Patricia Purnell v. The Public Employees' Retirement System
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CC-00802-COA
PATRICIA PURNELL
APPELLANT
v.
THE PUBLIC EMPLOYEES' RETIREMENT
SYSTEM
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
3/13/2003
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
GEORGE S. LUTER
MARY MARGARET BOWERS
CIVIL - STATE BOARDS AND AGENCIES
THE DECISION OF THE PERS BOARD OF
TRUSTEES TO DENY DISABILITY BENEFITS
AFFIRMED.
AFFIRMED - 08/31/2004
EN BANC.
BRIDGES, P.J., FOR THE COURT:
¶1.
Patricia Purnell applied for disability benefits from the State of Mississippi, having worked
for the State for over ten years. The medical board reviewed Purnell's application and denied her
claim. Purnell appealed and pursuant to the Disability Appeals Committee’s recommendation, the
Public Employees' Retirement Board of Trustees upheld the medical board’s denial of benefits.
Purnell then appealed to the Hinds County Circuit Court which likewise affirmed the Board’s
decision. Aggrieved, Purnell appeals to this Court and asserts the following issues:
I.
THE DECISION OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM (PERS) IS
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE BECAUSE THE DECISION OF
BOTH THE DISABILITY APPEALS COMMITTEE AND THE CIRCUIT COURT IS
CONCLUSORY, THE REPORTS OF PURNELL'S TREATING PHYSICIANS WERE
IGNORED, THE INDEPENDENT MEDICAL EVALUATION OF DR. RICHARD
KENNEDY WAS SUPPORTIVE OF PURNELL'S DISABILITY AND RECOMMENDED
FURTHER TESTING WHICH PERS IGNORED AND THE DISABILITY APPEALS
COMMITTEE FOUND PURNELL COULD NOT PERFORM HER JOB AND THEN
STATED THE QUESTION OF DISABILITY TO BE "MOOT."
II.
PURNELL WAS NOT PROVIDED A FAIR AND IMPARTIAL HEARING AS DOCTOR
RICHARD KENNEDY WAS A MEMBER OF THE DISABILITY APPEALS
COMMITTEE AND HIS EXAMINATION WAS THEREFORE NOT INDEPENDENT.
¶2.
Finding no error, we affirm.
FACTS
¶3.
On November 17, 1998, Patricia Purnell applied for Public Employees' Retirement System
(PERS) disability pursuant to Mississippi Code Annotated Section 25-11-113. Fifty-five years old,
Purnell worked for the State of Mississippi for over 10 years. During the vast majority of that time,
Purnell worked as a maid in the home of former Mississippi State University President Dr. Donald
Zacharias. Dr. Zacharias retired and on April 20, 1998, Purnell was transferred to a position of
Library Assistant II with the Mississippi State University Library. Purnell testified that the job
change precipitated her health problems, though she asserts in her brief that she had numerous health
problems prior to the change. On September 25, 1998, some six months after her transfer, Purnell
took leave without pay due to inability to perform her duties.
¶4.
Purnell's Library Assistant II duties were significantly different from her responsibilities as
a maid. Her duties at the library included preparing correspondence, bibliographies, invoices, donor
agreements, and other written material. Purnell was also responsible for processing manuscript
collections, assisting patrons at the special collections reference desk, supervising student workers,
and performing related duties. The position generally required a bachelor's degree although Purnell
had only a high school education.
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¶5.
Purnell testified that it seemed as if her co-workers were talking about her and laughing at
her and that she was not happy in her new position. She claimed that her supervisor embarrassed
her and that other employees got raises while she did not, even though her pay rate in her previous
position carried over, seeing to it that she made significantly more per hour than her colleagues.
Purnell's daughter testified that Purnell was moved to a position she did not have the qualifications
for and that her new situation was "nerve wracking." The Dean of Libraries noted on Purnell's
statement of job requirements that her job duties were changed in order to try to assist her in
functioning on the job.
¶6.
Purnell's medical problems and records go back quite some time. As early as 1987 at age
44, Purnell had some elements of depression and anxiety. In 1993, Purnell informed her doctor that
she stayed nervous and that she had bouts of depression. However, we must move forward to the
events centered around Purnell’s quest for disability benefits.
¶7.
Based on complaints of pain, Dr. William Bennett referred Purnell to Dr. V.V.
Vedanarayanan, a neurologist in Jackson, Mississippi. On July 2, 1998, Dr. Bennett examined
Purnell. Dr. Vedanarayanan determined that Purnell had pain in her lower extremities secondary
to lumbar stenosis, a condition caused by narrowing of the spinal canal. Dr. Vedanarayanan
concluded that Purnell should be allowed to pace her work as best she can and take rest whenever
she is overcome by severe pain.
¶8.
On September 28, 1998, three days after taking leave from the library, Purnell was admitted
to Oktibbeha County Hospital. Purnell complained of lower extremity pain and an inability to move
her left leg. Purnell was discharged on October 1, 1998, in stable condition with orders only to
refrain from strenuous activities.
