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Young v. Hickory Business Furniture3/21/2000
could be caused or aggravated by trauma. While Dr. Payne conceded that fibromyalgia is controversial "because there's difficulty in objectively studying [the condition]," it was his opinion, to a reasonable degree of medical certainty, that plaintiff's compensable "injury could have or would have aggravated or caused the fibromyalgia." Dr. Payne noted further that plaintiff's history did not reveal any causative factor, other than the work-related injury, for the onset of fibromyalgia.
In light of this testimony, we hold that Dr. Payne's opinion regarding the etiology of plaintiff's current condition is more than mere speculation and, thus, was sufficient to support the Commission's finding that "[plaintiff's] reactive fibromyalgia was caused or substantially aggravated by her original injury by accident." See Hedrick v PPG Industries, 126 N.C. App. 354, 484 S.E.2d 856, disc. review denied, 346 N.C. 546, 488 S.E.2d 801 (1997) (holding that although cause of dystonia unknown, expert's opinion regarding causation, based on temporal relationship between plaintiff's work-related injury and onset of condition, was sufficient to support Commission's finding that dystonia was caused by compensable injury); Keel v. H & V Inc., 107 N.C. App. 536, 421 S.E.2d 362 (1992) (stating that causal connection may be established by circumstantial evidence and that absolute medical certainty not required). Defendants' argument, then, fails.
Lastly, defendants assert that the evidence does not support the Commission's conclusion that plaintiff experienced a substantial change of condition, because Dr. Hilton testified that he would have given her the same disability rating in 1995 that he gave her in 1993, i.e., 5% permanent partial impairment to the back. We are not persuaded.
Under section 97-47 of our General Statutes, a "change of condition" refers to "`a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, of earnings.'" East v. Baby Diaper Services, Inc., 119 N.C. App. 147, 151, 457 S.E.2d 737, 740 (1995)(quoting Pratt v. Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 34 (1960)). Whether a change of condition has occurred is a factual question, and whether the facts as found constitute a change of condition is a legal question. Id.
Defendants cite no authority for the proposition that an injured employee's disability rating must change in order to conclude that she has suffered a substantial change of condition under section 97-47. Moreover, we note that " n determining if a change of condition has occurred entitling an employee to additional compensation under G.S. 97-47 the primary factor is a change in condition affecting the employee's physical capacity to earn wages[.]" Lucas v. Bunn Manuf. Co., 90 N.C. App. 401, 404, 368 S.E.2d 386, 388 (1988). The record contains ample evidence tending to show that plaintiff's physical condition changed so as to impact her wage-earning capacity. Dr. Winfield testified that when he examined plaintiff on 2 August 1995, her condition was much worse than when he last saw her on 21 May 1992. Dr. Hilton similarly testified that plaintiff's condition had substantially worsened when she returned to him for treatment on 20 August 1994. Furthermore, plaintiff presented evidence that she was terminated from her position with defendant-employer on 19 October 1994, because she was no longer physically able to perform her job . We, therefore, hold that the Commission did not err in concluding that plaintiff underwent a substantial change of condition within the meaning of section 97-47. Accordingly, defendants' argument is overruled.
In light of the foregoing analysis, we affirm the opin
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