Ward v. Floors Perfect

¶1The majority emphasizes the language in Pratt for the proposition that "a continued incapacity of the same kind and character and for the same injury is not a change of condition." However, in deciding Pratt over forty-seven years ago, our Supreme Court further stated:

¶2Whether there has been a change of condition is a question of fact; whether the facts found amount to a change of condition is a question of law. Change of condition is a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, of earnings.

¶3Indeed, a "change of condition can consist of either a change in claimant's physical condition that impacts his earning capacity, a change in the claimant's earning capacity even though claimant's physical condition remains unchanged, or a change in the degree of disability even though claimant's physical condition remains unchanged." Cummings v. Burroughs Wellcome Co.,130 N.C.App. 88, 91, 502 S.E.2d 26, 29 (1998) (quoting Blair v. American Television & Communications Corp.,124 N.C.App. 420, 423, 477 S.E.2d 190, 192 (1996)).

¶4As the party seeking to modify an award based on a change of condition, Plaintiff "bears the burden of proving that a new condition exists and that it is causally related to the injury upon which the award is based." Id. A plaintiff may meet this burden by producing:

¶5(1) medical evidence that the claimant is physically or mentally, as a consequence of *116the work related injury, incapable of work in any employment; (2) evidence that the claimant is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) evidence that the claimant is capable of some work but that it would be futile because of preexisting conditions i.e., age, inexperience, lack of education, to seek other employment; or (4) evidence that the claimant has obtained other employment at a wage less than that earned prior to the injury.

¶6Shingleton v. Kobacker Group,148 N.C.App. 667, 671, 559 S.E.2d 277, 280 (2002) (internal quotations and citation omitted).

¶7Our Supreme Court has stated:

¶8The burden of production and the quantum of evidence that must be shown to overcome a presumption is stated in Rule 301 of the North Carolina Rules of Evidence: In all civil actions and proceedings when not otherwise provided for by statute, by judicial decision, or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. . . . The burden of going forward is satisfied by the introduction of evidence sufficient to permit reasonable minds to conclude that the presumed fact does not exist. If the party against whom a presumption operates fails to meet the burden of producing evidence, the presumed fact shall be deemed proved[.]

¶9Dobson v. Harris,352 N.C. 77, 84-85, 530 S.E.2d 829, 836 (2000) (quoting N.C. Gen. Stat. § 8C-1, Rule 301).

¶10The "proof of the basic fact . . . not only discharges the proponent's burden of producing evidence of the presumed fact [good faith] but also places upon the opponent the burden of producing evidence that the presumed fact does not exist." Id. at 85, 530 S.E.2d at 836. Furthermore, "if the opponent does not introduce any evidence, or the evidence is not sufficient to permit reasonable minds to conclude that the presumed fact does not exist, the proponent is entitled to a peremptory instruction that the presumed fact shall be deemed proved." Id.

¶11Here, Plaintiff met his burden of showing evidence that he "has obtained other employment at a wage less than that earned prior to the injury." Id. The record shows that Plaintiff testified that his earnings prior to his injuries were $50,000.00 annually, but that after his injuries, his estimated earnings were $15,000.00.1 According to the Industrial Commissions' findings of fact, Plaintiff worked as: a forklift operator, leaving the position after two weeks due to the pain to his knees caused by getting on and off the forklift; a floor installer, completing fifteen installations; a door-to-door meat product salesperson for Omega meats, leaving the position after two months because of aggravation to his knees; an operator of a lawn-mowing business, also leaving the position after aggravation to his knees; and a salesperson for carpet and tile. Additionally, Plaintiff submitted a job search log to show his attempts to secure employment. Moreover, Plaintiff applied and/or inquired about sixteen different jobs without being offered a position at any of those locations. Clearly, Plaintiff showed that he made a reasonable effort to secure employment but was unsuccessful.

¶12Accordingly, the Industrial Commission erred by concluding that Plaintiff failed to prove a change of condition pursuant to Section 97-47 of the North Carolina General Statutes.