{ "id": 4163459, "name": "DOROTHY HUNT, Employee, Plaintiff v. NORTH CAROLINA STATE UNIVERSITY, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Administering Agent), Defendant", "name_abbreviation": "Hunt v. North Carolina State University", "decision_date": "2009-01-06", "docket_number": "No. COA07-1374", "first_page": "662", "last_page": "673", "citations": [ { "type": "official", "cite": "194 N.C. App. 662" } ], "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": "656 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640366 ], "year": 2008, "pin_cites": [ { "page": "682", "parenthetical": "\"[T]he commission is not required to make findings as to each fact presented by the evidence[.]\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0676-01" ] }, { "cite": "666 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641940 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "823", "parenthetical": "citation omitted" }, { "page": "823-24", "parenthetical": "citations omitted" }, { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0819-01" ] }, { "cite": "639 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637619, 12637620, 12637621 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/639/0652-01", "/se2d/639/0652-02", "/se2d/639/0652-03" ] }, { "cite": "630 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635993 ], "weight": 5, "pin_cites": [ { "page": "685" }, { "page": "685", "parenthetical": "citations omitted" }, { "page": "685" }, { "page": "685", "parenthetical": "citation omitted" }, { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0681-01" ] }, { "cite": "587 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491618, 491560, 491594, 491500, 491597, 491730, 491572, 491455 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0505-01", "/nc/357/0505-03", "/nc/357/0505-06", "/nc/357/0505-02", "/nc/357/0505-08", "/nc/357/0505-04", "/nc/357/0505-05", "/nc/357/0505-07" ] }, { "cite": "582 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "159 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954273 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/159/0111-01" ] }, { "cite": "528 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "63-64" }, { "page": "63-64" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093073 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "302-03" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0298-01" ] }, { "cite": "477 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "192", "parenthetical": "citations omitted" }, { "page": "192" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889667 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "423", "parenthetical": "citations omitted" }, { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0420-01" ] }, { "cite": "559 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "page": "280", "parenthetical": "citations omitted" }, { "page": "280" }, { "page": "280" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367907 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "670-71", "parenthetical": "citations omitted" }, { "page": "670-71" }, { "page": "670" }, { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0667-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-47", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "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": "460" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0456-01" ] }, { "cite": "188 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155886 ], "year": 2008, "pin_cites": [ { "page": "763-64", "parenthetical": "\"[T]he commission is not required to make findings as to each fact presented by the evidence[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0755-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "254" }, { "page": "254" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] }, { "cite": "519 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155858 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0042-01" ] }, { "cite": "510 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "709" }, { "page": "709" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237233 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "157" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0151-01" ] }, { "cite": "541 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439515 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "79" }, { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0071-01" ] }, { "cite": "193 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162118 