findings regarding (1) Dr. Bullard's testimony that "'any
exposure is too much exposure when it comes to mineral dusts in
an individual who already has pneumoconiosis'" and (2) Dr.
Douglas Kelling's recommendation that plaintiff "avoid any
environment in which he would potentially be exposed to dusty
environments" and that "even dust levels below the permissible
exposure limit (PEL) could be potentially injurious to
Plaintiff." Because these unchallenged findings of fact are
binding on appeal, the Commission's finding that plaintiff
should not have been employed in any position with defendant
employer may be supported by any competent evidence showing any
risk, however slight, of exposure to harmful dust. -13- There is ample evidence in the record that plaintiff's
employment exposed him to harmful dust even after he stopped
working as drilling operator. Plaintiff, Bobby Martin (another
employee), and Bobby Rucker (the quarry manager) all testified
that plaintiff was exposed to dust in all of his positions while
employed with defendant employer. Additionally, Dr. Bullard's
own testimony regarding gravel dust does not conclusively
establish that gravel dust is not harmful. Dr. Bullard
testified that he "[doesn't] know the characteristics of working
with pit gravel" and that his testimony that gravel does not
typically produce silicon dust is based on his "assumption" that
gravel is inert. Nevertheless, Dr. Bullard testified that
harmful silicon dust may be generated by simply manipulating
gravel if the gravel "had been commingled with drilled rock and
there was dust within the gravel related to previous drilling or
rock crushing."
We conclude that there is competent evidence to support the
Commission's finding that defendant "should not have been
working for Defendant-Employer, or any other mining business in
any capacity, for some period of time prior to his termination."
Defendants' argument regarding the health risks posed by
plaintiff's field of employment merely amount to a request that
we re-weigh the evidence. See White v. Weyerhaeuser Co., 167 -14- N.C. App. 658, 673, 606 S.E.2d 389, 400 (2005) (this Court may
not consider "argument that the Commission should have weighed
and viewed the evidence differently"). This finding, in turn,
supports the Commission's conclusion that plaintiff's current
employment status is due to his job-related occupational disease
and that he is entitled to temporary partial disability
compensation. Accordingly, we affirm the Commission's award of
temporary partial disability compensation.
Plaintiff's Appeal
Plaintiff first contends that the Commission erred in
concluding that "defendants did not unreasonably defend this
claim" under N.C. Gen. Stat. § 97–88.1. We agree. Pursuant to
N.C. Gen. Stat. § 97–88.1:
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.
In Chaisson v. Simpson, 195 N.C. App. 463, 484, 673 S.E.2d
149, 164 (2009) (internal citations and quotation marks
omitted), this Court explained:
The determination of [w]hether the defendant had a reasonable ground to bring a hearing is reviewable by this Court de novo. The reviewing court must look to the evidence introduced at the hearing in order -15- to determine whether a hearing has been defended without reasonable ground. The test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness. If it is determined that a party lacked reasonable grounds to bring or defend a hearing before the Commission, then the decision of whether to make an award pursuant to N.C.G.S. § 97–88.1, and the amount of the award, is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion.
"'[T]he burden [is] on the defendant to place in the record
evidence to support its position that it acted on reasonable
grounds.'" Blalock v. Se. Material, 209 N.C. App. 228, 232, 703
S.E.2d 896, 899 (2011) (quoting Shah v. Howard Johnson, 140 N.C.
App. 58, 64, 535 S.E.2d 577, 581 (2000)).
In this case, plaintiff contends that defendants acted
unreasonably by failing to promptly investigate plaintiff's
claim in violation of Rule 601 of the Rules of the Industrial
Commission, unreasonably denying the claim, and not admitting
the compensability of the claim until plaintiff filed a Form 33
request for a hearing, five years after the claim was filed.
Defendants, on the other hand, argue that defendants' initial
denial of the claim is irrelevant to the issue whether
defendants unreasonably defended the hearing because prior to
the hearing, defendants filed a Form 60 admitting the
compensability of the claim. -16- Defendants point out that plaintiff has not made any
argument that defendant employer's defense of the issues
actually tried at the hearing was unreasonable. Defendants
argue that because the plain language of the statute requires
the Commission to determine whether a hearing has been defended
unreasonably, the Commission should only consider a defendant's
defense of plaintiff's claim at the actual hearing.
