Lucas v. Bunn Mfg. Co.

368 S.E.2d 386 (1988)

Polly LUCAS v. BUNN MANUFACTURING CO., Self-Insured (Alexsis, Inc., Servicing Agent).

No. 8710IC696.

Court of Appeals of North Carolina.

May 31, 1988.

*387 Kelly & West by J. Thomas West, Lillington, for plaintiff-appellee.

Maupin, Taylor, Ellis & Adams by Richard M. Lewis and Steven M. Rudisill, Raleigh, for defendant-appellant.

PHILLIPS, Judge.

Though the December, 1984 agreement upon being approved by the Industrial Commission became in effect a final award, since it determined the extent of plaintiff's permanent disability and left no other issue for determination, the award is nevertheless subject to modification, as both parties concede, if a substantial change of condition has occurred, as the Commission found. G.S. 97-47; Pratt v. Central Upholstery Co., Inc., 252 N.C. 716, 115 S.E.2d 27 (1960). Thus, the sole question for determination is whether the Commission's finding of fact that such a change in plaintiff's condition did occur is supported by any competent evidence. If it is the Commission's finding is conclusive and the decision must be affirmed. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981).

Quite clearly the Commission's finding is supported by competent evidence. In addition to the testimony of plaintiff and her husband to the effect that her condition was worse after she went back to work than it was when the agreement was made, and that now she is neither able to work in the mill nor do her housework, Dr. Dhillon stated, either in his testimony or 23 February 1985 letter, the following:

It is also my opinion that this patient's condition has considerably changed from the November time when she was discharged from here and that she needs further treatment for this condition. * * * * * * [O]n February 1, 1985 ... [s]he had marked limitation of motion. There was spasm in the muscle, and I felt that the symptoms were due to scarring following the operation, pinching the nerve. She was put on medication, *388 advised to rest, use heat. Saw her again on February 8. Symptoms had persisted, with pain in back and leg. She was advised to take traction; took one or two courses of traction but could not tolerate it. .... Q When you rated her, was she having pain down to the end of her feet? A She was having back pain and some discomfort in her legs. I think her leg symptoms are worse. .... Q Have you any objective findings at this time that she has a recurrent disc rupture or nerve root compression or bulging disc? A Mostly based on her symptoms of increased spasm and limited motion. .... Q So, the only difference at this time is her increased complaints of pain? A Increased complaints of pain and more limited motion and spasm in the muscles. .... The most likely cause of symptoms is irritation of nerve. .... [W]hen she returned in the month of February, her symptoms were a little more than before and she had increased spasm, more limited motion, and at that time I did not release her for work. .... Q In February you felt like she could not work at all? A She could not work.

Defendant's argument that no substantial change of condition had occurred because plaintiff's pain and other symptoms were only "slightly worse" than before misses the point. In determining if a change of condition has occurred entitling an employee to additional compensation under G.S. 97-47 the primary factor is a change in condition affecting the employee's physical capacity to earn wages, Pratt v. Central Upholstery Co., Inc., supra; and while the physical and symptomatic changes that occurred hereincreases in the intensity and frequency of pain and muscle spasms and a decrease in the movement of the back musclesmay not appear to be great when considered by themselves and measured in the abstract, their effect upon the plaintiff was very profound, indeed, reminiscent of the straw and the camel's back, because they changed her from a person capable of working and earning wages five days a week to one incapable of working at all and earning anything.

Affirmed.

JOHNSON and ORR, JJ., concur.