{ "id": 8204687, "name": "DAVID J. WARD, Employee Plaintiff v. FLOORS PERFECT, Employer, PENN NATIONAL INSURANCE, Carrier, Defendants", "name_abbreviation": "Ward v. Floors Perfect", "decision_date": "2007-06-05", "docket_number": "No. COA06-366", "first_page": "541", "last_page": "553", "citations": [ { "type": "official", "cite": "183 N.C. App. 541" } ], "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": "181 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "179 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "134" }, { "page": "134" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554467 ], "weight": 2, "pin_cites": [ { "page": "491" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0486-01" ] }, { "cite": "199 S.E. 609", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1938, "pin_cites": [ { "page": "611", "parenthetical": "emphasis supplied" }, { "page": "611", "parenthetical": "emphasis supplied" }, { "page": "611", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "214 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631169 ], "weight": 3, "year": 1938, "pin_cites": [ { "page": "440", "parenthetical": "emphasis supplied" }, { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0437-01" ] }, { "cite": "517 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571623, 571722, 571603, 571709, 571583 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0355-01", "/nc/349/0355-02", "/nc/349/0355-03", "/nc/349/0355-04", "/nc/349/0355-05" ] }, { "cite": "502 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "28-29" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465416 ], "pin_cites": [ { "page": "90-91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0088-01" ] }, { "cite": "115 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1960, "pin_cites": [ { "page": "33-34", "parenthetical": "emphasis supplied" }, { "page": "33", "parenthetical": "emphasis supplied" }, { "page": "33", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "252 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625537 ], "weight": 3, "year": 1960, "pin_cites": [ { "page": "722", "parenthetical": "emphasis supplied" }, { "page": "722" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0716-01" ] }, { "cite": "141 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "264 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573590 ], "year": 1965, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0401-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "553" }, { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "116" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "700", "parenthetical": "emphasis supplied" }, { "page": "700" }, { "page": "700", "parenthetical": "internal quotation omitted" }, { "page": "700" }, { "page": "700", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "496", "parenthetical": "emphasis supplied" }, { "page": "496" }, { "page": "496" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "274 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570785, 8570827, 8570675, 8570645, 8570715 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0720-04", "/nc/301/0720-05", "/nc/301/0720-02", "/nc/301/0720-01", "/nc/301/0720-03" ] }, { "cite": "290 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520300 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0191-01" ] }, { "cite": "500 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551329, 551235, 551326, 551111 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0671-03", "/nc/347/0671-04", "/nc/347/0671-02", "/nc/347/0671-01" ] }, { "cite": "491 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "127 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798491 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/127/0529-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-47", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 17, "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "581 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491521, 491781, 491848, 491753, 491727, 491668, 491638, 491482, 491900 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0169-03", "/nc/357/0169-09", "/nc/357/0169-06", "/nc/357/0169-04", "/nc/357/0169-08", "/nc/357/0169-05", "/nc/357/0169-07", "/nc/357/0169-02", "/nc/357/0169-01" ] }, { "cite": "567 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "unpublished" }, { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 752", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "unpublished" }, { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(15)" } ], "opinion_index": 0 }, { "cite": "425 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(19)" }, { "page": "(19)" }, { "page": "(19)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-25.