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Poe v. Raleigh/Durham Airport Authority12/19/1995
had a pre-existing back problem due to an admittedly compensable injury in May 1988, was engaged in the work of his employer, defendant Britt Services, when an unanticipated event occurred, throwing plaintiff forward and thus, wrenching his previously injured back. Plaintiff testified during the hearing before Deputy Commissioner Willis that he continued to work in spite of nagging pain, because he desperately needed money so that he would not lose his home. Plaintiff was seen by his family physician, Dr. Minor, after the accident and reported that he was experiencing increased back and leg problems. Plaintiff did not, however, seek further medical treatment for these complaints until 16 April 1991, when he was seen by Dr. Fuchs, a neurosurgeon. Thereafter, plaintiff was referred to another neurosurgeon, Dr. St. Clair, who performed a third lumbar surgical procedure on plaintiff on 11 October 1991.
As the evidence was sufficient to sustain the Commission's finding that plaintiff had suffered a temporary flare-up of a pre-existing injury , as a result of the 6 August 1990 incident, and its Conclusion that plaintiff was not disabled as a result of the 6 August incident, we affirm the Commission's finding and Conclusion in this regard. We cannot, however, agree with the Commission's Conclusions that plaintiff did not sustain a substantial change of condition from his accident of 3 May 1988 which would warrant a review by the Industrial Commission of its previous awards, and that plaintiff was not entitled to receive payment for any medical expenses incurred or to be incurred after April 1991. In support of these Conclusions, the Commission made the following Findings of Fact:
23. . . . Regarding the accident of 3 May 1988, the undersigned finds that plaintiff's physical condition after November 1990 was not a substantial change of condition caused by the accident of 3 May 1988[.] This finding is based on the following: (1) there is no opinion from an expert, to a reasonable degree of medical certainty, that plaintiff's condition after November 1990 was a natural and probable consequence of the injury by accident of 3 May 1988 and that his condition after November 1990 was a substantial change of condition from the previous accident; and (2) there was a substantial period of time between plaintiffs return to work from the first accident and the discovery of a recurrent herniated disk in June 1991.
24. The undersigned finds limited weight in the testimony and opinions of Stephen Carpenter because of his heavy reliance on restrictions placed on plaintiff's activities only days after his surgery, when it is clear that those restrictions were not intended to be permanent.
25. Any medical treatment plaintiff received after April 1991 was not necessary to effect a cure, to provide relief, or to lessen any period in which plaintiff was unable to be gainfully employed, as a result of the accident of 3 May 1988.
Whether the facts as found by the Commission amount to a change of condition pursuant to section 97-47 of the North Carolina General Statutes is a question of law and is, therefore, reviewable by our Court. See Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 354 S.E.2d 477 (1987). Further, it is well settled that disability under the Workmen's Compensation Act speaks to a diminished capacity to earn money, not to physical infirmity. Peoples v. Cone Mills Corp., 316 N.C. 426, 435, 342 S.E.2d 798, 804 (1986)(citing Ashley v. Rent-A-Car Co., 271 N.C. 76, 84, 155 S.E.2d 755, 761 (1967)). Finally, " capable job seeker whom no employer needing workers will hire is not employable." Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 400, 368 S.E.2d 388, 390,
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