Yerby v. North Carolina Department of Public Safety/Division of Juvenile Justice

NO. COA13-851
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
CONNIE B. YERBY,
Plaintiff-Employee,
v. From N.C. Industrial
Commission,
No. X77657
NORTH CAROLINA DEPARTMENT OF
PUBLIC SAFETY/DIVISION OF
JUVENILE JUSTICE,
Employer,
CORVEL CORPORATION (Third-Party
Administrator),
Defendants.
Appeal by the North Carolina Department of Public
Safety/Division of Juvenile Justice from Opinion and Award entered
23 April 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 7 January 2014.
Kellum Law Firm, by J. Kevin Jones, for plaintiff.
Attorney General Roy Cooper, by Special Deputy Attorney
General Sharon Patrick-Wilson, for defendant.
ELMORE, Judge.
The North Carolina Department of Public Safety/Division of
Juvenile Justice (defendant) appeals from the North Carolina
Industrial Commission’s award of salary continuation benefits to
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Connie B. Yerby (plaintiff) for the period of 23 January 2012
through 9 June 2012. After careful review, the Opinion and Award
of the Industrial Commission is affirmed, in part; and reversed
and remanded, in part.
I. Facts
Plaintiff has been employed as a Juvenile Justice
Officer/Youth Monitor for defendant since 2006. On 5 December
2011, plaintiff was injured in the course of her employment with
defendant when she slipped and fell on the floor at work, causing
injury to her head, neck, shoulder, back, and right arm. Defendant
accepted plaintiff’s injury as compensable and agreed to pay
plaintiff salary continuation benefits pursuant to N.C. Gen. Stat.
§ 143-166. On 11 January 2012, plaintiff’s physician authorized
her to return to light-duty work, with the restriction of not
lifting her right arm. Despite the physician’s authorization,
plaintiff did not return to work due to safety concerns and ongoing
physical pain. Defendant requested that plaintiff return to work
on 23 January 2012. Accompanying defendant’s request was a “RETURN
TO WORK PLAN[,]” which outlined plaintiff’s modified employment
duties due to her injuries. Despite defendant’s request, plaintiff
did not return to work because “her restrictions and physical
limitations” put her safety at risk “if she [was] put in direct
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contact with students, who were often violent juvenile offenders.”
Thereafter, defendant terminated salary continuation payments
effective 23 January 2012 because plaintiff did not return to work
or provide an out-of-work note. Plaintiff objected to the
termination of her salary continuation payments and filed a Form
33 to the Industrial Commission asking that payments continue until
“[d]efendant provide[d] written assurance that [p]laintiff would
not be put at an unreasonable risk of physical harm.” After a
hearing, Deputy Commissioner Bradley W. Houser filed an Opinion
and Award in favor of plaintiff. Defendant appealed the decision
to the Full Commission (the Commission), and in its Opinion and
Award filed 23 April 2013, the Commission ordered that defendant
“pay to [p]laintiff salary continuation for the period of January
23, 2012 through June 9, 2012[.]” In support of its award, the
Commission found that “the modified, light duty job offered to
[p]laintiff was not suitable to her restrictions and physical
limitations and her refusal of the job was justified. N.C. Gen.
Stat. §§ 97-29 and 97-32.” Defendant gave timely notice of appeal
on 21 May 2013 from the Commission’s Opinion and Award.
