IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-SA-01044-COA SHIRLEY E. PINION APPELLANT

v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/22/2018 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: GEORGE S. LUTER ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SAMUEL MARTIN MILLETTE III JANE L. MAPP NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 10/29/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. O n F e b r u a r y 26, 2 013, the B oard of T rustees (the PERS Board) of t h e P u b l i c Em ploy e es’ Retirem e nt Sy stem of Mississippi (PERS) entered an order approving and adopting the recom m endation, f indings of f

act, and conclusions of law of t h e PERS’s Disability Appeals C om m ittee (the Com m ittee), thereby deny ing S h i r l e y P i n i o n ’ s a p p l i c a tion
f or in-the-line-of

-duty disability benef

its pursuant to Mississippi Code Annotated section 25-11-114(6) (Supp. 2011). Dissatisf i ed, Pinion appealed to the Hinds County Circuit Court seeking reversal of the PERS Board’s decision. The circuit c ourt af f i rm ed the PERS Board’sdecision o n June 22, 2 018. Finding the PERS Board’s decision was supported by s u bstantial evidence, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. S h i r l e y P i n ion was em ploy ed with the University o f M ississippi Medi c a l C e n t e r (UM MC) f

or 23 3/4 y ears bef

ore her departure i n 2 012. 1 Around 1997, Pinion received a carpal-tunnel-sy

ndrom e (CTS) diagnosis, revealing that the disease was m ost severe in her right hand. Despite the diagnosis and its accom pany i n g d i s c o mf

ort, Pinion continued to work in her usual capacity with UMMC. The daily f unctions of Pinion’s position entailed

a g reat deal o f ty

ping and other com

puter-based w ork. I n an attem pt t o a void surgery , Pinion used b races to assuage t he pain. Unable to cope, Pinion e lected to undergo a carpel-tunnelrelease surgery on her right h and i n July 1999. The surgery was i ntended to r elieve the CTS
sy m p tom s, b ut P inion c ontinued to experience pain. Pinion sought f urther evaluation f

rom

a s eries of phy sicians, and each provided dif f erent hy pot h e s e s about the p ersisting discom f ort. ¶3. On August 13, 2001, Pinion was ref erred t o and ev a l u a t e d b y r h e um atologist Dr.
Suzanne Sanders. Dr. Sanders suspected Ray naud’s d isease as the cause of Pinion’s pain and

recom m ended f

urther testing. Dr. Sanders was not able to reach a def initive diagnosis. ¶4. On February 11, 2004, Pinion s o u g h t a p a i n - m a n a gem ent consultation f rom Dr.

1 A t th e t i me o f h er d isab ility f ilin g , P in i o n w as th e “ M an ag e r o f S u p p ly C h ain In f o rm atio n S e rv ices” b u t h ad w o rk ed in o th er d ata-in p u t p o s itio n s w ith U M M C o v er th e co u rse o f h er em p lo y m en t. 2J e f

f e r y S um m ers, who suggested sy m pathetic p ain w as the culprit. Still seeking relie f , Pinion agreed to a nother s urgery and al l o w e d D r. W illiam Lineweaver to perf orm a
sy m p athectom y procedure in April 2004. Pinion reported i ncreased pain af ter t he procedure but returned to work in May 2004. ¶5. Fai l e d b y s urgical solutions, Pinion visited D r. Rahul Vohra in February 2006. Dr. Vohra developed an ef

f ective pharm a cologic-pain-m anagem ent regim en t o relieve the unbearable CTS sy

m ptom s . Drugs used in Pinion’s t reatm e n t included a num ber of narcotic pain m e dicines and a nalgesic patches. Pinion exper i e n c e d n otable relief and was able to continue working with the aid of the m edications. ¶6. On February 13, 2012, UMMC f ami l y p h y s i c i a n D r . R ebecca W a terer evaluated Pinion. Although the prom pt f or Pinion’s appointm ent w ith Dr. W aterer is unclear, the visit resulted in a determ ination that Pinion could not saf ely perf orm the work tasks required of her and sim

