14-723988.doc

I.C. NO. 14-723988, PATRICIA L. EDWARDS, Employee, Plaintiff v. CHRISTIAN TOURS, INC., Employer, NATIONAL INTERSTATE INSURANCE COMPANY, Carrier, Defendants.  OPINION AND AWARD by KIM LEDFORD, Deputy Commissioner, N.C. Industrial Commission.  Filed 16 June 2015.



This case was heard before the undersigned on December 10, 2014 in Newton NC.  At the hearing, Plaintiff testified as the sole witness for the Plaintiff, and Defendants presented testimony from Heather Owenby Paul, Plaintiff's supervisor, and Mellonie Burke Owenby, owner of Christian Tours.  Post-hearing, the parties took the deposition testimony of the following medical experts and lay witnesses:  Dr. Jess M. Kirby, Dr. David M. Cook, Pamela J. Bergen, the claims adjuster for Carrier-Defendants, and Bradley S. Hamby, an accountant at Mast Evans & Isenhour, LLP.  The deposition transcripts have been received and made a part of the evidence in this matter.  Following receipt of all evidence and the contentions of the parties, the record was closed as of March 18, 2015.
A P P E A R A N C E S
	Plaintiff:	Sellers, Ayers, Dortch & Lyons, P.A., Attorneys, Charlotte, North Carolina; John F. Ayers III, appearing.

	Defendants:	Patterson Dilthey, LLP, Attorneys, Raleigh, North Carolina; Scott L. Lasso, appearing.

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The undersigned finds as fact and concludes as matters of law the following which were entered into by the parties through the Pre-trial Agreement and at the hearing as
STIPULATIONS
On March 13, 2014 and March 14, 2014 the parties were subject to and bound by the provisions in the North Carolina Workers' Compensation Act.
On March 13, 2014 and March 14, 2014, the Employee-Employer relationship existed between Plaintiff and Employer-Defendant.
On March 13, 2014 and March 14, 2014, Employer-Defendant employed three or more employees.
On March 13, 2014 and March 14, 2014, the carrier of workers' compensation administration in North Carolina for Employer-Defendant was National Interstate Insurance Company.
On March 13, 2014 and March 14, 2014, Plaintiff was employed by Employer-Defendant as a Tour Director and was in Branson, Missouri serving as the Tour Director for a tour arranged and operated by Employer-Defendant and Plaintiff was provided meals and accommodations by Employer Defendant.
6.	The parties stipulated the following documentary evidence:
(a)	Pre-Trial Agreement;
(b)	Any and all medical records for treatment of Plaintiff's injuries.
(c)	All records from Plaintiff's personnel file.
(d)	All employment records provided by Defendant.
(e)	All records of Employer's Tour Director Manual.
(f)	All North Carolina Industrial Commission Forms and Orders.
(g)	Any and all of the parties' discovery responses and documents provided.
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	The following were submitted to the undersigned as:
EXHIBITS
	1.	Stipulated Exhibit No. 1:  Pretrial Agreement.
	2.	Stipulated Exhibit No. 2:  North Carolina Industrial Commission Forms and Filings, Discovery Responses, W-2 Form.
3.	Stipulated Exhibit No. 3:  Plaintiff's Medical Records.
4.	Hearing Exhibit 1:  Employer's OSHA Form 300.
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The following were submitted to the undersigned as:
ISSUES
1.	Whether Plaintiff suffered a compensable injury by accident arising out of and in the course and scope of her employment on the date of accident?
2.	What amount of compensation is Plaintiff entitled to for the following:
(a)	temporary total disability compensation pursuant to N.C. Gen. Stat. § 97-29?
(b)	temporary partial disability compensation pursuant to N.C. Gen. Stat. § 97-30?
(c)	permanent partial disability compensation pursuant to N.C. Gen. Stat. § 97-31?
(d)	medical compensation pursuant to N.C. Gen. Stat. § 97-25?
3.	What is Plaintiff's average weekly wage?
4.	Whether Defendants should pay the cost of hearing and the reasonable fees for Plaintiff's attorney pursuant to N.C. Gen. Stat. § 97-88.1?
5.	Whether Plaintiff's renal condition and damage was caused or accelerated and/or exacerbated by the accident?
6.	Whether Plaintiff was injured by accident arising out of and in the course of her employment as a Tour Director for Employer-Defendant?
