Weaver v. Swedish Imports Maintenance, Inc.

• Decision Date: 07 April 1987
• Docket Number: No. 363A86,363A86
• Citation: 319 N.C. 243,354 S.E.2d 477
• Parties: Alvis T. WEAVER, Employee, Plaintiff, v. SWEDISH IMPORTS MAINTENANCE, INC., Employer, Reliance Insurance Company, Carrier Defendants.
• Court: North Carolina Supreme Court

Page 477

354 S.E.2d 477

319 N.C. 243

Alvis T. WEAVER, Employee, Plaintiff, v. SWEDISH IMPORTS MAINTENANCE, INC., Employer Reliance Insurance Company, Carrier Defendants.

No. 363A86.

Supreme Court of North Carolina.

April 7, 1987.

E.C. Harris, Durham, for plaintiff-appellee.

Newsom, Graham, Hedrick, Bryson & Kennon by William P. Daniell, Durham, for defendants-appellants.

FRYE, Justice.

In this workers' compensation case we must determine whether the Court of Appeals correctly affirmed the Industrial Commission's decision that: (1) claimant had suffered a change in condition entitling him to recover pursuant to N.C.G.S. § 97-47, and (2) claimant was entitled to compensation for permanent partial disability pursuant to N.C.G.S. § 97-30. For the reasons stated herein, we find that: (1) claimant is entitled to an award for change in condition pursuant to N.C.G.S. § 97-47, (2) claimant is entitled to compensation under N.C.G.S. § 97-29 rather than N.C.G.S. § 97-30 and (3) the Industrial Commission's findings of fact are insufficient to determine the percentage of disability compensable under N.C.G.S. § 97-29.

On 12 April 1979, claimant suffered a compensable myocardial infarction ("heart attack") at work while attempting to replace a wheel on an automobile. During claimant's hospitalization following the 12 April 1979 heart attack, he suffered a second heart attack. Compensation was awarded claimant for temporary total disability pursuant to N.C.G.S. § 97-29 from 13 April 1979 to 15 July 1979. The award was upheld by the Court of Appeals. Weaver v. Swedish Imports Maintenance, Inc., 61 N.C.App. 662, 301 S.E.2d 736 (1983). Nine months after his 12 April 1979 heart attack, claimant began to experience angina episodes, and in August 1980, while walking in a flea market, he suffered another heart attack. After a period of recovery, claimant returned to work. Then, in June 1981, while sleeping at home, claimant suffered another heart attack. Claimant has not returned to work since the June 1981 attack and is now totally disabled as a result of the cumulative damage to the heart muscle resulting from the four heart attacks and the continued underlying coronary artery disease which existed prior to 12 April 1979. The last payment pursuant to the initial award of compensation (under N.C.G.S. § 97-29) was made on or about 13 September 1983, several months after certification of the opinion of the Court of Appeals affirming the award.

On 22 September 1983 claimant filed a petition alleging that subsequent to the initial heart attack in April 1979 he had suffered a change of condition and that he had been totally disabled since 1 June 1981. The Industrial Commission, after reviewing the evidence at a hearing held before a deputy commissioner, concluded that claimant had been permanently and totally disabled since 1 June 1981, partially as a result of his compensable heart attack on 12 April 1979, and that claimant was entitled to benefits for permanent partial disability under N.C.G.S. § 97-30. Chairman Stephenson dissented on grounds that there was no expert medical testimony that the original heart attack "significantly contributed" ¹ to claimant's present disability or that the original heart attack contributed to the subsequent attacks. Defendants gave notice of appeal to the Court of Appeals which affirmed in a split decision.

I

We must first decide whether claimant is entitled to a modification of award on grounds of a change of condition pursuant to N.C.G.S. § 94-47. The Industrial Commission concluded in an opinion affirmed by the Court of Appeals that claimant was entitled to a modification of award because of a change in his condition from "temporary total disability" to permanent partial disability. In support of its conclusion, the Commission made, inter alia, the following finding of fact.

9. Plaintiff's total incapacity to earn wages was caused by a combination of the cumulative damage to the heart muscle resulting from his initial compensable heart attack, his three subsequent attacks and the continued underlying coronary occlusions that also cause angina.