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¶9.
Purnell again saw Dr. Vedanarayanan on October 5, 1998. Again, Purnell complained of
upper and lower extremity pain. Dr. Vedanarayanan noted a great deal of anxiety and agreed with
Purnell’s doctors in Starkville that she should see a psychiatrist.
¶10.
On October 29, 1998, Purnell was admitted into Charter Hospital due to major depression.
While admitted, Purnell underwent a complete physical examination. The physical indicated
hypertension as well as failed back syndrome with decreased muscle strength. However, Purnell
was physically able to participate in all aspects of the program. On November 2, 1998, Purnell was
released from Charter Hospital to return to work with no physical limitations or restrictions.
¶11.
On November 9, 1998, Dr.Vedanarayanan spoke with Purnell on the phone. Purnell told Dr.
Vedanarayanan that she was admitted to Charter Hospital and diagnosed with depression. Purnell
asked Dr. Vedanarayanan to send her a letter attesting to her disability. Dr. Vedanarayanan told
Purnell he could not diagnose disability based on her depression because he only treated her for
neuromuscular problems. Purnell was released to return to work without restriction. Instead of
returning to work, Purnell filed for disability on November 17, 1998.
¶12.
Dr. William Bennett admitted Purnell in the Oktibbeha County Hospital on December 17,
1998, with low back pain. On December 20, 1998, Purnell was discharged as ambulatory but with
some continued low back pain but no declaration of disability.
¶13.
Purnell next saw Dr. Vedanarayanan on January 14, 1999. Dr. Vedanarayanan noted that
Purnell told him that she was not able to work due to low back pain. Dr. Vedanarayanan stated that
he and Purnell discussed the findings of an MRI which did not indicate any significant evidence or
symptoms to explain her pain. He also stated that Purnell’s underlying depression and anxiety
probably made any discomfort seem much worse.
¶14.
On February 15, 1999, Purnell reported an onset of slurred speech. She was admitted to
Methodist Medical Center in order to rule out an embolism or stroke. On February 19, 1999, Dr.
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Vedanarayanan reported that Purnell had "lumbar stenosis, neurogenic claudication, pain in upper
limbs, depression, anxiety, and hypertension.” Dr. Vedanarayanan concluded that those conditions
were disabling and permanent. On June 21, 1999, Dr. Bennett reported that Purnell had "neurogenic
claudication, peripheral neuropathy, and serial positive spondyloarthropathy." Dr. Bennett reasoned
that all of which were chronic, severe, and had poor prognosis with the necessity of lifelong
treatment.
¶15.
On October 18, 1999 Purnell found out that PERS was denying her claim due to insufficient
objective medical evidence to support her claim. Purnell appealed, asserting the fact that she was
"mentally ill" as the facts upon which her appeal was taken. Purnell's daughter attached a letter to
the notice of appeal stating that Purnell was "not mentally stable enough to hold a job and this is the
basics [sic] of her request for appeal."
¶16.
PERS referred Purnell to Dr. Richard Kennedy. On January 18, 2000, Dr. Kennedy reported
that Purnell complained of "bad nerves." Dr. Kennedy found moderate depressive and cognitive
disorders. He noted that symptoms were vague and that he was uncertain how long treatment would
be necessary. Dr. Kennedy was also uncertain whether the disorders were permanent. Based on his
examination, Dr. Kennedy did not recommend disability based on depression or anxiety. Three
months later, in March 2000, Dr. Kennedy was appointed a member of the Disability Appeals
Committee.
¶17.
After the medical review board and the PERS Board of Trustees upheld the denial of
benefits, Purnell appealed to the Hinds County Circuit Court. The circuit court likewise affirmed
the decision of the Board. Purnell appeals the circuit court’s ruling.
ANALYSIS
I.
WAS THE DECISION OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM (PERS)
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE BECAUSE THE DECISION OF
BOTH THE DISABILITY APPEALS COMMITTEE AND THE CIRCUIT COURT WERE
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CONCLUSORY, THE REPORTS OF PURNELL'S TREATING PHYSICIANS WERE
IGNORED, THE INDEPENDENT MEDICAL EVALUATION OF DR. RICHARD
KENNEDY WAS SUPPORTIVE OF PURNELL'S DISABILITY AND RECOMMENDED
FURTHER TESTING WHICH PERS IGNORED AND THE DISABILITY APPEALS
COMMITTEE FOUND PURNELL COULD NOT PERFORM HER JOB AND THEN
STATED THE QUESTION OF DISABILITY TO BE "MOOT"?
¶18.
Under proper circumstances, employees of the State of Mississippi are entitled to disability
retirement benefits under the Public Employees' Retirement System. Public Employees' Retirement
System v. Dishmon, 797 So.2d 888 (¶4) (Miss. 2001). Those circumstances are listed in Section
25-11-113 of the Mississippi Code. Under such, "any active member in state service who has at
least four (4) years of...service...may be retired...provided that the...member is mentally or physically
incapacitated for the further performance of duty [and] that such incapacity is likely to be
permanent....” Miss.Code Ann. § 25-11-113(1)(a) (1999).
