IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-CC-02599-SCT

THE PUBLIC EMPLOYEES’ RETIREMENT

SYSTEM

v.

ANNIE L. STAMPS

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 09/8/2003

TRIAL JUDGE: HON. WINSTON L. KIDD

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: MARY MARGARET BOWERS

ATTORNEY FOR APPELLEE: GEORGE S. LUTER

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

DISPOSITION: ON DIRECT APPEAL: REVERSED AND

RENDERED; ON CROSS-APPEAL:

AFFIRMED - 04/14/2005

MOTION FOR REHEARING FILED: 02/17/2005

MANDATE ISSUED:

EN BANC.

SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion

is substituted therefor.

¶2. The Public Employees’ Retirement System [hereinafter PERS] appeals from an order

entered by the Circuit Cou rt of the First Judicial District of Hinds County, Mississippi,

reversing the order of the Board of Trustees of the Public Employees’ Retirement System

[hereinafter PERS Board] which denied Annie L. Stamps’s claim for disability benefits. Stamps2

then appealed to the circuit court and was granted relief. PERS appeals, seeking this Court’s

review of the opinion and order of the circuit court, and Stamps cross-appeals.

FACTS AND PROCEEDINGS BELOW

¶3. Anni

e Stamps was employed by Jackson Public Schools as a teacher for twenty-seven

and three-fourths (27 and 3/4ths) years, before ending her career in December 1999. Stamps

taught kindergarten for her last five years and had also taught the 4th and 6th grades. Stamps

was eligible for service retirement which, at the time of the hearin g, the maximum benefit was

$1,850.82 per month. The maximum disability benefit, at the time of the hearing, was

$2,600.34 per month.

¶4. On December 21, 1999, Stamps developed pain in her neck and sought medical

attention from her internist, Dr. John Pieklik. She then saw Dr. Carl Hunt, a chiropractor, on

several occasions due to her neck pain, and she returned to Dr. Pieklik, who s uggested she have

a MRI performed. On January 11, 2000, Stamps’s MRI revealed a central disc protrusion at

C2-3. Stamps was then referred, by Dr. Hunt, to Dr. Andre Solomon, who on January 18, 2000,

wrote and reported to Dr. Hunt that Stam ps suffered an unusual large herniated disc at C2-3

extending down the back of the C3 vertebra, that was also impressing upon the spinal cord. Dr.

Solomon also reporte d that Stamps also had a small ruptured disc or spondylosis at C6-7. He

further recommende d a myelography and then a surgical corpectomy to remove the disc and

also a fusion with plates and screws for stability of the L2-3 joint.

¶5. Dr. Solomon alluded to the fact that the cause of Stamps’s injury is unknown. He noted

in his letter to Dr. Hunt that Stamps had an automobile wreck in the 1970's, i n which she was

“pro pelled from the front seat to the rear seat and could have injured her neck but she3

remembers low back pain.” He then states that all of the sudden, during the last week of

December, she developed neck pain, rigidity, and difficulty in mov ement. He further noted,

how e ver, that “[s]he has been improved by chiropractic manipulation, yet problems still exist.”

He explained that she is at a definite risk “if her neck assumes certain positions as this may

cause further damage to her spinal cord. She is mildly myelopathic and accordingly that can

worsen to the point of spasticity and/or paralysis.” Dr. Solomon recommended that “she

should undergo first a myelogram to determine exactly the nature of the lesion and the stability

of the L2-3 joint and secondly it is almost certain that she will have to undergo a corpectomy

at C3 to remove this disc....” Basically, Stamps was diagnosed by Dr. Solomon as having a

large central herniated disc at the C2-3 level that was compressing and flattening the thecal sac

and cord. Dr. Solomon noted that the small ruptured disc, or “at least some spondylosis....[a]t

this point and time is inconsequential....”

¶6. On January 20, 2000, Stamps underwent the recommended myelogram, performed by

Dr. Steve Crawford, which confirmed the earlier diagnosis of Dr. Solomon. Then, on January

25, 2000, Dr. Winston Capel (a colleague of Dr. Solomon’ s), a Jackson neurosurgeon, wrote

a consul tative report in which he recommended a C3 corpectomy with C2-3 and C3-4

discectomies without graft reconstruction and anterior plating at C3-4. He further reported

that Stamps had a risk of junctional disea se since she already had a borderline stenotic canal

distally as well as degenerative changes. On January 28, 2000, Stamps underwent the

recommended

surgery by Dr. Capel at Central Mississippi Medical Center. Following this

procedu re, there is an expected decrease in range of motion in the neck . When Stamps was4

discharged from th

e hospital on January 31, 2000, Dr. Capel’s only post-operative instructions

were for her to wear a neck brace and not engage in any contact sports.