Neither party cites any authority in support of their
position. We too have not found any case law specifically
addressing whether attorneys' fees may be awarded for an
unreasonable denial of a claim under N.C. Gen. Stat. § 97-88.1
where the defendant, prior to the hearing, admits the claim.
However, we do not believe that the case law supports
defendants' narrow interpretation of the provision. Rather, our
review reveals that this Court has adopted a liberal
interpretation of what conduct constitutes an unreasonable
defense under N.C. Gen. Stat. § 97-88.1.
For example, in Allen v. SouthAg Mfg., 167 N.C. App. 331,
605 S.E.2d 209 (2004), this Court held that the Commission did
not abuse its discretion in awarding attorneys' fees under N.C.
Gen. Stat. § 97-88.1 when the award was supported by a finding
that:
"Defendants failed to properly investigate plaintiff's claim, denied his claim without -17- reasonable grounds, and continued to deny and defend his claim after the evidence established compensability. Defendants also failed to comply with known statutes and Rules of the Industrial Commission regarding the reporting, payment, and filing of documents related to the acceptance or denial of benefits for injuries occurring to plaintiff in his workplace. Defendants' actions in this case constitute stubborn, unfounded litigiousness."
167 N.C. App. at 335, 605 S.E.2d at 212. Thus, the award for an
unreasonable defense of a hearing in Allen was based upon the
defendants' conduct during the proceedings from the time the
claim was filed through the initial hearing.
In Bradley v. Mission St. Joseph's Health Sys., 180 N.C.
App. 592, 593-94, 638 S.E.2d 254, 255-56 (2006), the plaintiff,
a nurse, filed a worker's compensation claim for injuries she
sustained when a patient assaulted her at work. The employer,
due to its "lack of information" regarding the claim, filed a
Form 61 denying the claim, and, two weeks later, filed a Form
63, commencing payment without prejudice. Id. at 599, 638
S.E.2d at 259. The Commission found that the defendant's denial
of the plaintiff's claim was with "'justification and due
cause'" and denied the plaintiff's motion for attorneys' fees
under N.C. Gen. Stat. § 97-88.1. Bradley, 180 N.C. App. at 600,
638 S.E.2d at 260. -18- On appeal, this Court reversed and held that the
Commission's finding that the denial of the claim was reasonable
was not supported by the evidence because the defendant "had no
evidence at the time of the denial that [the plaintiff's]
injuries were anything other than work-related." Id. This
Court concluded that the defendant's "filings of the Form 61 and
Form 63 were thus unreasonable, as they constituted . . .
'stubborn, unfounded litigiousness'" and held that the plaintiff
"should be entitled to additional attorney's fees for that
portion of time her attorney spent responding to Forms 61 and 63
. . . ." Id. (quoting Troutman v. White & Simpson, Inc., 121
N.C. App. 48, 54, 464 S.E.2d 481, 485 (1995)).
Here, as in Bradley, defendants filed a Form 61 denying
plaintiff's claim based on incomplete information. The form
stated:
To date the medical records are incomplete as provided by the Plaintiff and as such the Defendants are not in a position to ascertain whether or not the Plaintiff developed the alleged conditions as set forth in his Industrial Commission filings. To date no evidence exists that the Plaintiff was ever exposed to the alleged materials at a level which would equate to an injurious exposure and claims to the contrary are denied. -19- In addition, like the defendant in Allen, the Commission's
undisputed findings establish that defendants continued to deny
and defend the claim after evidence established compensability.
The Commission found that in May 1999, Dr. Bullard
diagnosed plaintiff with pneumoconiosis, a form of silicosis,
and concluded that plaintiff's granite drilling was "'the likely
etiology.'" Further, the Commission found that on 8 October
2010, an independent physician hired by defendants, Dr. Kelling,
conducted a medical examination of plaintiff and again diagnosed
plaintiff with pneumoconiosis caused by working with defendant
employer. Nevertheless, defendants did not file a Form 60
admitting liability for plaintiff's claim until 19 May 2011,
five years after plaintiff had initially filed his claim, even
though defendants knew 12 years earlier that plaintiff had
contracted silicosis due to his granite drilling, a diagnosis
confirmed six months prior to defendants filing their Form 60.
These findings, under Allen and Bradley, would support a
determination that defendants unreasonably defended a hearing.
