Bethea v. US Airways, Inc
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-740 NORTH CAROLINA COURT OF APPEALS Filed: 7 January 2014 DIANNE BETHEA, Employee/Plaintiff, v. From N.C. Industrial Commission I.C. No. 381629 US AIRWAYS, INC., Employer, and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Carrier, Defendants. Appeal by defendant from Opinion and Award entered 14 March 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 20 November 2013. THE SUMWALT LAW FIRM, by Vernon Sumwalt, for plaintiff. BROOKS, STEVENS & POPE, P.A., by Frances M. Clement and Daniel C. Pope, Jr., for defendant. Elmore, Judge. US Airways, Inc. (defendant) Carolina Industrial Commission s Award requiring defendant to appeals from (the Commission) pay disability the North Opinion and compensation to -2Dianne careful Bethea (plaintiff) review, the in Opinion the and amount Award of of $111.17. the After Commission is affirmed. I. Facts On 12 October 2003, plaintiff sustained a neck injury during the course of her employment as a flight attendant for defendant. Plaintiff underwent cervical fusion surgery and did not return to work until 28 September 2006. Plaintiff received workers compensation and social security disability benefits for three years while she was out of work. After plaintiff resumed employment, she returned to work earning her pre-injury average weekly wage. On 7 July 2010, the Commission approved a Form 26A for a 21.5 percent permanent partial disability rating to plaintiff s neck. After the Form 26A was approved, symptoms related to her neck injury intensified and included daily headaches resulting in nausea and blurred vision, decreased range of motion of her cervical spine, numbness, increased ostephyte (bone spur), and pain in her right arm. hours. 2011 As a result, plaintiff worked fewer Moreover, plaintiff was unable to work on 6 and 7 March due to her headaches. She did not receive workers compensation for those days, but instead the missed time came -3out of [her] sick time or personal care leave[.] On 6 June 2011, plaintiff filed an Amended Form 18 alleging a change of condition pursuant to N.C. Gen. Stat. § 97-47. After a hearing on the matter, Deputy Commissioner Philip A. Baddour, III, filed an Opinion and Award on 15 August 2012 in favor of defendant. Plaintiff appealed to the Commission on 17 August 2012. Thereafter, the Commission filed an Opinion and Award on 14 March 2013 for plaintiff, concluding that she demonstrated a change of condition from the permanent partial disability award approved on 7 July 2010. Defendant filed timely notice of appeal on 9 April 2013 to this Court. II. Analysis Defendant argues that the Commission erred in concluding that plaintiff proved a change of condition under the Workers Compensation Act. Review of We disagree. an Opinion and Award of the Commission is limited to consideration of whether competent evidence supports the Commission s findings of fact and whether support the Commission s conclusions of law. the findings This court s duty goes no further than to determine whether the record contains any evidence tending to support the finding. Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d -4582, 584 (2008) (citation omitted) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). Upon review of the Commission s finding as to a claimant s disability, we are required to determine whether the record contains any finding. [competent] evidence tending to support the Davis v. Hospice & Palliative Care of Winston-Salem, 202 N.C. App. 660, 670, 692 S.E.2d 631, 638 (2010) (citation and internal quotation marks omitted). However, whether the facts presented establish a change of condition is a question of law subject to de novo review. West v. J. P. Stevens Co., 12 N.C. App. 456, 460, 183 S.E.2d 876, 879 (1971) (citation omitted). Upon the motion of an interested party claiming a change of condition, N.C. Gen. Stat. § 97-47 allows the Commission to review any award, and on such review may make an award ending, diminishing, or awarded[.] N.C. increasing Gen. the Stat. § compensation 97-47 (2011). previously A change of condition refers to conditions different from those existent when the award was made[.] Weaver v. Swedish Imports Maint., Inc., 319 N.C. 243, 247-48, 354 S.E.2d 477, 480 (1987) (citation and internal quotation marks omitted). show that related to a new the condition injury exists upon which The moving party must and that the it is causally award is based. -5Shingleton v. Kobacker Grp., 148 N.C. App. 667, 670, 559 S.E.2d 277, 280 (2002) (citation and quotation omitted). The primary condition has condition factor affects wages[.] in is occurred the determining whether employee s whether the a change change alleged physical of of capacity to earn Grantham v. R. G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997) (citation and quotation omitted) (emphasis in original). in