{ "id": 11889667, "name": "GLORIA A. BLAIR, Employee, Plaintiff; v. AMERICAN TELEVISION & COMMUNICATIONS CORPORATION, Employer; TRAVELERS INSURANCE COMPANY OF ILLINOIS, Carrier, Defendants", "name_abbreviation": "Blair v. American Television & Communications Corp.", "decision_date": "1996-11-05", "docket_number": "No. COA95-1397", "first_page": "420", "last_page": "425", "citations": [ { "type": "official", "cite": "124 N.C. App. 420" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "185 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550374 ], "year": 1971, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0101-01" ] }, { "cite": "183 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "879" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 456", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550378 ], "year": 1971, "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0456-01" ] }, { "cite": "194 S.E. 106", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "212 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615971 ], "year": 1937, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0608-01" ] }, { "cite": "461 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914687 ], "year": 1995, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0192-01" ] }, { "cite": "296 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "459" } ], "opinion_index": 0 }, { "cite": "307 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560726 ], "year": 1982, "pin_cites": [ { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0099-01" ] }, { "cite": "354 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "480" }, { "page": "480" } ], "opinion_index": 0 }, { "cite": "319 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4747123 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "247" }, { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0243-01" ] } ], "analysis": { "cardinality": 456, "char_count": 10227, "ocr_confidence": 0.754, "pagerank": { "raw": 2.2691487054136498e-07, "percentile": 0.7835630571512084 }, "sha256": "efdf9358c39b794d03530bbc5d8449331b65f70d5d8ca8db631f4d0d25af7f3a", "simhash": "1:afad28cb603b8a84", "word_count": 1614 }, "last_updated": "2023-07-14T17:03:33.335576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge JOHNSON concur." ], "parties": [ "GLORIA A. BLAIR, Employee, Plaintiff; v. AMERICAN TELEVISION & COMMUNICATIONS CORPORATION, Employer; TRAVELERS INSURANCE COMPANY OF ILLINOIS, Carrier, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nAmerican Television and Communications Corporation (employer) appeals from a 28 September 1995 Opinion and Award of the North Carolina Industrial Commission (the Commission) concluding that Gloria A. Blair (employee) sustained a \u201cchange in condition\u201d in her left hand which entitled her to temporary total disability until further order of the Commission.\nOn 21 January 1992 the Commission entered an opinion and award concluding that the employee sustained \u201can injury by accident in the nature of an occupational disease of carpal tunnel syndrome arising out of and in the course\u201d of her employment with the employer. The Commission also concluded that the employee was entitled to \u201ctemporary total disability compensation benefits\u201d through 30 May 1990 and \u201cpermanent partial disability compensation benefits\u201d for a thirty-week period commencing on 30 May 1990. The permanent partial disability award was based on a \u201cfifteen percent permanent partial disability of the right hand.\u201d In support of the temporary total award, the Commission found that the employee \u201cwas [on 31 January 1990] medically excused from work [because she suffered] from carpal tunnel syndrome in both hands\u201d and was released to return to work on 30 May 1990.\nOn 29 April 1992 the employee filed a \u201cNotice of Change in Condition\u201d requesting a modification of the 21 January 1992 opinion and award. She alleged that her condition had changed \u201cas a result of the reoccurrence of pain, and a greater percentage of disability.\u201d The undisputed findings of the Commission reveal that since 30 May 1990 the employee\u2019s \u201cright hand has not worsened\u201d and that her left hand \u201chas significantly worsened.\u201d The Commission also found in pertinent part:\n8. After [30 May 1990, the employee], made reasonable, but unsuccessful, efforts to obtain employment.\n9. As a result of [the employee\u2019s] contraction of carpal tunnel syndrome, permanent partial disability of the right hand, diabetes, reasonable but unsuccessful efforts to obtain employment, and significant worsening of the carpal tunnel syndrome in [employee\u2019s] left hand after [30 May 1990], [the employee] has been incapable of earning wages with . . . employer or in any other employment....\nThe Commission then concluded that the employee was entitled to temporary total disability compensation because of her \u201csubstantial change for the worse in her condition of the left hand\u201d and because she had made \u201creasonable but unsuccessful efforts to obtain employment.\u201d\nThe evidence shows that the employee has not been employed since January 1990 and that she has not applied for employment with any employers. She testified that she had contacted, without success, the Department of Vocational and Rehabilitation Services and the Employment Security Commission to see \u201cif there might be some suitable employment\u201d available for her. She further testified that she was no longer in contact with these agencies.\nThe issues are whether (I) the findings support the conclusion that the changes in the employee\u2019s left wrist amount to a change in condition within the meaning of section 97-47; and (II) the evidence supports the finding of the Commission that the employee made a reasonable effort to find employment.\nThe Commission may review any award of compensation \u201cupon its own motion or upon application of any party in interest on the grounds of a change in condition,\u201d and \u201con such review may make an award ending, diminishing, or increasing the compensation previously awarded.\u201d N.C.G.S. \u00a7 97-47 (1991). The statute does not identify what is required in order to show a \u201cchange in condition.\u201d Our case law describes a \u201cchange in condition\u201d as a condition occurring after a final award of compensation that is \u201cdifferent from those existent when the award was made.