Sharon Poole v. Public Employees' Retirement System
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CC-00212-COA
SHARON POOLE
APPELLANT
v.
THE PUBLIC EMPLOYEES’ RETIREMENT
SYSTEM
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
1/8/2009
HON. WILLIAM F. COLEMAN
HINDS COUNTY CIRCUIT COURT
GEORGE S. LUTER
OFFICE OF THE ATTORNEY GENERAL
BY: MARY MARGARET BOWERS
CIVIL - STATE BOARDS AND AGENCIES
AFFIRMED THE DECISION OF PERS
DENYING AN AWARD OF DISABILITY
REVERSED AND RENDERED: 8/17/2010
EN BANC.
KING, C.J., FOR THE COURT:
¶1.
Sharon M. Poole appeals from the order denying her disability benefits. The Hinds
County Circuit Court affirmed the decision of the Board of Trustees (Board) of the Public
Employees’ Retirement System (PERS), which adopted the recommendation of the PERS’
Disability Appeals Committee (Committee) to deny Poole disability benefits.
The
Committee found it lacks authority to grant benefits because it could not find “any objective
and credible medical evidence of a disease or condition, which is causing Ms. Poole to have
pain.”
¶2.
On appeal, Poole raises the following issues:
1.
2.
¶3.
The decision of PERS should be reversed and rendered because it is not
supported by substantial evidence and is legally incorrect since PERS’
decision stated that they “do not believe we have authority to award
disability in this case because we cannot find any objective and credible
medical evidence of a disease or condition, which is causing Poole to
have pain.”
Alternatively, the decision of PERS should be remanded for a new
hearing for PERS to consider her fibromyalgia since no records from
Poole’s rheumatologist were obtained.
Finding error, we reverse and render.
FACTS
¶4.
Poole was a supervisor with the Mississippi Department of Human Services (DHS)
with more than thirty years of service when she applied for Non-Duty Related Disability
pursuant to Mississippi Code Annotated section 25-11-113(1)(a) (Supp. 2009).
¶5.
Poole testified that she has lower-back pain and neck problems; she had surgery on
her neck in 1998. After years of back pain, Poole underwent lower-back surgery in 2002.
After surgery, her pain returned, and she had a second surgery in March 2004.
¶6.
Poole is required to supervise workers and clerks and has a lot of deskwork and
computer work. Poole says that she has trouble sitting and tries to move around. She has
been told by one doctor to do no bending, lifting, stooping, or driving more than forty-five
minutes at a time. Since Hurricane Katrina, Poole was working in trailers and had difficulty
maneuvering from one trailer to another, by using a “boardwalk.” Poole testified that the
“boardwalk” is the length of a football field and that she has to make the walk between the
trailers ten times a day.
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¶7.
On January 11, 2005, DHS County Director Loraine Hill reported that Poole was
“working as much as possible but has to miss excessive amounts of work due to health.” It
was her opinion that Poole could not perform her job. The Committee noted that Poole
somehow had managed to work, and she had maintained acceptable evaluations in her job
even with her pain.
¶8.
On September 13, 2005, PERS Interim Executive Director Denise Owens-Mounger
wrote Poole a letter stating that the PERS Medical Board had determined that there was
insufficient evidence to “support the claim that your medical condition prevents you from
performing your duties as described of a Supervisor.” Poole appealed this decision.
¶9.
At the hearing before the Committee on April 14, 2006, Poole testified that she had
pain in her lower back down her right leg, muscle spasms in her neck, two bulging discs in
her neck , and numbness in her right hand. There were several witnesses who testified at the
hearing. Poole presented medical records consisting of diagnoses and past treatments by Dr.
David Lee and Cindy Rouse with the Southern Spinal Neurologic Institute. Dr. Lee
performed the back surgery in October 2002. After her pain returned, Poole was treated with
injections, physical therapy, and a TENS unit. In March 2004, Dr. Lee performed another
back surgery to remove the hardware and bolster her fusion. Poole experienced more severe
and frequent muscle spasms and was unable to tolerate the pain of physical therapy.
¶10.
In December 2004, Dr. Lee re-examined Poole and found that she had lumbar disc
degeneration, lumbar spondylosis, chronic pain, and failed-back syndrome. Dr. Lee also
stated that he would support Poole’s application for disability. Rouse also concluded that
Poole was in chronic pain and unable to continue working.
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¶11.
At the hearing before the Committee, Poole also presented Dr. Thomas V.
Chmelicek’s opinion that Poole had reached maximum improvement and was disabled. Dr.
Chmelicek is Poole’s family physician; he reported that Poole was under chronic-paincontrol management and permanently requires pain medication. Dr. Chmelicek stated that
Poole is permanently disabled with a very small possibility of improvement.
¶12.
Dr. David Collip examined Poole on August 5, 2005, at PERS’ request. Dr. Collip
found Poole’s movements appeared slow and painful. Dr. Collip determined that Poole could
perform light duty work and lift no more than twenty pounds.
¶13.
