Jones v. Chandler Mobile Village

• Decision Date: 16 May 1995
• Docket Number: No. 9410IC547,9410IC547
• Parties: Albert JONES, Employee, Plaintiff; v. CANDLER MOBILE VILLAGE, Employer, and Maryland Casualty Ins. Co., Carrier, Defendants.
• Court: North Carolina Court of Appeals

Page 315

457 S.E.2d 315

118 N.C.App. 719

Albert JONES, Employee, Plaintiff; v. CANDLER MOBILE VILLAGE, Employer, and Maryland Casualty Ins. Co., Carrier, Defendants.

No. 9410IC547.

Court of Appeals of North Carolina.

May 16, 1995.

Ganly, Ramer & Finger by Thomas F. Ramer, Asheville, for plaintiff.

Harrell & Leake by Larry Leake, Asheville, for defendant Candler Mobile Village, Inc.

WYNN, Judge.

Plaintiff, Albert Jones, was employed by defendant, Candler Mobile Village, Inc., as a mobile home salesman when he suffered an injury to his back on 2 December 1989 which was compensable under the Workers' Compensation Act. Plaintiff was examined by Dr. Lawrence Van Blaricom and complained of pain in his lower back and left leg. He continued to suffer from pain after Dr. Van Blaricom performed surgery to correct a herniated disc in his back. Even though he continued to experience pain and weakness in his legs, Dr. Van Blaricom determined that plaintiff had reached maximum medical improvement and released him to return to work on 22 January 1991.

In February 1991, plaintiff changed jobs and began working for A & N Mobile Home Sales. On 15 May 1991, plaintiff entered into a settlement agreement with defendant in which it agreed to compensate plaintiff for a ten percent permanent partial disability to his back. Two days later, on 17 May 1991, plaintiff was laid off by his employer.

Plaintiff continued to suffer from pain in his lower back and left leg and was examined by Dr. Van Blaricom in July, October, and November 1991. Dr. Van Blaricom determined that plaintiff was depressed as a result of the chronic pain and recommended that he consult with the Blue Ridge Mental Health Center and seek treatment from a chronic pain program. Plaintiff did not follow up on these recommendations.

Dr. Van Blaricom testified that plaintiff's wife called him several times after plaintiff's last visit in November 1991 concerned that her husband was depressed and constantly suffering from back pain. Dr. Van Blaricom stated that plaintiff's disability rating had not changed and that his opinion that plaintiff suffered from depression was based upon the information he received from plaintiff's wife. Dr. Van Blaricom also testified that he had no way of knowing whether plaintiff was actually depressed.

Dr. Robert Ray Jolley testified that he examined plaintiff and performed a psychiatric disability determination evaluation for Social Security purposes. Dr. Jolley stated that plaintiff suffered from depression but did not have an opinion as to whether this depression was disabling.

The Industrial Commission made the following conclusions:

1. Plaintiff has not experienced a substantial change in his condition as the same existed on May 15, 1991 when he entered into a settlement agreement, Form 26, for a ten percent permanent partial disability to his back as a result of an injury by accident on December 2, 1989. Neither has the plaintiff sustained a substantial change in his condition since July 8, 1991, which was the date that the North Carolina Industrial Commission approved the Form 26 Agreement entered into by the parties as a result of plaintiff's ten percent permanent partial disability to his back.

2. Any depression from which the plaintiff may be suffering as a result of his December 2, 1989 compensable injury by accident is not disabling and has not prevented him from returning to employment similar to that which he held at the time of his compensable injury by accident or even during the early months of 1991.

3. Plaintiff is not entitled to further compensation pursuant to the Workers' Compensation Act.

From this determination, plaintiff appeals.

I.

Plaintiff first assigns error to the Commission's finding that he did not experience a substantial change in condition. Plaintiff contends he presented sufficient evidence that he suffered from depression and that this depression reduced his earning ability. We disagree.

When reviewing appeals from the Industrial Commission, this Court's inquiry is limited to two questions of law: "(1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether the Commission's findings of fact justify its legal conclusions and decision." Sanderson v. Northeast Constr. Co., 77 N.C.App. 117, 120, 334 S.E.2d 392, 394 (1985); Watkins v. City of Asheville, 99 N.C.App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990). The Commission's findings of fact are conclusive on appeal if supported by competent evidence even though there is evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). The Commission's findings of fact may be set aside on appeal only where there is a complete lack of competent evidence to support them. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980).

N.C.Gen.Stat. § 97-47 provides that "on the grounds of a change in condition" the Commission may review any award and end, diminish, or increase the compensation previously awarded. N.C.Gen.Stat. § 97-47 (1991). As our Supreme Court explained:

Change 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 ... the 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.

McLean v. Roadway Express, Inc., 307 N.C. 99, 103-4, 296 S.E.2d 456, 459 (quoting Pratt v. Central Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 33-34 (1960) (citation omitted)); see Haponski v. Constructor's Inc., 87 N.C.App. 95, 360 S.E.2d 109 (1987). This Court has held that if an employee receives a compensable injury and as a result suffers from depression which adversely...