{ "id": 6778582, "name": "CONNIE B. YERBY, Plaintiff-Employee v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY/DIVISION OF JUVENILE JUSTICE, Employer, CORVEL CORPORATION (Third-Party Administrator), Defendants", "name_abbreviation": "Yerby v. North Carolina Department of Public Safety/Division of Juvenile Justice", "decision_date": "2014-02-18", "docket_number": "No. COA13-851", "first_page": "515", "last_page": "520", "citations": [ { "type": "official", "cite": "232 N.C. App. 515" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "663 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641508 ], "year": 2008, "pin_cites": [ { "page": "325", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0322-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "partial disability" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-166.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "parenthetical": "salary continuation" } ], "opinion_index": 0 }, { "cite": "520 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "82", "parenthetical": "Deputy Commissioner filed an Opinion and Award awarding salary continuation benefits to employee" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240206 ], "year": 1999, "pin_cites": [ { "page": "276", "parenthetical": "Deputy Commissioner filed an Opinion and Award awarding salary continuation benefits to employee" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0270-01" ] }, { "cite": "389 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "409", "parenthetical": "issue on appeal was plaintiff's eligibility to receive salary continuation benefits after the Commission denied such benefits after a hearing" }, { "page": "409" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522707 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "642", "parenthetical": "issue on appeal was plaintiff's eligibility to receive salary continuation benefits after the Commission denied such benefits after a hearing" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0640-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-84", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-166.14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2013, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-166.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2013, "pin_cites": [ { "page": "(a)(9)" } ], "opinion_index": 0 }, { "cite": "191 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159481 ], "year": 2008, "pin_cites": [ { "page": "305", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0301-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-166.19", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 14, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "parenthetical": "total disability" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-166", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 588, "char_count": 13647, "ocr_confidence": 0.711, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6027382291400001 }, "sha256": "d084b92cbcd90ecf22d4437220a8fd69b5390b2b4c51fbcc6017cb827bcfaaaa", "simhash": "1:49b96fc69c737cf0", "word_count": 2099 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE and Judge HUNTER, Robert C., concur." ], "parties": [ "CONNIE B. YERBY, Plaintiff-Employee v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY/DIVISION OF JUVENILE JUSTICE, Employer, CORVEL CORPORATION (Third-Party Administrator), Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nThe North Carolina Department of Public Safety/Division of Juvenile Justice (defendant) appeals from the North Carolina Industrial Commission\u2019s award of salary continuation benefits to 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.\nI. Facts\nPlaintiff 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\u2019s injury as compensable and agreed to pay plaintiff salary continuation benefits pursuant to N.C. Gen. Stat. \u00a7 143-166. On 11 January 2012, plaintiff\u2019s physician authorized her to return to light-duty work, with the restriction of not lifting her right arm. Despite the physician\u2019s 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\u2019s request was a \u201cRETURN TO WORK PIAN[,]\u201d which outlined plaintiff\u2019s modified employment duties due to her injuries. Despite defendant\u2019s request, plaintiff did not return to work because \u201cher restrictions and physical limitations\u201d put her safety at risk \u201cif she [was] put in direct contact with students, who were often violent juvenile offenders.\u201d 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 \u201c[defendant provide[d] written assurance that [p]laintiff would not be put at an unreasonable risk of physical harm.\u201d 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 \u201cpay to [pjlaintiff salary continuation for the period of January 23, 2012 through June 9, 2012[.]\u201d In support of its award, the Commission found that \u201cthe 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. \u00a7\u00a7 97-29 and 97-32.\u201d Defendant gave timely notice of appeal on 21 May 2013 from the Commission\u2019s Opinion and Award.\nII. Analysis\na. j Authority to Award Salary Continuation Benefits\nDefendant argues that the Commission did not have the statutory authority to make an award of salary continuation benefits pursuant to N.C. Gen. Stat. \u00a7 143-166.19. Specifically, defendant avers that N.C. Gen. Stat. \u00a7 143-166.19 gives the Commission \u201can advisory role with respect to salary continuation benefits . . . but reserves final determinations of eligibility to the employee\u2019s department head.\u201d We disagree.\nReview of an Opinion and Award of the Commission \u201cis limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law. This \u2018court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019\u201d 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\u2019s 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).\nN.C. Gen. Stat. \u00a7 143-166.13 (2013) through \u00a7 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. \u00a7 143-166.13(a)(9) (2013). The plan mandates that the salary of a covered person\nshall be paid as long as his employment in that position continues, notwithstanding his 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\u2019 compensation.\nN.C. Gen. Stat. \u00a7 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\u2019 compensation benefits. See id. Upon the filing of a claim for salary continuation benefits,\nthe 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].\nN.C. Gen. Stat. \u00a7 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\nshall proceed to hear the matter in accordance with its regularly established procedure for hearing claims filed under the Worker\u2019s Compensation Act, and shall report its findings to the secretary or other head of the department. From the decision of [the Commission], an appeal shall lie as in other matters heard and determined by the Commission.