u ltaneously

adhere to the drug regim en prescribed by Dr. Vohra. ¶7. On February 14, 2012, UMMC placed Pinion on leave under t he Fam ily and Medical
Leave A ct (FMLA) of 1993, 20 U .S.C. § 2601 et s eq. (2012), pending the d i scontinuation

or signif icant decrease in the use of the narcotics. In light of UMMC’s determ ination, Pinion returned to D r. Vohra, who adam antly rejected UMMC’s request that Pinion discontinue or signif icantly decrease her use of the narcotics as u nreasonable af t er evaluating Pinion’s pain levels. Dr. Vohra also noted that Pinion had f o llowed the drug regim en while working f or

a num ber of y ears without incident. The d rugs allowed P inion to cope with h er discom f ort

3so that she could continue working.

¶8. Based on the inability to work without t he p rohibited pain m edication, Pinion f iled f or PERS duty -related disability benef its (with planned retirem e nt) on February 22, 2 012. 2 As

a part o f t h e application, Dr. Vohra and Dr. W aterer com pleted PERS Form 7, “Statem ent of Exam ining Phy sician.” D r. Vohra indicated that Pinion’s pain was likely p erm anent, and
Dr. W aterer opined that Pinion could not work while taking the m edications used to treat her pain. ¶9. At PERS’s requ e s t , P i n i o n subm itted to a n independent m e d ical evaluation by Dr. Philip Blount in June 2 0 1 2

. D r . Blount reported that Pinion’s ability to continue working

was contingent o n her tolerance of pain sy m ptom s related to the CTS. Af ter r eviewing Dr. Blount’s report alongside Pinion’s application, the PERS Medical Board denied P i n ion’s request f or disability

retirem ent. ¶10. Pinion appealed the decision t o the Com m ittee, which held a hearing on Decem ber 3, 2 012. The Com m ittee entered its “Proposed Statem ent o f Facts, Conclusions of Law, and
Recom m endation” t o deny Pinion’s request f or duty -related disability benef its; however, the
Com m i ttee granted Pinion’s request f or non-duty -related disability ben e f i ts. On February 26, 2013, the P ERS Boar d o f T r u stees (the P ERS Board) entered an o rder approving and

2 P i n io n ’s em

p lo y m en t w ith U M M C h ad n o t e n d ed a t th e tim e h er “A p p licatio n f o r R e tirem en t B e n ef

its” w a s f

iled o n F e b r u ary 2 2 , 2 0 1 2 , a n d listed A p ril 4 , 2 0 1 2 , as a “P r o j e c t e d D ate o f R etirem en t.” A s o f D ecem b er 3 , 2 0 1 2 , P in io n ’s em p lo y m en t h ad n o t en d ed an d sh e w as still o n F M L A leav e . 4adopting the Com m ittee’s recom m endation, f indings, and conclusions. ¶11. Still dissatisf

ied, o n M a r c h 2 7 , 2013, Pinion f iled a n appeal in the Hinds County Circuit Court based on the PERS Board’s denial of d uty -related disability benef its. On June 22, 2018, the circuit court e ntered an order af f irm ing the P ERS Board’s decision. Aggrieved, Pinion now appeals.
STANDARD OF REVIEW ¶12. PERS is categorized as an adm inistrative state agency , a n d a s such, our judicial review of this adm inistrative appeal is lim ited. Davis v. Pub. Emps’ R et. Sys. , 750 So. 2d 1225, 1229 (¶12) ( M i s s. 1999). This Court has the authority to reverse the decision of PERS if the decision (1) was not s upported by substantial evidence, (2) was arbitrary and capricious, (3)

was bey ond P ERS Board’s power to ado p t , o r ( 4 ) violates a constitutional or statutory provision. Id. W e a

pply the sam e standard of review as the circuit court and “m ay neither substitute [ our] own j udgem ent f or t ha t of the agency which r endered the decision nor

r e w e igh the f

acts of the case.” P ub. Emps’ Ret. Sys. v. W a lker , 126 So. 3d 892, 895 (¶5) (Miss. 2013) ( c iting Miss. Pub. S erv. Comm’n v. Merchants Truck L ine I nc. , 598 So. 2d 778,
782 (Miss. 1992)). A rebuttable presum ption exists i n f