It is well settled in North Carolina that, except as to questions of jurisdiction, the findings of fact of the Industrial Commission are conclusive upon appeal if supported by competent evidence. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). Finding of fact number 9 was clearly supported by competent evidence. Mr. Weaver's present physician, Dr. Hindman, a recognized medical expert certified in internal medicine and cardiovascular diseases, testified that in May of 1983 Mr. Weaver was a poor surgical candidate because of "moderately severe damage to the heart muscle, and cumulative damage from the three previous heart attacks...." According to Hindman, no effective therapy existed in 1984 to "restore the significant damage done to [Weaver's] heart muscle in the three heart attacks."

Dr. Hindman testified further that it is very clear that there has been a change in Mr. Weaver's cardiac condition since July of 1979. Hindman stated that he "would classify the change in [Weaver's] condition as being substantial in that he has had two subsequent heart attacks and a significant amount of damage added to the damage from his first heart attack." (Emphasis added.)

In response to questioning by defendants' counsel, Dr. Hindman indicated that Weaver actually suffered four heart attacks. He explained that since the heart muscle does not regenerate itself, the damage to Mr. Weaver's heart caused by the heart attacks was cumulative. According to Dr. Hindman, the "results of the damage occurring from those heart attacks is that [Mr. Weaver's] left ventricle is no longer able to pump blood as efficiently as it could prior to the date the damage occurred." Dr. Hindman then gave the following testimony in conclusion:

It is my opinion that Mr. Weaver's present disability is a combination of the cumulative damage of the heart muscle and the continued underlying coronary occlusions that still cause him angina.

Whether the facts as found by the Commission amount to a change of condition pursuant to N.C.G.S. § 97-47, however, is a question of law and thus properly reviewable by this Court. Pratt v. Upholstery Co., 252 N.C. 716, 115 S.E.2d 27 (1960). The statute, in pertinent part, provides as follows:

Change of condition; modification of award.

Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded.... No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.

N.C.G.S. § 97-47 (1985).

The Industrial Commission's authority under N.C.G.S. § 97-47 is limited to the review of prior awards; thus the statute is inapplicable unless there has been a previous final award. Watkins v. Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971). A final award was issued by the Commission in this case and affirmed by the Court of Appeals. Weaver v. Swedish Imports Maintenance, Inc., 61 N.C.App. 662, 301 S.E.2d 736.

A change of condition " 'refers to conditions different from those existent when the award was made' ... [citations omitted]." Pratt v. Upholstery Co., 252 N.C. 716, 722, 115 S.E.2d 27, 33-34. For example, a change in the degree of disability may constitute a change of condition. McLean v. Roadway Express, Inc., 307 N.C. 99, 296 S.E.2d 456 (1982) (following a back operation, claimant's permanent partial disability changed from thirty percent to fifty percent). Similarly, an improvement in earning ability may be a change of condition as contemplated by the statute, Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106 (1937) ² (claimant was granted an award for permanent partial disability, and thereafter obtained employment and received a salary almost equal to salary before injury). See also Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986). Also, this Court has stated that "Where the harmful consequences of an injury are unknown when the amount of compensation to be paid has been determined by agreement but subsequently develops, the amount of compensation to which the employee is entitled can be determined within the statutory period for reopening. It is a "change of condition" as the term is used in the statute." Smith v. Red Cross, 245 N.C. 116, 95 S.E.2d 559 (1956).

Watkins v. Motor Lines, 279 N.C. 132, 138, 181 S.E.2d 588, 592-93.

As a result of the disability suffered in the 12 April 1979 heart attack, claimant was initially awarded compensation for temporary total disability from 13 April 1979 to 15 July 1979. After apparent recovery, claimant returned to work. In August 1980, claimant suffered another heart attack while walking through a flea market. Again, claimant returned to work. Then on 1 June 1981, while sleeping at home, claimant suffered yet another heart attack. On 22 September 1983 claimant applied to the Industrial Commission for a modification of award based on a change in condition. Thus the claimant's application for review was made within two years of the last payment pursuant to the initial award on 13 September 1983 as required by N.C.G.S. § 97-47. The Industrial Commission found him totally and permanently disabled. Therefore, claimant's condition changed from temporary total disability on 13 April 1979 to total and permanent disability following the 1 June 1981 heart attack. We find that this is a change in condition...