¶7. Stamps had an uneventful postoperative cou rse and was subsequently released by Dr.

Capel in July 2000. Stamps did not make any complaints of exceptional pain to her

neurosurgeon. For example, ten days after surgery, Stamps is noted as “doing well.” Similarly,

six weeks after surgery, Stamps only complai n ed of “minimal arm pain” and stated she was no

longer taking the narcotic medications that were prescribed to her.

¶8. On April 21, 2000, Stamps returned to Dr. Piekli k, her treating internist, for follow-up

care after surgery. Dr. Pieklik noted that Stamps had “had a prolonged recovery from her spine

fusion. Seems to have a good attitude. She is on no medications.” He then noted that he

wanted to see her again in three months. On June 2, 2000, Stamps underwent a Surgical Spine

Ap Lat which was ordered by Dr. Capel for follow up purposes regarding the fusion or

corpectomy. The radiology report revealed that osteophyte formation was detected involving

C6/C7 an d to a lesser degree involving C5/C6 and C4/C5. The report further stated that no

sub luxations, or abnormal movements of one of the bones that compromise a joint, were

detected. However, the report specifically stated that Stamps had “post operative changes and

cervical spondylosis.”

According to Dr. Capel’s records and notes, there were no future

physical restrictions imposed upon Stamps. Also, in her testimony before the Disability

Appeals Committee, Stamps admitted that the only restriction Dr. Capel gave her verbally was

“no cont act sports” (as mentioned previously), and she further testified that although Dr. Capel

said she could return to work, she, in fact, did not.5

¶9. Stamps returned to Dr. Pieklik on July 31, 2000, and he stated that “[h]er main problem

is the fact that she had a cervical fusion six months ago and is due to see Dr. Solomon, I

bel ieve, her neurosurgeon, towards the end of August. There will be consideration given to her

returning to work as a kindergarten teacher. She enjoys a relatively decreased range of

m otion.” It was also noted that she “is having intermittent neck pain; she describes it as more

like a tightness.”

¶10. On August 8, 2000, Stamps ap plied for PERS disability and indicated that she stopped

work on December 20, 1999. The following month, on September 8, 2000, PERS received

a “PER S Statement of Examining Physician” from Stamps’s chiropractor Dr. Carl Hunt, who

stated that she suffered from the following:

The patient has degenerative arthritis in the cervical spine with a post-surgical

d isc rupture and a lower cervical disc rupture that has not been surgically

treated. There is a gross loss of range of motion in the cervical spine, and the

cervical spine is weak and unstable. The surgery worked well in reducing the

intense pain in the neck and arm, however, the degenerative change (including

the disc rupture) has this patient unable to resume work activity.

Dr. Hunt’s diagnosis was that the post-surgical cervical disc rupture was severe, yet Stamps’s

prognosis was fair. He also stated that the cervical disc rupture (non-surgery) was moderate

and her prognosis was again, fair. He did recommend that she consult a M.D. about her

diabetes. However, an MRI of Stamps’s cervical spine in March 2001 indicated “status post

anterior fusion from C2 to C4. Congenitally narrow canal with associated e arly degenerative

disk disease at C4-5, C5-6, and C6- 7 with an associated small left paracentral C5-6

protrusion.”

This last MRI of the lower back area comports with the records of the

neurosurgeons, D r

. Solomon and Dr. Capel, showing this to be “inconsequential” at this time.1 At the time Stamps’s case was reviewed, the members of the Medical Board were:

Dr. David Richardson, Dr. Mack Addison, and Dr. David Collipp.

6 ¶11. On October 25, 2000, Stamps received a lette r from PERS that the Medical Staff of

the Board of Trustees was requesting her to schedule a Functional Capacity Evaluation

[hereinafter FC E]. Stamps reported for the exam as scheduled on November 14, 2000, at 8:30

a.m. at the Mississippi Methodist Rehabilit ation Center. The referring physician was Dr. David

Collipp, and the exa m was conducted by Lisa Poe, OTR/L. Poe’s report stated, regarding

Stamps’s level of cooperation, that “the client demonstrated cooperative behavior; however,

she was self-limited with complaints of pain in all weighted capacities.” The report also stated

“[i]t is felt that the patient is capable of much more than she demonstrated; however, she was

self-limited with complaints of pain with most o f these test items. True physical abilities are

difficult to determine at this time as the patient is self-limited at a light level of work.”

¶12. On December 20, 2000, Stamps underwent a CT scan which was ordered by Dr. Louis

Saddler, a Canton

internist. This scan revealed the fusion at C2-C3-C4, degenerative disc

disease at C5-C6 and C-6-C7, and anterior bone spurring at C5-C6 and C6-C7.