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "89-90", "parenthetical": "citation omitted" }, { "page": "91" }, { "page": "89-90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0086-01" ] }, { "cite": "361 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745288, 3739688, 3741554, 3745749, 3740151, 3743896 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0168-05", "/nc/361/0168-06", "/nc/361/0168-04", "/nc/361/0168-03", "/nc/361/0168-01", "/nc/361/0168-02" ] }, { "cite": "178 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376121 ], "weight": 4, "pin_cites": [ { "page": "29-30" }, { "page": "29-30" }, { "page": "29" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0025-01" ] } ], "analysis": { "cardinality": 949, "char_count": 26723, "ocr_confidence": 0.733, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3278712388251207 }, "sha256": "216bbc6a937df2ad356e65845f78e0d2eff7116ae5e3e5012bdb0c508b4bd971", "simhash": "1:af1526e914bb0c54", "word_count": 4271 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STROUD concur." ], "parties": [ "DOROTHY HUNT, Employee, Plaintiff v. NORTH CAROLINA STATE UNIVERSITY, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Administering Agent), Defendant" ], "opinions": [ { "text": "McCullough, Judge.\nPlaintiff appeals from an opinion and award and order from the Full Commission of the North Carolina Industrial Commission. For the following reasons, we affirm.\nI. Background\n. The procedural background of this case is quite extensive as plaintiff has already been before this Court on a prior appeal, and thus we will only recite the background pertinent for an understanding of the appeal currently before us. \u201cOn May 22, 1998, plaintiff sustained an admittedly compensable injury by accident arising out of and in the course and scope of her employment with defendant-employer when she fell on a wet floor, catching herself with her right hand and falling on the right side of her posterior.\u201d In its 13 April 2007 opinion and award the Full Commission found that:\n12. On February 6, 2002, the Full Commission entered an Opinion and Award finding that plaintiff \u201csustained injury to her right wrist and low back and developed symptoms of fibromyalgia\u201d and that plaintiff was not permanently and totally disabled as a result of the May 22, 1998 accident. The Full Commission\u2019s Opinion and Award was affirmed by the Court of Appeals.\n(Emphasis added.) The Full Commission further found \u201c [i]n the matter at hand, plaintiff contends that she has sustained a change of condition[.]\u201d\nII. Standard of Review\nOn 20 August 2007, the Full Commission filed an order denying plaintiff\u2019s motion to compel medical treatment. Plaintiff appeals from the 13 April 2007 opinion and award and the 20 August 2007 order. Plaintiff presents several issues on appeal, arguing that the Full Commission erred in its failure to consider certain evidence, that it erred as to certain findings of facts and legal conclusions, that it relied on incompetent evidence, and that it failed to apply the law properly. For the following reasons, we affirm.\nStandard of Review\nOur review of a decision of the Industrial Commission \u201cis limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.\u201d \u201cThe findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings.\u201d This Court reviews the Commission\u2019s conclusions of law de novo.\nRamsey v. Southern Indus. Constructors, Inc., 178 N.C. App. 25, 29-30, 630 S.E.2d 681, 685 (citations omitted), disc. review denied, 361 N.C. 168, 639 S.E.2d 652 (2006). \u201c \u2018Where there are sufficient findings of fact based on competent evidence to support the [Commission\u2019s] conclusions of law, the [award] will not be disturbed because of other erroneous findings which do not affect the conclusions.\u2019 \u201d Meares v. Dana Corp., 193 N.C. App. 86, 89-90, 666 S.E.2d 819, 823 (2008) (citation omitted).\nIII. Consideration of Evidence\nPlaintiff first contends \u201cthe Full Commission improperly disregarded the expert opinions of the vocational expert, Stephen Carpenter [(\u201cMr. Carpenter\u201d)]\u201d by not considering or mentioning Mr. Carpenter\u2019s vocational report in its 13 April 2007 opinion and award. Plaintiff cites to Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71, 541 S.E.2d 510 (2001); Pittman v. International Paper Co., 132 N.C. App. 151, 510 S.E.2d 705, aff'd per curiam, 351 N.C. 42, 519 S.E.2d 524 (1999); and Lineback v. Wake County Board of Commissioners, 126 N.C. App. 678, 486 S.E.2d 252 (1997), arguing that this Court has formerly determined it was error for the Industrial Commission not to indicate or even mention in its opinion and award that it considered certain evidence presented before it.