                                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
                                  -2-
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
                                     -3-
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
                                   -4-
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
                                        -5-
              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
                                       -6-
           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
                                      -7-
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
                                       -8-
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. § 97-29

and 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
                                  -9-
          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
                                -10-
     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.