¶13. On January 8, 2001, Stamps was informed by Frank Ready, the PE RS Executive

Dir ector, of the Medical Board’s claims decision. 1 Ready stated that after a careful

examination by the PERS Medical Board, it was determined that there was insufficient

evidence to support her claim of inability to perform her duties as a te acher due to her medical

condition.7

¶14. Stamps timely appealed to the PERS Disability Appe als Committee on February 20,

2001. Just two days later, she was notified by the Social Security Administration that she had

been approved for disability payments with a disability onset date of December 1, 2001.

¶15. Towards the end of F ebruary, Stamps went to see Jackson neurosurgeon Dr. Adam

Lewis for a post -operative check-up. She stated during her Disability Appeals Committee

hearing that although Dr. Capel told her to come back in one year to “double-check and see if

the hardware was still there,” she went to see Dr. Lewis, a Jackson neurosur geon, instead. On

February 28, 2001, Dr. Lewis wrote Dr. L.C. Tennin and sai d that Stamps “continues to

complain of headaches and limited range of motion of the cervical sp ine.” He also said that

flex ion and extension were also significantly limited due to spasm. He did say, however, that

the cervical spine x-rays, performed after complet ion of surgery, “show good alignment of the

cervical spine and good position of the bone graft and cervical plate.” He said he prescribed

her Skelaxin to alleviate the muscle spasms and if the symptoms were not significantly

relieved, an MRI of the cervical spine would be in order.

¶16. On March 15, 2001, Stamps underwent the MRI of her cervic al spine. The results

reported by Dr. Lewis noted that there was disc desiccation at the C4-5, C5-6, and C6-7

levels. No compression of the spinal cord was noted at any of these locations. The report also

stated that there were minimal posterior osteophyte s, that again, did not compress the spinal

cord. At the C5-6 level, there was a small left paracentral protrusion. Finally, Dr. Lewis stated

that the spinal canal was congenitally narrow. Dr. Lewis attributed the limited range of motion

to spasm and recommended physical therapy and Skelaxin. It appeared to be a relatively typical

checkup. Stamps did not complain of any exceptional pain, and Dr. Lewis noted nothing8

serious. Further, Dr. Lewis did not place any physical restrictions on her. During her

testimony at the hearing and in response to whether or n ot he gave her any restrictions, Stamps

stated, “he jus t basically told me to rest ... I guess to stay the same as I was doing, the

restrictions I had, I guess.”

¶17. On July 5, 2001, Dr. Tennin completed th e PERS “Statement of Examining Physician.”

He reported that her principal diagnosis was cervical myelopathy and her secondary diagnoses

were Type II Diabe tes and moderate depression. He said her condition was “expected to

deteriorate over time.”

He also said that at the time, she had a 0% range of motion of the

cervical spine, and her permanent partial impairment rating was 25%. She was restricted to

prolonged standing, sitting less than two hours, lifting less than five pounds, driving, and

pushing or pulling.

¶18. On August 6, 2001, Stamp s was afforded a hearing before the Disability Appeals

Committee. The committee members were Drs. David Duddleston and Mary Meeks, with

Special Assistant Attorney Gener al Anita Clinton Craig as the Hearing Officer. Several

employees of the Jackson Public School District accompanied Stamps to th e hearing. Dr.

Michelle King, the principal at Wa tkins Elementary School, knew Stamps from 1996-1999.

During this time, Dr. King was the Assistant Principal a t Raines Elementary School where

Stamps taught kindergarten. Dr. King, along with Gerilyn Thomas, a retired school principal,

Sharon Applewhite, an assistant teacher who worked with Stamps, and Gail Jusseley, who taug h t

in the same classroom as Stamps, all testified that Stamps was an excellent teacher. More

importantly, none of Stamps’s witnesses could te stify about her ability to fulfill her duties as

a teacher either before o r after her diagnosis or surgery because she never returned to work.9

Interestingly, Dr. King st ated that Stamps could be moved to any other classroom within her

certification. In other words, Stamps was not restricted to only teaching kindergarten.

¶19. At the hearing, Stamp s testified that she was a kindergarten teacher, but could not teach

anymore because she could no longer stoop or bend, was res tricted in her movements, was in

pain, and at the time of the hearing, was “not very focused it seems sometimes and my

concentration. I can’t do the job I was doing because I’m in pain...I can’t do what

kindergarten–or what teaching requires me to do.” She blamed her lack of concentration on

all the medication she was taking. At the time of the hearing, she was taking Ultram, Skelaxin,

Lorazepam, Tylenol Arthritis, and occasionally Remeron. She said she takes the Ultram

generally, two to three times a day or every six hours. She said that “when I’m at home I try to

do something to help me or just relax or lay most of my day.” She also denied having ever

been to a pain specialist.

