An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                             NO. COA13-1090
                     NORTH CAROLINA COURT OF APPEALS

                            Filed:    1 April 2014


WANSHIENDA TATUM,
     Employee, Plaintiff,

      v.                                  North Carolina Industrial
                                          Commission
                                          I.C. No. W48687
CUMBERLAND COUNTY SCHOOLS,
     Employer, SELF-INSURED
     (CORVEL, Administrator),
     Defendant.


      Appeal by defendant from Opinion and Award entered 26 June

2013 by the North Carolina Industrial Commission.                Heard in the

Court of Appeals 3 February 2014.


      Roy Cooper, Attorney General, by Deborah                    M.    Greene,
      Assistant Attorney General, for the State.

      Hardison & Cochran,         PLLC,    by   J.   Jackson   Hardison,     for
      plaintiff-appellee.


      MARTIN, Chief Judge.


      Defendant-employer Cumberland County Schools appeals from

an Opinion and Award of the North Carolina Industrial Commission

awarding    workers’    compensation      benefits   to   plaintiff-employee

Wanshienda Tatum.      For the reasons stated herein, we affirm.
                                     -2-
    On 2 October 2009, plaintiff sustained a compensable injury

to her left knee arising out of and in the course and scope of

her employment as a special education teacher with defendant.

Plaintiff was injured when she was kicked in the left knee by an

aggressive, autistic student she was assisting.             On 17 February

2010,    Dr.   Bradley   Broussard   performed   surgery   on    plaintiff’s

left knee.      While plaintiff did not initially miss any time from

work after the incident, she remained out of work following her

surgery on 17 February 2010 through the remainder of the 2009-

2010 school year.

    Plaintiff returned to work at the beginning of the 2010-

2011 school year as a resource teacher for kindergarten through

second grade students.         Plaintiff continued to work in this

capacity until 7 January 2011.             Plaintiff has not returned to

work for defendant or any other employer since that date.

    On 21 December 2010, plaintiff expressed to Dr. Broussard

that she was experiencing severe pain and swelling to her left

knee that affected her ability to sit and stand.             Even with the

results of a recent MRI scan, however, Dr. Broussard could not

explain plaintiff’s symptomology and did not recommend surgical

intervention.      Nonetheless, Dr. Broussard supported plaintiff’s

desire    for    another    orthopedic      opinion.       The   Industrial

Commission granted plaintiff’s motion to change her physician to
                                      -3-
Dr. Louis Almekinders on 29 April 2011.

      Dr. Almekinders performed a second surgery on plaintiff’s

left knee on 17 June 2011.           On 8 August 2011, Dr. Almekinders

restricted    plaintiff    permanently      to     sedentary         work    and    later

included a restriction against any type of physical handling or

assisting of students.         Defendant offered plaintiff a resource

teacher position working with second and third grade students

for   the   2011-2012    school    year.      On       13     September      2011,    Dr.

Almekinders opined that the resource teacher position was not

within plaintiff’s work restrictions.               Plaintiff did not accept

the   position.     On    25   October      2011,       Dr.       Almekinders      placed

plaintiff at maximum medical improvement, assigned her a twenty

percent permanent partial disability rating, and released her

from his care.

      On 13 December 2011, a digital job analysis of the resource

teacher     position     was      completed      pursuant            to     defendant’s

authorization.      The    job     analysis      was     then       provided    to    Dr.

Almekinders, and, on 19 January 2012, Dr. Almekinders approved

the resource teacher position.           During his deposition on 16 May

2012, Dr. Almekinders provided an explanation as to why he later

approved the position despite the permanent work restrictions he

had assigned plaintiff.           Dr. Almekinders explained that after

reviewing    the   detailed      description       of       the    resource     teacher
                                         -4-
position in the job analysis, he believed the position was “very

safe” for plaintiff and he could think of no reason that the

position     would       place     plaintiff         or     her      knee        at    risk.

Accordingly,       he    testified     that     it    was      his     opinion,        to    a

reasonable     degree      of     medical     certainty,        that       the    resource

teacher position as described in the job analysis was within

plaintiff’s physical capabilities and limitations.                          There was no

evidence,    however,      that    plaintiff     was      thereafter        offered         the

resource teacher position by defendant.