7.	If so, to what benefits is the Plaintiff entitled pursuant to the North Carolina Worker's Compensation Act?
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Based upon the competent evidence of record, the undersigned makes the following additional
FINDINGS OF FACT
Plaintiff is a 73 year old employee of Christian Tours, Inc., a company headquartered in Newton, NC.  Since 2003, Plaintiff has worked as a Tour Director for Christian Tours.  She did not work a regular weekly schedule, but worked part time as she was needed.
This case arises from injury sustained by Plaintiff on March 14, 2014, while she was serving as a Tour Director for one of the tours operated by Christian Tours, and was staying with a tour group at the Grand Oaks Hotel in Branson Missouri.  Plaintiff fell while in the shower, sustaining injury to her right knee.  Plaintiff contends she injured her right lower extremity and also subsequently developed a renal failure condition.
Defendants denied Plaintiff's claim with a Form 61 filed on April 9, 2014.  At the time of hearing, Defense counsel notified the Commission that Defendants will acknowledge that Plaintiff sustained her injuries due to an accident sustained in the course of her employment.  Defendants contend the accident did not arise out of Plaintiff's employment.
Most of Employer-Defendant's tours involve overnight stays.  On the overnight trips Plaintiff's duties as a Tour Director required her to stay at the hotels provided by Employer-Defendant for the tour guests.  Plaintiff was expected to be available to the tour guests on a twenty-four (24) hour basis while on an overnight tour.  The Tour Director Manual states "Tour Directing is a 24 hour a day job."  Plaintiff was required to give tour guests her hotel room number so that she could be found if needed.
Plaintiff's duties as a Tour Director also included looking presentable while on trips with the tour guests.  Employer-Defendant encouraged Plaintiff to maintain good personal hygiene as a Tour Director, and also provided in the Tour Director Manual that Tour Directors "not only represent[] Christian Tours to the passengers, but to the vendors also."  Plaintiff understood that maintaining a good appearance and presenting well to the public was an inherent part of her job as a Tour Director.  She was evaluated by the employer on her appearance.  If Plaintiff decided not to take showers or practice good hygiene during a trip it would adversely affect her job as a Tour Director.
Plaintiff was travelling with Christian Tours as a Tour Director when she fell in the shower at the Grand Oaks Hotel in Branson, Missouri.  The tour had originated in Newton, North Carolina on the morning of March 11, 2013, and arrived in Branson, Missouri the evening of March 12, 2014.  Plaintiff's lodging was paid for by Christian Tours.  On March 13, 2014, Plaintiff spent the day with the tour group.  She provided her guests with her room and cell phone number in case they needed to reach her overnight.  After completing her evening duties, and making sure all tour guests were settled in at the hotel, Plaintiff got in bed around 11:30pm.
On March 14, 2014, Plaintiff was expected to work as a Tour Director, by serving as a guide to the tour guests staying at the Grand Oaks Hotel.  She began her day at around seven o'clock A.M.  The schedule for March 14, 2014 provided that the tour would leave the hotel at 8:30 A.M.  Plaintiff brushed her teeth and got in the shower and washed her hair.
The hotel bathroom was small and smaller than her bathroom at home, with the sink located outside of the bathroom.  There were no grab bars on the walls of the shower.  Hotels usually provide small bottles of shampoo and soap, but this particular bathroom had a wall liquid-soap and shampoo dispenser.  The wall soap dispenser was operated by pushing a release button, and cupping hands below the dispenser to catch the soap.  Any soap that was not caught in her hands fell to the shower floor.  The floor of the shower at the Grand Oaks Hotel did not have treads or other ingrained texture to aid with providing stability in the shower.
Plaintiff uses regular bar soap at her home, and has two long sturdy bars on two sides of the shower, and a hand bar to help her get in and out of her shower.  She has no need for a bathmat in her home because her shower has built in treads on the floor to provide stability.
On the morning on March 14, 2014, Plaintiff's foot slid while she was taking a shower at the Grand Oaks Hotel.  Plaintiff had already used the soap and shampoo dispenser, and had rinsed her hair when she slid.  Plaintiff lost her footing on the slippery surface of the tub.  As she slipped, she attempted to grab ahold of the small Plexiglas washcloth holder in the shower, but it twisted because it was not sturdy enough to hold her and she fell.  Plaintiff experienced severe pain in her right leg and left leg, and was unable to walk.
