McKinney v. International Business MacHines

CHRISTOPHER SCOTT, COMMISSIONER, DISSENTING:

In this mater, the majority of the Full Commission affirmed the Deputy Commissioners decision which denied plaintiffs claim for a change of conditions. In their opinion, the majority discount the deposition testimony of Dr. Alan Finkel, plaintiffs primary treating physician. Because I read Dr. Finkels testimony as supporting plaintiffs claim of a change of condition, I respectfully dissent from the majoritys Opinion and Award.

Plaintiff initially sustained an admittedly compensable injury by accident on 9 April 1991 when he slipped and fell, hitting his head on a concrete floor. Prior to this incident plaintiff had a pre-existing condition which involved a malformation of the brain known as a "Chiari malformation. After his injury by accident, this condition became symptomatic and plaintiff sustained a post-concussive syndrome, neuropsychological dysfunction and experienced constant headaches and occasional blackouts.

As time went on, plaintiff was experienced increased episodes of lost consciousness and was more distraught because of his condition. Furthermore, in the expert opinion of Dr. Finkel as expressed in his 1998 deposition, because of these changes in his physical condition, plaintiff was no longer employable. Therefore, under the G.S. 97-47 plaintiff has sustained a change of condition in that his physical and psychological condition has deteriorated such that his ability to earn wages his diminished.

For the above reasons, I would vote to reverse the opinion of the Deputy Commissioner and respectfully dissent from the majoritys Opinion and Award.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER