Harmon v. Public Service of North Carolina, Inc.

WHICHARD, Judge. Plaintiff contends the Deputy Commissioner and the full Commission should have considered his referred pain to the extremities of the body in determining whether he has sustained a change of condition under N.C. Gen. Stat. 97-47. We agree. “When ... an injury to the back causes referred pain to the extremities of the body and this pain impairs the use of the extremities, then the award of workers’ compensation must take into account such impairment.” Fleming v. K-Mart Corp., 312 N.C. 538, 546, 324 S.E. 2d 214, 218-19 (1985). See also Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E. 2d 122 (1986). In Fleming the Court, upholding an award by the Commission, held that a disabled plaintiff suffering from “chronic back and leg pain” as a result of a work-related injury to the back could not be fully compensated under N.C. Gen. Stat. 97-31(23) and was entitled to compensation under N.C. Gen. Stat. 97-29. Id. It is clear from the Deputy Commissioner’s comment that she did not apply the legal standard set forth in Fleming to the findings here, and thus, as stressed in the dissent, that she based her determination on a misapprehension of the law. Specifically, the [485] Deputy Commissioner failed to take into account impairment of the use of plaintiffs legs in determining whether plaintiff is now totally disabled and entitled to compensation under N.C. Gen. Stat. 97-29, as mandated by Fleming. Defendants contend that Fleming is inapplicable because the issue there did not concern whether the plaintiff had sustained a substantial change in condition. Defendants are partially correct in that a determination that an injured plaintiff is entitled to compensation under N.C. Gen. Stat. 97-29 under the Fleming standard does not, in and of itself, compel a conclusion that such plaintiff has sustained a substantial change of condition under N.C. Gen. Stat. 97-47. There still must be a determination that there has been a substantial change in the injured employee’s condition, i.e., a change in his or her capacity to earn wages. See Edwards v. Smith & Sons, 49 N.C. App. 191, 192-93, 270 S.E. 2d 569, 570 (1980), disc. rev. denied, 301 N.C. 720, 274 S.E. 2d 228 (1981). In Hubbard v. Burlington Industries, 76 N.C. App. 313, 316, 332 S.E. 2d 746, 748 (1985), this Court held that “[w]hen the . . . Commission finds on one occasion that a person is permanently partially disabled and on a later occasion findsf,] based on additional evidence^] that the person is totally disabled[,] this supports a finding of a change in condition.” A situation similar to that in Hubbard exists here in that the first opinion and award determined plaintiff to be permanently partially disabled and the Deputy Commissioner subsequently determined, based on competent evidence in the record, that plaintiff is now “totally disabled.” “ ‘When, as here, facts are found by the Commission under a misapprehension of the law, we are empowered to remand the case so that the evidence may be considered in its true legal light.’ ” Wagoner v. Douglas Battery Mfg. Co., 80 N.C. App. 163, 164, 341 S.E. 2d 120, 122 (1986), quoting Cauble v. Macke Co., 78 N.C. App. 793, 795, 338 S.E. 2d 320, 322 (1986). Accordingly, the opinion and award are reversed and the cause is remanded to the Industrial Commission to make findings of fact and conclusions of law consistent with this opinion. Specifically, the Commission should take into account impairment of the use of plaintiffs legs as mandated by Fleming, supra. We further note that should the Commission, applying Fleming, determine that plaintiff is totally [486] disabled and entitled to compensation under N.C. Gen. Stat. 97-29, plaintiff will have sustained a substantial change of condition. Hubbard, supra. Reversed and remanded. Judges ARNOLD and JOHNSON concur.