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Whitfield v. Laboratory Corporation of America6/17/2003
select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission."
The Commission approved Dr. Huh as the primary treating physician for plaintiff for the problems arising from plaintiff's 5 June 1998 injury by accident. The findings of fact indicate that the treatment recommended by Dr. Huh is reasonably necessary to provide relief to plaintiff. Those findings are supported by competent evidence. There are also findings that Dr. Huh is qualified to provide ongoing treatment to plaintiff, which are supported by competent evidence in the record of Dr. Huh's training and experience. Therefore, as to future medical expenses, the Commission did not err in ruling that defendants are responsible for those expenses.
As to the past medical expenses, there is no finding by the Commission that the Commission approved the treatment by Dr. Huh prior to the issuance of the Commission's order and award, or that plaintiff sought such approval from the Commission. The record does not show that any such request was made as required by N.C.G.S. § 97-25. We recognize that such a request need not be made before treatment is received, only within a reasonable time thereafter, Larramore, 141 N.C. App. at 258, 540 S.E.2d at 772-73; however, without any evidence of a request in the record, the issue of the timeliness of the request is not before us. We therefore vacate the portion of conclusion number three of the Commission's opinion and award granting past medical benefits for treatment by Dr. Huh and remand this issue to the Commission to make proper findings as to whether plaintiff actually requested approval from the Commission for treatment by Dr. Huh.
VII.
Plaintiff has made two cross-assignments of error. Plaintiff first argues that the Commission erred by failing to find and conclude that defendants were aware that plaintiff was in need of on-going medical treatment arising from her injury , yet failed and refused to provide such treatment. Plaintiff also argues that the Commission erred (1) in failing to conclude that defendants' denial of benefits, particularly needed medical treatment, was unreasonable, and (2) in failing to award plaintiff reasonable attorney's fees pursuant to N.C. Gen. Stat. § 9788.1 (2001).
N.C.G.S. § 97-88.1 states that:
If the Industrial Commission shall determine that any hearing has been . . . defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for . . . plaintiff's attorney upon the party who has . . . defended them.
The purpose of this statute is "to prevent 'stubborn, unfounded litigiousness' which is inharmonious with 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). However, the decision of the Commission to award or deny attorney's fees is reversible only for an abuse of discretion. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 54-55, 464 S.E.2d 481, 486 (1995), disc. review denied, 343 N.C. 516, 472 S.E.2d 26 (1996).
Upon review of the record it is evident that the Commission failed to rule on plaintiff's request for attorney's fees pursuant to N.C.G.S. § 97-88.1. Our Court recently addressed this same issue and determined that the failure of the Commission to address plaintiff's attorney's fee request was in error. Cialino v. Wal-Mart Stores, ___ N.C. App. ___, ___, 577 S.E.2d 345, 353 (2003). "'This Court has held that when the matter is "appealed" to the full Commission . . .
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