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(13)" } ], "opinion_index": 0 }, { "cite": "530 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "836", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 8C-1, Rule 301" }, { "page": "836" } ], "opinion_index": 1 }, { "cite": "352 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684915 ], "year": 2000, "pin_cites": [ { "page": "84-85", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 8C-1, Rule 301" } ], "opinion_index": 1, "case_paths": [ "/nc/352/0077-01" ] }, { "cite": "559 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "280", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 1 }, { "cite": "148 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367907 ], "year": 2002, "pin_cites": [ { "page": "671", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/148/0667-01" ] }, { "cite": "477 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "192" } ], "opinion_index": 1 }, { "cite": "124 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889667 ], "year": 1996, "pin_cites": [ { "page": "423" } ], "opinion_index": 1, "case_paths": [ "/nc-app/124/0420-01" ] }, { "cite": "502 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "29", "parenthetical": "quoting Blair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996)" } ], "opinion_index": 1 }, { "cite": "130 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465416 ], "pin_cites": [ { "page": "91", "parenthetical": "quoting Blair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/130/0088-01" ] } ], "analysis": { "cardinality": 884, "char_count": 27323, "ocr_confidence": 0.733, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6021428276320356 }, "sha256": "4031aa9747d3bbdc813bcdf53322030c3c5e3f26182526f7603cf978fc6b6bac", "simhash": "1:f61b27463f7b7ad0", "word_count": 4382 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge WYNN dissents by separate opinion." ], "parties": [ "DAVID J. WARD, Employee Plaintiff v. FLOORS PERFECT, Employer, PENN NATIONAL INSURANCE, Carrier, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nDavid J. Ward (\u201cplaintiff\u201d) appeals from the Full Commission of the North Carolina Industrial Commission\u2019s (\u201cthe Commission\u201d) opinion and award entered finding plaintiff had not sustained a compensable change of condition. Floors Perfect and Penn National Insurance (collectively, \u201cdefendants\u201d) cross appeal. We affirm in part, reverse in part, and remand.\nI. Background\nPlaintiff was the owner and operator of Floors Perfect. Plaintiff installed carpet, vinyl tile, and linoleum from 1985 to 1997. Plaintiff stopped performing flooring work in September 1997, but continued to operate his business by hiring others to perform the work. In 1998, plaintiff sought further education and stopped working due to pain in his knees. Plaintiff began attending Vance Granville Community College and obtained a General Associate of Arts degree in June 2001.\nAfter incurring an injury on 27 August 1997, plaintiff filed a claim for workers\u2019 compensation benefits. Plaintiff presented deposition testimony taken 27 July 1999 of his treating physician Dr. G. Hadley Callaway (\u201cDr. Callaway\u201d), an orthopedic surgeon. On 8 February 2001, the Commission entered an opinion and award. The Commission determined plaintiff had developed a compensable occupational disease in both knees, but that a medial meniscus tear was not com-pensable. The Commission concluded:\n1. As a result of his employment, plaintiff has developed a com-pensable occupational disease, bilateral patellofemoral pain, a condition which is due to causes and conditions peculiar to his employment and which is not a condition to which the general public is equally exposed. N.C. Gen. Stat. \u00a7 97-53(13).\n2. Subject to the limitations of N.C. Gen. Stat. \u00a7 97-25.1, defendants are responsible for payment of all reasonably necessary medical expenses which tend to effect a cure, provide relief or lessen the period of plaintiffs disability which are incurred for plaintiff\u2019s treatment of his bilateral patellofemoral pain. N.C. Gen. Stat. \u00a7 97-2(19), 97-25.\n3. Plaintiff has not suffered, any loss of wage earning capacity as a result of his bilateral patellofemoral pain since plaintiff has failed to prove by the greater weight that he is incapable of work in any employment or that he is capable of some work but has been unsuccessful after making reasonable efforts to locate employment. Moreover, plaintiff voluntarily removed himself from the labor market to pursue his education and the greater weight of the evidence fails to establish any periods of time for which he would be entitled to benefits for either temporary partial or total disability. N.C. Gen. Stat. \u00a7 97-29. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 545 (1993).