              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-620

                                 Filed: 1 March 2016

From the Industrial Commission, IC No. X77657
CONNIE YERBY, Plaintiff, Employee,

             v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY/DIVISION OF
JUVENILE JUSTICE, Employer; CORVEL CORPORATION (Third-Party
Administrator), Defendant.


      Appeal by defendant from opinion and award filed 10 March 2015 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 19 November 2015.

      Attorney General Roy Cooper, by Special Deputy Attorney General Sharon
      Patrick-Wilson, for defendant.

      Kellum Law Firm, by J. Kevin Jones, for plaintiff.


      DIETZ, Judge.

      When a law enforcement officer employed by the State is injured in the line of

duty, state law provides that the officer will continue to be paid her full salary even

if she can no longer perform her regular job duties. But this law also provides that,

if the officer “refuses to perform any duties to which the person may be properly

assigned,” the applicable state agency may cease paying the officer “as long as the

refusal continues.” N.C. Gen. Stat. § 143-166.19.

      Plaintiff Connie Yerby was injured while working as a juvenile justice officer

with the North Carolina Department of Public Safety. Roughly a month after the
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                                  Opinion of the Court



injury, her doctor authorized her to return to work on the condition that she not

perform any duties requiring her to lift her right arm. DPS assigned Yerby to a “light-

duty” role at a juvenile center that occasionally would place her in close proximity to

violent juvenile offenders. Yerby refused this role because, in light of her doctor’s

restriction on the use of her arm, she was concerned that she could not adequately

defend herself from a violent attack. DPS then ceased paying her salary.

      Yerby challenged DPS’s decision in the Industrial Commission, which

reinstated her salary continuation because the light-duty role offered by DPS was

“not suitable” under N.C. Gen. Stat. §§ 97-29 and 97-32. This Court reversed, holding

that the Industrial Commission improperly applied the “suitable employment”

analysis from the Workers’ Compensation Act instead of the “duties to which the

person may be properly assigned” standard from N.C. Gen. Stat. § 143-166.19. Yerby

v. N.C. Dep't of Pub. Safety, ___ N.C. App. ___, 754 S.E.2d 209, 211 (2014).

      On remand, the Industrial Commission again reinstated Yerby’s salary

continuation, this time concluding that, because her work restriction would render

her “unable to adequately defend herself from students, who were often violent

juvenile offenders,” the duties proposed by DPS were not duties to which Yerby may

be properly assigned.

      DPS again appealed, this time arguing that the Industrial Commission’s

analysis violated this Court’s mandate from Yerby I and again applied the wrong legal



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                                  Opinion of the Court



standard. For the reasons discussed below, we hold that the Industrial Commission

engaged in the proper analysis to determine whether the proposed work duties were

duties to which the officer may be properly assigned. Accordingly, we reject DPS’s

arguments and affirm the Commission’s opinion and award.

                          Facts and Procedural History

      The North Carolina Department of Public Safety has employed Plaintiff

Connie Yerby as a juvenile justice officer and youth monitor since 2006. Yerby’s role

required her to monitor students in a juvenile facility—many of whom are violent

offenders. Although Yerby was never assaulted by a student at work, she came “close

to it.” Her job therefore required her to be able to physically restrain a violent

juvenile offender if necessary.

      On 5 December 2011, Yerby fell at work and injured her head, neck, shoulder,

back, and right arm. DPS began paying salary continuation benefits under N.C. Gen.

Stat. § 143-166.16.

      On 11 January 2012, DPS referred Yerby to Dr. William de Araujo, who

diagnosed Yerby with a right rotator cuff strain as well as cervical and thoracic

strains. Dr. Araujo permitted Yerby to return to light-duty work, provided that she

perform no lifting with her right arm.

      DPS requested that Yerby return to work on 23 January 2012 and offered her

a “light-duty” role that involved supervising, monitoring, and conducting bed checks



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of students in the housing units and performing housing unit inspections. In this

role, Yerby was not to be the first staff member to enter a juvenile’s housing unit, and

she was not to restrain students or perform any lifting with her right arm.

      Yerby did not return to work as requested by DPS due to her concerns that her

injuries would limit her ability to defend herself from a possible attack by a violent

juvenile resident. On 10 February 2012, DPS notified Yerby that it was terminating

her salary continuation payments as of 23 January 2012 because she failed to return

to work as requested.

      On 10 February 2012, Yerby responded that she would return to work on the

conditions that she would not have to work alone, would not have to enter the

students’ rooms, and would not have to be in direct contact with the students. DPS

denied Yerby’s requested conditions.

      On 5 March 2012, Yerby filed an Industrial Form 33 Request for Hearing in

order to object to the termination of her salary continuation. At the hearing, Yerby

explained that she refused DPS’s proposed light-duty role because she would be

unable to defend herself from a juvenile attack due to her injuries. A vocational

rehabilitation expert also testified that the light-duty role would create a “constant

element of danger due to the chance of being put in direct contact with students.”

This expert explained that, even though Yerby would not be required to restrain a




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                                  Opinion of the Court



student in this role, she would not be immune from a student attack and could not

properly defend herself if such an attack occurred.

      The Deputy Industrial Commissioner concluded that DPS wrongfully

terminated Yerby’s salary continuation and that Yerby was entitled to the

reinstatement of her salary from 23 January 2012 through 9 June 2012, the date she

ultimately returned to a light-duty role at DPS. DPS appealed to the Full Industrial

Commission, which concluded that Yerby was entitled to reinstatement of her salary

continuation because the light-duty role offered by DPS was “not suitable” under N.C.

