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Workers’ Compensation – Attorney’s Fees – Unreasonable Defense – Causation – Acute Breathing Difficulty – Smoker – Dusty Job

Workers’ Compensation – Attorney’s Fees – Unreasonable Defense – Causation – Acute Breathing Difficulty – Smoker – Dusty Job

Blalock v. Southeastern Material. (Lawyers Weekly No. 11-07-0062, 23 pp.) (Cheri Beasley, J.) Appealed from the Industrial Commission. N.C. App. Click here for the full text of the opinion.

Holding: Where defendants’ “common sense” theory — that plaintiff’s acute breathing difficulty was brought on by his smoking and not his exposure to dust on the job — was refuted by the only three experts who testified in this matter, defendants’ continued defense of plaintiff’s workers’ compensation claim was unreasonable.

We reverse the Industrial Commission’s denial of plaintiff’s motion for attorney’s fees under G.S. § 97-88.1.


Plaintiff had been a heavy smoker for 30 years.

While working for the defendant-employer on Oct. 21, 2005, plaintiff was tearing down a cinder-block wall with a masonry saw and sledgehammer, which caused large amounts of dust to accumulate. Plaintiff was given a painter’s mask to wear and he continued sawing, but the mask was ineffective, as it was not designed for the type of protection necessary for the task.

Plaintiff inhaled dust throughout the two-day period during which he was tearing down the wall. Having experienced troubled breathing and chest pains after performing this carpentry work, plaintiff reported his acute symptoms to his supervisor.

Plaintiff saw his primary-care physician, Dr. Kenneth Shank, on Oct. 24, 2005. A chest X-ray revealed that Plaintiff had hyperinflated lungs, with evidence of underlying chronic obstructive lung disease.

Dr. Shank diagnosed an exacerbation of plaintiff’s underlying emphysema and COPD and possible pneumonitis. Having been plaintiff’s physician since May 2003, Dr. Shank knew plaintiff had smoked one to two packs of cigarettes per day for many years and had previously complained of hoarseness, but Dr. Shank noted that, even so, the Oct. 24, 2005, visit was the first time he had ever reported an acute shortness of breath and chest pains.

Dr. Shank believed that plaintiff’s underlying conditions resulted from his years of smoking and that his COPD had been exacerbated. Dr. Shank recommended that plaintiff stop smoking and stay away from dusty areas.

Defendants denied plaintiff’s workers’ comp claim. A deputy commissioner awarded plaintiff benefits and attorney’s fees but did not address his motion for attorney’s fees under G.S. § 97-88.1. The full commission denied plaintiff’s § 97-88.1 motion.

Unfounded Litigiousness

Defendants did not present any evidence demonstrating reasonable grounds for denying both the compensability of plaintiff’s claim and the extent of his disability. Where defendants argue in their brief that plaintiff’s current condition and any resulting disability were more likely caused by his history of smoking than work-related dust inhalation, such is based on their non-expert “common sense” belief, which is in direct contradiction to all of the expert medical evidence in this case attributing the acute exacerbation of plaintiff’s underlying COPD to his inhalation of cinder-block dust at work.

It is soundly established that, when a pre-existing, non-disabling,  non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment so that disability results, then the employer must compensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent.

It is equally well established that if the commission finds that an accidental work-related injury aggravated or accelerated a pre-existing condition, apportionment between the work-related injury and the non-work-related condition is never proper.

Plaintiff contended that his disability is the result of an aggravation or acceleration of his pre-existing COPD. Under the aggravation and acceleration rule, the cause of his COPD is immaterial. Thus, the belief that plaintiff’s smoking likely caused his COPD is beside the point, and defendants’ emphasis on this impertinent fact is unavailing.

The sole question as to causation here was whether a work-related accident — plaintiff’s inhalation of cinder-block dust over two days — aggravated or accelerated his COPD. Three expert witnesses addressed this question and, without exception, each came to the same conclusion.

These three experts testified, in essentially identical language, that while plaintiff’s COPD was pre-existing and likely due to his cigarette smoking, his inhalation of silica dust and concrete at work more likely than not caused an acute exacerbation of that COPD that resulted in the symptoms he began exhibiting in October 2005. There is no evidence to the contrary.

There was no genuine basis for defendants’ denial or defense of plaintiff’s claim. Defendants’ ignorance, or affirmative disregard, of longstanding opinions directly contradicting their position renders their defense unreasonable and unfoundedly litigious under G.S. § 97-88.1.

The only evidence upon which defendants rely as justifying their denial of plaintiff’s claim in fact establishes that the cinder-block episode accelerated plaintiff’s condition. This aggravation and acceleration establishes that the condition is compensable without apportionment.

Defendants’ reliance on Dr. Shank’s testimony that plaintiff’s continued cigarette smoking may have prolonged his recovery does not provide any better justification for defendants’ denial of the initial claim. At best, this argument relates to the degree of plaintiff’s disability, although even as to that point, defendants cite no authority justifying their position.

Defendants, however, did not just litigate the degree of disability. Rather, as described in their Form 61 — denying plaintiff’s claim because his employment “did not cause or significantly aggravate his medical conditions” — defendants contended up until the date they withdrew their appeal to this court that plaintiff’s condition was not caused by his work.

No medical evidence supports defendants’ outright denial of plaintiff’s claim. It is apparent that the sole basis for defendants’ denial is their non-expert belief that plaintiff’s cigarette smoking and exposure to other conditions was a more likely cause.

Defendants cannot substitute their “common sense” for the opinions of experts. What is “common sense” to them is “grasping for straws” according to Dr. Ohar, who could not have more emphatically rejected defendants’ “common sense” theory. Time and time again, when defense counsel tried to garner support from Drs. Ohar, Spangenthal and Shank for defendants’ theory, the expert witnesses not only rejected the theory, but explained in detail the medical reasons why they did so.

Defendants had no expert evidence supporting their causation theory. At the point when they learned that their theory lacked any medical basis, they were obligated to cease denying and defending the claim based on a lack of causation.

Defendants’ persistence in litigating a complex medical case for three years while denying an employee medical treatment and compensation, based on self-proclaimed “common sense” in the face of unanimous contrary medical testimony was unreasonable. Thus, we reverse this aspect of the commission’s amended opinion and award and remand for determination of the appropriate amount of attorney’s fees authorized by G.S. § 97-88.1 under the circumstances.


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