\n4. Plaintiff has reached maximum medical improvement from his bilateral patellofemoral pain and has sustained a five percent permanent impairment to his right leg and a two and one-half percent permanent impairment to his left leg for which he is entitled to compensation pursuant to N.C. Gen. Stat. \u00a7 97-31(15).\n(Emphasis supplied). Plaintiff appealed the Commission\u2019s opinion and award and this Court affirmed the Commission\u2019s decision. See Ward v. Floors Perfect, 151 N.C. App. 752, 567 S.E.2d 465 (2002) (unpublished), disc. rev. denied, 357 N.C. 169, 581 S.E.2d 756 (2003). On 19 May 2003, defendants submitted a Form 28B indicating their payment in full to plaintiff for a 5% permanent partial impairment rating to his right leg and a 2.5% permanent partial impairment rating to his left leg.\nOn 13 June 2003, plaintiff alleged a \u201cchange of condition\u201d pursuant N.C. Gen. Stat. \u00a7 97-47. The matter was heard before Deputy Commissioner Phillip A. Holmes (\u201cDeputy Holmes\u201d) on 10 December 2003. Plaintiff and Jane Johnson (\u201cJohnson\u201d) testified before Deputy Holmes. Plaintiff also presented a second deposition of Dr. Callaway which was taken 2 April 2004. On 9 August 2004, Deputy Holmes filed an opinion and award wherein he concluded plaintiff had \u201cundergone a change of condition affecting his wage-earning capacity.\u201d Defendants appealed Deputy Holmes\u2019s decision to the Full Commission.\nOn 28 October 2005, the Full Commission reviewed the transcript of the hearing before Deputy Holmes, the deposition testimony of Dr. Callaway, and concluded:\n1. In order to establish a change of condition, plaintiff must show conditions different from those present at the time of the prior award. It is not sufficient to show \u201ca continued capacity of the same kind and character and for the same injury.\u201d Grantham v. R.G. Berry Corp., 127 N.C. App. 529, 491 S.E.2d 678 (1997), cert. denied, 347 N.C. 671, 500 S.E.2d 86 (1998). Edwards v. John Smith & Sons, 49 N.C. App. 191, 290 S.E.2d 569 (1980), disc. rev. denied, 301 N.C. 720, 274 S.E.2d 228 (1981). Plaintiff has not proved he experienced a change of condition as his wage earning capacity was unchanged and any physical incapacity was of the same kind and character as existed at the time of the prior award. N.C. Gen. Stat. \u00a7 97-47.\n2. As a result of his compensable occupational' disease, plaintiff was capable of returning to work earning diminished wages beginning November 6, 2002. Plaintiff is therefore entitled to temporary partial disability benefits beginning November 6, 2002 and continuing for 300 weeks from the date of plaintiff\u2019s contraction of an occupational disease on September 9, 1997, at a rate to be determined hereafter. As plaintiff has received 15 weeks of temporary partial disability benefits, defendants are entitled to a credit of 15 weeks for temporary partial disability benefits already paid. N.C. Gen. Stat. \u00a7 97-30.\n3. Plaintiff is entitled to reasonably necessary medical treatment, related to his compensable occupational disease which tends to effect a cure, provide relief or lessen the period of plaintiffs disability. Plaintiff is not entitled to arthroscopic surgery as the purpose of that surgery is to repair the non-compensable tear to plaintiffs medial meniscus. N.C. Gen. Stat. \u00a7\u00a7 97-2(19), 97-25,97-25.1.\n(Emphasis supplied). Plaintiff appeals. Defendants cross appeal.\nII. Issues\nPlaintiff argues the Commission erred by failing to find and conclude: (1) he suffered a compensable change of condition; (2) he was entitled to benefits pursuant to N.C. Gen. Stat. \u00a7 97-29; and (3) his arthroscopic knee surgery is a compensable component of his claim. Defendants argue the Commission erred by awarding additional temporary partial disability compensation despite finding that plaintiff had not proven he sustained a change of condition.\nIII. Standard of Review\nOur Supreme Court has stated:\n[W]hen reviewing Industrial Commission decisions, appellate courts must examine \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether [those] findings . . . support the Commission\u2019s conclusions of law.\u201d The Commission\u2019s findings of fact are conclusive on appeal when supported by such competent evidence, \u201ceven though there [is] evidence that would support findings to the contrary.\u201d\nMcRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (emphasis supplied) (quoting Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)). \u201cThe full Commission is the sole judge of the weight and credibility of the evi-dencef.]\u201d Deese, 352 N.C. at 116, 530 S.E.2d at 553.\nOur Supreme Court also stated, \u201cWhether there has been a change of condition is a question of fact; whether the facts found amount to a change of condition is a question of law.\" Pratt v. Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 33-34 (1960) (emphasis supplied).