Sawyer v. Ferebee & Son, Inc.

336 S.E.2d 643 (1985)

Ambrose A. SAWYER, Sr., Employee, Plaintiff,
v.
FEREBEE & SON, INC., Employer,
Great American Insurance Company, Carrier, Defendants.

No. 8510IC556.

Court of Appeals of North Carolina.

December 3, 1985.

Russell E. Twiford, Elizabeth City, for plaintiff, appellee.

Leroy, Wells, Shaw, Hornthal & Riley by L.P. Hornthal, Jr., Elizabeth City, for defendants, appellants.

HEDRICK, Chief Judge.

The sole issue on appeal is whether the evidence in the record is sufficient to support the Industrial Commission's finding that plaintiff has suffered a change of condition so as to entitle him to compensation for 100 percent total permanent disability based on that change.

Our Supreme Court has defined "change of condition" in the following manner:

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.' ... Change of condition is a substantial change, after a final award of compensation, of physical capacity to earn....

Pratt v. Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 33-34 (1960), quoting 101 C.J.S., Workman's Compensation, Sec. 854(c), pp. 211-12.

We do not question that plaintiff's condition may have worsened after his surgery in March 1980. We find no evidence in the record, however, that there has been a change of condition, as that term is defined, since the September 1981 award.

According to Dr. Dillon's own testimony, plaintiff's condition has remained "essentially unchanged." In his opinion, the intensifying of plaintiff's physical problems was due to "the scar tissue that always infiltrates any area where an operation has been done." Plaintiff's "continued incapacity," therefore, is of the same kind and character as his incapacity at the time of the September 1981 award, and is not a change of condition within the meaning of the statute. Additionally, the record discloses that Dr. Dillon did not examine plaintiff from December 1980 until September 1981 (the date of the original award), and so he would thus be unable to testify as to plaintiff's amount of disability at the time of the award. If he did not have first-hand knowledge of plaintiff's condition at the time of the original award, his testimony is certainly incompetent as to whether plaintiff has suffered a change of condition since that time.

Accordingly, the Industrial Commission's award granting plaintiff compensation based on a rating of 100 percent total permanent disability must be reversed.

Reversed.

WHICHARD and JOHNSON, JJ., concur.