The Committee stated its recommendation as follows:
Basically the main complaint here is that Ms. Poole has back pain that she
claims is disabling . . . . This is not to say that we believe that Ms. Poole is
making up her pain . . . . We do not believe we have the authority to award
disability in this case because we cannot find any objective and credible
medical evidence of a disease or condition which is causing Ms. Poole to have
pain.
¶14.
The Board’s order adopted the Committee’s recommendation. Poole then appealed
to the Hinds County Circuit Court, which affirmed the decision of PERS.
STANDARD OF REVIEW
¶15.
Unless PERS’ decision is not supported by substantial evidence,
arbitrary or
capricious, beyond the scope or power granted to the agency, or violates constitutional rights,
the reviewing court should not disturb its conclusion. Pub. Employees’ Ret. Sys. v. Howard,
905 So. 2d 1279, 1284 (¶13) (Miss. 2005).
DISCUSSION
¶16.
Mississippi Code Annotated section 25-11-113(1)(a) states in part:
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[A]ny active member in state service who became a member before July
1, 2007, and who has at least four (4) years of membership service credit . . .
may be retired by the board of trustees . . . provided that the medical board,
after an evaluation of medical evidence . . . certifies that the member is
mentally or physically incapacitated for the further performance of duty, that
such incapacity is likely to be permanent, and that the member should be
retired . . . .
¶17.
Section 25-11-113(1)(a) defines “disability” as:
[T]he inability to perform the usual duties of employments or the incapacity
to perform lesser duties, if any as the employer, in its discretion, may assign
without material reduction in compensation, or the incapacity to perform the
duties of any employment covered by the Public Employees’ Retirement
System (Section 25-11-101 et seq.) that is actually offered and is within the
same general territorial work area, without material reduction in compensation.
¶18.
Poole argues that all the available medical evidence available to the Committee
supports her contention that she met the statutory definition of disability.
¶19.
Contrary to the argument made by PERS, this Court is not substituting its judgment
for that of the agency rendering the decision and is not reweighing the facts. The Court does
not challenge any of the factual findings, only the legal interpretation of these facts. The
Court finds that PERS had statutory authority to grant Poole disability based on the medical
evidence before it and that there is no requirement for a specific medical condition if the
evidence supports the inability to continue work or disability.
¶20.
In Stevison v. Public Employees’ Retirement System, 966 So. 2d 874, 880 (¶20) (Miss.
Ct. App. 2007), the Court stated that PERS had decided: “Because there is no credible,
objective test that supports Stevison’s subjective complaints . . . Drs. Tynes’s and Daggett’s
diagnosis of disabling conditions constituted patient advocacy, not legitimate medical
diagnoses.” PERS chose to ignore the doctors’ diagnoses and disability opinions and
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determined that the claimant presented no objective evidence. Id. at (¶22). In that case, the
Court compared PERS’ dismissal of the evidence similar to actions in cases involving
disabling fibromyalgia or chronic fatigue syndrome. Id. at 881 (¶22).
¶21.
In Public Employees’ Retirement System v. Dearman, 846 So. 2d 1014 (Miss. 2003);
Public Employees’ Retirement System v. Marquez, 774 So. 2d 421 (Miss. 2000); and Public
Employees’ Retirement System v. Waid, 823 So. 2d 595 (Miss. Ct. App. 2002), PERS’
decisions were reversed because the agency had ignored the opinions of the treating
physicians, labeling the opinions as subjective. See Stevison, 966 So. 2d at 881-82 (¶¶22-25).
“Yet, the supreme court has held that medical diagnoses by licensed physicians are objective,
not subjective, evidence of disability.” Id. at 882 (¶25) (citing Marquez, 774 So. 2d at 427
(¶22)). Accordingly, because we find objective evidence in the record and in the findings,
we hold that the PERS’ decision to deny disability to Poole is not supported by substantial
evidence. Sending the case back on remand would serve no useful purpose since the
evidence of disability is already part of the record. Therefore, we reverse and render with
disability benefits awarded.
¶22.
There is no dispute that Poole was in pain and that she was unable to substantially
perform the duties of her position. The fact that the Committee was unable to find the
specific cause of her pain was not fatal to a finding of disability.
¶23.
In Doyle v. Public Employees’ Retirement System, 808 So. 2d 902, 905 (¶8) (Miss.
2002), the supreme court stated that it is not the court’s job to determine whether the claimant
has presented enough evidence to prove that she is disabled, but whether PERS has presented
enough evidence to support its finding that the claimant is not disabled. Because we are
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unable to find that the record supports a finding that Poole was not disabled according to
statute, we reverse and render, finding that she should have received disability benefits.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEE.
LEE AND MYERS, P.JJ., IRVING, BARNES AND ISHEE, JJ., CONCUR.
CARLTON AND MAXWELL, JJ., CONCUR IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. GRIFFIS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY ROBERTS, J.
GRIFFIS, J., DISSENTING:
¶25.
I respectfully disagree with the majority. In my opinion, the majority errs by
reweighing the evidence and substituting its judgment for that of the Public Employees’
Retirement System (PERS). I find substantial evidence in the record to support the PERS
decision.
¶26.
In Public Employees' Retirement Systems v. Cobb, 839 So. 2d 605, 609 (¶12) (Miss.