\nIV. Plaintiff\u2019s Assignments of Error\nA. Change of Condition\nPlaintiff argues a change of condition has occurred pursuant to N.C. Gen. Stat. \u00a7 97-47. Plaintiff asserts he has suffered a substantial loss of wage earning capacity because he has not earned the same wages he earned prior to the injury. Plaintiff also asserts a change of condition has occurred because his physical condition has worsened since the original hearing. We disagree.\nA change of condition occurs where conditions are \u201c \u2018different 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.\u2019 \u201d Id. at 722, 115 S.E.2d at 33 (emphasis supplied) (internal quotation omitted).\nThis Court has stated:\nSection 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. A change of condition for purposes of section 97-47 means a substantial change, after final award of compensation, of physical capacity to earn[.] The change in earning capacity must be due to conditions different from those existing when the award was made.\nThis change in condition can consist of either a change in the claimant\u2019s physical condition that impacts his earning capacity, a change in the claimant\u2019s earning capacity even though claimant\u2019s physical condition remains unchanged, or a change in the degree of disability even though claimant\u2019s physical condition remains unchanged.\nThe 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.\nCummings v. Burroughs Wellcome Co., 130 N.C. App. 88, 90-91, 502 S.E.2d 26, 28-29 (emphasis supplied) (internal quotations and citations omitted), disc. rev. denied, 349 N.C. 355, 517 S.E.2d 890 (1998).\nHere, the Commission concluded as a matter of law that, \u201cPlaintiff has not proved he experienced a change of condition as his wage earning capacity was unchanged and any physical incapacity was of the same kind and character as existed at the time of the prior award.\u201d (Emphasis supplied). The initial question is whether this conclusion of law is supported by the Commission\u2019s findings of fact. McRae, 358 N.C. at 496, 597 S.E.2d at 700.\nThis conclusion is supported by competent evidence in the record and the Commission\u2019s finding that, \u201cDr. Callaway stated that any incapacity for work plaintiff has at present is of the same kind and character as he had in July 1999[.]\u201d This finding of fact shows plaintiff failed to prove he suffered a change of condition because \u201ca continued incapacity of the same kind and character and for the same injury is not a change of condition.\u201d Pratt, 252 N.C. at 722,115 S.E.2d.at 33 (emphasis supplied).\nIf the Commission\u2019s finding of fact is supported by \u201cany competent evidence\u201d it is \u201cconclusive on appeal... even though there [is] evidence that would support findings to the contrary.\u201d McRae, 358 N.C. at 496, 597 S.E.2d at 700 (internal quotation omitted). During Dr. Callaway\u2019s second deposition on 2 April 2004 he agreed: (1) with his previous diagnosis in July 1999 that plaintiff\u2019s \u201cknee pain would be chronic;\u201d (2) plaintiff was still unable to return to flooring work on 2 April 2004 as was the case in July 1999; (3) plaintiff\u2019s work restrictions at present would be the same as they were in July 1999; and (4) plaintiff\u2019s incapacity for work were of the same kind and character as existed in July 1999.\nDr. Callaway\u2019s testimony is competent evidence to support the Commission\u2019s finding of fact that \u201cany incapacity for work plaintiff has at present is of the same kind and character as he had in July 1999[.]\u201d Where competent evidence supports this finding of fact it is \u201cconclusive on appeal\u201d and also supports the trial court\u2019s conclusion of law that plaintiff\u2019s \u201cwage earning capacity was unchanged and any physical incapacity was of th'e same kind and character as existed at the time of the prior award.\u201d Id. at 496, 597 S.E.2d at 700. This finding of fact and conclusion of law shows plaintiff failed to prove he suffered a change of condition because \u201ca continued incapacity of the same kind and character and for the same injury is not a change of condition.\u201d Pratt, 252 N.C. at 722, 115 S.E.2d at 33 (emphasis supplied). This assignment of error is overruled.\nR. N.C. Gen. St.a.t.. \u00a7 97-29\nPlaintiff argues the Commission erred when it failed to find and conclude he was entitled to benefits pursuant to N.C. Gen. Stat. \u00a7 97-29 (2005). We disagree.\nOn 8 February 2001, the Commission entered an opinion and award and concluded, \u201cAs a result of his employment, plaintiff has developed a compensable occupational disease, bilateral patellofemoral pain[.]