\nHowever, Jenkins, Pittman, and Lineback are all distinguishable from the present case because in each of those cases the issue concerned the Industrial Commission\u2019s alleged failure to mention or indicate that it considered testimony or depositions. See Jenkins, 142 N.C. App. at 79, 541 S.E.2d at 515 (\u201c[W]e hold that the Commission erred in failing to indicate that it considered the testimony of Dr. Downes. Consequently, the opinion and award of the Industrial Commission must be vacated, and the proceeding - \u2018remanded to the Commission to consider all the evidence, make definitive findings and proper conclusions therefrom, and enter the appropriate order.\u2019 \u201d) (citation omitted); See Pittman, 132 N.C. App. at 157, 510 S.E.2d at 709 (\u201cAlthough the Commission did not explicitly find that it rejected the opinions expressed by Dr. Markworth in his first deposition, its opinion and award clearly demonstrates that it accepted the testimony given by Dr. Markworth in his second deposition, and thereby rejected the contrary testimony found in Dr. Markworth\u2019s first deposition. It is obvious that the Commission considered all the evidence before it and was not required to make an express finding that it did so.\u201d); Lineback, 126 N.C. App. at 681, 486 S.E.2d at 254 (\u201cDr. Comstock\u2019s testimony corroborates the information on plaintiff\u2019s Form 19 that the. injury was caused by a \u201ctwisting motion\u201d when he exited the rescue vehicle. However, in finding facts, the Commission made no definitive findings to indicate that it considered or weighed Dr. Comstock\u2019s testimony with respect to causation. Thus, we must conclude that the Industrial Commission impermissibly disregarded Dr. Comstock\u2019s testimony, and, in doing so, committed error.\u201d).\nHere, unlike in Jenkins, Pittman, and Lineback, Mr. Carpenter did not testify either at the hearing or by deposition. See Jenkins, 142 N.C. App. at 79, 541 S.E.2d at 515; Pittman, 132 N.C. App. at 157, 510 S.E.2d at 709, Lineback, 126 N.C. App. at 681, 486 S.E.2d at 254. Thus, plaintiff is contending that we should extend the Jenkins, Pittman, and Lineback line of cases to require findings of fact regarding a report, which was used by Dr. Hedrick and Dr. Kittelberger; we refuse to do so. Physicians frequently rely upon a variety of documents by other medical professionals in their diagnosis and treatment of patients as well as in forming their opinions and giving expert testimony. The Commission did make findings of fact regarding Dr. Hedrick\u2019s and Dr. Kittelberger\u2019s deposition testimony and opinions. It was not necessary for the Commission to make further findings regarding the documents used during the depositions. See Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 763-64, 656 S.E.2d 676, 682 (2008) (\u201c[T]he commission is not required to make findings as to each fact presented by the evidence[.]\u201d). This argument is overruled.\nIV. Change of Condition\nPlaintiff also contends that the Full Commission erred in concluding that \u201c[p]laintiff has not suffered a change of condition\u201d in its 13 April 2007 opinion and award. Plaintiff contends that \u201cDr. Kittelberger and Dr. Hedrick were the only medical experts to testify after the prior final Opinion and Award[,]\u201d and thus essentially only their testimony should be considered on this issue.\n\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.\u201d West v. Stevens Co., 12 N.C. App. 456, 460, 183 S.E.2d 876, 879 (1971).\nUpon its own motion or upon the application of any party in interest 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, subject to the maximum or minimum provided in this Article, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.\nN.C. Gen. Stat. \u00a7 97-47 (2007).\nSection 97-47 of the North Carolina General Statutes provides that upon the application of an interested party \u201con 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.\u201d A change of condition for purposes of N.C. Gen. Stat. \u00a7 97-47, is \u201ca 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.\" A change in condition may consist of either: a change in the claimant\u2019s physical condition that impacts his earning capacity\u201d; \u201ca change in the claimant\u2019s earning capacity even though claimant\u2019s physical condition remains unchanged\u201d; \u201cor a change in the degree of disability even though claimant\u2019s physical condition remains unchanged.