    Throughout          plaintiff’s      treatment          for      her     compensable

injury,    plaintiff      received     psychiatric        care      from    Dr.       Valerie

Murray.      Dr.    Murray      diagnosed      plaintiff        with     post-traumatic

stress disorder, depression, and anxiety.                      Although Dr. Murray’s

treatment    notes       indicate      the    existence        of    other       stressors

unrelated to plaintiff’s compensable injury, Dr. Murray opined

that plaintiff’s post-traumatic stress disorder, depression, and

anxiety were caused by her compensable injury.

    The deputy commissioner filed an Amended Opinion and Award

on 9 November 2012, which concluded that plaintiff sustained a

compensable injury on 2 October 2009 that did not result in

post-traumatic stress disorder, depression, and anxiety.                               On 26

June 2013, the Full Commission entered an Opinion and Award

affirming     in        part     and    modifying         in      part      the       deputy
                                        -5-
commissioner’s       decision.        The    Full   Commission    concluded        that

plaintiff sustained a compensable injury on 2 October 2009 and

that plaintiff’s post-traumatic stress disorder, depression, and

anxiety were causally related to her compensable injury.                            The

Full Commission awarded plaintiff benefits for temporary total

disability until she returns to work or further order of the

Commission, as well as ongoing medical treatment and benefits

for   post-traumatic        stress    disorder,       depression,      and   anxiety.

Defendant appeals.

                         _________________________

      On    appeal,     defendant           contends    that     the     Industrial

Commission    erred     by    concluding       that    (I)   plaintiff       did   not

unjustifiably refuse suitable employment, and (II) plaintiff’s

post-traumatic       stress    disorder,       depression,     and     anxiety      are

causally related to her compensable injury.                  We disagree.

      The Industrial Commission is the sole judge of the weight

and credibility of the evidence, and “this Court ‘does not have

the right to weigh the evidence and decide the issue on the

basis of its weight.’”           Adams v. AVX Corp., 349 N.C. 676, 680–

81, 509 S.E.2d 411, 413–14 (1998) (quoting Anderson v. Lincoln

Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)),

reh’g denied, 350 N.C. 108, 532 S.E.2d 522 (1999).                       Our review

of    an   opinion    and     award    of     the   Industrial      Commission       is
                                         -6-
therefore     “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.”

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,

669 S.E.2d     582,     584        (2008),        reh’g    denied,     363 N.C.       260,

676 S.E.2d    472     (2009).         “Unchallenged         findings      of   fact   are

presumed to be supported by competent evidence and are binding

on appeal.”      Allred v. Exceptional Landscapes, Inc., __ N.C.

App. __, __, 743 S.E.2d 48, 51 (2013).                       As a result, where a

party only challenges the Industrial Commission’s conclusions of

law   “our   review    ‘is    limited        to    the    question   of    whether     the

[Industrial Commission’s] findings of fact, which are presumed

to be supported by competent evidence, support its conclusions

of law and judgment.’”             Johnson v. Herbie’s Place, 157 N.C. App.

168, 180, 579 S.E.2d 110, 118 (alteration in original) (quoting

Okwara v. Dillard Dep’t Stores, Inc., 136 N.C. App. 587, 591–92,

525 S.E.2d 481, 484 (2000)), disc. review denied, 357 N.C. 460,

585 S.E.2d 760 (2003).

                                             I.

      Defendant argues that the Industrial Commission erred in

concluding that plaintiff did not unjustifiably refuse suitable

employment.      Specifically, defendant contends that plaintiff’s

failure to return to work once the resource teacher position was
                                     -7-
approved by Dr. Almekinders on 19 January 2012 constituted an

unjustifiable     refusal    of    suitable     employment,    and,    thus,

plaintiff is not entitled to any further compensation.

    An    injured   employee      who   unjustifiably   refuses   suitable

employment is not     “entitled to         any compensation    at any time

during   the   continuance   of    such     refusal.”   N.C.    Gen.   Stat.

§ 97-32 (2013).     Suitable employment is defined as any job that

is available to the employee and that he or she is capable of

performing.     Bowen v. ABF Freight Sys., Inc., 179 N.C. App. 323,

332, 633 S.E.2d 854, 860 (2006).           Whether an employee’s refusal

of suitable employment is justified is a question left to “the

opinion of the Industrial Commission.”           N.C. Gen. Stat. § 97-32;

accord Keeton v. Circle K, __ N.C. App. __, __, 719 S.E.2d 244,

248 (2011).