\u201d (Emphasis supplied.) This Court affirmed the Commission's decision and order. Ward v. Floors Perfect, 151 N.C. App. 752, 567 S.E.2d 465 (2002) (unpublished), disc. rev. denied, 357 N.C. 169, 581 S.E.2d 756 (2003). On 19 May 2003, defendants filed a Form 28B indicating their payment in full to plaintiff for a 5% permanent partial impairment rating to his right leg and a 2.5% permanent partial impairment rating to his left leg.\nN.C. Gen. Stat. \u00a7 97-47 provides the Commission with the authority to review and modify a prior award on the ground that there has been a \u201cchange of condition.\u201d N.C. Gen. Stat. \u00a7 97-47 (2005). Our Supreme Court has held, \u201cThe only method by which ... a change in the award [can] be made is that provided by [N.C. Gen. Stat. \u00a7 97-47].\u201d Murray v. Knitting Co., 214 N.C. 437, 440, 199 S.E. 609, 611 (1938) (emphasis supplied); see Watkins v. Central Motor Lines, Inc., 10 N.C. App. 486, 491, 179 S.E.2d 130, 134 (There is no basis for altering a final award of compensation, other than that provided by N.C. Gen. Stat. \u00a7 97-47.), rev\u2019d on other grounds, 279 N.C. 132, 181 S.E.2d 588 (1971).\nOn 13 June 2003, plaintiff alleged a \u201cchange of condition\u201d pursuant to N.C. Gen. Stat. \u00a7 97-47. The Commission concluded and we agree that, \u201cPlaintiff has not proved he experienced a change of condition[.]\u201d Plaintiff argues he is entitled to more benefits pursuant to N.C. Gen. Stat. \u00a7 97-29. We disagree. As noted, \u201cThe only method by which ... a change in the award [can] be made is that provided by [N.C. Gen. Stat. \u00a7 97-47].\u201d Murray, 214 N.C. at 440, 199 S.E. at 611 (emphasis supplied). Plaintiff\u2019s award cannot be modified because he has failed to prove a change of condition under N.C. Gen. Stat. \u00a7 97-47. This assignment of error is overruled.\nC. Arthroscopic Knee Surgery\nPlaintiff argues the Commission erred by concluding arthroscopic knee surgery is not a compensable component of his claim. Plaintiff asserts the Commission\u2019s findings of fact that attribute the need for arthroscopic knee surgery to a torn medial meniscus are unsupported by any competent evidence. We disagree.\nIf the Commission\u2019s findings of fact are supported by \u201cany competent evidence\u201d they are \u201cconclusive on appeal... even though there [is] evidence that would support findings to the contrary.\u201d McRae, 358 N.C. at 496, 597 S.E.2d at 700 (internal quotations omitted).\nPlaintiff has been diagnosed with two conditions in his knees: (1) compensable bilateral patellofemoral pain in both knees and (2) a non compensable torn medial meniscus. Dr. Callaway stated in a 9 May 2003 medical assessment:\nI feel at this point we should go ahead with arthroscopic evaluation and possible medial meniscectomy. We talked about the type of surgery and the risks and benefits in detail today, and he agreed to proceed. I told him some of his pain may be due to patellofemoral problems or arthritis which would not be cured by an arthroscopy. He expressed understanding and still agreed to proceed.\n(Emphasis supplied). Dr. Callaway also stated, \u201cDue to continued pain, possibly caused by the posterior horn medial meniscus tear seen on MRI scan 7/22/99, I have recommended that [plaintiff] undergo arthroscopic evaluation with possible medial meniscec-tomy.\u201d (Emphasis supplied).\nBased upon competent evidence in the record, the Commission found:\n7. Plaintiff did not return to see Dr. Callaway or otherwise seek medical treatment for his knees for almost a year until February 18, 1999 when he returned to see Dr. Callaway. At that time Dr. Callaway recommended an MRI. . . . The MRI. . . showed a small medial meniscus tear, which Dr. Callaway did not attribute to plaintiff\u2019s work. Dr. Callaway recommended arthroscopic surgery to repair the medial meniscus tear.\n10. As a proximate result of his injuries, plaintiff will require future medichl care and treatment for the occupational disease affecting both his knees. However, this treatment does not include the arthroscopic surgery Dr. Callaway recommended, as the purpose of the surgery is to repair the medial meniscus tear, which is a non-compensable injury.\n(Emphasis supplied).\nThe Commission concluded as a matter of law:\n3. Plaintiff is entitled to reasonably necessary medical treatment, related to his compensable occupational disease which tends to effect a cure, provide relief or lessen the period of plaintiff\u2019s disability. Plaintiff is not entitled to arthroscopic surgery as the purpose of that surgery is to repair the non-compensable tear to plaintiff\u2019s medial meniscus. N.C. Gen. Stat. \u00a7\u00a7 97-2(19), 97-25, 97-25.1.\n(Emphasis supplied).\nThe Commission\u2019s findings of fact are supported by competent evidence. These findings of fact support the Commission\u2019s conclusion that, \u201cPlaintiff is not entitled to arthroscopic surgery as the purpose of that surgery is to repair the non-compensable tear to plaintiff\u2019s medial meniscus.