Plaintiff was transported by the Taney County Ambulance service to the Cox Medical Center in Branson, Missouri.  Todd F. Baker, M.D. of the Cox Medical Center ordered x-rays of Plaintiff's right knee.  The two views of her knee revealed a lateral tibial plateau fracture with depression.  However, Plaintiff was misdiagnosed by the medical center with a minor knee injury/sprain.
After leaving the hospital, Plaintiff contacted Melanie Owenby at Christian Tours because she could not get back on the tour buses with her leg injury.  Plaintiff made her own arrangements to fly back to Charlotte.  Plaintiff used wheelchairs in between shuttles and airplanes to return home.  Plaintiff believed that her leg was not broken, based on what she had been told at the Cox Medical Center.
Plaintiff presented to Novant Health Huntersville immediately after arriving in Charlotte, NC, where she was seen by Dr. Kirby and Dr. Edwards, an orthopedic specialist.  Dr. Edwards ordered additional x-rays and a CT scan of Plaintiff's knee on March 15, 2014.
The x-rays and CT scan revealed a comminuted tibial plateau fracture of the right lower extremity.  Dr. Tolshala T. Gates, another doctor with Novant Health, prescribed surgical intervention of Plaintiff's tibial plateau fracture once cleared to undergo surgery.  Plaintiff remained at the hospital and was cleared for surgery on March 18, 2014.
Jess M. Kirby, M.D., an orthopedic specialist, performed a right knee tibial plateau open reduction and internal fixation surgery on Plaintiff on March 18, 2014.  Dr. Kirby explained that the tibial plateau is "the top part of the larger two bones in the leg that join with the knee joint.  The plateau is where the articular surface of cartilage is that supports the knee joints."  The plateau is a critical point for load bearing in the human body.
Plaintiff's inability to walk following her injury is consistent with the type of injury diagnosed by Dr. Edwards and Dr. Kirby.  Dr. Kirby testified that Plaintiff's old patella fracture remained stable throughout the March 14, 2014 injury and surgery, and that nothing about the old patella fracture contributed to her March 14, 2014 injuries.
Dr. Kirby placed Plaintiff at the Huntersville Oaks Rehabilitation center for rehabilitation services, because Plaintiff was unable to walk following the surgery.
On April 8, 2014, Plaintiff was readmitted to Novant Health Huntersville Medical Center because she experienced acute renal failure with acute tubular necrosis while at the Huntersville Oaks Rehabilitation center.  The hospital records indicate that the acute renal failure was suspected as a result of recent prolonged volume depletion, and contributing medications.
Plaintiff's primary care physician, Dr. Cook, reviewed Plaintiff's records from the hospital, and records from Dr. Kirby.  Dr. Cook opined that Plaintiff's injury and subsequent course of treatment and rehabilitation substantially contributed to the development of her kidney failure complication, known as acute tubular necrosis.
On July 21, 2014, Dr. Kirby diagnosed Plaintiff with post-traumatic right knee arthritis, which he opined was caused by the trauma from the fall in the shower / tub.  Plaintiff did not have arthritis in the right knee previous to this accident.  Dr. Kirby prescribed a cane for support, and advised Plaintiff to use glucosamine and chondroitin sulfate for the arthritis.
Dr. Kirby testified that Plaintiff cannot fulfill the duties of Tour Director, and that with her current restrictions, he did not anticipate that Plaintiff would be able to return to that work at any time in the future.  Dr. Kirby gave Plaintiff restrictions limiting her standing and walking to thirty minutes, and climbing stairs to one flight of stairs at a time.  Dr. Kirby assigned a thirty percent permanent partial impairment rating (30% PPI) to Plaintiff's right knee.
Based upon Dr. Kirby's medical opinion, the undersigned finds by a preponderance of the evidence that as a result of her fall on March 14, 2014, Plaintiff sustained a lateral tibial plateau fracture to her right knee.  Also per Dr. Kirby's testimony, it is found that Plaintiff's previous patella fracture remained stable throughout the March 14, 2014 injury and surgery, and nothing about the old patella fracture contributed to her March 14, 2014 injuries.  Based upon Dr. Kirby's medical opinion, Plaintiff's posttraumatic right knee arthritis occurred as a result of the March 14, 2014 fall in the hotel shower.
Based upon Dr. Cook's testimony, the undersigned finds by a preponderance of the evidence that Plaintiff's traumatic injury and subsequent course of medical treatment and rehabilitation substantially contributed to the development of her kidney failure complication, known as acute tubular necrosis.