    In this case, the Industrial Commission concluded:

           4. Given Plaintiff’s qualifications, work
           restrictions and aptitude, the E.C. Resource
           Teacher position was suitable employment.
           See   N.C.I.C.    Rules    for   Utilization   of
           Rehabilitation     Professionals     in   Workers
           Compensation Claims, Rule III(G); see also
           Peoples   v.    Cone    Mills,    316 N.C.   426,
           342 S.E.2d 798 (1986).        However, Plaintiff
           did   not    unjustifiably      refuse   suitable
           employment between August 8, 2011 and the
           date   of    this    Opinion     and   Award   as
           Plaintiff’s authorized treating physician
           initially disapproved the position as not
           being within Plaintiff’s restrictions and
           the    scope     of     Plaintiff’s     permanent
                              -8-
        restrictions were unclear until clarified by
        the authorized treating physician during his
        deposition. The record is unclear regarding
        whether Plaintiff has been offered a current
        E.C.   Resource   Teacher  [position]   with
        Defendant-Employer.

    This conclusion was supported by the following findings of

fact:

        18. Plaintiff was written out of work from
        her June 17, 2011 surgery through August 8,
        2011.   On August 8, 2011, Dr. Almekinders
        restricted Plaintiff to a sedentary, sitting
        job.   Defendant offered Plaintiff an E.C.
        Resource Teacher position for the 2011-2012
        school year, which was similar to the K-2nd
        grade resource teacher position Plaintiff
        performed during the 2010-2011 school year.
        The only difference was Plaintiff would work
        with 2nd and 3rd grade students instead of
        kindergarten   to    2nd   grade   students.
        Plaintiff did not return to work.

        19. On September 13, 2011, Plaintiff’s work
        restrictions were changed to include a
        restriction against any type of physical
        handling   or   assisting   students.    Dr.
        Almekinders   did   not   approve   the E.C.
        Resource Teacher position.

        . . . .

        22. Pursuant to Defendant’s authorization, a
        digital job analysis of the E.C. Resource
        Teacher position was completed on December
        13, 2011.        The E.C. Resource Teacher
        position
        required    working   with   small   groups   of
        children     to    provide    instruction     in
        accordance with an
        Individual       Education      Plan      (IEP).
        Physically, the position required, inter
        alia,    frequent    sitting   and    occasional
                     -9-
standing,   walking,   balancing,   squatting,
bending, stooping and kneeling. . . . Dr.
Almekinders   approved   the   E.C.   Resource
Teacher position on January 19, 2012.

23. During his deposition on May 16, 2012,
Dr. Almekinders explained that although he
assigned permanent sedentary restrictions
with no physical handling or assisting of
students, his intention for the permanent
restrictions was “to do something safe.” He
also explained that after he clinically
assigns    restrictions,     frequently    the
employer would actually send specific job
descriptions to him for review to determine
if it fits with the person’s disability.
After reviewing the digital job analysis,
Dr. Almekinders explained, “I knew her knee.
She has in essence a minor knee problem.
And this was a very safe thing for her to
do.    And there’s no real physical reason
that I can think of that she would put
herself or her knee at risk for these types
of activities. . . .    [A]t the end of the
day   when  I   look  at   a   more   detailed
description and    I find it’s safe and
reasonable, I will approve it.        I can’t
think of any other reason to not approve
it.”

. . . .

32. Based upon a preponderance of the
credible   evidence   of   record,   the   Full
Commission finds that the E.C. Resource
Teacher position in an elementary school
setting as described in the December 2011
digital job analysis is suitable employment
given Plaintiff’s orthopedic restrictions.
The   E.C.   Resource   Teacher   position   is
suitable employment even when viewed in
light of the restrictions assigned by and
the   concerns   explained   by   Dr.   Murray.
Plaintiff would be working in a different
class in a different setting, at a different
                              -10-
         educational facility from the class setting
         and facility in which she was working on the
         date of injury.