¶20. Upon observation by the Committe e of Stamps’s ability to move her neck and head in

at least a 45 to 50 degree angle from side to side and her ability to look down to read

documents, Stamp s was asked to explain how this hindered her teaching. She testified that she

was responsible for children on the playground and in the cafete ria. She further stated that

although she had not been offered another job, she had not asked for one either. She said that

even if she had

been offered a fifth grade job, she might still have to physically intervene with

larger students, and she was unable to do this. Stamps also testified that she continued to drive,

but only for short distances and only if someone is with her because she cannot turn her neck

easily. She stated that she does no housework and only light cooking.10

¶21. The Disability Appeals Committee, in a very thor ough recommendation presented to

the Board of Trustees, after going through the medical informati on submitted into the record

and listening to testimony, determined as follows:

The Committee recognizes that with a neck fusion the patient does have

limitation of movement of the neck; however, M s. Stamps moved her neck

frequently and gesticulated wit h her head during the hearing, demonstrating a

range of movement from 45 to 50 degrees laterally w ithout signs of pain. She

was able to get in and out of the chair without difficulty. She had no trouble

re ading from her seated position and her grooming, including her hair, was very

good. Ms. Stamps testified that her pain level was 8 out of 10, but she did not

appear to be in this extreme pain at any time during t he hearing. Ms. Stamps

testified that she sees Dr. Tennin for treatment of residual pain in her neck. The

records, h

owever, show that she has seen Dr. Tennin seldom for pain. Only two

out of a total o f four appointments with Dr. Tennin contained in the record, did

she complain

of neck and/or cervical pain. On November 18, 2001, she was

concerned about her menstrual cycle. On July 9, 2001, she complained of

headache and restlessness and the possibility of colon cancer. Ms. Stamps has

not sought and Dr. Tennin has not offere d referral to a pain specialist. Ms.

Stamps did not complain of exceptional pain to the neurosurgeons who treated

her and has not been sent back to them f or pain. Finally, two separate therapists

noted that Ms. Stamps demonstrated inappr opriate pain behavior and low pain

tolerance.

There is no doubt that Ms. Stamps suffered from a cervical spine disease at C2-4

now status post cervical vertebral r esection and fusion of the neck as noted

above and this has resulted in some loss of mobility of the neck. This should

not, h owever, present any limitations for her job or restriction of her job duties.

There is no evidence that this operation was u nsuccessful. The latest MRI of the

lower spine shows early evidence of degenerative disease but this is not

considered by the neurosurgeons to be debilitatin g at this time. Ms. Stamps’

[sic] credibility as to the level of pain she experiences is belied both by her

demeanor, her medical records, and her history of complaints.

In sum, the Disability Appeals Committee, having reviewed t he record, including

additional documents submitted at th e hearing, concludes there is not sufficient

objective medic al evidence in the record to show that Ms. Stamps is unable to

perform the functions at her job or to support her claim of perm anent disability.

The Di sability Appeals Committee, therefore, recommends that the final

administrative decision of the PERS Medical Board denying disability

retirement benefits be affirmed.11

¶22. The question before the PERS Medical Board, th e Disability Appeals Committee, and

the PERS Board of Trustees was whether Stamps’s claim met the statutory requirements for

the recei pt of a disability benefit. The Disability Appeals Committee made its recommendation

to the PERS Board of Trustees. The PERS Board of Trustees agreed with the Disability

Appeals Committee’s findings and subsequently, on August 28, 2001, denied disability

benefits. Stamps filed an appeal in the Circuit Court of the First Judicial District of Hinds

County. The question before the circuit court was whether the decision of the Board of

Trustees was supported by substantial evide nce, was arbitrary or capricious, or violated

Stamps’s constitutional rights. On September 9, 2003, the circuit court entered its opinion and

order reversing

the Board’s decision on the grounds that it was not supported by substantial

evidence. Accordingly, PERS appealed, and the case is now before this Court.

DISCUSSION

¶23. PERS was established in 1953 to provide retirement and other benefits to covered

employees of the state, its political subdivisions, and instrumentalities. Chapter 299,

Mississippi Laws of 1952.

¶24. In addition to service retirement benefits, disa bility benefits are provided for members

w ho meet the statutory requirements for such benefits. The two categories of disability

benefits available to PERS members are: (1) a regular disability benefit payable to members

who have at le ast four (4) years of creditable service and who become disabled for any reason,12

and (2) a hurt-on-the-jo b disability benefit, payable to members regardless of the number of

years of creditable service, where the member becomes disabled d ue to an injury occurring in

the line of duty. Miss. Code Ann. §§ 25-11-113 to 114 (Rev. 2003).