Nonetheless, subsequent to Allen and Bradley, the General
Assembly amended N.C. Gen. Stat. § 97-18(c) (2013) to read: "If
the employer or insurer, in good faith, is without sufficient
information to admit the employee's right to compensation, the
employer or insurer may deny the employee's right to -20- compensation." The Court in Bradley noted that this provision
means that denial or defense of a claim on the grounds of lack
of information "will likely be considered per se reasonable."
180 N.C. App. at 599 n.5, 638 S.E.2d at 260 n.5.
Although N.C. Gen. Stat. § 97-18(c) may provide some
protection to defendants in this case, plaintiff has presented
evidence that raises a question of fact as to whether defendants
acted in good faith in denying the claim based on lack of
information. Specifically, Dr. Bullard diagnosed plaintiff with
silicosis in 1999, and defendant employer paid for plaintiff's
medical treatment associated with his silicosis until he was
terminated in 2006. Further, in February 2000, defendant
employer filed an accident report with the Mining Safety and
Health Administration stating that plaintiff had developed the
occupational disease of silicosis. This evidence contradicts
defendants' contention in Form 60 that it lacked sufficient
information to allow the claim.
Plaintiff also raised the issue of defendants' compliance
with Rule 601 of Rules of the Industrial Commission, which
requires an employer to promptly investigate injuries of an
employee and respond to a claim within 90 days. If an employer
violates Rule 601, the Commission may order sanctions.
Defendants argue that plaintiff failed to seek sanctions under -21- Rule 601 and that Rule 601 is entirely unrelated to N.C. Gen.
Stat. § 97-88.1. However, the Commission in Allen considered
defendant's violation of Industrial Commission Rules as evidence
supporting defendant's unreasonable defense of a claim. 167
N.C. App. at 335, 605 S.E.2d at 212 (award of attorneys' fees
supported by finding of defendant's failure to comply with
"'Rules of the Industrial Commission regarding the reporting,
payment, and filing of documents related to the acceptance or
denial of benefits for injuries occurring to plaintiff in his
workplace'"). We, therefore, hold rules violations may be
considered as evidence tending to show a defendant's
unreasonableness.
Despite plaintiffs' having presented evidence that the
defendants acted unreasonably in denying plaintiff's claim, the
Commission made a single finding rejecting plaintiff's request
for attorneys' fees:
Based upon a preponderance of the evidence of record, the Full Commission finds that insufficient evidence exists to determine that Defendants have defended this claim unreasonably.
Based on this finding, the Commission concluded that
"[d]efendants did not unreasonably defend this claim."
This single finding is not sufficient to demonstrate that
the Commission complied with its duty to "consider and evaluate -22- all of the evidence" before it. Lineback v. Wake Cnty. Bd. of
Comm'rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997).
"Although the Commission may choose not to believe the evidence
after considering it, it may not wholly disregard or ignore
competent evidence." Id. Where the Commission's opinion and
award fails to indicate that it considered testimony "relevant
to the exact point in controversy," it "must be vacated, and the
proceeding 'remanded to the Commission to consider all the
evidence, make definitive findings and proper conclusions
therefrom, and enter the appropriate order.'" Jenkins v. Easco
Aluminum Corp., 142 N.C. App. 71, 78, 79, 541 S.E.2d 510, 515
(2001) (quoting Lineback, 126 N.C. App. at 683, 486 S.E.2d at
255).
Here, plaintiff introduced evidence that defendants' denial
of plaintiff's claim was not in good faith and instead was the
result of stubborn, unfounded litigiousness. The Commission's
findings indicate that the Commission failed to resolve
conflicts in the evidence regarding defendants' good faith in
denying plaintiff's claim and impermissibly disregarded
competent evidence that defendants continued to deny plaintiff's
claim and defend the claim after receiving evidence that the
claim was compensable. We, therefore, reverse and remand for -23- reconsideration, based on the entire record, of plaintiff's
claim pursuant to N.C. Gen. Stat. § 97–88.1.
Plaintiff next argues that the Commission erred in denying
compensation pursuant to N.C. Gen. Stat. § 97-12 (2013), which
provides: "When the injury or death is caused by the willful
failure of the employer to comply with any statutory requirement
or any lawful order of the Commission, compensation shall be
increased ten percent (10%). . . . The burden of proof shall be
upon him who claims an exemption or forfeiture under this
section."
Plaintiff contends that he submitted sufficient evidence
that defendant employer violated the general duty clause of the
North Carolina Occupational Safety and Health Act, N.C. Gen.
Stat. § 95-129(1) (2013), which provides:
Each employer shall furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to his employees[.]