II. Analysis
a.) Authority to Award Salary Continuation Benefits
Defendant argues that the Commission did not have the statutory
authority to make an award of salary continuation benefits pursuant
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to N.C. Gen. Stat. § 143-166.19. Specifically, defendant avers that
N.C. Gen. Stat. § 143-166.19 gives the Commission “an advisory role
with respect to salary continuation benefits . . . but reserves final
determinations of eligibility to the employee’s department head.” 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 582, 584 (2008) (citation omitted) (quoting
Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272,
274 (1965)). However, this Court conducts a de novo review of the
Commission’s conclusions of law. Starr v. Gaston Cnty. Bd. of Educ.,
191 N.C. App. 301, 305, 663 S.E.2d 322, 325 (2008) (citation omitted).
N.C. Gen. Stat. § 143-166.13 (2013) through § 143-166.20 (2013)
detail the salary continuation plan (the plan) for certain law
enforcement officers. One type of law enforcement officer covered
under the plan is a juvenile justice officer. N.C. Gen. Stat. § 143-
166.13(a)(9) (2013). The plan mandates that the salary of a covered
person
shall be paid as long as his employment in
that position continues, notwithstanding his
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total or partial incapacity to perform any
duties to which he may be lawfully assigned,
if that incapacity is the result of an injury
by accident . . . arising out of and in the
course of the performance by him of his
official duties, except if that incapacity
continues for more than two years from its
inception, the person shall, during the
further continuance of that incapacity, be
subject to the provisions of Chapter 97 of the
General Statutes pertaining to workers’
compensation.
N.C. Gen. Stat. § 143-166.14 (2013). In sum, a covered law
enforcement officer may receive her or his regular salary during a
period of incapacity for up to two years in lieu of workers’
compensation benefits. See id. Upon the filing of a claim for salary
continuation benefits,
the secretary or other head of the department
. . . shall determine the cause of the
incapacity and to what extent the claimant may
be assigned to other than his normal duties.
The finding of the secretary or other head of
the department shall determine the right of
the claimant to benefits under this Article.
Notice of the finding shall be filed with the
[Commission].
N.C. Gen. Stat. § 143-166.19 (2013). After notice of the finding is
filed, claimant has 30 days to appeal the decision to the Commission
and request a new hearing, at which point the Commission
shall proceed to hear the matter in accordance
with its regularly established procedure for
hearing claims filed under the Worker's
Compensation Act, and shall report its
findings to the secretary or other head of the
department. From the decision of [the
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Commission], an appeal shall lie as in other
matters heard and determined by the
Commission.
Id. Thus, N.C. Gen. Stat. § 143-166.19 allocates authority over
salary continuation benefits to both the department that employs the
claimant and the Commission. See id. First, the department must
determine what salary continuation benefits, if any, the claimant
shall receive. Id. Second, upon timely appeal of the department’s
decision, the Commission is expressly provided authority to “hear the
matter in accordance with” the Workers’ Compensation Act. Id.Consistent with the provisions of the Workers’ Compensation Act, it
is the Commission’s duty to hear the parties’ arguments, determine
their disputes, decide the case, and file an Opinion and Award. N.C.
Gen. Stat. § 97-84 (2013).
We first note that the case law of our State contravenes
defendant’s contention that the Commission does not have the statutory
authority to make an award of salary continuation benefits. See
Vandiford v. N. Carolina Dep't of Correction, 97 N.C. App. 640, 642,
389 S.E.2d 408, 409 (1990) (issue on appeal was plaintiff’s
eligibility to receive salary continuation benefits after the
Commission denied such benefits after a hearing); see also Ruggery
v. N. Carolina Dep't of Corr., 135 N.C. App. 270, 276, 520 S.E.2d 77,
82 (1999) (Deputy Commissioner filed an Opinion and Award awarding
salary continuation benefits to employee). Based on this State’s
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case law, the Commission had the statutory authority to hear the
matter and issue salary continuation benefits. Here, plaintiff timely
appealed defendant’s decision to terminate her salary continuation
benefits, filed a Form 33 with the Commission requesting a hearing
on the matter, and the Commission properly ruled on the dispute.
