Gattis v. MURRELLS INLET VFW 10420

STILWELL, J.

(dissenting):

I respectfully dissent. I agree with the majority’s analysis of and conclusion regarding the motion to compel, but disagree with the decision affirming the finding of a change of condition and reinstating temporary total disability (TTD). I would therefore find it unnecessary to address the issue concerning treatment by out-of-state medical providers.

The initial hearing before the single commissioner was held on August 19, 1998. The resulting order was appealed to the full commission which, among other things, refused to allow *115into evidence a letter from Dr. Horton, found Claimant sustained a 25% permanent impairment to her back and had reached maximum medical improvement (MMI) on March 9, 1998 when she was released by her treating physician. No appeal was taken from that order. If the parties to a dispute fail to timely appeal the final award of the commission, then its order “is conclusive and binding as to all questions of fact.” S.C.Code Ann. § 42-17-60 (Supp.2001).

We are now asked to affirm an award for a change of condition based on that letter from Dr. Horton which was dated the day before the initial hearing. I have difficulty justifying an award for a change of condition based on a condition which admittedly existed prior to the' initial award.

“[A] change in condition means a change in the physical condition of the claimant as a result of the original injury, occurring after the first award.” Cromer v. Newberry Cotton Mills, 201 S.C. 349, 357, 23 S.E.2d 19, 22 (1942). It “can consist of either a change in the 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.” Blair v. Am. Tel. & Communications Corp., 124 N.C.App. 420, 477 S.E.2d 190, 192 (1996) (citations omitted).1

Not having appealed the full commission order finding MMI, Claimant is bound by it,

subject of course to her right to review of it upon change of condition as prescribed by Section [42-17-90]. But her suggestion here that review under Section [42-17-90] was available to her as an alternative to, or substitute for, an appeal, is without merit. An appeal is concerned with conditions prior to and at the time of the original Opinion and Award, whereas review under Section [42-17-90] is concerned with conditions that have arisen thereafter.

Causby v. Rock Hill Printing & Finishing Co., 249 S.C. 225, 228, 153 S.E.2d 697, 698-699 (1967).

*116“A change of condition refers to conditions different from those in existence when an award was originally made and a continued incapacity of the same kind and character and for the same injury is not a change in condition.” Lewis v. Craven Reg’l Med. Ctr., 122 N.C.App. 143, 468 S.E.2d 269, 274 (1996). In Lewis, where claimant complained of scar tissue, increased pain, and a continuing condition present during the first award, the court held no change of condition had been proven because “this development and continuing incapacity is ‘of the same kind and character and for the same injury5 that gave rise to plaintiffs [initial] compensation....” Id.

Claimant admitted in testimony before the single commissioner on the change of condition that she had initially requested surgery, which was denied. She testified the pain was slightly worse but that she was essentially claiming the same treatment for the same condition on which the initial award was based. As Claimant’s counsel conceded in the initial hearing before the full commission, “the condition is what it is now. It wouldn’t constitute a change later.” Dr. Horton’s August 18, 1998 letter noted that additional surgery “would very likely decrease the tenure and/or severity of Ms. Gattis’ pain and impairment.” As Employer noted, this “evidence from Dr. Horton was presented at the first hearing ... [and] was explicitly rejected.” There is no evidence a medical change has occurred since the initial hearing, and Claimant produced no evidence about nor did she argue any change in her earning capacity.

I would, therefore, reverse that portion of the order reinstating TTD and authorizing additional and continuing treatment.

. “The decisions of North Carolina courts interpreting that state’s workers' compensation statute are entitled to weight because the South Carolina statute was fashioned after North Carolina’s.” Adams v. Texfi Ind., 320 S.C. 213, 217, 464 S.E.2d 109, 112 (1995).