Gaddy v. CJ Kern, Contractor

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233 S.E.2d 609 (1977)

32 N.C. App. 671

Milton GADDY, Employee v. C. J. KERN, CONTRACTOR, Employer, Aetna Casualty and Surety Company, Carrier.

No. 7614IC764.

Court of Appeals of North Carolina.

April 6, 1977.

*611 Pearson, Malone, Johnson, DeJarmon & Spaulding by T. Mdodana Ringer, Jr. and W. G. Pearson, II, Durham, for plaintiff-appellant.

Spears, Barnes, Baker & Boles by Alexander H. Barnes, Durham, for defendants-appellees.

MORRIS, Judge.

Appellant assigns as error the findings and conclusions of the Industrial Commission that he had shown no change of condition which would justify an award for permanent total disability. Plaintiff alleges no change of condition with respect to his left wrist or hand. Therefore, we must examine the evidence in the record in terms of plaintiff's other allegedly disabling condition, i. e., his headaches.

A change of condition ". . . refers to a substantial change, after a final award of compensation, of the injured employee's physical capacity to earn and in some cases, of his earnings." Swaney v. Construction Co., 5 N.C.App. 520, 526, 169 S.E.2d 90, 94-95 (1969). (Emphasis supplied.) In the initial order of 17 February 1972, Commissioner Stephenson found as a fact that plaintiff's headaches were unrelated to his injury and concluded that he was entitled to a 20% permanent partial disability for the partial loss of use of his left hand. This order was adopted by the full Commission and affirmed by this Court. Gaddy v. Kern, supra. At subsequent hearings, however, plaintiff introduced testimony which tended to show that plaintiff is unable to work.

Even assuming, arguendo, that plaintiff has shown a substantial change in his physical capacity to earn which constitutes a change of condition under G.S. 97-47, he has not sufficiently shown that the headaches were caused by the injury to his left hand. In the final hearing of 4 May 1976, Drs. Parker and Hamilton testified that there was a relationship between plaintiff's injury and headaches. However, Dr. Parker also stated that plaintiff is suffering from "essentially the same group of symptoms" as he had immediately after his initial surgery. Dr. Hamilton testified that plaintiff exhibits the same symptoms as he did several years earlier but that "there has been a change for the worse in those symptoms.. . . a progression in degree of severity . . ." Thus, the medical testimony reveals that plaintiff is presently suffering from the same headaches and other symptoms which he exhibited soon after the injury and which, according to previous medical testimony, were unrelated to his injury. A change of condition ". . . must be actual, and not a mere change of opinion with respect to a pre-existing condition." Pratt v. Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 33 (1960). Moreover, plaintiff's more recent evidence served only to produce a conflict as to the cause of plaintiff's headaches. "Where the *612 evidence before the Commission is contradictory, the findings of fact by the Commission, which are nonjurisdictional, are conclusive on appeal to the Court of Appeals." Priddy v. Cab Co., 9 N.C.App. 291, 298, 176 S.E.2d 26, 30 (1970).

Defendants have cross-assigned as error the failure of the full Commission to dismiss the review of plaintiff's condition. They contend that plaintiff failed properly to apply to the Commission for such review within the time limits as prescribed by law.

Former G.S. 97-47, amended 1973 Session Laws, c. 1060, s. 2, is applicable to the case sub judice and provides,

"Upon its own motion or upon the application of any party in interest on the grounds of a change of condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded. . . [B]ut no such review shall be made after 12 months from the date of the last payment of compensation pursuant to an award under this Article . ."

The last payment pursuant to the award of compensation was made on 16 April 1973. Plaintiff's counsel wrote the Commission to request a hearing based on a change of condition on 5 December 1974. Defendants argue that the request for review of a change of condition was made after the 12-month period of G.S. 97-47 had run. However, plaintiff's letter to the Governor was received and forwarded to the Commission on 13 June 1973, well within the 12-month period. This Court has recognized that ". . . there are instances where an informal letter may serve as a claim for compensation or for a modification of an award on the grounds of change of condition. . ." Shuler v. Talon Div. of Textron, 30 N.C.App. 570, 576, 227 S.E.2d 627, 631 (1976). We note that the hearing examiner in his opinion and order dated 31 July 1975 stated: "On June 13, 1973 the Commission received notification from plaintiff that he contended he was entitled to additional benefits; and later his counsel on December 5, 1974 advised the Commission plaintiff could show a change in condition so as to warrant payment of further compensation. . . ." and that the full Commission, in its order affirming the hearing examiner stated, "On June 13, 1973 plaintiff requested a hearing based upon an alleged change in condition . . .". The letter itself is not a part of the record. Although there is indication in the record that it was an exhibit, if so, it was not sent up with the record. The letter is, therefore, not before us. We note further that in appellant's brief, he states that the letter expressed a desire for "further benefits". Appellee's brief sets out what it says was the letter in question. It is the same in content as is set out in the "Statement of Facts" in the record. Assuming this is the letter referred to, the writer informs the addressee (presumably the Governor of North Carolina) that he received Workmen's Compensation of $50 a week until 16 November 1971. It states further: "I had two operations at Duke in neuro-surgery for cut nerve and tedors (sic) in my wrist. I think I am getting a rotten deal and my lawyer is not cooperating. If there is anything your office or the Attorney General, please come to my rescue. My nervous condition cause (sic) me not to be able to except (sic) employment. Thank you."

Regardless of what the letter actually requested, the Industrial Commission, throughout these proceedings, has treated it as an application for review under G.S. 97-47. Whether properly so we do not reach because our decision on the merits obviates the necessity to discuss it further. Suffice it to say that the hearing examiner and the full Commission certainly gave the claimant the benefit of every doubt.

The Commission's order of 22 June 1976 has ample factual basis in the record to support it, and the order is

Affirmed.

VAUGHN and MARTIN, JJ., concur.