Furthermore, based on the relevant statutory language above, we
cannot agree with defendant’s argument that the Commission maintains
a purely “advisory role with respect to salary continuation
benefits[.]” If this Court were to accept defendant’s assertion, we
would undermine the purpose of Article 12B to “provide additional
salary benefits for law enforcement officers who are injured on the
job” and to construe its provisions liberally, such that claims are
“not defeated on narrow, technical grounds.” Vandiford, 97 N.C. App.
at 643, 389 S.E.2d at 409. Moreover, under defendant’s interpretation
of the statute, a covered individual would have no ability to appeal
an employer’s denial of salary continuation benefits as the
Commission’s determination would not be binding on the claimant’s
employer. Accordingly, we hold that the Commission had the statutory
authority to make an award of salary continuation benefits pursuant
to N.C. Gen. Stat. § 143-166.19.
b.) Suitable Employment
Next, defendant argues that the Commission erred by awarding
plaintiff salary continuation benefits based on its determination
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that the “light-duty position offered to [p]laintiff . . . was not
suitable employment for [p]laintiff.” Specifically, defendant
avers that the Commission’s award should be analyzed according to
whether “the duties that [p]laintiff was asked to resume . . .
were lawfully assigned[.]” We agree.
N.C. Gen. Stat. § 143-166.16 clearly states that salary
continuation benefits “shall be in lieu of all compensation provided
. . . by G.S. 97-29 and 97-30” of the Workers’ Compensation Act for
a period of up to two years. N.C. Gen. Stat. § 143-166.16 (2013).
Accordingly, N.C. Gen. Stat. § 143-166.16 (salary continuation)
replaces workers’ compensation benefits under N.C. Gen. Stat. § 97-
29 (total disability) and N.C. Gen. Stat. § 97-30 (partial disability)
for a period of time. See id. A determination of whether an
individual refused suitable employment is necessary to award or deny
workers’ compensation benefits pursuant to N.C. Gen. Stat. § 97-29and 97-30. See N.C. Gen. Stat. § 97-32. Such a determination is
absent from N.C. Gen. Stat. § 143-166.19, which denies salary
continuation benefits to an individual who “refuses to perform any
duties to which he may be properly assigned[.]” N.C. Gen. Stat.
§ 143-166.19.
The definition of suitable employment is
employment offered to the employee or, if
prohibited by the Immigration and Nationality
Act, 8 U.S.C. § 1324a, employment available to
the employee that (i) prior to reaching
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maximum medical improvement is within the
employee’s work restrictions, including
rehabilitative or other noncompetitive
employment with the employer of injury
approved by the employee’s authorized health
care provider or (ii) after reaching maximum
medical improvement is employment that the
employee is capable of performing considering
the employee’s preexisting and injury-related
physical and mental limitations, vocational
skills, education, and experience and is
located within a 50-mile radius of the
employee’s residence at the time of injury or
the employee’s current residence if the
employee had a legitimate reason to relocate
since the date of injury.
N.C. Gen. Stat. § 97-2 (2013). The definition above illustrates that
the criteria required to determine a refusal of suitable employment
is separate and distinct from a determination of whether a refusal
“to perform any duties to which [an individual] may be properly
assigned” occurred. N.C. Gen. Stat. § 143-166.19. Since the issue
of salary continuation benefits is decided under N.C. Gen. Stat. §
143-166.14 and not workers’ compensation benefits under N.C. Gen.
Stat. § 97-29 and 97-30, the Commission erred in its use of the
suitable employment analysis as a basis for its decision. Instead,
the Commission’s legal analysis should have been governed by whether
plaintiff refused to perform “duties to which [s]he may be properly
assigned[.]” N.C. Gen. Stat. § 143-166.19.
III. Conclusion
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In sum, the Commission had the statutory authority to make an
award of salary continuation benefits pursuant to N.C. Gen. Stat.
§ 143-166.19. However, the Commission erred by awarding plaintiff
salary continuation benefits based on its suitable employment
analysis. Thus, we reverse the Commission’s Opinion and Award and
remand for the Commission to apply the proper legal standard.
Affirmed, in part; reversed and remanded, in part.
Judge McGEE and Judge HUNTER, Robert C., concur.