¶25. Appl

ications for disability benefits are reviewed by the PERS Medical Board which

arranges and passes upon all medical examinations for disability purposes and reports its

conclusions and recommendations to the PERS Board of Tru stees. Miss. Code Ann. § 25-11-

119 (Rev. 2003). Any person aggrieved by a determination of the PERS Medical Board may

request a hearing before the designated hearing officer of the PERS Board of Trustees.

¶26. The Medical Board initia lly determines whether an individual is permanently disabled

as that term is defined under PERS law as follows:

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 redu

ction in compensation or the incapacity to perform the

duties of any employment covered by the P ublic Employees’ Retirement System

(§ 25-11-101 et seq.) that is actually offe red and is within the same general

territorial work area, without material reduction in compensation.

Section 25-11-113 further provides that:

in no event shall the disability retir e ment allowance commence before the

termination of state service, provided that the medical board, after a medical

examination, shall certify that the member is mentally or physically

incap acitated for the further performance of duty, that such incapacity is likely

to be permanent, and that member should be retired . . .

Standard of Review

¶27. Rule 5.03 of the Uniform Rules Circuit and County Court Practice sets forth the

standard of review by the circuit court on matters appealed from an administrative body such

as PERS. "This Court's standard of review of an administrative agency's findings and decisions13

is well established. " Byrd v. Pub. Employees’ Ret. Sys. , 774 So. 2d 434, 437 (Miss. 2000). "An

agency's conclusions must remain undisturbed unless the agency's order 1) is not supported

by su b stantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted

to the agency, or 4) violates one's consti tutional rights." (citing S prouse v. Miss. Employment

Sec. Comm'n

, 639 So. 2d 901, 902 (Miss. 1994)). Id

. Se e also F reeman v. Pub.

Employees’ Ret. Sys. , 822 So. 2d 274, 278 (Miss. 2002).

¶28. Further, a reviewing court may not substitute its j udgment for that of the agency

rendering the decision and may not r eweigh the facts. P ub. Employees’ Ret. Sys. v. Dishmon

,

797 So. 2d 888, 891 (Miss. 2001).

I. On Direct Appeal

–Did the Circuit Court Err By Reversing the

PERS Decision to Deny Stamps Disability Benefits?

¶29. We conclude that the circuit court d id, in fact, err by reversing the PERS decision to

deny Stamps disability benefits because the PERS decision was supported by s ubstantial

eviden ce, was not arbitrary and capricious, was made within the scope or power granted to

PERS, and did not viol

ate Stamps’s constitutional rights. S prouse

, 639 So. 2d at 902 (Miss.

1994). In M

issis sippi State Board of Accountancy v. Gray , 674 So. 2d 1251, 1257 (Miss.

1996), this Court held:

A reviewing court cannotsubstitute its judgment for that of the agency or reweigh the facts of the case. Chancery and Circuit Courts are held to the same

standard as this Cour t when reviewing agency decisions. When we find the

lower court has exceeded its a uthority in overturning an agency decision we will

reverse and reinstate the decision.

¶30. In order to qualify for a PERS dis ability benefit, Stamps was required to prove that the

conditio ns upon which she bases her claim are disabling and that the disability was the direct14

cause of her withd rawal from state service. Stamps, a s a claimant, "has the burden of proving

to the medical board and to the Appeals Committee that she i s in fact disabled," in an initial

application for disabili

ty benefits. D ishmon

, 797 So. 2d at 893. "There is a rebuttable

presumption in favor of the action of an administrativ e agency and the burden of proof is on

the one challenging its action." F reeman , 822 So. 2d at 280. (quoting F ulce v. Pub.

Employees’ Ret. Sys.

, 759 So. 2d 401, 404 (Miss. 2000)). Stamps did not meet her burden

because although she may have needed her surgery, she is clearly able but unwillin g to return

to her job as a teacher. Her condition, at this time is not debilitating.

¶31. The record clearly supports th e order of the PERS Board of Trustees, which took into

cons ideration all of the medical evidence offered by Stamps. Although the circuit court stated

that it conducted an “objective” revie w of the record, we disagree. The circuit court, like the

Committee, noted that Stamps su ffered a central disc protrusion at C2-3 and also has disc

disease at the C5-6. However, unlike the circuit court, the Committee realized that following

s urgery, there is “an expected decrease in range of motion in the neck.” The Committee noted

that the loss of some mobility in her neck and surgery she underwent would not “present any

limitations for her job or restriction of her job duties.” Quite simply, as co nfirmed by the

f ollowing examples, the medical evidence does not establish that Stamps’s ailmen ts are

disabling. Unlike Stamps’s contention, she is capable of performing her work duties from a

medical standpoint. Ther efore, she is not entitled to disability benefits from the State of

Mississippi.

