An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

Employer, 

SPECIALTY RISK SERVICES, 

Carrier,

 Defendants.

I.C. No. 657096

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 jobrelated 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. 
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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
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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).