IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-SA-00037-COA KRISTI DEARMAN APPELLANT

v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/08/2015 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: GEORGE S. LUTER ATTORNEY FOR APPELLEE: JANE L. MAPP NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIBUNAL DISPOSITION: DENIED APPELLANT’S NON-DUTY RELATED DISABILITY CLAIM DISPOSITION: AFFIRMED: 12/13/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ISHEE AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. Kristi Dearm an was a guidance c ounselor f or Stone County Schools. She h ad eleven
y e a r s of service credit bef ore the nonrenewal of her contract, ef f ective J uly 30, 20 1 3

. Dearm an applied f

or Public Em

ploy ees’ Retirem ent Sy stem (PERS) non-duty related disability benef

its. The PERS Disability Appeals Com m ittee (C o m m i t tee) h eld a h earing and

recom m ended deny ing Dearm an’s claim

. Af ter r eview, t he PERS Board of Trustees (Board)

a g r e ed with the C om m ittee’s recom m endation. Dearm an appealed to the H inds Coun t y Circuit Court, which af

f irm e d the Board.¶2. Dearm an h as appealed t o this Court, asserting the f ollowing: ( 1) the Board’s decision

was n ot supported by substantial evidence; a nd (2) the Com m ittee f a i led to obtain necessary

m edical records bef

ore deny ing her claim

. W e f ind the B oard was w ell within its discretion in deny ing Dearm an’s claim . Theref o re, we af f irm the judgm ent of

the circuit court. FACTS ¶3. D e a r ma n w o r k e d t e n y e a r s a t S tone Middle School in the specia l

- e d u c a t i o n departm ent. The last y ear of her e m ploy m e nt, she w as reassigned a s the guidance c ounselor
at Stone Elem entary School. Duri ng school district elections, Dearm an stated that she did
not s upport the incum

bent superintend e n t o f e ducation i n his reelection cam p aign and instead

cam paigned f or another candidate (who later lost). ¶4. Dearm an last worked in February 2013 when the adm inistration sent her hom e af ter she violated the Fam ily Educational Rights and Privacy Act, which p rotects the privacy of stude n t e d ucation records. Dearm an said this stem m ed f rom her helping a new specialeducation instructor (the sam e person she supported in the election f or superintendent) with paperwork. Sh e w a s p aid through the end o f the school y ear, but her em ploy m ent contract

was n ot renewed f

or the f ollowing school y ear. Her application f or PERS disability benef

its was f iled June 24, 2013, shortly bef ore her contract ended on July 30, 2013. ¶5. Dearm an appeared bef ore t he Com m ittee pro se. She s tated that she d id not term inate her job voluntarily , and thought t he nonrenewal of her c ontract was political retaliation. She also never requested a m edical leave of absen ce. Instead, she d rew unem

ploy m ent f rom

2August 2013 through February 2014, and did n ot look f o r em p loy m e nt because she could not f igure out how to explain why she had lost her teaching c o ntract. She also applied f or Social Security disability but was denied. ¶6. At the tim e of her t e r mi n a t i o n , D e a r ma n ’ s j o b a s guidance counselor involved worki n g with the elem entary parents, students, a nd t eachers. Usually the students saw Dearm an in her of

f ice, b u t she was in t he classroom thirty percent of the t im e. Dearm an said her job entailed a lot of com puter work and sitting, w hich becam e dif f icult. S he also said her job involved a lot of f

iling, which aggravated her joints. ¶7. Som etim e prior to her transf er to the elem entary s chool, Dearm an developed bilateral
rotator cuf

f tears. She had h e r l ef

t shoulder r epaired, and she r eturned to work in Novem ber 2012, right around the tim e of the cam paign. She also had a prior lef t carpal tunnel release and bilateral tennis elbow release. As the only guidance counselor a t t he elem entary school,
Dearm an said the paperwor k r e q u i red by her job was enorm ous. She s tated at the hearing that the p aperwork contributed to an increase in her r ight carpal tunnel hand pain. A nd while she had the problem surgically repaired, she claim e d to have perm anent dam age to the right wrist because s he waited too long. In late 2012 a nd early 2013, Dearm an was able to work with pain m edications. She has been on narcotic m e d ication since Novem ber 2012. ¶8. Af ter continued shoulder pain, D e a r ma n ’ s o r t h o p e d i c d o c t o r r e f erred her to a rheum atologist, who diagnosed her with rheum a toid arthritis. S h e also had a num ber of
ste r o i d i n j e c tions in her elbows. Dearm an stated that, due to her injuries, she had trouble

3sitting and could not drive because the pain m edication m a de her drowsy

.