a v or of PERS. Id. ( citing P ub. Emps’
Ret. Sys. v. Dishmon , 797 So. 2d 888, 891(¶9) ( Miss. 2001)). The em ploy ee s eeking the benef it is lef t with the burden of

proving the contrary

. Davis , 750 So. 2d at 1230 (¶12).
DISCUSSION ¶13. Pinion spent over t wo decades as a UMMC em ploy ee w o rking in various key boarding

5capacities. I t i s unconteste d that the corresponding ty ping and c o m

puter tasks contributed

to or caused Pinion to develop CTS that ultim ately warranted the use of the narcotic pain regim e n. Pinion argues that because her CTS was shown t o be a perm anent and direct result of the UMMC w ork duties, PERS lacked substantial evidence to deny her request f or duty

related disability benef

its. W h ile there is an obvious and undisputed link b etween Pinion’s

em ploy m ent and h er C TS, absent a corresponding accident or traum atic event, t he a pplicable

statute d oes not r e n der Pinion eligible f o r duty -related d isability benef its. Accordingly , PERS granted Pinion regular, non-duty related disability benef its and m aintains that Pinion is legally precluded f

rom recovering the presently

requested relief

. ¶14. At the tim e of Pinion’s application, Mississippi C ode Annotated section 25-11-1 14(6) ( S u pp. 2011) governed her eligibility f or duty -related d isability benef its. T he pe r t i n e n t statutory portion provided that [ r]egardless o f the num

ber of y ears of creditable service, upon the application of a m em ber or em

ploy e r, any active member w ho becomes disabled as a direct result of an accident or traumatic event resulting in a physical injury occurring i n the line of

performance of duty , provided that the m edical board or other designated governm ental agency af t er a m edical exam ination certif i es that the m em

ber is m entally o r phy sically incapacitated f or t h e f u rther perf orm ance of duty

and the incapacity

is likely to be perm anent . . . . (Em phasis added). ¶15. PERS draws p arallels between the instant case and the C o u r t ’ s d e c i s ion in Public Employees’ Retirement System v. Card , 994 So. 2d 239 (Miss. Ct. App. 2008), where the
Court af f irm ed the PERS Board’s decision to deny Mary Card duty -related disability

6benef

its. Id. at 245 (¶30). Af

t er working a s a n a ccounting assistant with t he State f or f if teen
y ears, Card developed severe pain f rom writing and was subsequently diagnosed with CTS. Id. a t 241 (¶5). Like P inion, Card underwent carpel tunnel release surgery b ut continued to experience d iscom f

ort. Id. at 241 (¶6). Akin to the “shearing injury ” idea Pinion advances, Card a rgued t h a t she was qualif ied f or duty -related disability benef its based on a m icrotraum a theory

. Id. at 245 ( ¶ 31). E vidence revealed that, like Pinion, Card had “ consistently experienced problem s w ith c arpal tunnel.” Id. Consistent with the PERS Board’s decision, the Court rejected C ard’s m icro-tra u ma theory , determ ining that it did not f all within the statutory def inition of a “traum atic event,” and f ound that Card “provided no evidence of [ CTS] resulting f

rom an accident or traum atic event.” Id. at 246 (¶32). ¶16. The Court em

braced the Mississippi Of f ice of the Attorney General’s interpretation of a “traum atic event”: [ A]n event in which a worker involuntarily m eets with a phy s i c a l o bject or som e other external m atter and the worker is a victim of a great rush of p ower that he him self did not bring into m otion. This def i nit ion w as h eld not to include phy s ical injuries resulting f rom a slip and f

all accident a n d p hy sical conditi o n s resulting f

rom a slip and f

all accident and phy sical conditions resulting f

rom an excessive work ef f ort. Id. (quoting Miss. Att’y

Gen. Op., 93-1017, 1994 W L 117329, at *2 (Mar. 16, 1994)). ¶17. Mirroring Card , Pinion struggles to i dentif y any “ a c c i dent or t raum atic event” that “occur[ ed] in t he l ine of duty ” and can be connected to her diagnosis. I n f act, Pinion f