\u201d Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 247, 354 S.E.2d 477, 480 (1987). This \u201cchange in condition\u201d can consist of either a change in the claimant\u2019s physical condition that impacts his earning capacity, McLean v. Roadway Express, Inc., 307 N.C. 99, 103-04, 296 S.E.2d 456, 459 (1982); Dinkins v. Federal Paper Bd. Co., 120 N.C. App. 192, 195, 461 S.E.2d 909, 910 (1995), a change in the claimant\u2019s earning capacity even though claimant\u2019s physical condition remains unchanged, Smith v. Swift & Co., 212 N.C. 608, 610, 194 S.E. 106, 108 (1937); Weaver 319 N.C. at 248, 354 S.E.2d at 480; 3 Arthur Larson, The Law of Workmen\u2019s Compensation \u00a7 81.31(e) (1996) [hereinafter Larson], or a change in the degree of disability even though claimant\u2019s physical condition remains unchanged. West v. Stevens Co., 12 N.C. App. 456, 461, 183 S.E.2d 876, 879 (1971). In all instances the burden is on the party seeking the modification to prove the existence of the new condition and that it is causally related to the injury that is the basis of the award the party seeks to modify. Willis v. Davis Indus., 13 N.C. App. 101, 105, 185 S.E.2d 28, 31 (1971); Weaver, 319 N.C. at 249 n.3, 354 S.E.2d at 481 n.3; Larson \u00a7 81.31(b).\nIn this case, the employee claims that her condition has changed since the entry of the 21 January 1992 award. In support of this claim she asserts that her pain has reoccurred and that her disability has increased. Consistent with these assertions, the Commission found that, since 21 January 1992, the physical condition of the employee\u2019s left hand has \u201csignificantly worsened\u201d and that her earning capacity has decreased. The employer argues that the Commission erred in both findings.\nI\nThe employer first contends that because there is no finding by the Commission that the change in the physical condition of the employee\u2019s left hand is causally related to her injury of 10 January 1990 (the subject of the 21 January 1992 award), that change cannot support a conclusion that the employee sustained a change of condition within the meaning of section 97-47. For the reasons hereinbefore given, we agree.\nII\nThe employee also seeks to show a change of condition by proving that her disability has increased since the entry of the final award of compensation. Pursuant to this Court\u2019s opinion in Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), an employee has four methods of showing that her earning capacity has decreased (increased disability). In this case, the Commission determined the employee had, consistent with one of the tests set forth in Russell, met her burden: although she was capable of some work, she was now totally disabled because she had \u201cmade reasonable, but unsuccessful, efforts to obtain employment.\u201d\nThe employer contends that the evidence does not support the determination that the employee made a reasonable effort to obtain employment. We agree.- The employee made no effort to locate employment with any employers. Her contact with the Department of Vocational and Rehabilitation Services and the Employment Security Commission is not on this record sufficient to support a finding that she made a reasonable effort to find employment. There is no evidence that she aggressively pursued employment through these agencies. Indeed, her testimony is that she had abandoned her efforts to seek employment through these agencies. Furthermore, there is no evidence with regard to the efforts these agencies made to secure employment for the employee. In any event, even assuming she made a reasonable effort to find employment, the conclusion that her increased disability is a changed condition cannot stand because there is no finding that the increased disability was causally related to the 10 January 1990 injury.\nAccordingly the opinion and award is reversed and this case is remanded to the Commission for findings on whether the change in the employee\u2019s left hand was causally related to the 10 January 1990 injury. On remand the Commission will also determine whether the employee has met her burden of showing an increased disability pursuant to any other method provided for in Russell, and if so, whether that increased disability is causally related to the 10 January 1990 injury.\nReversed and remanded.\nChief Judge ARNOLD and Judge JOHNSON concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Marvin Schiller for plaintiff-appellee.", "Young Moore and Henderson, P.A., by J.D. Prather, for defendant-appellants." ], "corrections": "", "head_matter": "GLORIA A. BLAIR, Employee, Plaintiff; v. AMERICAN TELEVISION & COMMUNICATIONS CORPORATION, Employer; TRAVELERS INSURANCE COMPANY OF ILLINOIS, Carrier, Defendants\nNo. COA95-1397\n(Filed 5 November 1996)\n1. Workers\u2019 Compensation \u00a7 426 (NCI4th)\u2014 change in condition \u2014 cansal relation to work-related injury\nA change in the physical condition of an employee\u2019s left hand could not support a conclusion that the employee had sustained a change of condition warranting modification of a prior compensation award under N.C.G.S. \u00a7 97-47 where there was no finding by the Industrial Commission that the change in condition was causally related to the employee\u2019s work-related injury.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 652-658.\n2. Workers\u2019 Compensation \u00a7 426 (NCI4th)\u2014 increased disability \u2014 inability to find employment \u2014 reasonable effort\u2014 insufficient evidence \u2014 causal relation to work-related injury\nThe evidence did not support the Industrial Commission\u2019s determination that plaintiff had shown increased disability in that she had made a reasonable but unsuccessful effort to obtain employment where the evidence showed only that plaintiff had contacted the Department of Vocational and Rehabilitation Services and the Employment Security Commission to see if there might be suitable employment for her; there was no evidence that she pursued employment through these agencies and she testified that she had abandoned her efforts through these agencies; and she had not applied, for employment with any employers. Assuming that she made a reasonable effort to find employment, the conclusion that her increased disability is a changed condition cannot stand because there was no finding that the increased disability was causally related to her work-related injury.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 652-658.\nAppeal by defendants from Opinion and Award for the Full Commission entered 28 September 1995. Heard in the Court of Appeals 18 September 1996.\nMarvin Schiller for plaintiff-appellee.\nYoung Moore and Henderson, P.A., by J.D. Prather, for defendant-appellants." }, "file_name": "0420-01", "first_page_order": 458, "last_page_order": 463 }