¶32. The circuit court relied only on the subjective comments of Stamps, instead of pointing

to the objective evidence in the file to support a cla im of disability. In its opinion, the circuit15

court reflected on the testimony offered by Stamps as to the conditions she suffered from as

well as the pain she experiences. The circuit court noted that Stamps has been to several

physic ians as well as a chiropractor, Dr. Hunt, but Dr. Hunt is the only one who stated Stamps

was disabled. The circuit court also discussed the fact that Stamps underwent an FCE, yet it

neglected to comment on the results of the FCE. The circuit court also did not reference any

of the reports of the neurosurgeons who treated Stamps. Again, this Court has held that the

weight given to the statements of a personal physician is determined by PERS, and it is not for

the courts to reweigh the facts. Dishmon , 797 So. 2d at 888.

¶33. The Committee, in its findings of fact, noted that Dr. Tennin placed several restrictions

on Stamps. However, it was not ed that the employer’s statement of job requirements did not

include any of the activities restricted other than standing. It was further noted that one of

the wi tnesses from the school district testified that the position did not require prolonged

standing. Also, Stamps did not return to the classroom after the Christmas holidays, and thus,

the witnesses from the school did not actually see her attempt to perfor m her job duties after

she allege dly became too ill to work. Again, it is the duty of PERS to determine which reports

garner more weight than others. B yrd

, 774 So. 2d at 438. This is exactly what the Committee

did in its findings of fact.

¶34. Stamps’s testimony is refuted by t he medical documentation in the record. For

example, she testified that she “was told I had full blown arthritis.” She then went on to testify

that she did not recall any rest rictions placed on her by her neurosurgeon (because there were

none). Later in her testimony, she stated that Dr. Capel told her not to engage in any contact

s ports. Again, she testified that Dr. Capel told her that she has “full blown arthritis in” her16

neck. However, there are no medical records that support her statements regarding her having

“full blown arthritis.”

She then said that after she went to see Dr. Lewis, he told her not to

make any changes.

¶35. The circuit court also noted that Stamps had been approved for t he receipt of

disability

benefits by the Social Secur ity Administration. As this Court noted in D oyle v. Pub.

Employees’ Ret. Sys.

, 808 So. 2d 902, 907 (Miss. 2002) , “PERS is not bound by any finding

of the Social Security Administration.”

¶36. Clearly, the Disability Appeals Comm ittee premised its recommendation on the

medical evidence in the record. On the other hand, the circuit court failed to explain how the

recommendation of the Committee was not supported by substantial evidence. We conclude

that the PERS decision is supported by substantial evidence and is thereby neither arbitrary nor

capricious. The circuit court impermissibly reweighed the evidence in this matter and

substituted its judgment for that of the adminis trative agency. Therefore, the order of the

Board of Trustees should be reinstated and the decision of the circuit court reversed.

II. On Cross Appeal- - Alternatively, Should Stamps’s Case Should Be

Reversed

and Remanded for a New Hearing Because She Was

Referred by Medical Board Member Dr. David Collipp to the

Mississippi Rehabilitation Cente r, Where He Is a Medical

Director, for a Function al Capacity Evaluation in Violation of the

Mississippi Ethics in Government Law?

¶37. Review in cases such a s this are limited in scope as set forth in the PERS primary brief.

Stamps alleges that Dr. Collipp’s referral violated the Ethics in Government Law. Further,

Stamps alleges that a due process conflict of intere st exists because Dr. Collipp referred her

to a clinic where he is a “direc tor.” Even if the allegations were true, they do not fall under one17

of the three criteria set forth in Rule 5.03 of the Uniform Rules of Circuit and County Court

Practice, and it would not have violated a statutory or constitutional rig ht of Stamps.

Therefore, this issue is without merit.

III. Alternat

ively, should Stamps’s case be reversed and remanded for

a new hearing because the repor t of the Functional Capacity

Examination was hearsay?

¶38. In her brief, Stamps correctly states that the Rules of Hearing Practice and Procedure

for PERS hearings provides that “formal rules of evidence shall not apply.” P ER S Regulation

42.

¶39. Stamps also contends, as she did in the proceedings below, that the report of the FCE

that she was ord ered to undergo is a report of a procedure not performed or interpreted by a

physician. It was administered and written by Lisa Poe, who did not appear at the hearing for

cross-examination as requested by Stamps. However, since PERS does not have subpoena

power for its administr

ative hearings, it can only request that a person appear. Stamps is not

entitled to a cross examination of Poe.

¶40. Stamps further argues that acc ording to G eorgia-Pacific Corp. v. McLaurin

, 370 So.

