An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Proced ure.

NO. COA03-491

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

MOHAMMAD H. BALOCH, M.D.,
    Petitioner

v .                         Wake County
                            No. 02 CVS 5115
NORTH CAROLINA DEPARTMENT
OF CORRECTION,
    Respondent

    Appeal by petitioner from order entered 29 January 2003 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 14 January 2004.

    Waller, Stroud, Stewart & Araneda, L.L.P., by W. Randall Stroud, for petitioner-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for respondent-appellee.

    CALABRIA, Judge.

    Mohammad H. Baloch (“petitioner”) was employed by the North Carolina Department of Correction (“respondent”) as a “physician director II” at Central Prison Hospital (“CPH”). In late 1996 and early 1997, CF, a twenty-one-year-old male inmate/patient at CPH, was undergoing preparatory chemotherapy with Dr. Tremont for a possible stem cell transplant to treat his Hodgkin's disease, a form of cancer. Dr. Tremont indicated in a written note to CPH, filed in CF's medical records, that CF could forego further treatment “as long as he proceed[ed] to have autologous bone marrow transplant” within thirty days from 28 February 1997. CF's primarycare physician at CPH alternated between Drs. Rees and Lightsey. Neither sent CF for a consultation; therefore, CF did not receive the transplant in the time indicated as appropriate by Dr. Tremont's written recommendation in CF's medical records.   (See footnote 1)  On 5 March 1997, petitioner effectively discharged CF from CPH by authorizing his placement in the general prison population. In April of 1997, CF was transferred to Polk Youth Institution, where he submitted a grievance regarding the delay in obtaining a transplant. In the interim, CF's disease, nonpalpable in January, had regrown to a large swollen area around his neck.
    Following an investigation of CF's treatment history, respondent dismissed petitioner for “grossly inefficient job performance.” Petitioner appealed to the Office of Administrative Hearings, alleging he was discharged without just cause. An administrative law judge (“ALJ”) recommended affirming petitioner's dismissal. The State Personnel Commission (“SPC”) issued a final decision and order adopting the ALJ's findings of fact and conclusions of law. On 5 April 1999, petitioner filed a petition for judicial review in Wake County Superior Court, and the trial court affirmed the SPC's decision and order. This Court vacated the order of the superior court and remanded, determining the SPC's decision and order contained certain findings of fact that wereimproper and lacked other findings of fact that were required. See Baloch v. N.C. Dep't of Corr., 145 N.C. App. 203, 550 S.E.2d 50 (2001) (“Baloch I”).   (See footnote 2) 
    On remand, no additional evidence was received, and the SPC issued a new decision and order that was substantially similar to the decision and order this Court previously considered; however, it included additional findings of fact. On petition for judicial review, the trial court affirmed the SPC's decision and order, and petitioner again appeals to this Court for review. On appeal, petitioner asserts this Court's previous opinion precluded marshaling evidence in the existing record to support petitioner's dismissal. In the alternative, petitioner asserts the new findings of fact are unsupported by substantial evidence in the record.
I. Previous Opinion
    In Baloch I, this Court examined the trial court's order to determine whether it applied the appropriate standard of review and whether that application was proper. Baloch I, at 8-9. Noting with approval that the trial court utilized the whole record test, see Baloch I, at 10, this Court vacated the trial court's order upon finding “insufficient relevant evidence in the record to support the respondent's decision to dismiss the petitioner.”   (See footnote 3)  Baloch I, at 12. However, our examination was limited to grounds properly assigned as error, to wit: petitioner's argument on appeal “that the trial court erred in concluding that the [SPC's] findings of fact and conclusions of law were supported by substantial evidence, and in concluding that the final decision and order was not arbitrary and capricious.” Baloch I, at 9. Pursuant to that limitation, we examined the challenged conclusions of law upon which the SPC upheld respondent's dismissal of petitioner. Our examination of the challenged conclusions revealed there were two conclusions of law upon which petitioner's dismissal could be predicated. The first conclusion of law was supported by a single finding of fact (“finding of fact 29”). We held finding of fact 29 was susceptible to multiple interpretations, only some of which were supported by substantial evidence in the record. Baloch I, at 18. Moreover, both conclusions of law made by the ALJ (and adopted by the SPC) lacked certain required findings of fact. Baloch I, at 22-23. In the absence of those findings of fact, this Court held the conclusions of law were not supported and could not be upheld. Accordingly, we vacated the trial court's order upholding the decision and order of the SPC and remanded for “further findings of fact and conclusions of law as may be appropriate.” Baloch I, at 24.
    Petitioner's assertion, that our previous opinion stood for the proposition that there was not enough evidence in the record for the SPC to affirm petitioner's dismissal, cannot be reconciledwith either the scope of review undertaken in Baloch I or certain affirmative observations previously made by this Court. For example, we stated the record contained substantial evidence to support a finding that petitioner was responsible for assisting in the development and implementation of policies for CPH. Baloch I, at 18. Moreover, we noted that “[i]t may very well be that the petitioner failed to comply with existing policies and procedures in his treatment and handling of inmate CF; however, any such failure was never identified as a basis for his dismissal, and no relevant findings of fact were made pertaining to any such failure.” Baloch I, at 22. It was the absence of relevant findings of fact and not deficiencies in the record evidence that ultimately precluded this Court from affirming the decision of the trial court.
    Petitioner's reliance on construing the language of the concurring opinion to bolster his argument is equally misplaced. Judge John wrote, concurring in the result, that petitioner was “'captain'” of the staff and had “'dropp[ed] the ball'” regarding “'basic medical care'” in a way that could be characterized as “an abject failure to exert reasonable attempts to provide adequate health care services” to CF. Baloch I, concurring opinion at 2-3. This failure, the concurrence noted, was “separate and apart from any alleged failure to establish policies and procedures” and formed, in itself, a sufficient basis for petitioner's dismissal. Id. In short, both the majority and the concurrence indicated the record contained evidence of failures by petitioner, but the SPC'sdecision and order had not properly set out those failures as the basis upon which respondent's dismissal of petitioner was predicated. Baloch I, at 11-12. This assignment of error is overruled.
II. Grounds to Dismiss Petitioner
    Petitioner was dismissed for “grossly inefficient job performance,” a type of unsatisfactory job performance, see N.C. Admin. Code tit. 25, r. 1J.0614(f) (2003), which supports the dismissal of a career state employee for just cause. Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259, 465 S.E.2d 36, 41 (1996); N.C. Gen. Stat. § 126-35 (2003). Accordingly, in this Court's previous opinion, we held that, like dismissal of an employee for unsatisfactory job performance, the order and decision upholding petitioner's dismissal for grossly inefficient job performance required findings of fact, supported by relevant substantial evidence, that petitioner (1) did not meet and made no reasonable effort to meet (2) job requirements that (a) were reasonable and (b) were “actually 'specified in the relevant job description, work plan, or [were] directed by the management of the work unit or agency.'” Baloch I, at 4 (quoting N.C. Admin. Code tit. 25, r. 1J.0614(j)). An additional finding of fact this Court's previous opinion required included, in pertinent part, “that the petitioner's failure to meet his job requirements resulted in: '1. the creation of the potential for death or serious bodily injury to . . . a person(s) over whom the employee hasresponsibility[.]'” Baloch I, at 17 (quoting N.C. Admin. Code tit. 25, r. 1J.0614(f) (June 2000)).
    On remand, the SPC added the following finding of fact:
        29A. Dr. Baloch also was responsible for assisting in developing, approving, reviewing, evaluating and modifying policies and procedures for CPH.
        a. The responsibility for assisting in developing, approving, reviewing, evaluating and modifying policies for CPH was a requirement of the Petitioner's job.
        b. As medical director of CPH, the Petitioner's responsibilities of assisting in developing, approving, reviewing, evaluating and modifying policies and procedures for CPH was a reasonable job requirement.
        c. Petitioner made no reasonable attempt to meet his job requirement of assisting in developing, reviewing, evaluating and approving policies and procedures for CPH. No evidence was introduced at the hearing that Petitioner did anything to implement or to attempt to implement policies and procedures that would have caused CF to receive his needed treatment in a more timely manner or to insure that inmates like CF were not discharged from CPH with no follow up care when they were acutely in need of medical care as was CF.

