Workers’ Compensation – Salary Continuation – Law Enforcement – Jurisdiction – Standard

Yerby v. North Carolina Department of Public Safety (Lawyers Weekly No. 14-07-0158, 10 pp.) (Rick Elmore, J.) Appealed from the Industrial Commission. N.C. App.

Holding: Pursuant to G.S. § 97-84, the Industrial Commission has the authority to reverse a salary continuation decision by the head of the Department of Public Safety; however, the Industrial Commission must apply the “properly assigned” duties standard of G.S. § 143-166.19 rather than the suitable employment standard of G.S. §§ 97-29 and -30.

We affirm as to the Commission’s authority to decide the question but reverse and remand for application of the proper standard.

Under G.S. §§ 143-166.13 through -166.20, a covered law enforcement officer may receive her regular salary during a period of incapacity for up to two years in lieu of workers’ compensation benefits. First, the Department of Public Safety must determine what salary continuation benefits, if any, a claimant shall receive. Second, upon timely appeal, it is the Industrial Commission’s duty to decide the case.

Based on this state’s case law, despite the Department’s denial of plaintiff’s claim for salary continuation benefits, the Commission had the statutory authority to hear plaintiff’s appeal and award such benefits.

Furthermore, based on the relevant statutory language, we cannot agree with the Department’s argument that the Commission maintains a purely “advisory role with respect to salary continuation benefits….”

The Commission had the statutory authority to make an award of salary continuation benefits pursuant to G.S. § 143-166.19.

However, we agree with the Department’s argument that the Commission erred by awarding plaintiff salary continuation benefits based on its determination that the “light-duty position offered to Plaintiff … was not suitable employment for Plaintiff.”

A determination of whether an individual refused suitable employment is necessary to award or deny workers’ compensation benefits pursuant to G.S. §§ 97-29 and -30. Such a determination is absent from G.S. § 143-166.19, which denies salary continuation benefits to an individual who “refuses to perform any duties to which he may be properly assigned….”

Since the issue of salary continuation benefits is decided under § 143-166.14 and not workers’ compensation benefits under §§ 97-29 and -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….”

Affirmed in part; reversed and remanded in part.