dissenting.
I respectfully dissent from the majority opinion. The Worker’s Compensation Act specifically defines “disability” as the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (1991) (emphasis added). Thus, in order for the Industrial Commission to find that an employee is disabled, the employee must show that, after his injury, he was incapable of earning the same wages he had earned before his injury in the same or different employment, and that this incapacity was caused by his physical injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). Thus, the basis of a Worker’s Compensation award is not merely that the employee is unable to work, but rather that a work-related physical injury has caused the employee’s incapacity to earn wages.
The majority asserts that when an employee enters prison the State deprives him of the right to earn wages, and it is that deprivation, not the physical injury, that causes his lack of earning capacity. However, after it has been determined that an employee is entitled to benefits because of a work-related injury, a change in physical condition is the only basis upon which the Industrial Commission can modify such benefits. See N.C. Gen. Stat. § 97-47 (1991) (a worker’s compensation award can be modified only “on the grounds of a change of condition”); McLean v. Roadway Express, Inc., 307 N.C. 99, 104, 296 S.E.2d 456, 459 (1982) (“change of condition” means “a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, earnings”). Mr. Parker in prison had the same physical incapacity to earn wages as he did out of prison and the fact of his incarceration should not deprive him and his dependents, if any, of the benefits to which he is legally entitled. If a different result is desired by the legislature, then it is up to that body of government, not this Court, to enact laws to that effect.
For the foregoing reasons I respectfully dissent.