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

Court of Appeals of North Carolina

February 18, 2014

Connie B. YERBY, Plaintiff-Employee,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY/DIVISION OF JUVENILE JUSTICE, Employer, Corvel Corporation (Third-Party Administrator), Defendants.

Heard in the Court of Appeals 7 January 2014.

Page 210

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.

Kellum Law Firm, by J. Kevin Jones, New Bern, 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 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 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

Page 211

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 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 ...


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