Cathy F. Roberts v. Public Employees' Retirement System of Mississippi ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-SA-00642-COA
CATHY F. ROBERTS APPELLANT
v.
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM APPELLEE
OF MISSISSIPPI
DATE OF JUDGMENT: 03/24/2015
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: GEORGE S. LUTER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JANE L. MAPP
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: AFFIRMED DENIAL OF DISABILITY
BENEFITS
DISPOSITION: AFFIRMED - 08/02/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND GREENLEE, JJ.
LEE, C.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1. Cathy Roberts was employed as a psychologist for the Ellisville State School (ESS).
In December 2011, Roberts applied for duty-related disability benefits based upon a disability
she claimed resulted from an on-the-job injury on January 17, 2001. The Public Employees’
Retirement System (PERS) Medical Board initially denied her claim. A hearing before the
PERS Disability Appeals Committee (DAC) was conducted January 14, 2013. During the
hearing, Roberts indicated that her last day of employment at ESS had been January 11,
2013.1 The DAC found that Roberts was not eligible for duty-related disability benefits.
Roberts appealed to the PERS Board of Trustees (the Board), which adopted the
recommendation of the DAC. Roberts appealed to the Hinds County Circuit Court, which
affirmed the Board’s decision. Roberts now appeals to this Court, asserting that (1) the
Board’s decision was not supported by substantial evidence, and (2) the Board failed to
obtain certain medical records.
FACTS
¶2. On January 17, 2001, Roberts was assisting with an aggressive patient. The patient
kicked Roberts, and she fell on the floor, landing on her bottom. After standing back up,
Roberts was kicked again by the patient and fell against a wall. Roberts stated she did not
feel any immediate pain from the incident, but did complete an incident report.
Approximately one to two weeks later, Roberts testified that she could not get out of bed due
to lower-back pain. She was told by someone at work to see a doctor.2 According to
Roberts, this doctor gave her an injection and pain medicine. Roberts stated this doctor
thought she had a pinched nerve and referred her to Dr. Susi Folse, a bone and joint
specialist.
¶3. Dr. Folse noted Roberts complained of lower-back pain and recommended physical
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Roberts had 23.75 years of service.
2
The record is unclear which doctor Roberts visited. The earliest medical record is
from an office visit to Dr. Charles Hernandez on February 23, 2001. The clinic notes
indicate Roberts had “prior history of back pain and was under the care of Dr. Fromke for
sciatica.” The DAC inferred that “Dr. Fromke” was actually Dr. Susi Folse. According to
one of Dr. Folse’s clinic notes, dated June 4, 2001, Roberts informed her that she had seen
Dr. Hernandez “a few days” after the injury.
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therapy and pain medicine. Dr. Folse also ordered an x-ray, and her clinic notes indicated
the x-ray showed “slight decreased disc space at L5-S1 with mild retrolisthesis.” Roberts
saw Dr. Folse several more times for her low-back pain. Dr. Folse’s assessment was “low
back pain with mild degenerative changes and mild retrolisthesis.” Dr. Folse ordered an
MRI, which was “within normal limits.” Dr. Folse indicated Roberts suffered from sacroiliac
joint dysfunction. Roberts continued with physical therapy and received at least two
injections to relieve her pain. Dr. Folse then referred Roberts to Dr. Bertha Blanchard, a
neurologist.
¶4. The medical records before us indicate Dr. Blanchard treated Roberts from January
22, 2002, through May 4, 2009. Dr. Blanchard initially diagnosed Roberts with “right
sacroiliitis [and] right sciatica[,] which seem[ed] to be the result of an injury that occurred”
at work on January 17, 2001. However, after ordering a bone scan, Dr. Blanchard concluded
that Roberts’s pain was the result of “significant degenerative changes on the right side.” Dr.
Blanchard’s impression was “right sacroiliitis[,] which is secondary to degenerative changes.
[Roberts] also ha[d] degenerative changes in her lumbosacral spine on the right based on
[the] bone scan.” Dr. Blanchard determined Roberts was at maximum medical improvement
(MMI) on June 4, 2002, and gave her a five percent permanent-partial rating. Dr. Blanchard
also issued permanent work restrictions—no lifting, pushing, or pulling over ten pounds.