2d 1359 ( Miss. 1979), this Court condemned the introduction of unsworn medical reports of

physicians in workers’ compensation cases. However, in 1998, the Court of Appeals stated

that the PERS law is separate and distinct from workers’ compe nsation law. B rinston v. Pub.

Employees’ Ret. Sys.

, 706 So. 2d 258, 260 (Miss. Ct. App. 1998 ). Therefore, a workers’

compen sation case should not be considered precedent for a PERS case. Moreover, to hold

that Stamps’s right to due process has been violated, in the manner described, would render

every PERS hearing unconstitutional, as mentioned previously, because PERS does not have18

the power to subpoena witnesses. S i milarly, it would also place a great burden on the

claimants, as they would have to produce doctors, therapists, and any other person who

produced a document the cla imant introduces so that PERS would be able to cross-examine

the named person.

¶41. Further, if the report of the therap ist who conducted the FCE is hearsay, then the

reports offered by Stamps are hearsay as well. This issue is without merit.

IV. Alternatively, Should Stamps ’s Case Be Reversed and Remanded

for a New Hearing and Miss. Code Ann. § 25 -11-120 Declared

Unconstitutional Because it Does Not Allow C laimants Such as

Stamps to Take Depositions or Subpoen a for Cross-Examination of

I ndividuals Such as the Author of the Functional Capac ity

Evaluation?

¶42. Rule 5.03 of the Uniform Rules of Circuit and County Court Practice limits the scope

of review by this Court on appeals such as this. As discussed previously, review is limited to

a determination of wheth er the Board of Trustees’ decision was: (1) supported by substantial

evidence; or (2) was arbitrary or capricious; or (3) was beyond the authority of the Board to

make; or (4) violated a statutory or constitutional right of Stamps. D ishmon

, 797 So. 2d at

891; Davis v. Pub. Employees’ Ret. Sys.

, 7 50 So. 2d 1225, 1229 (Miss. 1999). ¶43.

Stamps suggests that the applicable PERS Rules of Hearing Practice and Procedure give

no discovery opportunities or the right to s ubpoena witnesses or documents. She argues that

because of this, her due process rights were violated by the absence of the right to subpoena

in the PERS Rules of Hearing Practice and Procedure. Stamps’s argument is problematic

because the L

egislature did not provide statutory authority granting PERS subpoena power.

Administrative bodies such as PERS “may not make rules and regulations which conflict with,19

or are contrary

to, the provisions of a statute, particularly the statute it is administering or

which created it.” M

iss. Pub. Serv. Comm’n v. Miss. Power & Light Co.

, 59 3 So. 2d 997,

1000 (Miss. 1991).

¶44. Stamps cites a United States Supreme Court case that held that a clai mant in disability

cases had the absolute right to cross-examine a physician when a subpoena had been sought.

Richa rdson v. Perales , 402 U.S. 389, 91 S.Ct. 1428, 1444, 28 L.Ed. 2d 842 (1971).

However, this case also states that “a written report by a licensed physicia n who has examined

the claimant and who sets forth in his report his medical findings in his area of competence

may be received as evidence in a disability hearing and, despite its hearsay character and an

absence of cross-examination may constitute substantial evidence supportive of a finding by

the hearing examiner adverse to the claimant....” Id.

¶45. Again, cross-examination is not an absolute right in administrative cases. C ent. Freight

Lines, Inc. v. United States

, 669 F.2d 1063, 1068 (5th Cir. 1982). Administrative hearings

are not trials and are thereby not governed by the same rules which are a pplicable to courts of

law. U nited Cement Co. v. Safe Air for the Env’t. , Inc. , 558 So. 2d 840, 842 (Miss. 1990).

This issue is without merit.

V. Alternatively, Shoul d Stamps’s Case Be Reversed and Remanded

for a New Hearing since Neither the PERS Medical Board or the

Disability Appeals Committee Followed the Mississippi Open

Meetings Law

and since Parts of the Proceedings of the PERS

Medical Board Were Withheld from Stamps?

¶46. Stamps argues, as she argued in the proceedings below, that the hearing before the

Disability Appeals Committee and the proceedings bef ore the Medical Review Board violate

the Open Meetings Law, Miss. Code Ann. § § 25-41-1 et seq. Stamps’s claim is misplaced20

because the purpose of the hearing was to consider an appeal of a denial of a disability claim

which was based on the documentation submitted and the testimony elicited. The review

before the Medical Board was for the purpose of determining whether or not, based on the

documentation, the claimant met the requirements for the receipt of a disability benefit.

¶47. Stam

ps also argues that there is substantial evidence that her condition is disabling. She

claims that this evidence is not contain ed in the PERS Disability Appeals Committee decision

because the record fails to reflect if two of the members even participa ted in the decision of

her case. Quite ob viously, the decision was by a majority vote or otherwise, Stamps would not

have been notified that her claim was denied.

