Lassiter v. Town of Selma

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-866

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

DONNIE L. LASSITER, Employee,

Plaintiff

v. From the Industrial Commission

I.C. No. 589062

TOWN OF SELMA, Employer, N.C.

LEAGUE OF MUNICIPALITIES, Carrier,

Defendants.

Appeal by Plaintiff from opinion and award entered 12 April

2013 by the North Carolina Industrial Commission. Heard in the

Court of Appeals 9 January 2014.

Lennon, Camak & Bertics, PLLC, by Michael W. Bertics, for

Plaintiff.

Teague Campbell Dennis & Gorham, LLP, by Dayle A. Flammia

and Brian M. Love, for Defendants.

DILLON, Judge.

Donnie L. Lassiter (Plaintiff) appeals from an opinion and

award of the Full Commission of the North Carolina Industrial

Commission (the Commission or Full Commission) denying his

request for sanctions against Defendants Town of Selma and North

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Carolina League of Municipalities. For the following reasons,

we affirm.

I. Factual & Procedural Background

In August 2005, Plaintiff contracted Lyme disease while

working within the scope of his employment with Defendant Town

of Selma. Plaintiff’s occupational disease claim for workers’

compensation benefits was initially denied; however, Plaintiff

prevailed before the Commission, and the Commission’s decision

to award Plaintiff benefits was upheld by this Court in Lassiter

v. Town of Selma, No. COA08-1148 (July 7, 2009) (unpublished).

Defendants’ petition for discretionary review was subsequently

denied by our Supreme Court on 28 January 2010. Lassiter v.

Town of Selma, 363 N.C. 805, 690 S.E.2d 700 (2010).

Plaintiff did not begin receiving workers’ compensation

benefits and reimbursement for any of his medical expenses until

our Supreme Court filed its order denying Defendants’ petition

for discretionary review. Defendants thereafter generally

reimbursed Plaintiff for his out-of-pocket medical expenses

incurred since August 2005, but objected to Plaintiff’s

treatment – and reimbursement for expenses relating to such

treatment – by Dr. Joseph G. Jemsek, an “infectious disease

specialist,” on grounds that Dr. Jemsek had been disciplined by

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the North Carolina Medical Board, had had his license to

practice medicine in North Carolina suspended, and was located

in Washington, D.C.

On 14 September 2011, Deputy Commissioner Chrystal Redding

Stanback entered an opinion and award, which (1) ordered

Defendants to reimburse Plaintiff for his medical and out-of-

pocket expenses incurred relating to Dr. Jemsek’s treatment; and

(2) ordered Defendants to pay Plaintiff’s attorneys’ fees on

grounds that Defendants had lacked a reasonable basis for

refusing to reimburse Plaintiff for these expenses.

Defendants appealed to the Full Commission, which, in an

opinion and award entered 8 May 2012, ordered Defendants to

reimburse Plaintiff for his past and future medical and out-of-

pocket expenses relating to Dr. Jemsek’s medical treatment and,

additionally, ordered Defendants to reimburse the associated

expenses incurred by Plaintiff’s wife, who had traveled with

Plaintiff and their three daughters to Plaintiff’s treatments

with Dr. Jemsek. The Full Commission, however, did not require

Defendants to reimburse Plaintiff for his daughters’ travel

expenses. Moreover, the Full Commission did not issue a ruling

with respect to Plaintiff’s request for sanctions against

Defendants under N.C. Gen. Stat. § 97-88.1. Plaintiff thus

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appealed to this Court, contending that the Full Commission had

erred by not granting his request for sanctions. Upon review,

we remanded the matter back to the Commission, stating as

follows:

In the instant case, the 8 May 2012 Opinion

and Award stated that two issues were before

the Full Commission: “1. Whether Plaintiff

and/or his family members are entitled to

reimbursement for travel and out-of-pocket

medical expenses while being treated by Dr.

Jemsek?” and “2. Should any sanctions,

penalties, or costs be assessed against

Defendants?” The Full Commission made

numerous findings of fact and conclusions of

law regarding the first issue. There is no

appeal before us regarding that issue.

However, the findings of fact and

conclusions of law did not address the

latter issue, whether any sanctions,

penalties, or costs should be assessed

against defendants.

Because “[i]t is well established that the

full Commission has the duty and

responsibility to decide all matters in

controversy between the parties,” we remand

to the Industrial Commission for a

determination of whether any sanctions,

penalties, or costs should be assessed

against defendants.

Lassiter v. Town of Selma, No. COA12-845 (Feb. 5, 2013)

(unpublished) (citations omitted) (alteration in original).

On remand, the Commission amended its prior opinion and

award by adding Finding of Fact 14 and Conclusion of Law 4,

which provide as follows:

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[Finding of Fact] 14. The Full Commission

finds that this claim has not been

prosecuted or defended without reasonable

grounds. Defendants did not engage in

stubborn unfounded litigiousness.