In addition, the SPC found petitioner's failure as found in finding of fact 29A caused “the creation of the potential for death or serious bodily injury to CF, a person over whom the petitioner had responsibility[.]” See N.C. Admin. Code tit. 25, r. 1J.0614(f)(1) (2003). Petitioner asserts the superior court erred in concluding that the findings of fact, inferences and conclusions made by the SPC were supported by substantial evidence and that the final decision was not arbitrary and capricious. We disagree.
    “Upon appeal from an order of the superior court entered after a review of an agency decision, the appellate court must examinethe trial court's order to determine first, whether the trial court exercised the appropriate standard of review, and secondly, whether the trial court properly applied that standard to the record before it.” Skinner v. N.C. Dep't of Corr., 154 N.C. App. 270, 273, 572 S.E.2d 184, 187 (2002). When petitioner contends, as here, the agency decision was not supported by substantial evidence or was arbitrary and capricious, the trial court must apply the whole record test. Id.
    “The 'whole record' test requires the reviewing court [here, the superior court] to examine all competent evidence (the 'whole record') in order to determine whether the agency decision is supported by 'substantial evidence.'” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). “'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lackey v. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982) (quoting Comr. of Insurance v. Fire Insurance Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977)).
        Under the whole record test, the reviewing court must take into account both the evidence that justifies the agency's decision and the contradictory evidence from which a different result could be reached[; however,] “the reviewing court is not allowed to replace the agency's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different conclusion had the matter been before it de novo.”

