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Shingleton v. Kobacker Group2/19/2002
she has not sustained a change in her ability to earn wages since the original hearing on this matter. Indeed, the unanimous medical testimony from all of plaintiff's doctors is identical to the medical evidence presented for the 1993 hearing. Quite clearly, plaintiff has failed to carry her burden of producing "medical evidence showing ` he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment.'" See Grantham, 127 N.C. App. at 534, 491 S.E.2d at 681 (citation omitted).
The only evidence in the record which could possibly support the Commission's conclusion that plaintiff is totally disabled is plaintiff's own testimony that she can no longer work in any capacity. However, we re-emphasize that in proving an inability to work in any employment due to a physical or mental condition in the context of asserting a substantial change in condition, a plaintiff must produce medical evidence that she is no longer capable of any employment. See id.; see also Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 19, 348 S.E.2d 596, 600 (1986) (Commission properly denied plaintiff's claim to further compensation based on theory of substantial change in condition where plaintiff's evidence consisted entirely of plaintiff's own testimony and there was no medical evidence concerning the cause and extent of his injuries), disc. review denied, 319 N.C. 103, 353 S.E.2d 106 (1987).
We further observe that the nature of plaintiff's testimony regarding her physical ailments barely changed from the 1993 hearing to the hearing at issue here. Although plaintiff testified at the subsequent hearing that her pain was "more widespread," plaintiff's complaints regarding her physical restrictions were the same at both hearings: that she has trouble sitting and standing for long periods of time, that she has trouble bending and lifting, and that she has trouble sleeping. "A change of condition `"refers to conditions different from those"' in existence when an award was originally made and `"a continued incapacity of the same kind and character and for the same injury is not a change in condition."'" Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 149, 468 S.E.2d 269, 274 (1996) (citations omitted).
In conclusion, we disagree with the Commission that plaintiff's own assertion that she is wholly incapable of employment is competent evidence to carry her burden of showing a substantial change in condition where her opinion is contrary to the unanimous and unchanged medical evidence, and where plaintiff's testimony about her physical restrictions is virtually identical to that of the 1993 hearing. We therefore reverse the Commission's conclusion that plaintiff has sustained a substantial change in condition warranting an award of additional compensation.
In light of this holding, we need not address defendants' additional arguments, including that plaintiff failed to prove by the greater weight of the evidence that her 1989 back injury caused her subsequent medical problems for which she now seeks additional compensation. Even if plaintiff established that her 1989 injury caused her subsequent medical problems, plaintiff did not prove that the subsequent problems resulted in a substantial change in her capacity to earn wages.
Reversed.
Judges GREENE and TYSON concur.
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