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Clawson v. Phil Cline Trucking1/18/2005
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 (2003).
In the present case, the deputy commissioner awarded plaintiff attorney's fees as follows:
A reasonable attorney's fee in the amount of one third percent of all accrued compensation awarded herein to plaintiff is approved for plaintiff's present counsel. . . . A reasonable attorney's fee of one third of ongoing future compensation due plaintiff is approved for plaintiff's counsel, and shall be paid as a part of the cost of this action.
Defendants' counsel filed a Notice of Appeal of the Opinion and Award on 12 August 2002. On 13 January 2003, plaintiff filed a Motion for Award of Attorney's Fees as follows:
Plaintiff moves the Commission panel to order that the cost to plaintiff of this proceeding, including reasonable attorney's fees, be paid by defendant as a part of the bill of costs. Plaintiff seeks to be awarded an attorney's fee of 25 percent of all additional past and future benefits awarded plaintiff, to be paid in addition to the $347.50 weekly disability benefit due plaintiff.
The Full Commission conducted a hearing on 27 January 2003, and issued an Opinion and Award with regard to attorney's fees as follows:
A reasonable attorney's fee in the amount of one third of all unpaid accrued compensation awarded herein to plaintiff is approved for plaintiff's present counsel. . . . A reasonable attorney's fee of one-fourth of ongoing future compensation due plaintiff is approved for plaintiff's counsel, and every fourth check shall be paid directly to counsel for plaintiff.
The Full Commission's Opinion and Award did not mention N.C. Gen. Stat. §§ 97-88 or 97-88.1 or plaintiff's motion filed 13 January 2003. Thus, we conclude that the attorney's fee award above is simply the ordinary contingent fee, awarded pursuant to N.C. Gen. Stat. § 97-90, and that the Full Commission has not addressed whether grounds exist for an award of additional attorney's fees pursuant to plaintiff's motion. Plaintiff correctly notes that this Court has ruled it is error for the Full Commission to fail to address such a motion. Cialino v. Wal-Mart Stores, 156 N.C. App. 463, 577 S.E.2d 345 (2003). Thus, we remand this case for the Full Commission to address plaintiff's motion.
AFFIRMED in part, REMANDED in part.
Chief Judge MARTIN and Judge HUDSON concur.
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