I concur with the majority opinion awarding plaintiffs former attorney Daniel E. Smith an attorney fee. However, I dissent from that portion of the majoritys award that apportions the attorney fee between Mr. Smith and plaintiffs current attorney Harry L. Southerland. I believe that the majority are attempting to resolve a dispute between two lawyers concerning their fees, in direct contravention of the North Carolina Court of Appeals decision in Eller v. J S Truck Services,100 N.C. App. 545, 397 S.E.2d 242 (1990), cert. denied, 328 N.C. 271 (1991). In Eller the Court of Appeals held that the Industrial Commission does not have jurisdiction over the division of a fee between competing lawyers. I would approve an attorney fee in the amount of $16,250.00 payable jointly to Harry L. Southerland and Daniel E. Smith to be divided by the attorneys as they deem appropriate.
S/________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER