An unpublished opinion of the North Carolina Court of Appeals does not constitute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

explained:

           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).
