An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-740
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


DIANNE BETHEA,
  Employee/Plaintiff,

      v.                                        From N.C. Industrial Commission
                                                I.C. No. 381629
US AIRWAYS, INC.,
  Employer,

and

INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA,

  Carrier, Defendants.


      Appeal by defendant from Opinion and Award entered 14 March

2013 by the North Carolina Industrial Commission.                     Heard in the

Court of Appeals 20 November 2013.


      THE SUMWALT LAW FIRM, by Vernon Sumwalt, for plaintiff.

      BROOKS, STEVENS & POPE, P.A., by Frances M. Clement and
      Daniel C. Pope, Jr., for defendant.


      Elmore, Judge.


      US    Airways,     Inc.    (defendant)       appeals     from     the   North

Carolina Industrial Commission’s             (the Commission)         Opinion and

Award   requiring      defendant     to   pay    disability     compensation      to
                                          -2-
Dianne      Bethea   (plaintiff)     in    the    amount    of     $111.17.       After

careful      review,   the   Opinion      and    Award   of      the    Commission    is

affirmed.

                                          I. Facts

       On    12   October    2003,    plaintiff      sustained         a   neck   injury

during the course of her employment as a flight attendant for

defendant. Plaintiff underwent cervical fusion surgery and did

not return to work until 28 September 2006.                      Plaintiff received

workers’ compensation and social security disability benefits

for three years while she was out of work.                             After plaintiff

resumed employment, she returned to work earning her pre-injury

average weekly wage.          On 7 July 2010, the Commission approved a

Form 26A for a 21.5 percent permanent partial disability rating

to plaintiff’s neck.

       After the Form 26A was approved, symptoms related to her

neck injury intensified and included daily headaches resulting

in nausea and blurred vision, decreased range of motion of her

cervical spine, numbness, increased ostephyte (bone spur), and

pain in her right arm.               As a result, plaintiff worked fewer

hours.      Moreover, plaintiff was unable to work on 6 and 7 March

2011   due     to    her   headaches.       She    did     not    receive     workers’

compensation for those days, but instead the missed time “came
                                            -3-
out of [her] sick time” or “personal care leave[.]”                            On 6 June

2011, plaintiff filed an Amended Form 18 alleging a change of

condition pursuant to N.C. Gen. Stat. § 97-47.                         After a hearing

on the matter, Deputy Commissioner Philip A. Baddour, III, filed

an Opinion and Award on 15 August 2012 in favor of defendant.

Plaintiff      appealed      to   the       Commission      on    17     August    2012.

Thereafter, the Commission filed an Opinion and Award on 14

March 2013 for plaintiff, concluding that she demonstrated a

change of condition from the permanent partial disability award

approved    on   7    July    2010.      Defendant        filed   timely       notice   of

appeal on 9 April 2013 to this Court.

                                        II. Analysis

      Defendant argues that the Commission erred in concluding

that plaintiff proved a change of condition under the Workers’

Compensation Act.          We disagree.

      Review     of   an     Opinion    and       Award   of   the     Commission       “is

limited to consideration of whether competent evidence supports

the   Commission’s      findings       of    fact    and    whether      the    findings

support the Commission’s conclusions of law.                      This ‘court’s duty

goes no further than to determine whether the record contains

any evidence tending to support the finding.’” Richardson v.

Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d
                                               -4-
582, 584 (2008) (citation omitted) (quoting Anderson v. Lincoln

Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).

Upon   review       of      the    Commission’s        finding       as    to     a    claimant’s

disability, “we are required to determine whether the record

contains      any      [competent]        evidence           tending       to     support       the

finding.”        Davis v. Hospice & Palliative Care of Winston-Salem,

202 N.C. App. 660, 670, 692 S.E.2d 631, 638 (2010) (citation and

internal quotation marks omitted).                         However, whether the facts

presented establish a change of condition is a question of law

subject to de novo review.                 West v. J. P. Stevens Co., 12 N.C.

App. 456, 460, 183 S.E.2d 876, 879 (1971) (citation omitted).

       Upon the motion of an interested party claiming a change of

condition, N.C. Gen. Stat.                 § 97-47 allows the Commission to

“review any award, and on such review may make an award ending,

diminishing,           or         increasing         the      compensation             previously

awarded[.]”           N.C.    Gen.     Stat.    §     97-47        (2011).        A    change    of

condition “refers to conditions different from those existent

when the award was made[.]”                    Weaver v. Swedish Imports Maint.,

Inc., 319 N.C. 243, 247-48, 354 S.E.2d 477, 480 (1987) (citation

and internal quotation marks omitted).                             The moving party must

show   that      “a    new    condition        exists        and    that     it   is       causally

related     to        the    injury     upon         which     the     award          is    based.”
                                               -5-
Shingleton v. Kobacker Grp., 148 N.C. App. 667, 670, 559 S.E.2d

277, 280 (2002) (citation and quotation omitted).

