JULIE SHINGLETON, Employee, Plaintiff
v
.
KOBACKER GROUP, Employer;
CONTINENTAL INSURANCE COMPANY,
Carrier; Defendants
Shipman & Associates, L.L.P., by Gary K. Shipman and Carl W.
Thurman III, for plaintiff-appellee.
Hedrick, Blackwell & Criner, L.L.P., by G. Grady Richardson,
Jr. and P. Scott Hedrick, for defendant-appellant Kobacker
Group.
HUNTER, Judge.
Kobacker Group and Continental Insurance Company
(collectively, “defendants”) appeal an opinion and award of the
Industrial Commission concluding Julie Shingleton (“plaintiff”) has
sustained a substantial change in condition entitling her to
further disability compensation. For the reasons stated herein, we
reverse the Commission's opinion and award.
The facts pertinent to this appeal are as follows. On 15 June
1989, plaintiff sustained an injury to her lower back while working
for defendant, Kobacker Group, as the manager of a shoe store in
Wilmington, North Carolina. Plaintiff was diagnosed as having
suffered a back strain, and she was released to work at light duty. Plaintiff finished working for defendant in August 1989 when she
moved to West Virginia. In September 1989, plaintiff was examined
by osteopathic physician George Tokodi, Jr., who diagnosed her with
a lumbar strain, and recommended she receive physical therapy.
Plaintiff moved to Ohio in late 1989. In early 1990,
plaintiff began experiencing problems sleeping, and she complained
of numbness in her leg. Plaintiff contacted defendants to ask for
a referral, and defendants referred her to Dr. James Dauphin, an
orthopedic surgeon. Dr. Dauphin examined plaintiff in May 1990.
He determined she had a “possible herniated disc at L-5 with lumbar
sprain.” Plaintiff was pregnant at this time, and Dr. Dauphin
recommended she begin an exercise program. Plaintiff visited Dr.
Dauphin in October and November 1990 following the birth of her
child, complaining that her pregnancy worsened her back pain. Dr.
Dauphin determined plaintiff had a “chronic SI joint sprain with a
superimposed lumbar disc bulge which is probably subclinical and of
no relevance.” Dr. Dauphin released plaintiff to return to work as
of 8 November 1990.
In February 1991, plaintiff obtained employment as a shoe
store clerk. According to the finding of the Commission, plaintiff
only worked for six weeks. Plaintiff returned to Dr. Dauphin in
January 1992, complaining of pain radiating from her hip to her
foot. Dr. Dauphin was of the opinion that plaintiff could return
to work at that time. Dr. Dauphin was never of the opinion that
plaintiff could not work throughout the four years she was under
his care. Plaintiff's claim for disability compensation was originally
heard in 1993. At that hearing, plaintiff complained that her back
pain caused her to have trouble standing, lifting, and bending.
She stated that in her opinion, she was unable to perform the
normal duties she had performed during her employment in
defendant's shoe store. The Full Commission entered an opinion and
award on 18 July 1994 concluding that plaintiff had sustained a
compensable injury, and awarding her temporary total disability
payments, three hundred weeks of temporary partial disability
payments, and all medical expenses, including future expenses,
resulting from her 15 June 1989 injury.
Plaintiff visited Dr. Dauphin for the final time in September
1994, complaining of hip pain, headaches, and depression. Dr.
Dauphin was of the opinion that plaintiff would not be able to
return to her previous job which included bending and lifting, but
he recommended she undergo job retraining so she could obtain
employment in a different type of job. He also recommended that
plaintiff attend a pain clinic. Plaintiff also began visiting
osteopathic physician Ernest Miller in 1994. Dr. Miller continued
to treat plaintiff until at least January 1999, during which time
he diagnosed her with depression, meralgia paresthetica, cervical,
thoracic, and lumbar myositis, sinusitis, lumbar, sacral and
thoracic somatic dysfunction, lumbar strain, arthritis, possible
lumbar disc disease, bronchitis, cerviothoracic strain, cervical
strain, cervical, dorsal, and sacroiliac somatic dysfunction,
somatic dysfunction of the cervical and lumbosacral spine,fibromyalgia, middle ear infection, right hip strain with
piriformis syndrome, thoracic outlet syndrome, hypoglycemia,
tachycardia, carpal tunnel syndrome, and bursitis of the hips. In
1998, plaintiff also began seeing Dr. Michael Shramowiat, a
specialist in physical medicine rehabilitation and pain medicine.