Employer-Defendants paid Plaintiff a per-diem wage of $100 per day in addition to meal allowance and various other payments.  The meal allowance is thirty (30) dollars per day for the first and last days of the trip, and is forty-two (42) dollars per day for the days in between.  Tour Directors for Employer-Defendant receive this meal allowance regardless of whether the Tour Directors spend it on meals.  Female Tour Directors also receive Luggage Pay of $.25 per bag if they help with luggage, and all Tour Directors receive deadhead pay of $.24 per mile when travelling to departure points.
Bradley S. Hamby, an accountant with Mast Evans and Isenhour, LLP, testified that Plaintiff's gross pay, meal pay, and other miscellaneous pay must be added together to determine Plaintiffs total wages.  Taking this calculation into account, Plaintiff earned a total of $17,331.09 in the 52 week period preceding Plaintiff's injury.
During the time shown on the Form 22, 190 days may be counted, not including periods during which Plaintiff lost more than seven consecutive calendar days.  Her total compensation of $17,331.09 divided by 190 days equals a daily average of $91.22 and an average weekly wage of $638.54.
Following Plaintiff's injury, Employer-Defendant posted at the office an entry on the Employer's OSHA Form 300, documenting Plaintiff's fall in the hotel shower on March 14, 2014 as "work related."
On March 21, 2014, Heather Paul with Defendant-employer contacted the insurance carrier, National Interstate Insurance, by calling senior claims adjustor Pamela J. Bergen.  Ms. Paul also forwarded to Ms. Bergen an email advising of Plaintiff's fall and directing that the Carrier not send Plaintiff the "standard" National Interstate letter enclosing medical authorization, Form 18, Form 19 and Form 25T, and so the forms were not sent to Plaintiff and no information regarding workers compensation was sent to Plaintiff.  Ms. Paul told Ms. Bergen that Plaintiff might be putting the claim through Medicare rather than workers compensation.
Prior to her scheduled knee surgery, Plaintiff spoke to both Heather Paul, Personnel Director for the Employer and Mellonee Owenby, owner of the Company Christian Tours.  Plaintiff advised of her upcoming knee surgery, and specifically asked Ms. Owenby about workers compensation and how it worked.  Neither the employer nor the carrier provided Plaintiff information regarding filing a workers compensation claim.
The Defendants knowingly and intentionally violated N.C. Gen. Stat. § 97-92 and 04 NCAC 10A .0104, which provides that an Employer and Carrier must provide a Form 19 and Form 18 to the Employee.  Employer-Defendant asked Plaintiff to place medical treatment under Medicare instead of Workers' Compensation despite Plaintiff's express inquiry about Workers' Compensation.  In a note dated 3/24/14, Ms. Bergen's file states, "AT THIS TIME TIME [sic] THEY W/IW TO GO UNDER MEDICARE FOR THIS LOSS."
The Carrier-Defendant acknowledged as early as May 29, 2014, that "there does seem to be a pretty good argument for compensability."  However, the Carrier denied the claim before conducting a proper investigation, either by requesting Plaintiff's medical records or by taking a statement from Plaintiff or any witnesses or co-workers.  The Carrier was aware, however, of Plaintiff's leg fracture in the hotel shower and subsequent surgery at the time of denial.  Heather Paul, personnel director, called Plaintiff at the Oaks rehabilitation facility and told Plaintiff that the "insurance people" said due to her age and health and the fact that it happened out of state, it would not be worth it to file workers' compensation.
Carrier-Defendant stated expressly in the claim file that the reason for denial was that Plaintiff "has broken just about every bone in her body, she is prone to ACCIDENT."  This notation was made without having received any of Plaintiff's medical records from the past or any other medical evidence that Plaintiff had numerous injuries in the past.  No evidence was presented from the Employer concerning Plaintiff's past medical history, nor does it appear that Defendants ever requested Plaintiff's past medical records.
Based on the preponderance of the evidence, the undersigned finds that Plaintiff has been unable to earn wages in her prior employment with the Defendant-employer since her fall on March 14, 2014.  Based upon the medical evidence and considering her age and her restrictions, at this time Plaintiff continues to be unable to earn wages and disabled within the meaning of the Act.