        The   primary        factor      in    determining          whether    a     change     of

condition      has       occurred        is    whether      the      alleged         change     of

condition     affects        the    employee’s          “physical      capacity         to    earn

wages[.]”          Grantham v. R. G. Barry Corp., 127 N.C. App. 529,

534, 491 S.E.2d 678, 681 (1997) (citation and quotation omitted)

(emphasis in original).               A change of condition can be a change

in    any   one     of    the    following:          1.)   “the      claimant’s         physical

condition      that       impacts        his       earning      capacity,”           2.)      “the

claimant’s         earning      capacity       even     though       claimant’s         physical

condition remains unchanged,” or 3.) “the degree of disability

even though claimant’s physical condition remains unchanged.”

Blair v. Am. Television & Commc'ns Corp., 124 N.C. App. 420,

423, 477 S.E.2d 190, 192 (1996) (citations omitted).                                         Thus,

under    prong      one    delineated         in     Blair,     an    impact       on    earning

capacity      is    necessary       in    addition         to   a    change     in      physical

condition to establish a change of condition under the law.

Under prong three, disability is defined as the “impairment of

the     injured      employee’s          earning        capacity      and      not      physical

disablement.”            Campos-Brizuela           v.   Rocha       Masonry,    L.L.C.,        ___

N.C. App. ___, ___, 716 S.E.2d 427, 436 (2011) appeal dismissed,
                                                -6-
review denied, 366 N.C. 398, 732 S.E.2d 579 (2012) (citation and

quotation omitted).               A claimant can show increased disability

(decreased      earning       capacity)          by     “the      production         of   medical

evidence that he is physically or mentally, as a consequence of

the work related injury, incapable of work in any employment[.]”

Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425

S.E.2d 454, 457 (1993) (internal citation omitted).

       Here, the Commission concluded that plaintiff demonstrated

a change of condition based solely on a “(1) a physical change

in her injury-related condition and (2) a change in disability.”

Even   though     the    Commission             found     two       separate        grounds    for

concluding that a change of condition occurred, only one is

necessary under the law.                See Blair, supra.             The language in (1)

is   insufficient       as    a       matter    of     law     to   support     a     change    of

condition because it does not take into account how plaintiff’s

physical change impacted her earning capacity.

       However,   the        Commission’s             determination        of   a     change   in

disability supports           its conclusion that plaintiff had a change

of   condition.         In     order       to     conclude          whether     a    change    in

disability      occurred       from       the     Commission’s          permanent         partial

disability   award       on       7    July     2010,        we     must   first      determine

whether plaintiff was disabled on 6 and 7 March 2011.
                                               -7-
      Plaintiff sought to establish disability (decreased earning

capacity) through “the production of medical evidence that [s]he

[was]    physically        or    mentally,       as     a    consequence           of     the    work

related injury, incapable of work in any employment[.]”                                           Id.

Although    plaintiff           experienced          some   headaches          before      7    July

2010,    the   “intensity         and    frequency”           of       those    headaches        had

“changed for the worse” since that date.                           It is undisputed that

plaintiff “call[ed] in sick” and did not attend work on 6 and 7

March 2011.        Dr. Bruce Jaufmann testified that on 13 May 2011,

he met with plaintiff and documented “headaches . . . in her

occipital      area”       related      to    her     original          neck    injury.          Dr.

Jaufmann filled out an FMLA form indicating that plaintiff’s

“condition [will] result in intermittent flare ups [that will]

require time off from work[.]”                          Plaintiff told Dr. Jaufmann

that “she called out sick on several occasions because of the

bad headaches.”            During another appointment on 22 August 2011,

Dr.     Jaufmann      noted       that       “over      the      previous          six     months,

[plaintiff] only missed work once or twice due to her neck pain

and her headaches.”               Thus, there is competent evidence that

plaintiff      was     unable      to    earn        wages       and     work       due    to     her

compensable     injury-related           headaches          on     6    and    7    March       2011.

Accordingly,         the    Commission         did      not      err      in       finding      that
                                        -8-
plaintiff     was    temporarily     and        “totally       disabled      from   her

cervical    injury    and    its   consequences”          on   those     days.      See

Shingleton,    148    N.C.    App.   at    673,     559    S.E.2d       at    282   (re-

emphasizing    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”).

    The Commission’s award of temporary total disability is a

change from the permanent partial disability award on 7 July

2010.   Such a change in disability is sufficient to support a

change of condition under N.C. Gen. Stat. § 97-47.                        See Weaver,

319 N.C. at 248-49, 354 S.E.2d at 481 (finding a change of

condition   where     “claimant’s    condition        changed         from    temporary

total disability . . . to total and permanent disability[.]”);

see also Hubbard v. Burlington Indus., 76 N.C. App. 313, 316,

332 S.E.2d 746, 748 (1985)(“When [the Commission] finds on one

occasion that a person is permanently partially disabled and on

a later occasion finds based on additional evidence that the

person is totally disabled this supports a finding of a change

in condition.”).

                                   III. Conclusion
                                    -9-
    In   sum,   the   Commission    did    not   err   in   concluding   that

plaintiff   proved    a   change   of     condition    under   the   Workers’

Compensation Act.     Thus, we affirm the Commission’s Opinion and

Award of temporary total disability benefits to plaintiff for 6

and 7 March 2011.

    Affirmed.



    Judges MCCULLOUGH and DAVIS concur.

    Report per Rule 30(e).