\u201d\n\u201cThe 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.\" A plaintiff must prove the element of causation \u201cby the greater weight of the evidence[.]\u201d\nShingleton v. Kobacker Grp., 148 N.C. App. 667, 670-71, 559 S.E.2d 277, 280 (2002) (citations omitted) (emphasis added). \u201cIn 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.\u201d Blair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996) (citations omitted). Thus, in order to modify the 6 February 2002 opinion and award which found \u201cthat plaintiff was not permanently and totally disabled\u201d plaintiff must prove \u201cthat a new condition exists\u201d and must also prove \u201cby the greater weight of the evidence [,]\u201d \u201cthat it is causally related to the injury[.]\u201d See Shingleton, 148 N.C. App. at 670-71, 559 S.E.2d at 280; see also Blair, 124 N.C. App. at 423, 477 S.E.2d at 192.\nFurthermore,\n\u201cChange 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. [T]he 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, and, in some cases, of earnings.\u201d\n. . . Stated negatively, \u201c[c]hanges of condition occurring during the healing period and prior to the time of maximum recovery and the permanent disability, if any, found to exist at the end of the period of healing are not changes of condition within the meaning of G.S. 97-47.\u201d Furthermore, this Court has held that \u201ca mere change of the doctor\u2019s opinion with respect to claimant\u2019s preexisting condition does not constitute a change of condition required by G.S. 97-47.\u201d\nMeares, 193 N.C. App. at 91, 666 S.E.2d at 823-24 (citations omitted).\nThe Full Commission found as fact:\n24. Dr. Kittelberger, an anesthesiologist, initially testified during his deposition that plaintiff was disabled. However, this opinion was given following hypothetical questions posed by plaintiff\u2019s counsel based on the assumption that plaintiff was removed from her light duty position by Dr. Yellig. The undersigned hereby find that the facts forming the basis of the hypothetical posed by plaintiff\u2019s counsel are not supported by the record in this case and are not found as facts herein.\n26. Dr. Kittelberger determined that plaintiff was disabled because she was deconditioned as a consequence of her leaving work and assuming a sedentary lifestyle and that her deconditioning is not necessarily due to her injury. Dr. Kittelberger was unable to opine as to whether plaintiff could have continued to work had she not elected to retire on State Retirement System disability. The undersigned hereby find that Dr. Kittelberger\u2019s testimony does not establish that plaintiff was not and is not able to engage in any employment as a result of her compensable injury.\n30. Dr. Hedrick testified that his opinions were based on the assumption that plaintiff could not work. The hypothetical questions posed to Dr. Hedrick asked him to assume that plaintiff was attempting to return to highly modified work when Dr. Yellig took her off from work and she was found to be qualified for State Retirement System disability. The hypothetical incorrectly assumed that plaintiff had an unsuccessful return to work, that she returned to a highly modified job, and that she was in fact removed from this position by Dr. Yellig. Further, Dr. Hedrick\u2019s opinions were based on plaintiff\u2019s subjective history. Accordingly, the undersigned give little weight to Dr. Hedrick\u2019s opinion.\n36. The opinions of Dr. Kittelberger and Dr. Hedrick that plaintiff is not able to work are given little weight as they did not perform a functional capacity evaluation or other testing to measure plaintiff\u2019s ability to work. The opinions of these doctors relied on inaccurate information (including Dr. Kittelberger\u2019s belief that the FCE results indicated that plaintiff could not work) and on plaintiff\u2019s subjective history, and are not given as much weight as the functional capacity evaluation.\nThe Full Commission concluded that \u201c[p]lairitiff has not suffered a change of condition.\u201d\nAs to Dr. Kittelberger, in his deposition he indicates plaintiff is \u201ctotally disabled\u201d and \u201cunemployable[.]\u201d However, these responses, as noted by the Full Commission, are immediately preceded by approximately a two and one-half page hypothetical question.