June G. BENNETT
v.
HERTFORD COUNTY BOARD OF EDUCATION.
No. 836SC633.
Court of Appeals of North Carolina.
July 17, 1984.*915 Chambers, Ferguson, Watt, Wallas, Adkins & Fuller by James C. Fuller, Jr., Charlotte, for plaintiff-appellee.
Revelle, Burleson, Lee & Revelle by L. Frank Burleson, Jr., Murfreesboro, for defendant-appellant.
EAGLES, Judge.
I
In its 18 February 1983 judgment the Superior Court stated that it had applied the "whole record" test in reviewing the evidence before the Board of Education and reversing the Board's decision. Judicial review of decisions of local Boards of Education is pursuant to the Administrative Procedure Act, G.S. 150A-1 et seq., which allows a court to reverse or modify an agency decision "if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are: ... (5) Unsupported by substantial evidence... in view of the entire record as submitted;..." G.S. 150A-51(5). See also Faulkner v. New Bern-Craven County Board of Education, 311 N.C. 42, 316 S.E.2d 281 (1984). As distinguished from the "any competent evidence" test and a de novo review, the "whole record" test "gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence." Overton v. Board of Education, 304 N.C. 312 at 322, 283 S.E.2d 495 at 501 (1981). See also Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977); Goodwin v. Goldsboro City Board of Education, 67 N.C.App. 243, 312 S.E.2d 892 (1984).
The task before the trial court then, was to consider all of the evidence to determine whether the Board's findings as to plaintiff's physical incapacity were supported by substantial evidence.
II
The sole basis of plaintiff's dismissal, according to the record, was physical incapacity. G.S. 115C-325(e)(1)e provides for the dismissal of a career teacher for "physical or mental incapacity." However, physical incapacity as it relates to teacher dismissal is not defined in the applicable law, either as formerly codified or in its present rewritten form, or in the case law of this jurisdiction. The closest analogous situation is to be found in the Teachers' and State Employees' Retirement Act (SERA), G.S. 135-1 et seq. G.S. 135-5(c) deals with the eligibility of members of the retirement system for disability retirement benefits. It provides that under certain conditions qualified members may receive a disability retirement allowance if "the medical board, after a medical examination of such member, shall certify that such member is mentally or physically incapacitated for further performance of duty...." In Meachan v. Board of Education, 47 N.C.App. 271, 267 *916 S.E.2d 349 (1980), later appealed sub nom. Meacham v. Board of Education, 59 N.C. App. 381, 297 S.E.2d 192 (1982), disc. rev. denied, 307 N.C. 577, 299 S.E.2d 651 (1983), we applied this language in the context of a career teacher. The plaintiff in Meachan suffered from a neurological disorder that affected her teaching performance. Rather than face dismissal proceedings, plaintiff elected to take a medical leave of absence on the advice of the school superintendent. Also on the advice of the superintendent, plaintiff applied for and was granted a disability retirement allowance under SERA. Plaintiff subsequently underwent corrective surgery and was able to return to work the next school year. We held in Meachan that a finding of eligibility for disability benefits under SERA was "wholly inconsistent" with one's former status as a career teacher because it implied a finding that the disability was "likely to be permanent." Id. at 276, 267 S.E.2d at 352.
Turning to other areas of law, we find that physical incapacity or disability under our Workers' Compensation law is defined in terms of an individual's capacity to earn wages by his or her work. E.g., Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979); Robinson v. J.P. Stevens & Co., 57 N.C.App. 619, 292 S.E.2d 144 (1982); G.S. 97-2(9). Where there is an incapacity of an individual that affects his or her availability for work, the incapacity must be operating at the time employment is refused or denied on the basis of unavailability. See G.S. 96-13 (availability for employment under Employment Security law).
We hold that physical incapacity under G.S. 115C-325(e)(1)e refers to a present and continuing inability to perform the duties and meet the responsibilities and physical demands customarily associated with the individual's job as a career teacher in the public schools. The incapacity must be in effect at the time action is taken by the Board of Education. The projected duration of the incapacity must be long term or indefinite with no reasonable prospect for rapid rehabilitation. This interpretation of physical incapacity is consistent with the interpretations of similar laws in other jurisdictions. E.g., Tilton v. Board of Education, 25 Cal. App. 2d 746, 78 P.2d 474 (1938); Gould v. Board of Education, 32 Ill.App. 808, 336 N.E.2d 69 (1975); Smith v. Board of Education, 293 N.W.2d 221 (Iowa, 1980). We believe this interpretation is consistent also with the purpose of the Act, as explained by Chief Justice Sharp, "to provide teachers of proven ability for the children of this State by protecting such teachers from dismissal for political, personal, arbitrary or discriminatory reasons." Taylor v. Crisp, 286 N.C. 488 at 496, 212 S.E.2d 381 at 386 (1975).
III
Our review of the whole record here discloses no substantial evidence of plaintiff's then-existing or continuing physical incapacity to perform her job. At most, the record shows that plaintiff had previously had various health problems that were serious enough to cause her to be absent frequently and to miss much of the 1980-81 school year on a medical leave of absence. Before and during her leave, plaintiff took steps, with varying degrees of success, to correct or at least control her problems with medical treatment. Prior to returning to work, she was certified by a physician as being physically able to return to work. There is no indication that plaintiff's performance upon her return to work was less than satisfactory, and her attendance was perfect. In summary, there is no substantial evidence that will support a finding that plaintiff was physically incapacitated at the time of her dismissal and no substantial evidence to support the conclusion that she was properly dismissed.
All evidence relating to plaintiff's poor health has as its basis a time period prior to plaintiff's return to the classroom in April 1981. No evidence of record discredits her performance after her return. Absenteeism after her return was not a problem. *917 There is, when the whole record is considered, no rational basis upon which the board could conclude, as it did, that at the time of the dismissal proceeding plaintiff was "presently physically unfit."
Although in an appropriate case, i.e., where properly charged, a career teacher may be dismissed under G.S. 115C325(e)(1) for "inadequate performance," "neglect of duty," and other performancerelated reasons, the charge in this dismissal proceeding against this plaintiff was "physical incapacity." Defendant takes the position that plaintiff's physical and health problems had adversely affected her past performance as a classroom teacher and that her past conduct and medical history constitute substantial evidence of her present unfitness for the job. We disagree. While physical incapacity may adversely affect a teacher's job performance, the concepts are nevertheless independent and it does not necessarily follow, as defendant urges here, that poor performance will always accompany less than perfect health. Although past performance as a teacher provides some indication of what performance may be expected from the same individual in the future, the same is not necessarily so with respect to past health conditions, especially in view of indications, as here, that past health problems have been alleviated if not cured. See Gould v. Board of Education, supra.
The judgment of the trial court is
Affirmed.
BRASWELL, J., concurs.
VAUGHN, C.J., dissents.
VAUGHN, Chief Judge, dissenting:
In compliance with Rule 16, North Carolina Rules of Appellate Procedure 2d, Walker Grading and Hauling v. S.R.F. Management Corp., ___ N.C. ___, 316 S.E.2d 298 (1984), reversing the decision in the same case reported in 66 N.C.App. 170, 310 S.E.2d 615 (1984), I state the issue upon which there is a division in this court. It is whether the trial judge erred when he reversed the Board of Education.
Among the several reasons why I consider the decision to be in error is that, in my judgment, the trial judge failed to give appropriate consideration to the evidence that supports the decision of the Board as well as that which detracts. When the evidence that supports the decision is considered, the decision of the Board has a rational basis in fact. Whether the Board's decision has a rational basis in fact is the only question presented on appeal.