. . . .

[Conclusion of Law] 4. As this claim was

not prosecuted or defended without

reasonable grounds, and Defendants did not

engage in stubborn unfounded litigiousness,

Plaintiff is not entitled to attorney’s

fees, sanctions, or other penalties pursuant

to N.C. Gen. Stat. § 97-88.1.

With these additions, the Commission entered its amended opinion

and award on 12 April 2013. Plaintiff now appeals.

II. Analysis

Plaintiff’s sole contention on appeal is that the

Commission erred in denying his request for sanctions against

Defendants pursuant to N.C. Gen. Stat. § 97-88.1, which provides

as follows:

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.

N.C. Gen. Stat. § 97-88.1 (2011). As this Court has previously

stated, the purpose of N.C. Gen. Stat. § 97-88.1 is “to prevent

‘stubborn, unfounded litigiousness’ which is inharmonious with

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the primary purpose of the Workers’ Compensation Act to provide

compensation to injured employees.” Beam v. Floyd’s Creek

Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192

(1990) (citation omitted); see also Matthews v. Charlotte-

Mecklenburg Hosp. Auth., 132 N.C. App. 11, 16-17, 21, 510 S.E.2d

388, 393, 395-96 (1999) (explaining that the policy behind the

Workers’ Compensation Act is “to provide a swift and certain

remedy to an injured worker and to ensure a limited and

determinate liability for employers” and that N.C. Gen. Stat. §

97-88.1 “is meant to deter unfounded litigiousness”).

In the specific context presented, where the Commission has

awarded or denied a request for sanctions brought under N.C.

Gen. Stat. § 97-88.1, this Court has articulated the applicable

standard of review as follows:

The standard of review for an award or

denial of attorney’s fees under N.C. Gen.

Stat. § 97–88.1 . . . is a two-part

analysis. “First, ‘[w]hether the [defendant]

had a reasonable ground to bring a hearing

is reviewable by this Court de novo.’ ” If

this Court concludes that a party did not

have reasonable ground to bring or defend a

hearing, then we review the decision of

whether to make an award and the amount of

the award for an abuse of discretion. In

conducting the first step of the analysis,

the reviewing court should consider the

evidence presented at the hearing to

determine reasonableness of a defendant’s

claim. As such, “[t]he burden [is] on the

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defendant to place in the record evidence to

support its position that it acted on

‘reasonable grounds.’” . . . “[T]he test

is not whether the defense prevails, but

whether it is based in reason rather than in

stubborn, unfounded litigiousness . . . .”

Blalock v. Se. Material, 209 N.C. App. 228, 231-32, 703 S.E.2d

896, 899 (2011) (internal citations omitted).

We first must determine, based upon Defendants’ evidence

before the Commission, whether Defendants had reasonable grounds

to contest Dr. Jemsek’s treatment and reimbursement of the out-

of-pocket costs relating to that treatment. Id. at 231, 703

S.E.2d at 899. Based on the evidence presented, the Commission

made findings that Dr. Jemsek was “disciplined in 2006 due to

the prescription of long-term intravenous antibiotics through

indwelling catheters for the treatment of Lyme disease, which

had resulted in complications for several of his patients”; that

“Dr. Jemsek’s North Carolina license eventually became

inactive”; and that “Dr. Jemsek moved his practice to Washington

D.C.,” where Plaintiff continued his treatment. Plaintiff

points to the Commission’s finding that “Defendants ha[d] not

presented any evidence that the treatment provided to Plaintiff

[by Dr. Jemsek] was unreasonable or unnecessary” and contends

that this finding is essentially dispositive of the issue. We

disagree.

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The issue before us is not whether Defendants presented

evidence of unreasonable treatment, but whether Defendants’

grounds for contesting the treatment were unreasonable.

Defendants’ grounds for contesting Plaintiff’s treatment with

Dr. Jemsek – as indicated in the Commission’s findings, which,

in turn, were based on the evidence presented – were predicated

upon Dr. Jemsek’s disciplinary record, the fact that he no

longer had a North Carolina medical license, and the fact that

Dr. Jemsek had moved his office to Washington, D.C., resulting

in additional travel expenses associated with his treatment.

The Commission’s determination that these grounds did not serve

as adequate grounds to deny Plaintiff reimbursement for Dr.

Jemsek’s services did not, in and of itself, render Defendants’

position unreasonable. Upon review of the record evidence, we

hold that Defendants’ grounds for contesting Dr. Jemsek’s

treatment and related expenses were not unreasonable under the

circumstances; and, accordingly, we do not reach the issue of

whether the Commission’s decision not to award sanctions

constituted an abuse of discretion. Id. at 231, 703 S.E.2d at

899.

AFFIRMED.

Judges STROUD and HUNTER, JR. concur.

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Report per Rule 30(e).