Plaintiff also contends that defendant employer violated the
parallel provision in the Federal OSHA, 29 U.S.C. § 654 (2012),
providing:
(a) Each employer—
(1) shall furnish to each of his employees employment and a place of employment which are free from -24- recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]
Defendants have argued in response that these two statutes
are preempted by the Mining Safety and Health Act and are,
therefore, inapplicable. Because we conclude that, in any
event, plaintiff failed to meet his burden of proving that
defendants violated either the State or Federal OSHA
regulations, we do not address defendant's preemption argument.
Under N.C. Gen. Stat. § 97-12, "[a]n act is considered
willful 'when there exists a deliberate purpose not to discharge
some duty necessary to the safety of the person or property of
another, a duty assumed by contract or imposed by law.'"
Jenkins v. Easco Aluminum, 165 N.C. App. 86, 97, 598 S.E.2d 252,
259 (2004) (quoting Beck v. Carolina Power & Light Co., 57 N.C.
App. 373, 383–84, 291 S.E.2d 897, 903, aff'd per curiam, 307
N.C. 267, 297 S.E.2d 397 (1982)).
In construing N.C. Gen. Stat. § 95-129(1), this Court has
looked to federal cases interpreting 29 U.S.C. § 654, and has
A "recognized hazard" has been defined as one about which the employer knew or one known about within the industry. This definition has been conditioned upon a recognition that not all hazardous conditions can be prevented and that Congress, by the absolute terms of the "general duty clause," did not intend to -25- impose strict liability upon employers. Only preventable hazards must be eliminated. Thus, a hazard is "recognized" only when the [Commissioner] demonstrates that feasible measures can be taken to reduce materially the likelihood of death or serious physical harm resulting to employees.
Brooks v. Rebarco, Inc., 91 N.C. App. 459, 464, 372 S.E.2d 342,
345 (1988) (internal citations and quotation marks omitted).
In determining whether an employer has violated N.C. Gen.
Stat. § 95-129(1), this Court has employed a "reasonable man"
standard: whether, under the circumstances, a reasonably prudent
employer would have recognized a hazardous condition and taken
steps to protect its employees against the hazard, and, if so,
whether the precautions taken were reasonable. See Brooks, 91
N.C. App. at 465, 372 S.E.2d at 345.
The Commission made the following pertinent findings of
fact regarding the precautions taken by defendant to address the
dusty conditions of its work environment:
28. Defendants underwent both mandatory annual testing by the federal agency Mine Safety and Health Administration (MSHA), and additional, voluntary site testing for dust and silica exposure by SOMA to ensure that Defendant employer was providing a safe environment. Testing has not found dust levels significant to mandate the use of dust masks or other breathing systems. Although there was no mandate by Defendant employer to wear them, dusk [sic] masks and respirators were available to employees. -26- 29. Mr. Ertel testified at his deposition that as part of their testing, SOMA obtains samples from individual employees to test dust levels. In 2002, 2005, and 2006, Plaintiff was tested by SOMA. The results in 2002 showed that Plaintiff's test results with regard to dust levels were within the permissible exposure limits. The results in 2005 and 2006 showed that there were no detectable levels of dust.
30. Based upon a preponderance of the evidence of record, the Full Commission finds that insufficient evidence exists to determine that Defendants willfully failed to comply with any statutory requirement of any lawful order of the Commission.
Plaintiff does not challenge these findings of fact. These
findings show that defendant employer recognized that dust posed
a potential hazard to its employees' safety, made efforts to
periodically monitor the hazard to ensure that it did not
present a significant health hazard for its employees, and
provided precautionary protections, such as dust masks, to
protect against the hazard. Even assuming that that these
findings are insufficient to show that defendants acted
reasonably with respect to plaintiff individually, thus
constituting a violation of OSHA, plaintiff has failed to point
to evidence in the record that any violation was willful. We,
therefore, affirm the Commission's conclusion that plaintiff is
not entitled to sanctions pursuant to N.C. Gen. Stat. § 97-12.
Conclusion -27- We affirm the Commission's award of temporary partial
disability benefits and the Commission's refusal to impose
sanctions under N.C. Gen. Stat. § 97-12. We reverse the
Commission's denial of plaintiff's request for attorneys' fees
pursuant to N.C. Gen. Stat. § 97-88.1 and remand for
reconsideration.
Affirmed in part, reversed in part, and remanded in part.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).