Ct. App. 2003), this Court unanimously held:
In administrative matters, the agency, and not the reviewing court, sits as
finder of fact. That fact-finding duty includes assessing the credibility of
witnesses and determining the proper weight to give to a particular witness's
testimony. A reviewing court is obligated to afford such determinations of
credibility in the fact-finding process substantial deference when reviewing an
administrative determination on appeal[,] and the court exceeds its authority
when it proceeds to re-evaluate the evidence and makes its own determination
of the trustworthiness of some particular testimony.
(Internal citations omitted).
¶27.
“There is a rebuttable presumption in favor of a PERS ruling. Neither the appellate
court nor the circuit court is entitled to substitute its own judgment for that of PERS, and it
is impermissible for a reviewing court to re-weigh the facts of the case.” Pub. Employees’
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Ret. Sys. v. Card, 994 So. 2d 239, 242 (¶15) (Miss. Ct. App. 2008) (quoting Pub. Employees’
Ret. Sys. v. Dishmon, 797 So. 2d 888, 891 (¶9) (Miss. 2001)). “As long as the reviewing
court finds that the Board’s decision was supported by evidence and absent of fraud, it shall
render the Board’s decision conclusive.” Id. at (¶14).
¶28.
PERS does not bear the unreasonable burden of completely disproving every disability
claim. This Court is not charged with the task of determining whether there is “substantial
evidence” of a disability. Pub. Employees’ Ret. Sys. v. Dishmon, 17 So. 3d 87, 91 (¶19)
(Miss. 2009). The question before this Court is whether there was “substantial evidence” to
support PERS finding that there was no disability. Id.
¶29.
Substantial evidence “means something more than a mere scintilla of evidence” or
“such relevant evidence as reasonable minds might accept as adequate to support a
conclusion.” Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991).
¶30.
The PERS’ Disability Appeals Committee (Committee) set forth the following
findings:
Disability is the medical incapacity for further performance of duty that is
likely to be permanent and the employee should be retired. See Regulation
45A of PERS Board of Trustees, Administration of PERS Disability Benefits,
and Mississippi Code Ann. Section 25-11-114, (1972, as amended). Ms. Poole
has the burden of persuading this Committee that she is disabled and to do that,
we must have objective and credible medical evidence that Ms. Poole has a
medical condition which has resulted in her disability. We also note that Ms.
Poole is somehow managing to work[,] and she is maintaining acceptable
evaluations in her job as a supervisor even with her complaints of severe pain.
This case is not an easy case. This Committee has evaluated each and every
medical report and looked to see whether medical opinions are based on
objective evidence and not just sympathy for Ms. Poole’s complaints. Ms.
Poole has told this Committee that she has failed back syndrome. She was
concerned about that diagnosis. Failed back syndrome simply means that Ms.
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Poole’s complaints of pain were not relieved after her lower back surgery.
Failed back syndrome is not a physical diagnosis for a physical condition.
Basically, the main complaint here is that Ms. Poole has back pain that she
claims is disabling. She does have some evidence of degenerative disease of
her spine as evidenced by her neck and low back surgery, but the problem is
that there is a void of evidence that would explain Ms. Poole’s complaints of
neck and low back pain. When looking at the objective tests, the MRIs were
essentially normal and certainly did not explain the complaints of pain. The
EMGs were normal as far as a radiculopathy was concerned. And even Dr.
[David] Lee wrote that he could not explain why Ms. Poole is continuing to
complain of pain.
This is not to say that we believe Ms. Poole is making up her pain. We are
sympathetic to her situation. But that is not what we have been charged to
look for in this case. We need objective evidence of a disease or condition that
would result in a permanent disability. What we have is a lady who continues
to work with no objective medical evidence of what might be causing her to
suffer from pain that she alleges is disabling. During the hearing, this
Committee noted Ms. Poole was able to turn her neck and head without any
noticeable stiffness or pain. She was able to sit before us with some movement
noted[,] but she was able to maintain her concentration.
So, it seems that today, the issue is whether this Committee can award
disability solely based on the subjective complaints of pain that Ms. Poole has.
Our statute does not provide that disability can be awarded for subjective
complaints when nothing objective is present. Further, in other Mississippi
statutes, awards of disability cannot be maintained solely on the complaints of
pain. We do not believe we have the authority to award disability in this case
because we cannot find any objective and credible medical evidence of a
disease or a condition, which is causing Ms. Poole to have pain. We have no
choice but to recommend that Ms. Poole’s request for disability benefits be
denied.
¶31.
The task of this Court is to determine whether there was substantial evidence to
support the finding that Poole is not disabled. The Committee’s findings contain this
substantial evidence required to support the PERS decision.
¶32.
PERS was in a far better position to evaluate Poole’s medical history and the evidence
presented. This Court is required to give deference to the PERS decision. We cannot
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substitute our judgment, and we must not reweigh the facts. Pub. Employees’ Ret. Sys. v.
Howard, 905 So. 2d 1279, 1284 (¶15) (Miss. 2005). I would affirm the judgment of the
circuit court; therefore, I respectfully dissent from the majority's decision.
ROBERTS, J., JOINS THIS OPINION.
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