An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
Tatum v. Cumberland Cnty. Sch.
Combined Opinion