Edwards v. John Smith & Sons

270 S.E.2d 569 (1980)

Thomas EDWARDS, Employee Plaintiff, v. JOHN SMITH & SONS, Employer, and Aetna Casualty & Surety Co., Defendants.

No. 8010IC206.

Court of Appeals of North Carolina.

October 7, 1980.

*570 C. Orville Light, Madison, for plaintiff.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr. and William L. Young, Greensboro, for defendants.

HEDRICK, Judge.

Defendants do not question the sufficiency of the evidence to support the findings of fact, but rather the sufficiency of the findings of fact to support the conclusion of law that plaintiff has experienced a change of condition under N.C.G.S. 97-47 from the time of Deputy Commissioner Denson's original award on 27 January 1976.

N.C.G.S. 97-47 authorized the Industrial Commission to review and, in its discretion, modify previous awards on the grounds of a change of condition. As stated in Gaddy v. Kern, 32 N.C.App. 671, 673, 233 S.E.2d 609, 611 (1977), a change of condition "... refers to a substantial change, after a final award of compensation, or (sic) the injured employee's physical capacity to earn and in some cases, of his earnings," quoting Swaney v. Construction Co., 5 N.C.App. 520, 526, 169 S.E.2d 90, 94-95 (1969). The leading case of Pratt v. Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 33 (1960), makes clear that change of condition under N.C.G.S. 97-47 occurs where conditions are "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."

Deputy Commissioner Roney's Findings of Fact filed 7 June 1979 indicated that plaintiff is suffering from a continuing inability to work caused by the same injury that formed the basis of the 27 January 1976 award manifest by the same symptoms. Finding of Fact # 8 states: "Claimant's physical condition as it existed during January 1976 had not changed for the worse by January 1977." (Emphasis added.) These findings fail to support the Commissioner's award of additional compensation based on a change of condition.

The only factual finding even remotely supportive of the legal conclusion that plaintiff experienced a change of condition is # 11 which states: "The psychological basis for this disability was not discovered until the 7 January 1977 hospitalization at Duke University Medical Center." This observation does not fall within the clear definition of changed conditions as set out in Pratt, supra. Delayed discovery of the cause or basis of symptoms and disability does not equal a change in the character of the incapacity. Id.

Under these circumstances, we find no evidence in the record to support a change of condition. The conclusions of law that a change of condition exists and that plaintiff is entitled to modification of the January 1976 award are not supported by the Commissioner's findings of fact. The opinion and award of the Full Commission is therefore

Reversed.

ERWIN and WELLS, JJ., concur.