\u201d This assignment of error is overruled.\nV. Defendants\u2019 Assignment of Error\nA. Additional Temporary Partial Disability Compensation\nIn their cross appeal, defendants argue the Commission erred by awarding plaintiff additional disability compensation despite finding that he failed to prove he had sustained a change of condition pursuant to N.C. Gen. Stat. \u00a7 97-47. Defendants assert the Commission may only modify a prior award after plaintiff proves a change of condition has occurred. We agree.\nThe Commission properly concluded and we agree that, \u201cPlaintiff has not proved he experienced a change of condition!)]\u201d The Commission then concluded:\n2. As a result of his compensable occupational disease, plaintiff was capable of returning to work earning diminished wages beginning November 6, 2002. Plaintiff is therefore entitled to temporary partial disability benefits beginning November 6, 2002 and continuing for 300 weeks from the date of plaintiff\u2019s contraction of an occupational disease on September 9, 1997, at a rate to be determined hereafter. As plaintiff has received 15 weeks of temporary partial disability benefits, defendants are entitled to a credit of 15 weeks for temporary partial disability benefits already paid. N.C. Gen. Stat. \u00a7 97-30.\n(Emphasis supplied).\nAs noted above, N.C. Gen. Stat. \u00a7 97-47 provides the Commission with the authority to review and modify a prior award on the ground that there has been a \u201cchange of condition.\u201d N.C. Gen. Stat. \u00a7 97-47. Our Supreme Court has held,- \u201cThe only method by which . . . a change in the award [can] be made is that provided by [N.C. Gen. Stat. \u00a7 97-47].\u201d Murray, 214 N.C. at 440,199 S.E. at 611 (emphasis supplied); see Watkins, 10 N.C. App. at 491, 179 S.E.2d at 134 (There is no basis for altering a final award of compensation, other than that provided by N.C. Gen. Stat. \u00a7 97-47.). That portion of the Commission\u2019s opinion and award awarding plaintiff further benefits is reversed.\nVI. Conclusion\nWe affirm that portion of the Commission\u2019s opinion and award that concluded plaintiff had failed to prove he had experienced a change of condition pursuant to N.C. Gen. Stat. \u00a7 97-47. We also affirm the Commission\u2019s conclusion that \u201c[p]laintiff is not entitled to arthroscopic surgery as the purpose of that surgery is to repair the non-compensable tear to plaintiff\u2019s medial meniscus.\u201d\nWe reverse that portion of the Commission\u2019s opinion and award that modified plaintiff\u2019s award and granted plaintiff additional temporary partial disability benefits. The matter is remanded to the Commission for entry of an opinion and award consistent with this opinion.\nAffirmed in part, Reversed in part and Remanded.\nJudge CALABRIA concurs.\nJudge WYNN dissents by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge,\ndissenting.\nThe majority emphasizes the language in Pratt for the proposition that \u201ca continued incapacity of the same kind and character and for the same injury is not a change of condition.\u201d However, in deciding Pratt over forty-seven years ago, our Supreme Court further stated:\nWhether there has been a change of condition is a question of fact; whether the facts found amount to a change of condition is a question of law. Change of condition is a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, of earnings.\nIndeed, a \u201cchange of condition can consist of either a change in claimant\u2019s physical condition that impacts his earning capacity, a change in the claimant\u2019s earning capacity even though claimant\u2019s physical condition remains unchanged, or a change in the degree of disability even though claimant\u2019s physical condition remains unchanged.\u201d Cummings v. Burroughs Wellcome Co., 130 N.C. App. 88, 91, 502 S.E.2d 26, 29 (1998) (quoting Blair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996)).\nAs the party seeking to modify an award based on a change of condition, Plaintiff \u201cbears the burden of proving that a new condition exists and that it is causally related to the injury upon which the award is based.\u201d Id. A plaintiff may meet this burden by producing:\n(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.\nShingleton v. Kobacker Group, 148 N.C. App. 667, 671, 559 S.E.2d 277, 280 (2002) (internal quotations and citation omitted).\nOur Supreme Court has stated:\nThe burden of production and the quantum of evidence that must be shown to overcome a presumption is stated in Rule 301 of the North Carolina Rules of Evidence: In all civil actions and proceedings when not otherwise provided for by statute, by judicial decision, or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption .... The burden of going forward is satisfied by the introduction of evidence sufficient to permit reasonable minds to conclude that the presumed fact does not exist. If the party against whom a presumption operates fails to meet the burden of producing evidence, the presumed fact shall be deemed proved[.]