ails

to pinpoint any a ctual accident o r traum atic event at all that com ports with the a

pplicable

statute and interpretation ref erenced in Card

. Pinion argues that the statute is am biguous and
7the Court im properly adopted the Attorney G eneral Opinion’s def inition of “traum atic
event.” Gleaning legislative intent f rom the subsequent codif i cation of the Card decision, we disagree. In 2016, lawm akers am ended the statute outlining eligibility f o r duty -related disability benef its as f ollows: Regardless of the num

ber of y ears of creditable s e rvice, upon the application of a m em ber or em

ploy e r, any a ctive me mb e r who becom es disabled as a direct result of a phy sical injury sustained f rom an a c cident or traum atic event c a used by external violence or physical force occurring in the line of performance of duty , provided that the m edi c al board or other d esignated governm e ntal a gency a f

ter a m edical exam ination certif i es that t he m em

ber is m entally or phy sically incapacitated f or the f u rthe r perf

o rm a n ce of duty and the incapacity

is likely to be perm anent . . . . Miss. C ode Ann. § 25-11-114(6) (Rev. 2016) ( em phasis added). The am e ndm e nt clarif ied that t he “accident or traum atic event” m ust b e “ caused by e xternal violence or phy sical f orce occurring in the line of perf orm ance of duty ” and ref

lects Attorney G eneral Opinion Num ber 93-1017 acknowledged by this Court. ¶18. Despite the statute’s progression, P inion asserts the Attorney General’s def inition is “clearly against the w eight of m odern m edical e vidence” and cites an online research article hy pothesizing a c ausal l ink between CTS and a “shearing inj u r y .” 3 Pinion o pines the “shearing injury ” m

ust have occurred during the work-related ke y b o a rding a t UMMC and unsuccessf

ully petitions this Court to q u a l if y the injury as a traum atic event in the line of

3 M ay o C l i n i c , R esea rch ers F i n d E vid en ce fo r T

ra u m a tic C

a u se o f C a rp a l T u n n el S yn d ro m e ( N o v . 1 0 , 2 0 0 6 ), S cien ceD aily , h ttp : //w w w . scien ced aily .co m / releases/2 0 0 6 /1 1 /0 6 1 1 0 9 1 5 3 9 4 2 .h tm

(last v isited O ct. 2 9 , 2 0 1 9 )

.

8duty

.

¶19. At best, the article purports that researchers determ ined a “shearing injury ” may cause CTS. May o Clinic, supra note 3. F or the sake of argum e nt, even if w e a ccepted the article’s hy pothesis a s true, P inion f

ailed to provide relevant evidence specif ic to her diagnosis. No

m edical records or t estim ony f rom a ny of Pinion’s doctors s u p p o r t a f i nding that any particular accident, event, or “shearing injury ” caused her CTS

. Form 8 of the disability application requires the applicant, Pinion, to provide a description of the alleged disability

. Pinion begins by writing, “ I develo p e d c arpel tunnel in b oth hands around 1 996-97

. . . .” Also, an injury report dated June 17, 1999, indicates “ continuous ty ping” as the cause. The

m edical records and f

orm s com pleted by her treating phy sicians ref lect the sam e. ¶20. Throughout her brief s , Pinion also discusses the 1999 carpel-tunnel-release surgery

as the qualif

y ing cause o f her pain. Again, P inion’s assertion does not m eet the statutory requirem ent. It would be counterintuitive to qualif y t he surgery as the c ause of the CTS it

was intended to treat. W hile the surgery was perhaps traum atic, especially g iven its f ailed

attem pt at alleviating Pini o n ’ s C TS pain, the procedure w as elective and c ertainly did not

occur in t h e l i n e of perf

orm ance of duty

. P inion’s “lack of evidence presented to PERS

c r e a t e s t h e substantial evidence necessary f or this C ourt to uphold the B oard’s decision. ” Card , 994 So. 2d at 2 46 ( ¶33). Thus the assertion that Pinion s u f f ered a t raum atic event of

som e sort is without m erit, and the Board’s decision should stand. ¶21. Pinion c orrectly points t o the Court’s ruling in Public E mployees’ R etirement System

