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
YERBY V. N.C. DEP’T OF PUB. SAFETY
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
-2-
YERBY V. N.C. DEP’T OF PUB. SAFETY
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
-3-
YERBY V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
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
-4-
YERBY V. N.C. DEP’T OF PUB. SAFETY
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
-5-
YERBY V. N.C. DEP’T OF PUB. SAFETY
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
-6-
YERBY V. N.C. DEP’T OF PUB. SAFETY
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’
-7-
YERBY V. N.C. DEP’T OF PUB. SAFETY
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.
-8-
YERBY V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
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.
-9-