On 29 March 1996, defendants filed a Form 28B to establish
that all compensation awarded to plaintiff in the opinion and award
filed 18 July 1994 had been paid. On 22 August 1996, plaintiff
filed a request for a rehearing, contending that she was entitled
to further compensation because her condition had worsened. A
hearing was held before a deputy commissioner on 11 December 1998.
The deputy commissioner concluded the evidence failed to show that
plaintiff had sustained a substantial change in condition which
would entitle her to additional compensation, and that plaintiff
had failed to show a causal link between her original 1989 back
injury and her myriad of additional health problems, including
carpal tunnel syndrome, thoracic outlet syndrome, fibromyalgia, and
cervical complaints.
On 4 October 2000, the Full Commission filed an opinion and
award reversing the deputy commissioner and concluding that
plaintiff had sustained a substantial change in condition under the
law, and is therefore entitled to additional compensation from
defendant. One commissioner dissented, concluding plaintiff's
physical complaints and ability to earn wages had not changed since
the original hearing, and that, in any event, any change in
condition was not related to plaintiff's 1989 back injury. TheCommission awarded plaintiff temporary total disability
compensation from 29 September 1994 until further order of the
Commission, as well as all medical expenses incurred or to be
incurred as a result of her injury, including her chronic pain
syndrome and depression. Defendants appeal.
Defendants bring forth five arguments on appeal, contending:
(1) the Commission erred in concluding plaintiff sustained a
substantial change in condition under the Worker's Compensation
Act; (2) the Commission's findings of fact that plaintiff's 1989
injury caused her subsequent medical conditions are unsupported by
competent evidence; (3) plaintiff has attained maximum medical
improvement; (4) plaintiff is not entitled to additional temporary
total disability benefits; and (5) the Commission's findings of
fact are unsupported by competent evidence.
Although on appeal the Commission's findings of fact are
conclusive where supported by competent evidence, Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh'g denied,
350 N.C. 108, 532 S.E.2d 522 (1999), “findings of fact by the
Commission may be set aside on appeal when there is a complete lack
of competent evidence to support them,” Young v. Hickory Bus.
Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). “'Whether
the facts amount to a change of condition pursuant to N.C. Gen.
Stat. § 97-47 is a “question of law,”' and thus, is subject to de
novo review.” Cummings v. Burroughs Wellcome Co., 130 N.C. App.
88, 90, 502 S.E.2d 26, 28 (citations omitted), disc. review denied,
349 N.C. 355, 517 S.E.2d 890 (1998). Section 97-47 of the North Carolina General Statutes provides
that upon the application of an interested party “on the grounds of
a change in condition, the Industrial Commission may review any
award, and on such review may make an award ending, diminishing, or
increasing the compensation previously awarded.” N.C. Gen. Stat.
§ 97-47 (1999). A change of condition for purposes of N.C. Gen.
Stat. § 97-47, is “a substantial change in physical capacity to
earn wages, occurring after a final award of compensation, that is
different from that existing when the award was made.” Bailey v.
Sears Roebuck & Co., 131 N.C. App. 649, 654, 508 S.E.2d 831, 835
(1998) (emphasis added). A change in condition may consist of
either: “a change in the claimant's physical condition that
impacts his earning capacity”; “a change in the claimant's earning
capacity even though claimant's physical condition remains
unchanged”; “or a change in the degree of disability even though
claimant's physical condition remains unchanged.” Blair v.