any one of the condition that claimant s earning A change of condition can be a change following: impacts his capacity 1.) the earning even claimant s capacity, though physical 2.) claimant s the physical condition remains unchanged, or 3.) the degree of disability even though claimant s physical condition remains unchanged. Blair v. Am. Television & Commc'ns Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996) (citations omitted). under prong capacity is one delineated necessary in in Blair, addition to an a impact change on in Thus, earning physical condition to establish a change of condition under the law. Under prong three, disability is defined as the impairment of the injured disablement. employee s earning Campos-Brizuela v. capacity Rocha and Masonry, not physical L.L.C., ___ N.C. App. ___, ___, 716 S.E.2d 427, 436 (2011) appeal dismissed, -6review denied, 366 N.C. 398, 732 S.E.2d 579 (2012) (citation and quotation omitted). (decreased A claimant can show increased disability earning capacity) by the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment[.] Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citation omitted). Here, the Commission concluded that plaintiff demonstrated a change of condition based solely on a (1) a physical change in her injury-related condition and (2) a change in disability. Even though the Commission found two separate grounds for concluding that a change of condition occurred, only one is necessary under the law. is insufficient as a See Blair, supra. matter of law to The language in (1) support a change of condition because it does not take into account how plaintiff s physical change impacted her earning capacity. However, the Commission s determination of a change in disability supports its conclusion that plaintiff had a change of order to the condition. In disability occurred from disability award 7 on July conclude whether Commission s 2010, we a change permanent must first whether plaintiff was disabled on 6 and 7 March 2011. in partial determine -7Plaintiff sought to establish disability (decreased earning capacity) through the production of medical evidence that [s]he [was] physically the work related injury, incapable of work in any employment[.] Id. Although 2010, or plaintiff the mentally, as experienced intensity and a some consequence headaches frequency of before those changed for the worse since that date. of 7 July headaches had It is undisputed that plaintiff call[ed] in sick and did not attend work on 6 and 7 March 2011. Dr. Bruce Jaufmann testified that on 13 May 2011, he met with plaintiff and documented headaches . . . in her occipital area related to her original neck injury. Dr. Jaufmann filled out an FMLA form indicating that plaintiff s condition [will] result in intermittent flare ups [that will] require time off from work[.] Plaintiff told Dr. Jaufmann that she called out sick on several occasions because of the bad headaches. Dr. Jaufmann During another appointment on 22 August 2011, noted that over the previous six months, [plaintiff] only missed work once or twice due to her neck pain and her headaches. plaintiff was compensable Accordingly, unable Thus, there is competent evidence that to injury-related the earn wages headaches Commission did on not and 6 err work and in 7 due to her March 2011. finding that -8plaintiff was cervical temporarily injury Shingleton, 148 emphasizing that and N.C. in its and totally consequences App. at proving 673, an disabled on 559 those S.E.2d inability to from days. at work 282 in her See (reany employment due to a physical or mental condition in the context of asserting a substantial change in condition, a plaintiff must produce medical evidence that she is no longer capable of any employment ). The Commission s award of temporary total disability is a change from the permanent partial disability award on 7 July 2010. Such a change in disability is sufficient to support a change of condition under N.C. Gen. Stat. § 97-47. See Weaver, 319 N.C. at 248-49, 354 S.E.2d at 481 (finding a change of condition where claimant s condition changed from temporary total disability . . . to total and permanent disability[.] ); see also Hubbard v. Burlington Indus., 76 N.C. App. 313, 316, 332 S.E.2d 746, 748 (1985)( When [the Commission] finds on one occasion that a person is permanently partially disabled and on a later occasion finds based on additional evidence that the person is totally disabled this supports a finding of a change in condition. ). III. Conclusion -9In sum, plaintiff the proved Compensation Act. Commission a change did of not err condition in concluding under the that Workers Thus, we affirm the Commission s Opinion and Award of temporary total disability benefits to plaintiff for 6 and 7 March 2011. Affirmed. Judges MCCULLOUGH and DAVIS concur. Report per Rule 30(e).
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