\nId. Thus, N.C. Gen. Stat. \u00a7 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\u2019s decision, the Commission is expressly provided authority to \u201chear the matter in accordance with\u201d the Workers\u2019 Compensation Act. Id. Consistent with the provisions of the Workers\u2019 Compensation Act, it is the Commission\u2019s duty to hear the parties\u2019 arguments, determine their disputes, decide the case, and file an Opinion and Award. N.C. Gen. Stat. \u00a7 97-84 (2013).\nWe first note that the case law of our State contravenes defendant\u2019s contention that the Commission does not have the statutory authority to make an award of salary continuation benefits. See Vandiford v. N. Carolina Dep\u2019t of Correction, 97 N.C. App. 640, 642, 389 S.E.2d 408, 409 (1990) (issue on appeal was plaintiff\u2019s eligibility to receive salary continuation benefits after the Commission denied such benefits after a hearing); see also Ruggery v. N. Carolina Dep\u2019t 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\u2019s case law, the Commission had the statutory authority to hear the matter and issue salary continuation benefits. Here, plaintiff timely appealed defendant\u2019s 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.\nFurthermore, based on the relevant statutory language above, we cannot agree with defendant\u2019s argument that the Commission maintains a purely \u201cadvisory role with respect to salary continuation benefits[.]\u201d If this Court were to accept defendant\u2019s assertion, we would undermine the purpose of Article 12B to \u201cprovide additional salary benefits for law enforcement officers who are injured on the j ob\u201d and to construe its provisions liberally, such that claims are \u201cnot defeated on narrow, technical grounds.\u201d Vandiford, 97 N.C. App. at 643, 389 S.E.2d at 409. Moreover, under defendant\u2019s interpretation of the statute, a covered individual would have no ability to appeal an employer\u2019s denial of salary continuation benefits as the Commission\u2019s determination would not be binding on the claimant\u2019s 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. \u00a7 143-166.19.\nb.l Suitable Employment\nNext, defendant argues that the Commission erred by awarding plaintiff salary continuation benefits based on its determination that the \u201clight-duty position offered to [p]laintiff . . . was not suitable employment for [p]laintiff.\u201d Specifically, defendant avers that the Commission\u2019s award should be analyzed according to whether \u201cthe duties that [plaintiff was asked to resume ... were lawfully assigned[.]\u201d We agree.\nN.C. Gen. Stat. \u00a7 143-166.16 clearly states that salary continuation benefits \u201cshall be in lieu of all compensation provided ... by G.S. 97-29 and 97-30\u201d of the Workers\u2019 Compensation Act for a period of up to two years. N.C. Gen. Stat. \u00a7 143-166.16 (2013). Accordingly, N.C. Gen. Stat. \u00a7 143-166.16 (salary continuation) replaces workers\u2019 compensation benefits under N.C. Gen. Stat. \u00a7 97-29 (total disability) and N.C. Gen. Stat. \u00a7 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\u2019 compensation benefits pursuant to N.C. Gen. Stat. \u00a7 97-29 and 97-30. See N.C. Gen. Stat. \u00a7 97-32. Such a determination is absent from N.C. Gen. Stat. \u00a7 143-166.19, which denies salary continuation benefits to an individual who \u201crefuses to perform any duties to which he may be properly assigned[.]\u201d N.C. Gen. Stat. \u00a7 143-166.19.\nThe definition of suitable employment is\nemployment offered to the employee or, if prohibited by the Immigration and Nationality Act, 8 U.S.C. \u00a7 1324a, employment available to the employee that (i) prior to reaching maximum medical improvement is within the employee\u2019s work restrictions, including rehabilitative or other noncompetitive employment with the employer of injury approved by the employee\u2019s authorized health care provider or (ii) after reaching maximum medical improvement is employment that the employee is capable of performing considering the employee\u2019s preexisting and injury-related physical and mental limitations, vocational skills, education, and experience and is located within a 50-mile radius of the employee\u2019s residence at the time of injury or the employee\u2019s current residence if the employee had a legitimate reason to relocate since the date of injury.\nN.C. Gen. Stat. \u00a7 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 \u201cto perform any duties to which [an individual] may be properly assigned\u201d occurred. N.C. Gen. Stat. \u00a7 143-166.19. Since the issue of salary continuation benefits is decided under N.C. Gen. Stat. \u00a7 143-166.14 and not workers\u2019 compensation benefits under N.C. Gen. Stat. \u00a7 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\u2019s legal analysis should have been governed by whether plaintiff refused to perform \u201cduties to which [s]he may be properly assigned[.]\u201d N.C. Gen. Stat. \u00a7 143-166.19.\nIII. Conclusion\nIn sum, the Commission had the statutory authority to make an award of salary continuation benefits pursuant to N.C. Gen. Stat. \u00a7 143-166.19. However, the Commission erred by awarding plaintiff salary continuation benefits based on its suitable employment analysis. Thus, we reverse the Commission\u2019s Opinion and Award and remand for the Commission to apply the proper legal standard.\nAffirmed, in part; reversed and remanded, in part.\nJudge McGEE and Judge HUNTER, Robert C., concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Kellum Law Firm, by J. Kevin Jones, for plaintiff .", "Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for defendant." ], "corrections": "", "head_matter": "CONNIE B. YERBY, Plaintiff-Employee v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY/DIVISION OF JUVENILE JUSTICE, Employer, CORVEL CORPORATION (Third-Party Administrator), Defendants\nNo. COA13-851\nFiled 18 February 2014\n1. Workers\u2019 Compensation \u2014 salary continuation benefits\u2014 juvenile justice officer\nThe Industrial Commission did not err in a workers\u2019 compensation case by awarding salary continuation benefits pursuant to N.C.G.S. \u00a7 143-166.19 to plaintiff juvenile justice officer. A covered law enforcement officer may receive his regular salary during a period of incapacity for up to two years in lieu of workers\u2019 compensation benefits.\n2. Workers\u2019 Compensation \u2014 salary continuation benefits\u2014 suitable employment analysis\nThe Industrial Commission erred by awarding plaintiff salary continuation benefits based on its determination that the light-duty position offered to plaintiff was not suitable employment. The Commission\u2019s award should be analyzed according to whether the duties that plaintiff was asked to resume were lawfully assigned.\nAppeal 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.\nKellum Law Firm, by J. Kevin Jones, for plaintiff .\nAttorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for defendant." }, "file_name": "0515-01", "first_page_order": 525, "last_page_order": 530 }