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	Based upon the foregoing findings of fact, the undersigned concludes as follows:
CONCLUSIONS OF LAW
	1.	The Plaintiff must prove both that the injury arose out of the employment and that it occurred in the course and scope of the employment, and each test is to be applied together such that "deficiencies in one factor are sometimes allowed to be made up by strength in the other."  Hoyle v. Isenhour, 306 N.C. 248, 252 (1982).  In practice, "the 'course of employment' and 'arising out of employment' tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection…."  Watkins v. City of Wilmington, 290 N.C. 276, 281; 225 S.E.2d 577 (1976).
2.	Under North Carolina law, an employee is continuously within the course of his employment when their "work requires travel away from the employer's premises…except when there is a distinct departure for a personal errand."  Cauble v. SoftPlay, Inc., 124 N.C. App 526, 528 (1996).  A travelling employee receives the protection of the Act when the injury has its origin in a risk created by the necessity of sleeping and eating away from home.  Martin v. Georgia-Pacific Corp., 5 N.C. App. 37 (1969).
3.	As acknowledged by Defendants at hearing, Plaintiff's fall occurred within the course of her employment with Christian Tours.  Plaintiff's fall in the shower occurred during the period of employment, at a place where the Plaintiff's duties required her to be, and occurred under circumstances that Plaintiff was authorized to engage in that were calculated to further the Employer's business.  N.C. Gen. Stat. § 97-2(6); Cauble.
4.	In North Carolina, an accident arises out of the employment, and occurs in the course of the employment if the accident occurs during the performance of personal acts which are necessary to the employee's comfort and wellbeing.  Rewis v. New York Life Ins. Co., 226 N.C. 325, 328 (1946).  In Rewis, the Supreme Court of North Carolina held that "such acts as are necessary to life, comfort and convenience of the workman while at work, though personal to himself, and not technically acts of service, are incidental to the service; and an accident occurring in the performance of such acts is deemed to have arisen out of the employment."  Rewis, 226 N.C. at 328.  An employee's injury occurring in the performance of personal grooming will arise out of the employment if the employee's appearance is intimately related to his employment.  Powers v. Lady's Funeral Home, 306 N.C. 728, 729 (1982).
5.	There must exist a causal relationship between the nature of the employment and the creation of the risk, which results in the injury.  An injury by accident is not compensable if it results from a hazard to which the public in general is subject or the causative danger does not have its origin in a risk connected with the employment.  Bartlett vs. Duke University, 284 N.C. 230, 200 S.E. 2d 293 (1973).  An accident has a reasonable relationship to the employment when it is the result of a risk or hazard incident to the employment.  Harless v. Flynn, 1 N.C. App. 455, 162 S.E.2d 487 (1968).
6.	Plaintiff's injury by accident from her fall in the shower / tub on March 14, 2014 arose out of her employment, where the fall occurred while she was performing an act necessary to her personal comfort to prepare her to continue her employer's business, and Plaintiff's duties as a Tour Director necessitated that she maintain a good personal appearance and good personal hygiene, as her personal appearance was intimately related to her effectiveness as a Tour Director.  Powers.
7.	Plaintiff's injury from the fall in the shower also arose out of the employment where she was in a bathroom in a hotel where she was required to be as part of her employment and was exposed to the risk of injury from the bathroom which was smaller than her home bathroom and had no grab bars and had a liquid soap dispenser which could cause soap to leak to the shower floor which did not have a tread, to prevent slips and falls.  Harless.
6.	On March 14, 2014, Plaintiff sustained a compensable injury by accident arising out of and in the course of her employment with Defendant when she was working as a Tour Director and while on tour she slipped and fell in the hotel shower.  N.C. Gen. Stat. § 97-2(6).
7.	Where the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.  Click v. Pilot Freight Carriers, 300 N.C. 164, 265 S.E.2d 389 (1980).  Additionally, "the entirety of causation evidence" must "meet the reasonable degree of medical certainty standard necessary to establish a causal link."  Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003); Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (2000).
8.	The medical evidence establishes that as a result of her fall on March 14, 2014, Plaintiff sustained a comminuted fracture of the tibial plateau of her right knee.  Therefore, Defendants are responsible for all medical care that was or shall be reasonably necessary for treatment of Plaintiff's right knee injury.  N.C. Gen. Stat. §§ 97-2(19), 97-25.
9.	The medical evidence establishes that as a result of her fall on March 14, 2014, and subsequent necessary medical treatment, while in the rehabilitation facility, Plaintiff suffered acute renal failure.  Therefore, Defendants are responsible for all medical care that was or shall be reasonably necessary for treatment of Plaintiff's acute renal failure.  N.C. Gen. Stat. §§ 97-2(19), 97-25.