¶9. At tim e of the heari n g , D earm an testif i ed that she was seeing a psy c hologist, who diagnosed her with post-traum atic stress disorder (PTSD) f r om losing her job. Dearm an’s sister accom

panied her to t he hearing and testif ied that she p ersonally took Dearm an to see

a p sy chologist and a psy c hiatrist the week bef ore the hearing. According to her, both doctors diagnosed Dearm a n with severe PTSD. STANDARD OF REVIEW ¶10. The s tandard of r eview on appeal f rom an adm i nistrati v e d e c i sion of the Board is lim ited t o a determ ination of whether the Board’s decision: (1) was supported by s u bstantial evidence; (2) was arbitrary or capricious; (3) w as b ey ond the a u thority of the Board to m ake;

or (4) violated a statutory or c onstitutional ri g h t o f t he c laim a nt. Pub. Emps’ Ret. Sys. v. W alker , 1 26 So. 3 d 8 92, 894-95 (¶5) (Miss. 2013). An appellate c ourt i s n o t entitled to substitute its own judgm e nt f or that of PERS or reweigh the f acts of the case. Id

. at 895 (¶5). “A rebuttable presum

ption exists i n f

avor of P ERS’s decision, and [ D e a rm an] i s lef t with the burden of proving the contrary .” Brinston v. P ub Emps’ Ret. Sys

. , 706 So. 2d 2 58, 259 (¶5) (Miss. Ct. App. 1998) (citing Miss. Comm’n on Envtl. Q uality v. Chickasaw Cty. Bd. of Sup’rs , 621 So. 2d 1211, 1215 (Miss. 1993). DISCUSSION ¶11. Mississippi Code Annotated section 2 5-11-113(1)(a) (Rev. 2010) lay s o u t s p e c if ic requirem ents to prove a PERS disability :

4[ A ]ny active m em ber in

. . . state service who has at l east f our (4) y e a r s o f m em ber s h i p s e r v i c e credit m ay be retired by the [ b]oard of [ t]rustees

. . . provided t h e [ m ]edical [ b]oard, af ter an evaluation of m e dical evidence

. . . certif ies that the m em

ber is m entally or phy sically incapacitated f or the f urther perf orm ance of duty , that the incapacity is likely to be perm anent, and that the m em ber should be retired. Disability is def ined in the sam e code section as the f ollowing: [ T]he inability to p erf

orm the usual duties of em ploy m ent or the incapacity to perf orm such l esser duties, if any , as the em ploy er, i n its discretion, m a y a ssign without m at e rial reduction in com pensation, or the incapacity t o perf orm he duties of a n y em

ploy m e nt covered by the Public Em ploy ees’ Retirem ent Sy stem ( [ s]ection 25-11-101 et seq.) that is a ctually of f ered and is w ithin the s a m e g e n e r a l t e r

r i t o r ial w ork area, without m aterial reduction in com pensatio n . Id

. 1. The Board’s Denial of Dearm an’s Claim ¶12. To establish her claim , Dearm an was required to produc e medical evidence that, as of the date her contract ended, she was likely to be perm anently occupationally disabled due to her m edical conditions. Miss. Code Ann. § 25-11-113(1)(b) (Rev. 2010). ¶13. Dr. R. Lance Johansen, an o r t h o p e d i s t , saw Dearm a n on June 17, 2013, f ollowing arthroscopic surgery of the lef t shoulde r . D earm an com plained of right shoulder pain, tingling, and weakness with a cortisone injection in both s houlders two weeks prior. An MRI of her r ight shoulder showed a f u ll-thickness rotator cuf

f tear. Af t er a p hy sical exam , Dr. Johansen diagnosed Dearm an with right sho u l d e r b u r s i t i s , i m p i n g e m ent, r otator cuf

f tear, and right c a r pal tunnel s y

ndrom e. He recom m e nded an a rthroscopy of the right shoulder f ollowed b y a right carpal tunnel release. D e a r man im m ediately h ad the right rotator cuf f

5tear repaired, with the Dr. Johansen w r i t i n g that he accom plished an “excellent decom pression.” ¶14. Dr. Johansen com

pleted a PERS DSBL 7 , a “ s tatem ent of exam ining phy sician” f orm , dated July 1 8, 2013, writing t hat Dearm an had a r epaire d r i g h t r o t a tor cuf f tear and osteophy tosis o f the right shoulder, with a good prognosis. At that tim e s he had lim i ted range of m otion due to the surgery a m o n th prior, but she was attending phy sical t herapy