Skinner, 154 N.C. App. at 274, 572 S.E.2d at 188 (quoting R.J. Reynolds Tobacco Co. v. N.C. Dep't of Env't & Natural Res., 148N.C. App. 610, 618, 560 S.E.2d 163, 168, disc. rev. denied, 355 N.C. 493, 564 S.E.2d 44 (2002)).
    Regarding the first question, whether the trial court chose the appropriate standard of review, the order entered by the trial court states, in pertinent part, as follows: “The Court finds applying the whole record test, the Findings of Fact and Conclusions of Law in the Decision and Order of the State Personnel Commission upholding the North Carolina Department of Correction's termination of the petitioner's employment, were supported by the substantial evidence of record and were not arbitrary or capricious per N.C.G.S. § 150B-51(b)(5)(6).” “Inasmuch as the record on appeal indicates that the trial court applied the 'whole record' test, our only question is whether the court did so properly.” Skinner, 154 N.C. App. at 274, 572 S.E.2d at 188.
    We turn to whether the trial court properly applied the whole record test to the record before it in determining whether the SPC's decision and order was supported by substantial evidence. Having previously held there was substantial evidence in the record to support a finding that petitioner's job description included a responsibility “to assist in [the] development” of policies and procedures for CPH, see Baloch I, at 20-21, we direct our analysis to the remaining new findings of fact made by the SPC on remand.
A. Reasonableness of Job Requirement
    Petitioner asserts that respondent “cannot point to a single job requirement that imposes upon the Medical Director the task of creating and implementing . . . policies and procedures [that]would 'ensure' or guarantee the delivery and quality of medical care to CPH patients” and that any such job requirement would be “patently unreasonable.” Dr. Steven Spencer, a certified credentialed surveyor for the National Commission on Correctional Health Care that accredits health care programs in jails and prisons, testified concerning the job responsibilities of petitioner as a senior and supervising physician. These responsibilities included “making sure that there are procedures in place to guarantee follow-through with appropriate treatment[.]” He also stated that the Responsible Health Authority, a standard for prisons, provided in part that the single designated physician's responsibilities include “establishing and implementing policies for clinical aspects of the program.”   (See footnote 4)  Regarding this testimony, Dr. Spencer then stated “[t]he concept of responsibility for the chief physician or medical director in a prison is well understood and well accepted nationally.” This testimony constitutes substantial evidence in the record to support that petitioner's responsibility to assist in the development and approval of policies and procedures for CPH was reasonable.
B. Petitioner's Failure to Comply and Failure to Make Reasonable Attempts to Comply with Job Requirements
    The SPC found that petitioner made no reasonable attempt to assist in the development or approval of policies and proceduresfor CPH. In support, the SPC noted that no evidence had been introduced that petitioner took any action to implement or attempt to implement policies and procedures that would have caused CF to receive needed treatment in a timely manner.
    Dr. Spencer testified that “the ball had been dropped to the detriment of the health of the patient and that it had been dropped as a result of failure of [petitioner] to act in a competent fashion[.]” Moreover, Dr. Spencer specifically testified “there was no system for tracking the progress of high-profile cases such as CF to ensure that they receive [their planned treatment.]” Dr. Spencer also testified, in the alternative, that petitioner should have had “his own informal pocket notebook system of keeping track of” patients such as CF. Dr. Spencer opined the lack of such a system to track CF's progress possibly indicated a “problem with [petitioner's] understanding of the responsibilities of his position.” Dr. Spencer concluded that petitioner's job performance had been grossly inefficient and incompetent. Dr. Spencer's testimony supports the conclusion that petitioner neither assisted nor made reasonable attempts to assist in the development and approval of policies and procedures for CPH that would have resulted in CF receiving needed medical treatment in a timely manner. Accordingly, we find this finding was supported by substantial evidence in the record.
C. Causation
    Likewise, substantial evidence exists in the record to support the SPC's finding that petitioner's failure to assist in developingand approving policies and procedures for CPH to ensure the quality and timeliness of needed care created the potential for death or serious bodily injury to CF, a person over whom petitioner had responsibility. Dr. Joseph M. Wiley, accepted as an expert in the fields of hematology and oncology, stated in a letter that CF did not receive treatment between January and May and “his disease . . . regr[ew]” and required additional chemotherapy. He further stated that “[b]ecause of the additional delay and required therapy [CF] had several complications . . . including life-threatening risks of bleeding and infection.” Dr. Wiley testified that the effect of the delay in treating CF reduced his chances for a cure ten to fifteen percent and exposed him to “significant risks.” Finally, Dr. Wiley reported that the delay in treatment, allowing a resurgence of CF's Hodgkin's disease, “impacted his ability to be cured.” Dr. Wiley opined that these results “could have been avoided had the system followed [the] recommended medical decisions in February of 1997.” We find substantial evidence in the record supporting this challenged finding of fact.   (See footnote 5) 
III. Back Pay    Finally, petitioner asserts the SPC improperly made findings of fact regarding petitioner's entitlement to back pay and failure to mitigate his damages. In its decision and order following remand, the SPC made the following findings of fact:
        139. No evidence was presented at the hearing that the petitioner's termination resulted in a loss of income to him or that he was unable to obtain employment of an equal or greater salary than he earned at [CPH].
        140. No evidence was presented at the hearing that the petitioner sought other employment or otherwise attempted to mitigate his damages, if any. The SPC finds that the petitioner did not attempt to mitigate his damages, if any that were caused by his termination.