\nThe following dialogue also took place,\nQ. (By Mr. Scarzafava) so that we can understand you, a person such as Mrs. Hunt, who has degenerative disc disease, who has fibromyalgia, if they become a couch potato, or otherwise very sedentary in their daily lifestyles, they may have de-conditioning of the muscles, of the joints, and thus it would be more painful and difficult for them to engage in increased activity, would that be correct?\nA. Yes.\nQ. Okay. When you first saw her in March 2002, Mrs. Hunt had retired from employment since 1999, so she had been out two or three years, is that correct?\nA. She had been two or three years, yes.\nLater Dr. Kittelberger was also asked:\nQ. Okay. Doctor, in your making the assessment that she was not employable during the time period that you were treating her from March 2002 through August 2003, was one of the factors that you took into consideration, the fact that she hadn\u2019t worked for a couple of years?\nA. That was one \u2014 one factor.\nQ. Okay. Was another factor that it appeared that she had de-conditioning, which may be related to her lack of activity since retirement?\nA. One factor.\nFurthermore, Dr. Kittelberger was also asked, \u201cLikewise, you can\u2019t tell us today that if Mrs. Hunt had continued to work as opposed to retiring on long-term disability whether she\u2019d be able to work at this point in time?\u201d to which Dr. Kittelberger responded, \u201cNo, I don\u2019t think anyone can.\u201d\nDr. Kittelberger was also asked,\nQ. And, Doctor, so we can understand it, your opinion that she\u2019s had a change in her wage earning capacity since 1999 to now, if I understand your testimony earlier today, you don\u2019t know whether or not she\u2019d have that change if she had continued to work as opposed to electing to go out on state long-term disability?\nA. No. I can\u2019t definitely say that.\nIn his deposition Dr. Kittelberger was also asked, \u201cAs I understand it, you performed no actual testing on Mrs. Hunt to determine what her physical capabilities were, is that correct?\u201d Dr. Kittelberger responded, \u201cThat\u2019s correct.\u201d\nDr. Hedrick was asked, over halfway through his deposition, \u201cIn formulating your opinions in this case, have you assumed that Dorothy Hunt was unable to perform any employment?\u201d Dr. Hedrick responded, \u201cThat\u2019s correct.\u201d Also, as noted by the Full Commission, some of Dr. Hedrick\u2019s responses were in response to an extremely long hypothetical question. Dr. Hedrick also admitted that he did not send plaintiff for a functional capacity evaluation.\nAlso, the following dialogue took place during Dr. Hedrick\u2019s deposition,\nQ. Okay. So, as to your actual personal knowledge [in regard to plaintiff\u2019s living arrangements and daily activities], all you know is what she\u2019s told you?\nA. That\u2019s right.\nQ. And she hasn\u2019t told you very much.\nA. Right.\nAgain we reiterate:\nOur review of a decision of the Industrial Commission \u201cis limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.\u201d \u201cThe findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings. \u201d This Court reviews the Commission\u2019s conclusions of law de novo.\nRamsey, 178 N.C. App. at 29-30, 630 S.E.2d at 685 (citations omitted) (emphasis added).\nAfter a thorough review of Dr. Kittelberger\u2019s and Dr. Hedrick\u2019s depositions, we conclude that \u201cthere is . . . competent evidence to support the findings of fact[.]\u201d Id. at 29, 630 S.E.2d at 685. Overall, the depositions do not indicate that plaintiff has developed a \u201cnew condition[,]\u201d but instead seem to indicate that plaintiff has been permanently and totally disabled since before the 6 February 2002 opinion and award. Shingleton, 148 N.C. App. at 670, 559 S.E.2d at 280. Furthermore, even when the responses indicate that plaintiff has developed a \u201cnew condition\u201d the dialogue indicates it is not necessarily \u201ccausally related to the injury[,]\u201d but instead due to plaintiff\u2019s retirement and sedentary lifestyle. See id. As the doctors were presented with lengthy hypotheticals and appeared to rely mostly, if not solely, on plaintiff\u2019s subjective history and current feelings, we do not conclude that the Commission erred in giving their depositions \u201clittle weight[.]\u201d\nHere, the burden was upon plaintiff to prove a change in condition. See id. As \u201clittle weight\u201d was given to Dr. Kittelberger\u2019s and Dr. Hedrick\u2019s testimony, we conclude that \u201c \u2018the findings of fact justify the conclusion[] of law[,]\u2019 \u201d Ramsey, 178 N.C. App. at 29, 630 S.E.2d at 685 (citation omitted), that \u201c[p]laintiff has not suffered a change of condition.