9v. Trulove , 954 So. 2d 501 (Miss. Ct. App. 2007), as being instructive b ut n ot in her f avor. Nurse T ruelove had suf

f ered neck and shoulder injuries in an Augu s t 1 9 95 autom obile accident that occurred during the course of her w ork duties but continued her em ploy m ent. Id. at 502 (¶¶4-5). Five y ears later, in Octob e r 2 0 0 0 , T r u e love suf f ered a second workre l ated injury while attem p ting to restrain a p atient and subsequently f iled f or d uty -related disability

. Id. at 5 0 2 (¶¶6-7). I n s u p p o rt o f her claim , Truelove subm itted corroborative
f indings f rom h er phy sician along with a detailed incident report Truelove com pleted the day af ter t he s econd incident. I

d. at 504 (¶14). The Court reversed the PERS Board’s decision, holding that the Com m i ttee f a iled to “t h o r o u g h l y c o n s i d e r ” m edical evidence and t he incident report evincing T rulove’s eligibility f or d uty -related disability b enef its. Id. at 505 ( ¶15). The
Court also noted that Trulove s ustained not o ne, but two qualif y ing i njuries. I

d. at 505 (¶16).
As previously discussed, n either Pinion’s records nor her incident report established the existence of

a qualif y ing traum atic event. ¶22. Pinion also d i s t i nguishes the current f acts f rom those i nvolved in the denial of the duty

- related disability c laim in Brinston v. Public Employees’ R etirement System , 7 06 So. 2d 258 (Miss. C t. App. 1998). Mary Brinston also suf f ered f rom CTS, but unlike Pinion, the
f acts clearly established t hat B rinston suf f ered a traum atic event while engaged in the perf orm ance o f her work d

uties. Id. at 259 ( ¶¶2 -3). For Brinston, tim ing em erged as the prim ary issue when B rinston was unable to connect her C T S diagnosis d ate with the injury she s uf f ered. Id. at 259 (¶2). Ultim ately , b oth of the plausible diagnoses’ dates predated

1 0Brinston’s injury , establishing that the traum atic event could not have been the cause of

Brinston’s CTS. I

d. Pinion argues tha t b e c a u se h er UMMC em ploy m ent and CTS undisputedly overlap, the outc o m e here should d if f er f rom the r esult in Brinston

. W e disagree. ¶23. Finally , Pinion directs t his Court to Cartagena v. City o f New Y ork , 345 F

. Supp. 2d
414 (S.D.N.Y. 2004). T he New York case, considered o nly a s per s u a s ive authority , is consistent with the abo v e r e f e renced precedent of our C ourt and likewise distinguishable
f rom the case a t b a r. The Cartagena court reversed an adm inistrative decision deny ing a New York police of

f icer a ctive-duty r etirem ent benef i t s ( i

. e . , d u t y - r e l a t e d d i s a

b i l i ty benef

its). Id. at 4 15. F acts indicated that Of f icer Cartagena tripped and injured her right hand while in pursuit of

a robbery suspect. Id. Af t er approxim ately one y ear of subsequent visits and consultations in connection with her injury , Cartage n a w a s diagnosed with CTS. Id. Cartagena and the other c a s e s c i t e d by Pinion present a recurring them e m arked by stark

con t r a s t to the present set o f f a cts— a traumatic event or accident existed

. As discussed above, Pinion’s record is devoid of any alleged accident o r traum atic e vent as def ined by the

statute. ¶24. Absent the showing of evidence t hat an accident or traum atic event even occurred, the Board had substantial evidence t o deny Pinion’s r equest f or duty

- related disability benef its. ¶25. AFFIRMED. BARNES, C .J., CARLTON, P.J., GREENLEE, T INDELL, Mc D O NALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., NOT PARTICIPATING.
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