\nDobson v. Harris, 352 N.C. 77, 84-85, 530 S.E.2d 829, 836 (2000) (quoting N.C. Gen. Stat. \u00a7 8C-1, Rule 301).\nThe \u201cproof of the basic fact . . . not only discharges the proponent\u2019s burden of producing evidence of the presumed fact [good faith] but also places upon the opponent the burden of producing evidence that the presumed fact does not exist.\u201d Id. at 85, 530 S.E.2d at 836. Furthermore, \u201cif the opponent does not introduce any evidence, or the evidence is not sufficient to permit reasonable minds to conclude that the presumed fact does not exist, the proponent is entitled to a peremptory instruction that the presumed fact shall be deemed proved.\u201d Id.\nHere, Plaintiff met his burden of showing evidence that he \u201chas obtained other employment at a wage less than that earned prior to the injury.\u201d Id. The record shows that Plaintiff testified that his earnings prior to his injuries were $50,000.00 annually, but that after his injuries, his estimated earnings were $15,000.00. According to the Industrial Commissions\u2019 findings of fact, Plaintiff worked as: a forklift operator, leaving the position after two weeks due to the pain to his knees caused by getting on and off the forklift; a floor installer, completing fifteen installations; a door-to-door meat product salesperson for Omega meats, leaving the position after two months because of aggravation to his knees; an operator of a lawn-mowing business, also leaving the position after aggravation to his knees; and a salesperson for carpet and tile. Additionally, Plaintiff submitted a job search log to show his attempts to secure employment. Moreover, Plaintiff applied and/or inquired about sixteen different jobs without being offered a position at any of those locations. Clearly, Plaintiff showed that he made a reasonable effort to secure employment but was unsuccessful.\nAccordingly, the Industrial Commission erred by concluding that Plaintiff failed to prove a change of condition pursuant to Section 97-47 of the North Carolina General Statutes.\n. The estimated period of time for these earnings was from the middle of 2002 to the middle of 2003.", "type": "dissent", "author": "WYNN, Judge," } ], "attorneys": [ "Lennon & Camak, PLLC, by George W. Lennon and S. Neal Camak, for plaintiff-appellant/cross appellee.", "Young Moore and Henderson P.A., by Zachary C. Bolen, for defendants-appellees/cross appellants." ], "corrections": "", "head_matter": "DAVID J. WARD, Employee Plaintiff v. FLOORS PERFECT, Employer, PENN NATIONAL INSURANCE, Carrier, Defendants\nNo. COA06-366\n(Filed 5 June 2007)\n1. Workers\u2019 Compensation\u2014 change of condition \u2014 incapacity of same kind and character\nThe Industrial Commission did not err by not finding that plaintiff had suffered a compensable change of condition where there was competent evidence that plaintiff\u2019s incapacity for work was of the same kind and character as found in the prior award.\n2. Workers\u2019 Compensation\u2014 modification \u2014 change of condition not proven\nPlaintiff\u2019s workers\u2019 compensation award could not be modified because he did not prove a change of condition under N.C.G.S. \u00a7 97-47, which gives the Commission the authority to modify an award on a change of condition. Plaintiff was not entitled to more benefits pursuant to N.C.G.S. \u00a7 97-29.\n3. Workers\u2019 Compensation\u2014 knee injury \u2014 surgery not compensable\nThe \u2019 Industrial Commission did not err by concluding that plaintiffs knee surgery was not a compensable component of his workers\u2019 compensation claim. Plaintiff was diagnosed with two conditions in his knees; the one in question was not compensable.\n4. Workers\u2019 Compensation\u2014 modification of award \u2014 only on change of condition\nThe Industrial Commission may modify an award in a workers\u2019 compensation case only after the plaintiff proves a change of condition. The Commission in this case properly concluded that plaintiff had not done so.\nJudge Wynn dissenting.\nAppeal by plaintiff and cross appeal by defendants from opinion and award entered 28 October 2005 by Commissioner Dianne C. Sellers for the North Carolina Industrial Commission. Heard in the Court of Appeals 8 May 2007.\nLennon & Camak, PLLC, by George W. Lennon and S. Neal Camak, for plaintiff-appellant/cross appellee.\nYoung Moore and Henderson P.A., by Zachary C. Bolen, for defendants-appellees/cross appellants." }, "file_name": "0541-01", "first_page_order": 573, "last_page_order": 585 }