Roberts was to continue taking pain medicine. Due to increasing pain, Roberts continued to
see Dr. Blanchard periodically. During this time, Roberts also began experiencing pain in
her right knee. The last clinic notes in the record indicate “chronic sacroiliitis on the right,
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secondary to a workers’ compensation injury. Condition stable with medication. . . .
[Roberts] is contemplating disability.”
¶5. At one point, Dr. Blanchard referred Roberts to Dr. James Sikes, an orthopaedic
surgeon, for treatment of Roberts’s right-knee pain. Dr. Sikes performed arthroscopic
surgery on Roberts’s right knee in May 2008. Roberts returned to Dr. Sikes approximately
fourteen months later complaining of pain in her right knee. Dr. Sikes noted that she still
suffered from “chondromalacia and osteoarthritis.” Dr. Sikes concluded Roberts had
“degenerative joint disease of the right knee.”
¶6. Dr. Blanchard also referred Roberts to Dr. Kelly Bernardo, a neurosurgeon. Dr.
Bernardo’s records were never obtained.
¶7. The medical records indicate that Roberts was under the care of Dr. Hernandez, an
internist, from February 23, 2001, through October 21, 2011. Dr. Hernandez’s records
indicate Roberts continued to see him for treatment of her chronic back pain as well as
obesity and hypertension. Dr. Hernandez completed a PERS Form 7 on November 7, 2011,
indicating that Roberts suffered from moderate to severe chronic back pain. Dr. Hernandez
did not list any impairments but did list restrictions such as no heavy lifting, pulling, or
pushing and no prolonged standing or sitting.
¶8. Beginning in late 2009, Roberts periodically visited Dr. Joseph Farina, a neurologist.
Dr. Farina completed a PERS Form 7 on November 30, 2011, indicating that Roberts
suffered chiefly from chronic sacroiliitis and limitations included no heavy lifting or
prolonged standing.
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¶9. Roberts was sent to Dr. David Collipp for an independent medical examination (IME)
on February 21, 2012. Dr. Collipp noted he had previously completed an IME on Roberts
on March 23, 2010, as requested by PERS.3 After reviewing Roberts’s medical records and
conducting an examination, Dr. Collipp concluded that Roberts’s current medical condition
was not caused by her on-the-job injury on January 17, 2001. Rather, her back pain was
consistent with the “progression of degenerative disease and obesity involvement.” Dr.
Collipp stated that Roberts was physically capable of working but limited her to lifting no
more than twenty-five pounds.
¶10. In 2012, Roberts was diagnosed with carpal tunnel syndrome. There was testimony
concerning this diagnosis and the pain experienced by Roberts; however, Roberts does not
allege that this is related to her on-the-job injury on January 17, 2001. Roberts also had other
work-related injuries over the years, but recovered from them.
¶11. The record indicates Roberts was able to perform the functions of her job with the
restrictions for over ten years. Roberts testified her job requirements included completing
paperwork, entering data into the computer, and performing client intervention training with
the staff. After her injury, she was no longer required to perform physical work, such as
restraining clients. Roberts indicated she did miss work when her pain was severe,
sometimes as much as several days per month in the year prior to the hearing on January 14,
3
The record is unclear why PERS ordered this IME. In this IME, Dr. Collipp
concluded that Roberts’s “gradual progression of her back condition since 2001 is not
caused by her 2001 injury.” Dr. Collipp did note that Dr. Bernardo’s records might be
helpful since Roberts indicated Dr. Bernardo told her she might benefit from low-back
surgery.
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2013.
STANDARD OF REVIEW
¶12. The scope of review of actions by administrative agencies is well established.
According to Uniform Circuit and County Court Rule 5.03, it is the duty of the reviewing
court to ascertain whether the Board’s decision (1) was supported by substantial evidence;
(2) was arbitrary or capricious; (3) was beyond the power of the agency to make; or (4)
violated some statutory or constitutional right of the complaining party. See also Pub. Emps.