\u201d This argument is overruled.\nPlaintiff also argues that several of the Full Commission\u2019s other findings of fact and conclusions of law are erroneous; however, this is irrelevant in light of the fact that plaintiff failed to establish a change in condition because without a change in condition, the 6 February 2002 opinion and award cannot be modified. See Shingleton, 148 N.C. App. at 670, 559 S.E.2d at 280. As \u201c \u2018there are sufficient findings of fact based on competent evidence to support the [Commission\u2019s] conclusion]] oflaw[] [that \u201c[p]laintiff has not suffered a change of condition\u201d], the [award] will not be disturbed because of other erroneous findings which do not affect [this determinative] conclusion]].\u201d Meares, 193 N.C. App. at 89-90, 666 S.E.2d at 823. Thus, plaintiff\u2019s second, third, and sixth briefed arguments are also overruled.\nV. Competency of Evidence\nLastly, plaintiff contends that \u201cthe Full Commission erred in concluding medications prescribed by the authorized treating physician, Dr. Hedrick, for plaintiff\u2019s fibromyalgia and its sequelae are not \u2018reasonably required for the treatment\u2019 of plaintiff\u2019s compensable conditions.\u201d Plaintiff argues that \u201c[t]he only evidence that disputes Dr. Hedrick\u2019s opinions is the unsworn report of Dr. Jeffrey Siegel. . . [which is] incompetent.\u201d Plaintiff analogizes her case with Allen v. K-Mart in which this Court reversed and remanded a Full Commission opinion and award, according to plaintiff, \u201cfor findings based on reports alone without any opportunity for cross-examination.\u201d 137 N.C. App. 298, 528 S.E.2d 60 (2000). Plaintiff further contends that the Commission\u2019s consideration of this unsworn report has denied her due process of law.\nHowever, plaintiff fails to mention that in the Allen case \u201cdefendants filed five separate objections to the Commission\u2019s allowance of the independent medical examinations].]\u2019\u2019 Id. at 302, 528 S.E.2d at 63-64. Here, during Dr. Hedrick\u2019s second deposition, defendant\u2019s attorney specifically reopened the record solely to offer two exhibits, one of which was Dr. Siegel\u2019s report, to which plaintiff\u2019s attorney responded, \u201cand the plaintiff has no objection.\u201d Thus, when defendant submitted an exhibit that read in pertinent part,\n[t]he available literature does not support the use of hormonal analogs (such as Armour thyroid), nor mucinex (and note that Ms. Hunt\u2019s sinusitis preexisted her workplace injury). I cannot locate any randomized controlled studies which indicate an appropriate role for these meds, or other meds not specifically included in the synopsis given above. Accordingly, it would not be medically prudent or appropriate to Rx these meds for FMS[,]\nplaintiff\u2019s attorney specifically stated he had no objections. Furthermore, unlike in Allen, there is no evidence that plaintiff was prevented from cross-examining Dr. Siegel through a deposition. See Allen, 137 N.C. App. at 302-03, 528 S.E.2d at 63-64. Instead it appears that plaintiff simply chose not to do so. From the record before us it appears .plaintiff never objected to the evidence, so the Commission did not err by considering the evidence.\nThe Full Commission found from the report,\n9. The Employer had the recommended use of Mucinex and Armout [sic] Thyroid reviewed by Jeffrey Siegel, M.D. a board certified Neurologist. Dr. Siegel reported that the accepted treatment for fibromyalgia includes: (1) daily exercise regimen, (2) sleep hygiene, (3) attention to depression, and (4) pain medications. Dr. Siegel did not find any evidence based medical research to support the treatment of fibromyalgia with Mucinex, Armour Thyroid, or other medications not used for sleep hygiene, depression, or pain management. After giving his initial report, Dr. Siegel had the opportunity to examine Mrs. Hunt and explained to her, as stated in his 24 March 2005 report, that isolated case reports and internet literature are not of a high evidential value, and that he recommends relying upon evidence based medicine, such as double-blind research studies.