American Television & Communications Corp., 124 N.C. App. 420, 423,
477 S.E.2d 190, 192 (1996).
“The party seeking to modify an award based on a change of
condition bears the burden of proving that a new condition exists
and that it is causally related to the injury upon which the award
is based.” Cummings, 130 N.C. App. at 91, 502 S.E.2d at 29. A
plaintiff must prove the element of causation “by the greater
weight of the evidence.” Bailey, 131 N.C. App. at 654, 508 S.E.2d
at 835. A decrease in earning capacity may be shown by the
production of: (1) medical evidence that the claimant is“physically or mentally, as a consequence of the work related
injury, incapable of work in any employment”; (2) evidence that the
claimant “is capable of some work, but that he has, after a
reasonable effort on his part, been unsuccessful in his effort to
obtain employment”; (3) evidence that the claimant “is capable of
some work but that it would be futile because of preexisting
conditions i.e., age, inexperience, lack of education, to seek
other employment”; or (4) evidence that the claimant “has obtained
other employment at a wage less than that earned prior to the
injury.” Russell v. Lowes Product Distribution, 108 N.C. App. 762,
765, 425 S.E.2d 454, 457 (1993).
In the present case, plaintiff sought to prove a substantial
change in condition based upon her inability to work in any
employment. Plaintiff satisfies this burden “by producing medical
evidence showing '[s]he is physically or mentally, as a consequence
of the work related injury, incapable of work in any employment.'”
Grantham v. R. G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d
678, 681 (1997) (citation omitted), disc. review denied, 347 N.C.
671, 500 S.E.2d 86 (1998). Plaintiff failed to present any medical
evidence which could support a finding that she is physically or
mentally incapable of work in any employment.
The medical evidence consists of the depositions of doctors
Tokodi, Dauphin, Miller, and Shramowiat. The medical evidence
presented from depositions taken in 1992 in preparation for the
original hearing and from those taken for the current matter in
February 1999 is identical: all of plaintiff's doctors were of theopinion in 1992 and in 1999 that although plaintiff should not
perform the duties involved in her former employment with
defendants, which involved much bending and lifting, plaintiff is
capable of gainful employment in light duty work. There is no
medical evidence that plaintiff has ever been incapable of gainful
employment.
Dr. Tokodi was the first osteopathic doctor to examine
plaintiff shortly after her 1989 injury. His examination revealed
that plaintiff had some “back spasm” and that she had lost some of
the normal curvature to her back, but that “otherwise, the exam was
essentially negative.” Dr. Tokodi diagnosed plaintiff with a
lumbar strain and recommended she seek physical therapy. He
testified in 1992 that based upon his examination of plaintiff's
injury, he would object to her performing the bending and lifting
duties required in a shoe store clerk position, but that he “would
have no objection to her performing a clerical or cash register
running-type job.”
Dr. Dauphin, who examined plaintiff from 1990 until 1994,
testified that in 1994, he was of the opinion that although
plaintiff should not return to her prior job as a shoe store clerk
due to the bending and lifting involved, she was capable of
undergoing job retraining to obtain other employment that would not
require such movements. Dr. Dauphin testified in 1999 that his
thoughts about her condition and course of treatment did not change
throughout the time he treated her, and that his recommendation to
plaintiff was the same early on as it was in 1994: that “she go towork in a different sort of job.” Although Dr. Dauphin made clear
that in his opinion, plaintiff would have difficulty performing a
job involving a lot of bending or twisting with weights up to fifty
pounds, he was never of the opinion that plaintiff was wholly
incapable of work altogether. He testified that he “did not want
her to return to her own job [as a shoe store clerk], but [he]
certainly had no objection to her returning to a light duty work.”
Moreover, Dr. Dauphin's testimony as to plaintiff's capability
to earn wages did not change from the 1993 hearing to his testimony
in the current matter. Dr. Dauphin testified repeatedly during his
1992 deposition, as in his 1999 deposition, that plaintiff was
totally capable of working in a job that did not require a lot of
bending and lifting. Dr. Dauphin stated that plaintiff “should do
very well in light work,” and that she should “simply find
employment that does not involve constant bending, stooping or
lifting.”
Dr. Miller, who examined plaintiff from 1994 through 1999, and
throughout the time that plaintiff was claiming a change in
condition, was of the same opinion as doctors Tokodi and Dauphin.