¶48. Both the Medical Board and the Disability A ppeals Committee conducted their

inquiries according to PERS guidelines. This Court has previously ruled that “. . . the

Commission [State Oil and Gas Board] is an administrative agency, not a court . . . It is a rare

day when

we will reverse the Commission for an action taken in the implementation and

enforcement of its own procedural rules.” D elta Drilling Co. v. Cannette

, 489 So. 2 d 1378,

1380-81 (Miss. 1986). Further, “Board rules must afford minimum procedural due process

which is (1) notice, and (2) an opportunity to be heard.” S tate Oil & Gas Bd. v. McGowan

,

542 So. 2d 244, 248 (Mis s. 1989). Clearly, Stamps was afforded due process required by law,

and the proceedings were properly conducted according to state law. This issue is without

merit.

VI. Alternativel y, Should Stamps’s Case Be Reversed and Remanded

for a New Hearing since it is a Conflict of Interest for an Attorney

with the Attorney General’s Office to Serve as a Member of the

Disability Appeals Committee W hen the Attorney General is the

Statutory Legal Counsel to PERS?21

¶49. Stamps claims that because Anita Clinton C raig was employed by the Attorney General

of Mississippi as an attorney, and she was also a hearing office r for the Disability Appeals

Committee, a conflict of interest was present. In her brief, as well as in her argument

presented in the proceedings below, Stamps states “[ h]ere, the hearing officer Anita Clinton

Craig so l ely authored a decision which affirmed the position of the agency, PERS, that her

employer, the Attorney General of Mississippi, represents as statutory legal counsel.” She

claims this is violative of a rule of law stated previously by this Court. This Court has stated

that “[a]dministrative proceeding s should be conducted in a fair and impartial manner, free

from any suspicion of prejudice or unfairness." Dean v. Pub. Employees’ Ret. S ys. , 797 So.

2d 830, 837 (Miss. 2000) (citing McFadden v. Mis s. State Bd. of Med. Licensure , 735 So.

2d.145, 158 (Miss. 1999)). No evidence exists to substantiate Stamps’s inference of having

b een afforded a hearing that was not conducted in a “fair and impartial manner, free from any

suspicion of prejudice or unfairness.” Id.

¶50. The presumption exists that hearing officers act with fairness and honesty. H arrison

County Sch. Bd. v. Morreale

, 538 So. 2d 1196, 1202 (Miss . 1989). Furthermore, in order to

overcome this presumption, there must be a showing of personal or financial interest on the

part of the hearing officer, or evidence of misconduct. D ampier v . Lawrence County Sch.

Dist.

, 344 So. 2d 130, 132-33 (Miss. 1977). Stamps does not even attempt to address or

ov ercome this presumption. Even so, this Court has plainly ruled that administrative agencies

are capable of perform

ing multiple functions. This Court has stated "[t]his Court has rejected

the proposition that administrative agencies cannot perform both investi gative and adjudicative

functi ons." F reeman, 822 So. 2d at 281 (citing McFadden v. Miss. Bd. of Med. Licensure

,22

735 So. 2d at 158). "The combination in the same individual of . . . nonadjudicative functions

does not violate due process, provided the claimant's due process rights to a fair hearing before

an imp a rtial adjudicator are otherwise protected." Id

. Again, there is no evidence to suggest

that Ms. Craig was not impartial. This Court has also stated, in reference to an assistant

attorney general being a hearing officer, “[t]hat office affords counsel to sta te agencies and we

see no conflict or suggestion of unfai rness in this arrangement.” U nited Cement Co.

, 558 So.

2 d at 842 (citing Frazier v. State ex rel. Pittman

, 504 So. 2d 675, 691 (Miss. 1987); Mi ss.

Pub. Serv. Comm’n , 418 So. 2d at 784)). Therefore, Stamps’s claim is without merit.

CONCLUSION

¶51. The record clearly supports the decision entered by the PERS Board of Trustees, and

its order is supported by substantial ev idence. Stamps’s claim for disability does not meet the

requirements for the receipt of a disability benefit under the laws governing th e administration

of the Public Employees’ Retirement System. The circuit court impermissibly reweighed the

evidence in this matter and substituted its judgment for that of the Board of Trustees.

Therefore, on direct appeal we reverse the judgment of the circuit court, and we render

judgment reinst

ating the denial of disability benefits by the PERS Board of Trustees. We

affirm on cross-appeal.

¶52. ON DIRECT A PPEAL: REVERSED AND RENDERED. O N CROSS-APPEAL:

AFFIRMED.

WALLER AND COBB, P.JJ., CARLSON, DICKINSO N AND RANDOLPH, JJ.,

C ONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING

.