         33. Based upon a preponderance of the
         credible evidence of record, Plaintiff was
         unable to earn any wages in her former
         position with Defendant-Employer or in any
         other employment from February 21, 2011
         through the date of the Opinion and Award of
         the Deputy    Commissioner and continuing.
         Plaintiff was restricted to seated work only
         from February 21, 2011 to June 16, 2011.
         Defendant   concedes    Plaintiff    is   owed
         temporary total disability compensation from
         June 17, 2011 through August 8, 2011.      The
         E.C. Resource Teacher position was not
         initially   approved    by    the   authorized
         treating    physician.         Although    Dr.
         Almekinders ultimately approved the digital
         job   analysis    on    January    19,   2012,
         Plaintiff’s permanent work restrictions were
         not fully explained or understood until
         clarified by Dr. Almekinders during his
         deposition.       Without    Dr.   Almekinders
         clarification, the E.C. Resource Teacher
         position as described in the digital job
         analysis     seemed      inconsistent     with
         Plaintiff’s permanent sedentary restrictions
         with no physical handling of students.      No
         evidence was presented that Plaintiff has
         been offered a current E.C. Resource Teacher
         position with Defendant-Employer.

    None of these findings of fact are challenged by defendant

and are thus binding on appeal.   See Allred, __ N.C. App. at __,

743 S.E.2d at 51.   These findings demonstrate that although Dr.

Alkeminders ultimately approved the    resource teacher   position

after reviewing the digital job analysis, plaintiff’s permanent

work restrictions were not fully explained or understood until
                                          -11-
later    clarified    by     Dr.    Almekinders       during         his     deposition.

Absent his clarification, the position——which required working

with small groups of children as well as frequent sitting and

occasional   standing,        walking,      balancing,      squatting,          bending,

stooping and kneeling——did not appear to comply with plaintiff’s

permanent sedentary work restrictions with no physical handling

of students at the time the position was offered to plaintiff.

Thus, her refusal of the position at that time was justified.

Furthermore, because no evidence was presented indicating that

defendant    has     since    offered       plaintiff       a     resource      teacher

position, there is no evidence to support a finding that she has

refused a suitable position.              We therefore affirm the Industrial

Commission’s   conclusion          that   plaintiff     did      not       unjustifiably

refuse suitable employment.

                                          II.

       Defendant’s    second       argument      pertains       to    the     Industrial

Commission’s conclusion that plaintiff’s post-traumatic stress

disorder, depression, and anxiety are causally related to her

compensable injury and are thus compensable.                         Defendant claims

this    conclusion    was     reached       in    error,        arguing      that   “the

competent    evidence        of    the     record    shows        that      plaintiff’s

psychological condition is not related to her compensable knee

injury, but instead is related to the administration of her
                                          -12-
workers’ compensation claim, perceived workplace retaliation and

workplace     safety,      and        non-work     related     personal         issues.”

Because it is not the province of this Court to reweigh the

evidence, we must disagree.

       The Industrial Commission found, and similarly concluded,

that   “although     other      stressors       unrelated    to    her    injury   were

reported     throughout         the    course     of    Plaintiff’s       psychiatric

treatment, Plaintiff’s post-traumatic stress disorder, anxiety

and depression are causally related to her compensable work-

related injuries.”         Defendant does not contend that no competent

evidence exists to support the Industrial Commission’s finding

that plaintiff’s psychological conditions are casually related

to her compensable injury, nor does defendant dispute that this

finding    justifies       a    similar    conclusion.            Rather,   defendant

claims that because there is evidence of other stressors that

are unrelated to plaintiff’s compensable injury, the Industrial

Commission erred in concluding that                    plaintiff’s       psychological

conditions    are    causally          related    to   her   compensable         injury.

Defendant’s argument essentially asks this Court to reweigh the

evidence,    focus    on       those    parts    of    the   record      that   support

defendant’s position, and reach a different result than that

deemed appropriate by the Industrial Commission.                      This we cannot

do as we are “not at liberty to reweigh the evidence and to set
                               -13-
aside the findings simply because other conclusions might have

been reached.”    McLeod v. Wal-Mart Stores, Inc., 208 N.C. App.

555, 560, 703 S.E.2d 471, 475 (2010) (internal quotation marks

omitted).   Defendant’s argument is accordingly overruled.

    In light of the foregoing, we affirm the Opinion and Award

of the North Carolina Industrial Commission.

    Affirmed.

    Judges ELMORE and HUNTER, JR. concur.

    Report per Rule 30(e).