¶19.
A person may be disabled according to certain standards dictated by statute. One is disabled
where he is unable "to perform the usual duties of employment.” Id. Besides a lack of ability to
perform the usual duties of employment, one must also be unable “to perform such lesser duties, if
any, as the employer...may assign without material reduction in compensation.” Id. Finally, there
must be a finding that the employee seeking benefits is unable “to perform the duties of any
employment covered by the PERS that is actually offered and is within the same general territorial
work area, without material reduction in compensation.” Id.
¶20.
Once PERS renders a decision on eligibility of benefits, there is a rebuttable presumption
in favor of that decision. Dishmon, 797 So.2d at (¶9). Neither this Court nor the circuit court is
entitled to substitute its own judgment for that of PERS, nor may we re-weigh the facts of the case.
Id. We must affirm if substantial evidence existed to support the agency's decision, but reverse if
the decision crosses the threshold of being arbitrary and capricious. Id.
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¶21.
After examining the record, we determine that substantial evidence existed in favor of PERS'
ruling. Purnell was transferred to the library on April 20, 1999, and stopped working on September
25, 1998. Suzietta Swan, Purnell's daughter, testified that Purnell was unable to cope with leaving
her employment as a maid with Dr. Zacharias. Swan further stated that Purnell was happy in her
employment as a maid, but was unhappy when transferred to the Mississippi State library. Purnell
also testified that she was unhappy at that position. Purnell believed that her co-employees harbored
resentment against her because she earned a higher pay rate than they. She stated that she perceived
that they were gossiping about her. Purnell reported that she could not deal with working at the
library. Moreover, Purnell requested a declaration of disability from Dr. Vedanarayanan on
November 9, 1998 based on psychiatric disabilities, but Dr. Vedanarayanan could only diagnose on
the basis of her pain. No treating physician ever diagnosed Purnell as permanently disabled due to
mental problems. While there was evidence that Purnell suffered from chronic pain, there was also
evidence that doctors could not discern any cause for such.
¶22.
To clarify, we do not suggest that Purnell actively sought disability to escape her unpleasant
employment, as that is not our concern. But we can determine that although some medical evidence
suggested that Purnell, at times, suffered physical and mental difficulties, substantial evidence also
suggested that there was no distinguished reason for pain or any notion of the permanence of
Purnell’s maladies. Because there existed evidence to support PERS' ruling in which the agency
denied Purnell’s eligibility to receive disability benefits, this issue lacks merit.
II.
WAS PURNELL NOT PROVIDED A FAIR AND IMPARTIAL HEARING AS DOCTOR
RICHARD KENNEDY WAS A MEMBER OF THE DISABILITY APPEALS
COMMITTEE AND HIS EXAMINATION WAS THEREFORE NOT INDEPENDENT?
¶23.
Dr. Kennedy evaluated Purnell on December 23, 1999 and reported that Purnell was not
disabled due to depression or anxiety. He did find cognitive impairment on testing Purnell but
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because Purnell did not endorse any symptom of cognitive impairment in her daily life, Dr. Kennedy
did not diagnose any disability attributable to such impairment.
¶24.
In March of 2000, Dr. Kennedy was appointed to the Disability Appeals Committee.
Purnell's hearing before the Disability Appeals Committee took place on April 14, 2000. Ordinarily,
three members would adjudicate such a claim, but only two members heard Purnell's, as Dr.
Kennedy recused himself to avoid an impression of prejudice or lack of impartiality. Purnell argues
that Dr. Kennedy's influence was still present at her hearing, his recusal notwithstanding. Further,
she contends that the totality of the circumstances suggests a suspicion of unfairness or prejudice.
¶25.
In this issue, Purnell complains that Dr. Kennedy improperly influenced the Disability
Appeals Committee and prejudiced her quest to receive disability benefits. In Purnell’s first
assignment of error, Purnell argued that Dr. Kennedy’s evaluation indicated that Purnell was
disabled. It seems counterintuitive to argue that PERS ignored Dr. Kennedy’s report that supported
a finding of disability, only to claim in her next assignment of error that Dr. Kennedy’s latent
influence tainted the Disability Appeals Committee to the degree that they were convinced to deny
Purnell’s eligibility for benefits. If anything, it seems that if Dr. Kennedy determined, as Purnell
argued, that disability was warranted, Dr. Kennedy’s influence would lean more towards benefitting
Purnell, rather than causing her to suffer prejudice. Regardless, we are at a loss to determine any
further steps that the Disability Appeals Committee could take to remove any prejudice aside from
Dr. Kennedy's recusal. It would be impossible for the two remaining members to wipe Dr.
Kennedy's existence from their memory and we can do no more than speculate that Purnell was
prejudiced, as no evidence suggests such. That being said, this issue is without merit.
¶26.
THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL
DISTRICT OF HINDS COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
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KING, C.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
BARNES, J., NOT PARTICIPATING.
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