Burrow v. Hanes Hosiery, Inc.

ARNOLD, Judge.

Defendants assign error to the award of additional compensation to plaintiff for a change of condition. We agree that neither the evidence presented at the 17 February and 14 December 1981 hearings nor the findings of fact in the 1 September 1982 opinion and award of the Full Commission show a change of condition occurring after the final award of permanent partial disability compensation. The award of temporary total disability beginning 28 August 1981 and continuing until there is a change of condition is reversed.

A change of condition for purposes of G.S. § 97-47 has been defined by the North Carolina Supreme Court in Pratt v. Upholstery Co., 252 N.C. 716 , 115 S.E. 2d 27 (1960):

Change of condition “refers to conditions different from those existent when the award was made; and a continued incapacity of the same kind and character and for the same injury is not a change of condition . . . the change must be actual, and not a mere change of opinion with respect to a pre-existing condition.” 101 C.J.S., Workman’s Compensation, sec. 854(c), pp. 211-2 .... Change of condition is a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, of earnings.

Id. at 722 , 115 S.E. 2d at 33-34 . An examination of the testimony presented at the hearing before Chief Deputy Commissioner Shuford and at the subsequent hearing before Deputy Commissioner Sellers reveals no evidence which would support a finding of a substantial change of physical capacity to earn.

At the initial hearing Drs. Billings, de la Torre and Branham all testified that in their opinion plaintiff was unable to return to work because of the intensity of her pain. Dr. Tomberlin testified that in his opinion plaintiff was able to return to work on 12 March 1980; and that she had a permanent partial disability of *422 her right little finger and upper extremity. Chief Deputy Commissioner Shuford chose to adopt Dr. Tomberlin’s opinion, and awarded plaintiff permanent partial disability compensation.

At the later hearing before Deputy Commissioner Sellers, Drs. Billings, de la Torre and Branham again testified. Dr. Billings indicated that plaintiff had obtained some relief from her pain after having surgery in April 1981, but that in his opinion she was totally disabled because of the remaining pain. Dr. de la Torre testified that he performed the April 1981 surgery; that this surgery did not make plaintiffs pain any worse and that her pain was disabling. Dr. Branham, a psychiatrist, testified that since February 1981 he had been treating plaintiff for pain, depression and anxiety; and that her fear of surgery and her depression were worse. He testified that in his opinion plaintiff was 100 percent disabled because “[t]he pain is of such a nature that the least movement or the least pressure or performance of any kind of duties that Mrs. Burrow does, creates an intensification of the pain.” He noted that the nature and severity of plaintiffs present pain was the same as before the April surgery. Dr. Tomberlin did not testify at this second hearing.

Plaintiff argues that the Full Commission’s finding that her depression is worse than it was in February 1981, is sufficient to support the conclusion that there has been a change of condition. She cites this Court’s decision in Fayne v. Fieldcrest Mills, Inc., 54 N.C. App. 144 , 282 S.E. 2d 539 (1981), disc. rev. denied, 304 N.C. 725 , 288 S.E. 2d 380 (1982), affirming the award to an employee who injured her back at work and subsequently became depressed. This case is clearly distinguishable from the matter on appeal, because there was competent evidence that Fayne’s inability to work was caused by her depression. One psychiatrist testified that Fayne had “been suffering from a severe neurotic depressive reaction which has caused her to have significant impairment from a psychological and emotional point of view, which in my opinion has made her unable to work.” Id. at 145, 282 S.E. 2d at 539 . Another psychiatrist indicated that “he classified her depression as a compensation neurosis and that she is unable to work because of her depression.” Id. at 145 , 282 S.E. 2d at 539 .

The record on appeal contains undisputed evidence that plaintiffs pain has not worsened since the final award of perma *423 nent partial disability compensation; and that the three physicians who believed that plaintiff was unable to work at the initial hearing and still unable to work at the second hearing attributed her incapacity to earn to her pain. At the second hearing the only evidence of a change in plaintiffs condition was an increase in her depression and fear of surgery. Neither fear nor depression were given as causes of plaintiffs disability and are therefore insufficient to show a substantial change of physical capacity to earn.

In light of our decision, we need not discuss defendants’ alternative assignments of error. The opinion and award of the Full Commission is reversed and the case is remanded to the Full Commission with orders for it to enter an opinion consistent with this Court’s opinion.

Reversed and remanded.

Judge JOHNSON concurs. Judge Phillips dissents.