Ret. Sys. v. Dearman, 846 So. 2d 1014, 1018 (¶13) (Miss. 2003); Pub. Emps. Ret. Sys. v.
Dishmon, 797 So. 2d 888, 891 (¶8) (Miss. 2001). The applicant for disability income bears
the burden of proving that she is actually disabled. Dishmon, 797 So. 2d at 893 (¶15). There
is a rebuttable presumption in favor of a PERS ruling. Brinston v. Pub. Emps. Ret. Sys., 706
So. 2d 258, 261 (¶6) (Miss. Ct. App. 1998).
DISCUSSION
I. Substantial Evidence
¶13. Roberts claims the Board’s decision is not supported by substantial evidence.
Specifically, Roberts argues that the evidence indicates she was disabled as a result of her
on-the-job injury on January 17, 2001. According to Mississippi Code Annotated section 25-
11-114(6) (Rev. 2010),
Regardless of the number of years of creditable service, upon the application
of a member or employer, any active member who becomes disabled as a
direct result of an accident or traumatic event resulting in a physical injury
occurring in the line of performance of duty, provided that the medical board
or other designated governmental agency after a medical examination certifies
that the member is mentally or physically incapacitated for the further
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performance of duty and the incapacity is likely to be permanent, may be
retired . . . .
Mississippi Code Annotated section 25-11-113(1)(a) (Rev. 2010) defines “disability” as
the inability to perform the usual duties of employment or the incapacity to
perform such 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 [PERS] that is actually offered and is
within the same general territorial work area, without material reduction in
compensation.
¶14. The Board, by adopting the DAC’s opinion, determined that Roberts failed to show
that she was incapable of performing the usual duties of her employment. The opinion noted
that Roberts continued to work for over ten years in the same position after her on-the-job
injury with minimal restrictions. The Board noted that Roberts’s employer had
accommodated her by no longer requiring her to do many of the physical and hands-on jobs
she had done earlier in her career. Her employer also allowed her to change positions as
often as needed.
¶15. The Board noted that although Roberts did suffer from chronic back and knee pain,
the medical evidence did not support a finding that Roberts was disabled as a result of an on-
the-job injury. One of Dr. Hernandez’s clinic notes, dated November 20, 2009, states he
believed Roberts was “disabled due to her chronic pain.” That is the only mention of
disability in the record. And in his Form 7, Dr. Hernandez did not indicate Roberts was
disabled. In fact, the phrase “not applicable” was written under “list any impairments,” and
“improvement” was written under “prognosis for recovery, improvement and/or
deterioration.” No other doctor found Roberts was disabled as a result of her on-the-job
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injury. Furthermore, Dr. Collipp determined that Roberts’s condition was degenerative and
not caused by her on-the-job injury. And Dr. Blanchard determined Roberts’s chronic pain
was caused by “significant degenerative changes on the right side.” As a result, we find the
Board’s decision was supported by substantial evidence. This issue is without merit.
II. Medical Records
¶16. Roberts argues that the Board’s decision should be reversed because it did not obtain
Dr. Bernardo’s records. Roberts contends that because Dr. Collipp suggested in his first IME
of Roberts on March 23, 2010, that Dr. Bernardo’s records might be helpful, the DAC should
have postponed the hearing and obtained these medical records. PERS argues that this IME
report is not applicable since it was not obtained in conjunction with Roberts’s current
disability claim. Regardless, clinic notes from Dr. Blanchard and Dr. Hernandez state that
Dr. Bernardo did not recommend surgery, only more physical therapy.
¶17. Roberts cites to Mississippi Code Annotated section 25-11-120(1) (Rev. 2010), which
states that “the hearing officer shall have the authority to defer a decision in order to request
a medical evaluation or test or additional existing medical records not previously furnished
by the claimant.” However, Roberts only raised this issue for the first time when she
appealed the Board’s decision to the circuit court. Furthermore, Roberts did not list Dr.
Bernardo on her PERS medical-information form as one of the physicians who had treated
her within the last five years. And Roberts did not mention Dr. Bernardo during her
testimony before the DAC. This issue is without merit.
¶18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
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ASSESSED TO THE APPELLANT.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND
GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.
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