. He noted that she did not h ave a ny perm anent im pairm ent. She was n ot y et at m axim um m edical im p rovem ent (MMI), a nd he did not want her to return to work until she w a s me d i c a l ly cleared. On August 1, 2 013, Dearm an returned to Dr. Johansen’s of f ice com plaining of

m ultiple joint pain. He ref

erred Dearm an to rheum atologist Dr. Crisotom o Baliog. ¶15. D earm a n subm itted a letter f rom Dr. Baliog dated April 29, 2014, indicating that he had treated Dearm an f

or rheum atoid arthritis. H e stated that t hey were in the process of controlling her sy

m ptom s with a steroid sparing agent, but that it m ay take tim e t o f

ind the best m edications f

or her. Dr. Baliog thought Dearm an c o u l d r e t urn to her usual baseline level of activity when h e f igured out a satisf

actory m edication regim e n . No m e dical records

accom panied Dr. Baliog’s letter. ¶16. Dr. S h a w n M e i o f G u l f C o a s t I n t e r v e n t i o n al Medicine was Dearm an’s painm anagem ent doctor. He also c om pleted a PERS D SBL 7, dated July 2 6, 2013, but no

m edical records w e r e a t t a ched. Dr. M ei noted t hat Dearm an h ad bilateral osteoarthritis,

m oderate on the lef

t and s evere on the right. She was not at MMI but would l i k e l y have

6im

p rovem ent f

rom p hy s ical therapy

. He m arked that she had no p erm anent partial im p airm ents, but t hat s he s hould avoid heavy lif t ing. Dearm an p resented a l etter signed by
Dr. Mei, d ated May 9 , 2 014, addressed “to whom it ma y c o n c e r n . ” D r. Mei stated that
Dearm an had received signif i cant pain relief in h e r s h o u l der area f ollowing surgery , but recently her lower b ack p a in w ith radic u l i t ic sy m ptom had gotten worse, and that she had developed anxiety . He recom m ended she consult a pain psy chologist. ¶17. Dr. Calvin W ashington, Dear ma n ’ s p a in psy c hologist, subm itted a PERS DSBL 7, dated Septem

ber 25, 2013, without of

f ice notes or m edical records. Dr. W ashington wrote that Dearm an had depression and anxiety , both m oderate, noting she w as r e f erred to
p s y c h iatry f

or treatm ent a nd that while she was not a t MMI, she had no im p airm ent , lim itations, or restrictions. ¶18. In Decem

ber 2013, PERS h ad requested D earm an be s ent f or an independent m edical

exam ination perf

orm ed by Dr. Angel Mister. Her r eport was adm itted into ev i dence. In preparation f

or the exam , Dr. Mister re v i e w e d Dearm a n’s f ile and perf

orm ed her own phy sical exam ination. She noted Dr. Johan s e n ’ s restriction of “no heavy lif ting” and

m entioned that Dearm an’s job did not require heavy l if ting. Based on Dearm a n’s history and her exam ination, and i n con j u n ction with the review of m edical evidence and job requirem ents, Dr. Mister opined that D earm an h a d m ultiple joint pain, d epression, and anxiety , but they could be m anaged with appropriate treatm ent. D r. M ister wrote t hat she did not believe Dearm an’s m edical problem s m et the criteria f or perm a n ent disability

.

7¶19. Dearm an f ai l e d t o p r e s e n t a n y me d i c a l e v idence showing s h e l ikely suf f ered a
perm anent disability , as required by s ection 25-11-113(1)(a). T h u s , w e f ind the Board’s decision was supported by substantial evidence and was not arbitrary or capricious. 2. Dearm an’s Unobtained Medical Records ¶20. “In case of d isability appeals, the hearing of f i cer s hall have t h e authority t o def er a decision in order to request a m edical evaluation or test or additional existing m edical records
not previously f

urnished b y the claim ant.” Miss. Cod e Ann. § 25-11-120(1) (Rev. 2010).
Dearm an cites Stevison v. Public Employees’ Retirement System , 966 So. 2d 874 (Miss. Ct. App. 2007), f

or her argum ent that the Com m ittee erred in f ailing to request addit ional

m edical records bef

ore deny ing her claim

. ¶21. In Stevison , a phy s i cian stated the claim ant had perm anent dam a g e because she had
not tim ely received the p roper diagnosis. I d. at 876 (¶7). W ithou t r e questing additional

m edical records, the C om m ittee held the claim ant had not m eet h er b urden of proof because she provided no objective m edical records in support of her claim

. Id

. at 878 (¶14). On appeal, this Court held that because m edical t estim o ny had shown the claim a nt likely suf f e red p e r ma n ent d am age, t he C om m ittee erred i n f ailing to request additional m edical records. Id . at 881-82 (¶¶24-27). ¶22. The present case is distinguishable f rom Stevison

. No phy sician stated that Dearm an

was perm a nently disabled. The Com m ittee pointed out that Dearm an “ p roduced a lm ost no objective m edical evidence regarding her phy s i cal and or p sy chological condition,” and what

8she did produ c e d i d n o t s upport a f i nding of perm anent disability

. The Com m ittee also pointed o ut that neither Dr. Baliog nor Dr. Mei’s letters concluded that she was perm anently disabled. W e f

ind no error in the Com m ittee’s decision not to request any additional m edical records. ¶23. THE JU D G MENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, I S AFFIRMED. ALL COSTS OF THIS A PPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, I SHEE, CARLTON, JAMES AND GREENLEE, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.

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