Weaver v. Swedish Imports Maintenance, Inc.

343 S.E.2d 205, 80 N.C. App. 432, 1986 N.C. App. LEXIS 2200
CourtCourt of Appeals of North Carolina
DecidedMay 6, 1986
Docket8510IC965
StatusPublished
Cited by6 cases

This text of 343 S.E.2d 205 (Weaver v. Swedish Imports Maintenance, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weaver v. Swedish Imports Maintenance, Inc., 343 S.E.2d 205, 80 N.C. App. 432, 1986 N.C. App. LEXIS 2200 (N.C. Ct. App. 1986).

Opinions

[433]*433JOHNSON, Judge.

On 12 April 1979, plaintiff was employed as an automobile mechanic by defendant, Swedish Imports Maintenance, Inc., when he suffered a myocardial infarction while in the process of replacing a wheel on an automobile. During plaintiffs hospitalization he suffered a second myocardial infarction. Prior to the 12 April 1979 infarction plaintiff had no history of heart problems, although medical examinations at that time revealed plaintiff had coronary artery disease which predated 1979. Plaintiff returned to the same position of employment on or about 15 July 1979. Plaintiffs claim for compensation resulted in a finding that plaintiff had sustained a myocardial infarction as a result of undergoing an extraordinary exertion. In an opinion and award dated 25 February 1981, plaintiff received compensation pursuant to G.S. 97-29 for total temporary disability. This Court affirmed that order on appeal. Weaver v. Swedish Imports Maintenance, Inc., 61 N.C. App. 662, 301 S.E. 2d 736 (1983).

In August 1980, plaintiff suffered another myocardial infarction while walking through a flea market during nonworking hours. Following a period of recuperation, plaintiff returned to work. In June 1981, plaintiff suffered a fourth myocardial infarction at home while waking from sleep. Since June 1981, plaintiff has been unable to work. Medical studies reveal the presence of a large amount of scar tissue in his heart that severely restricts the amount of blood that is ejected from the heart, as indicated by a left ventricular ejection fraction for plaintiffs heart in the range of sixteen percent (16°/o) to twenty-eight percent (28%) compared to a normal range between fifty percent (50%) and sixty-five percent (65%).

G.S. 97-47 allows for the modification of a prior award upon the motion of a party on the grounds of a change in condition so long as such motion for review is made within two years from the date of the last payment of compensation. G.S. 97-47. Compensation was last paid under the prior order on or about 13 September 1983; hence, plaintiff made a timely request for review. On 13 April 1984, Deputy Commissioner Elizabeth G. McCrodden, after allowing plaintiffs motion for review based on a change of condition, received evidence. Michael C. Hindman, M.D., testified as an expert witness in behalf of plaintiff; plaintiff also testified. In an [434]*434order filed 28 July 1984 denying plaintiffs claim under G.S. 97-30, Deputy Commissioner McCrodden made the following findings of fact:

8. Plaintiff has not returned to work since his June 1981 myocardial infarction. He has reached maximum medical improvement at this point. Plaintiff is totally and permanently disabled.
9. Plaintiffs disability is caused by a combination of the cumulative damage to the heart muscle resulting from the four myocardial infarctions and the continued underlying coronary occlusions that also cause angina.
10. Plaintiff has failed to show that the myocardial infarctions which occurred in August 1980 and June 1981 were the direct and natural result of the 12 April 1979 and subsequent myocardial infarctions and, therefore, that the 12 April 1979 injury by accident was a significant or measurable causal factor in his subsequent disability.

In the order filed 26 March 1985 reversing the Deputy Commissioner’s order, the Full Commission stated:

In the opinion of the Commission, the issue is not whether plaintiffs original and compensable heart attack caused his subsequent heart attacks but whether plaintiffs total and permanent incapacity to earn any wages was caused in whole or in part by his initial compensable attack.

The Commission stated Finding of Fact 9 was “clearly supported by medical evidence of record.” The Commission adopted Finding of Fact 9 in Deputy Commissioner McCrodden’s opinion and award, with slight change in wording. The Commission proceeded to point out that this factual finding resolved the determinative issue, whether plaintiffs total disability “was caused in whole or in part” by his initial attack, in plaintiffs favor. Accordingly, the Commission struck Finding of Fact 10, and inserted in lieu thereof “Plaintiff has been permanently and totally disabled from work since 1 June 1981.” The Commission struck the order denying plaintiffs claim, ordered compensation for permanent partial disability pursuant to G.S. 97-30 beginning 1 June 1981, not to exceed 300 weeks, and affirmed and adopted the Deputy Commissioner’s opinion and award as modified.

[435]*435Defendants do not refute that a change occurred in plaintiffs condition from the time of the original award to the time plaintiff sought review. Change of condition refers to a substantial change of the injured employee’s physical capacity to earn wages or in the earnings of the injured employee. Swaney v. Newton Constr. Co., 5 N.C. App. 520, 169 S.E. 2d 90 (1969). Defendants do not argue their objections to the factual findings of the Commission in their brief. Rather, defendants state in their brief, “In the case at bar, there is no real dispute as to any of the relevant facts.” In defendants’ sole Assignment of Error presented in their brief, defendants object only to the legal standard applied to the facts. Defendants contend plaintiff cannot receive any additional compensation unless he can demonstrate a causal relationship between the first compensable myocardial infarctions and the subsequent myocardial infarctions. Defendants maintain that the proper test to establish this necessary causal relationship is whether the later myocardial infarctions were the “direct and natural result of the compensable primary injury.” We disagree.

The test proposed by defendants does not apply to the facts of this case. The test proposed by defendants applies to a situation where the claimant first suffers a compensable injury by accident and subsequently sustains a second injury. When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, absent an intervening cause attributable to claimant’s own intentional conduct. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 611, 175 S.E. 2d 342, 347 (1970). Hence, the second injury that is the proximate result of the first compensable injury is also compensable.

The above is not the situation before us. Plaintiff is not seeking compensation for his subsequent injuries. Further, the defendants’ contention that the Full Commission erred in holding that plaintiff is entitled to “compensation for permanent total disability” is contrary to the record. (Emphasis added.) The record shows that plaintiff sought a review of his order and award regarding only the first compensable myocardial infarction. Although plaintiff was found to be totally disabled at the time of the review he did not seek, nor did he receive, an award of compensation for permanent total disability resulting from all four myocardial in-farctions, but compensation pursuant to G.S. 97-30 for permanent [436]*436partial disability resulting from the first compensable myocardial infarction. Accordingly, the Full Commission struck the conclusion in the order and award and inserted in lieu thereof:

Plaintiff has been permanently and totally disabled since 1 June 1981, partially

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Weaver v. Swedish Imports Maintenance, Inc.
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Weaver v. Swedish Imports Maintenance, Inc.
343 S.E.2d 205 (Court of Appeals of North Carolina, 1986)

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Bluebook (online)
343 S.E.2d 205, 80 N.C. App. 432, 1986 N.C. App. LEXIS 2200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-swedish-imports-maintenance-inc-ncctapp-1986.