Gen. Stat. §§ 97-29 and 97-32.

      DPS then appealed to this Court. We reversed, holding that the Industrial

Commission improperly applied the “suitable employment” standard under N.C. Gen.

Stat. §§ 97-29 and 97-30 rather than the “duties to which the person may be properly

assigned” standard under N.C. Gen. Stat. § 143-166.19. Yerby v. N.C. Dep't of Pub.

Safety, ___ N.C. App. ___, 754 S.E.2d 209, 211 (2014). We remanded and directed the

Commission “to apply the proper legal standard.”

      On remand, the Industrial Commission again concluded that Yerby was

entitled to salary continuation benefits from the date of her injury to 9 June 2012.

But this time, the Commission reasoned that the duties involved in DPS’s proposed

light-duty role were not “duties to which [s]he may be properly assigned[.]” The

Commission explained that the duties proposed by DPS put Yerby at a “heightened



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                                   Opinion of the Court



risk of harm” because her injuries left her unable to “adequately defend herself from

students, who were often violent juvenile offenders.” DPS timely appealed from the

Full Commission’s amended opinion and award.

                                       Analysis

        Our review of an opinion and award from the Industrial Commission is limited

to “whether the evidence presented before the Commission supports its factual

findings, and whether those findings support the Commission’s conclusions of law in

its opinion.” McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701

(2004).

   I.      Compliance with this Court’s mandate

        DPS first argues that the Commission failed to follow this Court’s “remand

directive” in its amended opinion and award. Specifically, DPS contends that the

Industrial Commission impermissibly “applied an arbitrary and case specific

standard” to determine whether the duties proposed by DPS were duties to which

Yerby may be properly assigned. We disagree.

        The Industrial Commission followed this Court’s mandate and applied the

proper legal standard as directed: it cited N.C. Gen. Stat. § 143-166.19 (the applicable

statute) and quoted the specific statutory language we instructed the Commission to

apply (“duties to which she may be properly assigned”). The Commission found that

the duties DPS sought to assign “would place Plaintiff at a heightened risk of harm



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                                   Opinion of the Court



due to her physical restriction” because she “would be unable to adequately defend

herself from students, who were often violent juvenile offenders.” Based on this

finding, the Industrial Commission reinstated Yerby’s salary continuation because

the duties DPS attempted to impose on Yerby were not ones “to which she may be

properly assigned.” This is precisely the sort of analysis that should be done by the

Commission in a § 143-166.19 dispute, and it is what we expected when we remanded

this case. Accordingly, we reject DPS’s argument that the Commission ignored this

Court’s mandate.

   II.      Use of terms also used in the Workers’ Compensation Act

         DPS next argues that the Industrial Commission wrongly applied the “suitable

employment” standard from the Workers’ Compensation Act—the same error that

caused this Court to reverse and remand in Yerby I—because the Commission’s

analysis uses language from the “suitable employment” provisions of the Workers’

Compensation Act. We disagree.

         To be sure, the Commission’s analysis used the phrase “physical restrictions

and limitations,” a phrase that appears in the “suitable employment” statute in the

Workers’ Compensation Act.        But the Commission did not cite the Workers’

Compensation Act in its analysis, and nothing suggests the Commission was applying

the “suitable employment” standard from the Act in this case.            Rather, the

Commission appears simply to have borrowed language used in the Workers’



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                                       Opinion of the Court



Compensation Act to accurately describe Yerby’s factual situation.                   This is not

reversible error—we are unaware of any authority that requires the Industrial

Commission to employ exclusively original prose in its opinions.1

   III.      Prior decisions from the Industrial Commission

         Finally, DPS argues that the Industrial Commission’s analysis in this case

conflicts with its analysis in Dobson v. N.C. Department of Public Safety, I.C. No.

W90912 (June 4, 2014). According to DPS, Dobson stands for the proposition that, if

the work duties the agency seeks to assign comply with a physician’s recommended

work restrictions, those duties are per se properly assigned.               DPS relies on the

following language in Dobson for its position:

               The duties of the correctional officer position were not
               properly assigned as they were not within Plaintiff’s
               restrictions as assigned by his physicians. As such, the
               Full Commission finds that Plaintiff is entitled to the
               reinstatement of salary continuation benefits . . . .

         This language does not mean what DPS claims. It establishes that work duties

that violate a physician’s work restriction are not duties that may be properly

assigned. So, for example, if a physician restricted the employee to light duty with

no heavy lifting, the employer could not properly assign the employee to move heavy

boxes.

         We agree with that reasoning.          But it does not follow from the Dobson


         1
         The same is true for the Commission’s use of the term “heightened risk,” a term found in a
separate portion of the Salary Continuation Plan statutes. See N.C. Gen. Stat. § 143-166.14.

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reasoning that work duties that do not violate a physician’s work restrictions are per

se properly assigned. As this case indicates, even when an officer is medically capable

of performing certain work duties under normal circumstances, other factors—such

as the risk that the normal circumstances unexpectedly devolve into violent

confrontations with juvenile offenders—may compel the Industrial Commission to

conclude that those duties are not ones to which the officer properly may be assigned.

Accordingly, we reject DPS’s argument.

                                    Conclusion

      For the reasons stated above, we reject the Department of Public Safety’s

arguments and affirm the Industrial Commission’s amended opinion and award.

      AFFIRMED.

      Judges STROUD and TYSON concur.




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