An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                           -2-
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v. Town of Selma, No. COA08-1148 (July 7, 2009) (unpublished).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
                                          -3-
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
                                       -4-
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:
                               -5-
         [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
                                           -6-
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
                                     -7-
            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.
                                           -8-
       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.
                         -9-
Report per Rule 30(e).