10.	The employee initially has the burden of proving disability.  An employee may meet the initial burden by producing one of the following:  (1) medical evidence that he is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of preexisting conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that he has obtained other employment at wages less than his pre-injury wages.  Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 545 S.E.2d 485 (2001); Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993).  
11.	Plaintiff has met her burden of proving disability where she introduced medical evidence from Dr. Kirby, her treating orthopedic surgeon, that she is not capable of returning to work as a Tour Director because of restrictions assigned by Dr. Kirby, and where Dr. Kirby further testified that he did not anticipate that Plaintiff would be able to return to that work at any time in the future.  Considering Plaintiff's advanced age of 73, and the 30 percent rating to her right knee and the restrictions given by Dr. Kirby, Plaintiff has satisfied her burden of proving disability under the first and third prongs of Russell, 108 N.C. App. at 765.
12.	Once the employee meets her burden of showing disability, the burden then shifts to Defendants to produce evidence that suitable jobs are available for the employee and that the employee is capable of obtaining a suitable job.  Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 535 S.E.2d 485, aff'd per curiam, 354 N.C. 355, 554 S.E.2d 337 (2001).  Defendants produced no evidence at the hearing with respect to whether suitable jobs are available and whether Plaintiff is capable of obtaining a suitable job.  Therefore, Plaintiff's evidence of disability under Russell remains undisputed.
13.	Applying the methods for calculation of average weekly wage pursuant to N.C. Gen. Stat. § 97-2 (5) and using the Form 22, along with testimony from accountant Bradley S. Hamby, Plaintiff has an average weekly wage of $638.54, which yields a compensation rate of $425.71, applicable to this claim.
14.	The North Carolina Workers' Compensation Act provides that 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.  The test is whether the defense is based in reason rather than in stubborn, unfounded litigiousness.  Sparks v. Mountain Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 664 (N.C. Ct. App. 1982).
15.	The North Carolina General Statutes and Rule 104 of the Rules of the North Carolina Industrial Commission requires "(b) The employer, carrier or administrator shall provide the employee with a copy of the completed Form 19…along with a blank Form 18…." N.C. Gen. Stat. § 97-92; 04 NCAC 10A .0104.  Failure to comply with this statute and rule has previously resulted in an award under N.C. Gen. Stat. § 97-88.1.  Allen v. SouthAg Manufacturing, 167 N.C. App. 331, 335 (2004).
16.	The undersigned concludes that the Defendants initial conduct in this matter was in violation of the rules of the Commission, and the initial denial was not grounded in proper investigation of the matter and was without basis, such that the conduct of the Employer-Defendant and the Carrier-Defendant constitutes a basis for consideration of an award of attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1.
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Based upon the foregoing stipulations, findings of fact, and conclusions of law, the undersigned makes the following:
A W A R D
Defendants shall pay for all related medical expenses incurred or to be incurred by Plaintiff as a result of her compensable March 14, 2014, injury by accident, her surgery and complications due to renal failure arising therefrom and related problems when the medical bills have been approved according to established Industrial Commission procedures.
Defendants shall pay to Plaintiff ongoing total disability compensation at the rate of $425.71 per week for the period of March 14, 2014, through the present and continuing until such time as she returns to suitable employment or further Order of the Commission.  The accrued amount shall be paid to Plaintiff in a lump sum.
As a sanction for the initial unreasonable failure to properly investigate the claim and to comply with the Rules of the Commission and the initial unreasonable denial of the claim, attorney's fees shall be awarded in part in this matter pursuant to N.C. Gen. Stat. § 97-88.1, where the carrier and employer refused to provide Plaintiff with the proper forms and information for filing her claim.  For all accrued compensation due to the date of filing of this Opinion and Award, Defendants shall pay Plaintiff's attorney a reasonable attorney's fee equal to twenty-five percent of the accrued compensation amount due Plaintiff, to be paid in addition to and not deducted from the lump sum compensation due Plaintiff.
Hereafter, a fee of twenty-five percent (25%) of the ongoing compensation being paid to Plaintiff is approved for her attorney and shall be deducted therefrom and paid to her attorney.
Defendants shall pay the costs of the proceeding.
This claim is Ordered Removed from the Catawba County hearing docket.



			S/			
KIM LEDFORD
DEPUTY COMMISSIONER

KL:kl

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