Dr. Miller opined in February 1999 that plaintiff could presently
perform a sedentary type of job, and that, despite the numerous
ailments with which he had diagnosed plaintiff over the years, he
would not even object to her “performing the duties of a clerk in
a shoe store” unless “she was having to do some heavy lifting of
boxes.” Similarly, Dr. Shramowiat, who began examining plaintiff in
1998, testified that as of the time of his deposition in February
1999, he was of the opinion that plaintiff had been inactive for a
decade, that she needed to get out and engage in some activity, and
that she “is physically capable of gainful employment.” He
testified that as of “[r]ight now, [plaintiff] would be at light
duty” but that with some physical therapy to regain strength lost
due to extreme inactivity, he hopes she can return to a job “where
she can perform some lifting.” Dr. Shramowiat testified that as of
the time of his February 1999 deposition, plaintiff was capable of
employment “[i]f she was in a light duty job with lifting of ten to
twenty pounds; something that involved, you know, no spectacular
lifting activities or a lot of trunk rotation.” When further
questioned as to whether plaintiff could presently be gainfully
employed, Dr. Shramowiat reiterated that she is indeed fully
capable of gainful employment “as long as it's not a job that's
very physically demanding.” Dr. Shramowiat went further,
testifying that if plaintiff could get out and become more active,
“she should be able to progress well beyond a light duty job.”
In summary, according to all of the medical evidence which
plaintiff presented, she has not sustained a change in her ability
to earn wages since the original hearing on this matter. Indeed,
the unanimous medical testimony from all of plaintiff's doctors is
identical to the medical evidence presented for the 1993 hearing.
Quite clearly, plaintiff has failed to carry her burden of
producing “medical evidence showing '[s]he is physically ormentally, as a consequence of the work related injury, incapable of
work in any employment.'” See Grantham, 127 N.C. App. at 534, 491
S.E.2d at 681 (citation omitted).
The only evidence in the record which could possibly support
the Commission's conclusion that plaintiff is totally disabled is
plaintiff's own testimony that she can no longer work in any
capacity. However, we re-emphasize that in proving an inability to
work in any 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. See id.; see also Chisholm v. Diamond Condominium
Constr. Co., 83 N.C. App. 14, 19, 348 S.E.2d 596, 600 (1986)
(Commission properly denied plaintiff's claim to further
compensation based on theory of substantial change in condition
where plaintiff's evidence consisted entirely of plaintiff's own
testimony and there was no medical evidence concerning the cause
and extent of his injuries), disc. review denied, 319 N.C. 103, 353
S.E.2d 106 (1987).
We further observe that the nature of plaintiff's testimony
regarding her physical ailments barely changed from the 1993
hearing to the hearing at issue here. Although plaintiff testified
at the subsequent hearing that her pain was “more widespread,”
plaintiff's complaints regarding her physical restrictions were the
same at both hearings: that she has trouble sitting and standing
for long periods of time, that she has trouble bending and lifting,
and that she has trouble sleeping. “A change of condition '“refersto conditions different from those”' in existence when an award was
originally made and '“a continued incapacity of the same kind and
character and for the same injury is not a change in condition.”'”
Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 149,
468 S.E.2d 269, 274 (1996) (citations omitted).
In conclusion, we disagree with the Commission that
plaintiff's own assertion that she is wholly incapable of
employment is competent evidence to carry her burden of showing a
substantial change in condition where her opinion is contrary to
the unanimous and unchanged medical evidence, and where plaintiff's
testimony about her physical restrictions is virtually identical to
that of the 1993 hearing. We therefore reverse the Commission's
conclusion that plaintiff has sustained a substantial change in
condition warranting an award of additional compensation.
In light of this holding, we need not address defendants'
additional arguments, including that plaintiff failed to prove by
the greater weight of the evidence that her 1989 back injury caused
her subsequent medical problems for which she now seeks additional
compensation. Even if plaintiff established that her 1989 injury
caused her subsequent medical problems, plaintiff did not prove
that the subsequent problems resulted in a substantial change in
her capacity to earn wages.
Reversed.
Judges GREENE and TYSON concur.
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