209 N.C. App. 228
N.C. Ct. App.2011Background
- Plaintiff Blalock, a long-term smoker, worked as a carpenter for Employer for about 3.5 years and developed COPD with respiratory symptoms after work in October 2005.
- He inhaled substantial silica/concrete dust over two days while tearing down a cinder block wall, using a non-protective mask.
- Doctors Shank, Ohar, and Spangenthal testified that the dust exposure aggravated his pre-existing COPD; all three tied the acute exacerbation to the work-related exposure.
- Employer/Carrier denied compensation; deputy commissioner awarded benefits but did not award §97-88.1 fees; Full Commission affirmed most aspects but did not address §97-88.1 at that stage.
- Plaintiff later moved for §97-88.1 attorney’s fees; Commission ultimately ruled defenses were not unreasonable and denied such fees; on appeal, the court reverses on §97-88.1 grounds and remands for fee determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants’ defense was brought without reasonable ground | Blalock argues Defendants’ positions were unsupported by medical evidence | Blalock? Defendants contends their denials were reasonable under medical testimony | Yes; Defendants lacked reasonable ground and §97-88.1 fees awarded on remand |
| Whether work exposure aggravated pre-existing COPD | Exacerbation/acceleration by work dust caused disability | Plaintiff's COPD mainly due to smoking; no work-related aggravation | Aggravation established; compensable without apportionment |
| Whether apportionment is proper when work aggravates a pre-existing condition | No apportionment; work-related aggravation makes entire disability compensable | Apportionment may be appropriate if non-work factors contribute | Apportionment not permitted where work aggravates pre-existing condition; total disability compensable |
Key Cases Cited
- Meares v. Dana Corp., 193 N.C.App. 86, 666 S.E.2d 819 (N.C. App. 2008) (establishes two-step analysis for § 97-88.1: de novo reasonable ground, then abuse of discretion on award)
- Troutman v. White & Simpson, Inc., 121 N.C.App. 48, 464 S.E.2d 481 (N.C. App. 1995) (defense must be grounded in reason, not unfounded litigiousness)
- Cooke v. P.H. Glatfelter/Ecusta, 130 N.C.App. 220, 502 S.E.2d 419 (N.C. App. 1998) (focus on record evidence supporting reasonableness of defense)
- Sparks v. Mountain Breeze Restaurant, 55 N.C.App. 663, 286 S.E.2d 575 (N.C. App. 1982) (legislative purpose of §97-88.1 to deter unfounded litigiousness)
- Perry v. Burlington Industries, 80 N.C.App. 650, 343 S.E.2d 215 (N.C. App. 1986) (recognizes aggravation of pre-existing conditions may be compensable)
- Legette v. Scotland Mem’l Hosp., 181 N.C.App. 437, 640 S.E.2d 744 (N.C. App. 2007) (admissibility and causation considerations in medical testimony)
- Singletary v. N.C. Baptist Hosp., 174 N.C.App. 147, 619 S.E.2d 888 (N.C. App. 2005) (Young-based admissibility considerations for medical causation evidence)
- Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (N.C. 2000) (temporal sequence alone is not sufficient for causation; needs medical support)
- Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (N.C. 1980) (expert testimony required for medical causation in complex injuries)
- Konrady v. U.S. Airways, Inc., 165 N.C.App. 620, 599 S.E.2d 593 (N.C. App. 2004) (apportionment rule in work-related aggravation cases)
- Counts v. Black & Decker Corp., 121 N.C.App. 387, 465 S.E.2d 343 (N.C. App. 1996) (apportionment not permitted when work aggravates non-work-related infirmity)
- Errante v. Cumberland County Solid Waste Management, 106 N.C.App. 114, 415 S.E.2d 583 (N.C. App. 1992) (apportionment framework in aggravation cases)
- Swink v. Cone Mills, Inc., 65 N.C.App. 397, 309 S.E.2d 271 (N.C. App. 1983) (liberal construction for compensability in exposure cases)
- Chaisson v. Simpson, 195 N.C.App. 463, 673 S.E.2d 149 (N.C. App. 2009) (policy supporting swift and certain remedy for injured workers)