Based on these findings of fact, the SPC concluded:
        7. Petitioner had an affirmative duty to mitigate his damages, if any, but has not done so. Therefore even if the Petitioner was not found to have committed grossly inefficient job performance, he would not be entitled to back pay.

Petitioner contends the issues of back pay and failure to mitigate are not ripe because he has yet to apply for back pay.
    The North Carolina Administrative Code provides “[t]he Personnel Commission has the authority to award full or partial back pay in all cases in which back pay is a requested or possible remedy.” N.C. Admin. Code tit. 25, r. 1B.0421(a) (2003). Moreover, back pay may be awarded “regardless of whether reinstatement is ordered.” N.C. Admin. Code tit. 25, r. 1B.0421(b) (2003). Thus, the relevant Code provisions indicate that, if back pay is a possible remedy, it may be awarded regardless of whether reinstatement has been ordered and regardless of whether back pay has been requested.    Nonetheless, petitioner asserts the SPC violated its own rules by deciding the issue of whether to award back pay prior to petitioner's application for it. We disagree. As noted before, the Code does not require the SPC to await a request for back pay prior to determining whether it is an appropriate remedy. N.C. Admin. Code tit. 25, r. 1B.0421(a). While the Code does provide, as asserted by petitioner, that “[b]ack pay must be applied for on Office of State Personnel form PD 14[,]” see N.C. Admin. Code tit. 25, r. 1B.0421(k) (2003), this provision merely requires that an individual applying for back pay must use the appropriate and designated form. It imposes no affirmative duty on the SPC to await a request for back pay on a PD 14 form by an individual, and reading subsection (k) as asserted by petitioner would directly conflict with the unequivocal language in subsection (a) allowing the SPC to determine issues regarding back pay when it is a possible remedy.
    In summary, our previous opinion did not preclude using the existing record to issue a new decision and order supporting respondent's decision to dismiss petitioner. The trial court did not err in affirming the SPC's decision and order. Finally, the SPC did have the authority to determine the issue of back pay.
    Affirmed.
    Judge ELMORE concurs.
    Judge BRYANT concurs in the result.
    Report per Rule 30(e).


Footnote: 1
     This was due, in part, to Dr. Rees' failure to submit a utilization review request for the initial consultation as well as Dr. Lightsey's dictation of a tardy discharge summary for CF without reviewing his medical record or noting the missed consultation or need for a bone marrow transplant. Petitioner provided clinical supervision to Drs. Rees and Lightsey.
Footnote: 2
     This case is before the Court for a second ti me. Our previous opinion, Baloch I, was an unpublished opinion reported pursuant to Rule 30(e) of the North Carolina Rules of Appellate Procedure. References to Baloch I made herein will provide page numbers as appearing on the copy of the opinion filed with the Clerk of Court at the North Carolina Court of Appeals.
Footnote: 3
     For reasons given herein, we construe the term “insufficient relevant evidence” to mean evidence relevant to the findings offact made and found to be lacking support from the record.
Footnote: 4
   ;   As noted in this Court's previous opinion, we do not construe this language as implicating any sole responsibility of petitioner. Rather, this testimony reinforces that petitioner's responsibilities included assisting in the development and approval of policies and procedures for CPH.
Footnote: 5
     We note that, in our previous opinion, we stated portions of Dr. Pohlman's testimony “directly contradicts any implication that a failure by the petitioner to develop and implement additional policies and procedures in any way contributed to any alleged inadequate treatment of inmate CF.” Baloch I, at 22. Nonetheless, while we might have considered this evidence and, upon it, reached a different determination, we cannot substitute our judgment for the SPC's when there is substantial evidence in the record to support it. In re Appeal by McCrary, 112 N.C. App. 161, 167, 435 S.E.2d 359, 364 (1993).

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