Bostian v. Marietta

An unpublished opinion of the North Carolina Court of Appeals does not constitute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