\nThis finding and the other findings of fact by the Full Commission are supported by competent evidence. See Ramsey, 178 N.C. App. at 29, 630 S.E.2d at 685. Furthermore, the findings of fact support the conclusion of law that \u201c[t]he prescription of Mucinex, Armour Thyroid, and Belladonna is not reasonably required for the treatment of the injuries[.]\u201d This argument is overruled.\nVIL Conclusion\nFor the aforementioned reasons, we affirm the 13 April 2007 opinion and award and the 7 August 2007 opinion and order from the Full Commission.\nAffirmed.\nJudges McGEE and STROUD concur.\nConcurred prior to 31 December 2008.\n. See Hunt v. N.C. State Univ., 159 N.C. App. 111, 582 S.E.2d 380, disc. review of additional issues denied, 357 N.C. 505, 587 S.E.2d 668 (2003).", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Lennon & Camak, P.L.L.C., by George W. Lennon and Michael W. Bertics, for plaintiff appellant.", "Attorney General Roy Cooper.; by Assistant Attorney General Gary A. Scarzafava, for defendant appellee." ], "corrections": "", "head_matter": "DOROTHY HUNT, Employee, Plaintiff v. NORTH CAROLINA STATE UNIVERSITY, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Administering Agent), Defendant\nNo. COA07-1374\n(Filed 6 January 2009)\n1. Workers\u2019 Compensation\u2014 vocational report \u2014 findings regarding documents used during depositions not required\nThe full Industrial Commission did not improperly disregard in a workers\u2019 compensation case the expert opinions of a vocational expert by not mentioning his vocational report in its 13 April 2007 opinion and award because: (1) the expert did not testify either at the hearing or by deposition, but instead the report was relied upon by two testifying doctors; and (2) the Commission did make findings of fact regarding the doctors\u2019 deposition testimony and opinions, and it was not necessary for the Commission to make further findings regarding the documents used during the depositions.\n2. Workers\u2019 Compensation\u2014 change of condition \u2014 burden of proof on party claiming change\nThe full Industrial Commission did not err in a workers\u2019 compensation case by concluding in its 13 April 2007 opinion and award that plaintiff employee has not suffered a change of condition because: (1) the depositions of two doctors did not indicate that plaintiff has developed a new condition, but instead seemed to indicate that plaintiff has been permanently and totally disabled since before the 6 February 2002 opinion and award; (2) even when the responses indicated that plaintiff has developed a new condition, the dialogue indicated it was not necessarily causally related to the injury but instead due to plaintiff\u2019s retirement and sedentary lifestyle; (3) the burden was upon plaintiff to prove a change in condition, and as the doctors were presented with lengthy hypotheticals and appeared to rely mostly, if not solely, on plaintiff\u2019s subjective history and current feelings, the Commission did not err by giving little weight to the depositions; and (4) although plaintiff contends several of the other findings of fact and conclusions of law are erroneous, it was irrelevant in light of the fact that plaintiff failed to establish a change in condition and the 6 February 2002 opinion and award could not be modified without a change in condition.\n3. Workers\u2019 Compensation\u2014 medications \u2014 reasonableness for requirement of treatment\nThe full Industrial Commission did not err in a workers\u2019 compensation case by concluding medications prescribed by the authorized treating physician for plaintiff\u2019s fibromyalgia and its sequelae are not reasonably required for the treatment of plaintiff\u2019s compensable conditions because: (1) although plaintiff contends the Commission\u2019s consideration of an unsworn report denied her due process of law, there was no evidence that plaintiff was prevented from cross-examining the doctor who wrote the report through a deposition, but instead plaintiff chose not to do so and never objected to the evidence; and (2) the findings of fact supported the conclusion of law that the prescription of Mucinex, Armour Thyroid, and Belladonna were not reasonably required for the treatment of the injuries.\nAppeal by plaintiff from opinion and award entered 13 April 2007 and opinion and award entered 20 August 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 August 2008.\nLennon & Camak, P.L.L.C., by George W. Lennon and Michael W. Bertics, for plaintiff appellant.\nAttorney General Roy Cooper.; by Assistant Attorney General Gary A. Scarzafava, for defendant appellee." }, "file_name": "0662-01", "first_page_order": 694, "last_page_order": 705 }