IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-SA-00642-COA CATHY F. ROBERTS APPELLANT

v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/24/2015 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM W HICH 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 em ploy ed as a psy chologist f or t he Ellisville State School (ESS).
In Decem ber 2 011, Roberts applied f or duty -related disabilit

y b e n e fi t s b a s e d u

p o n a disability she claim ed resulted f

rom an on-the-job injury on January 17, 2001. T he Public Em ploy ees’ Retirem ent Sy s t em (PERS) Medical Board initially denied her claim

. A hearing b ef ore the PERS Disability

Appeals Com m ittee (DAC) was conducted January 14, 2013. During the h e a r i ng, Roberts indicated that h er last day of em ploy m ent at ESS had been January 11,2013. 1 The DAC f ound t hat Roberts was not eligible f or d u t y -related disability benef its. Roberts appealed to t h e P E RS Board of Trustees (the Board), which adopted the

recom m endation of

the DAC. Roberts appealed to the Hinds County Circuit Court, which af f irm ed the Board’s d ec i s i o n . R o b e rts n ow appeals to this Court, asserting that (1) the Board’s decision was n o t supported by substantial evidence, and ( 2 ) t h e B o a rd f ailed to obtain certain m edical records.
FACTS ¶2. On January

17, 2001, Roberts was assisting with an aggressive patient. The patient kicked Roberts, and s h e f e l l on the f

loor, landing on her bottom

. Af ter standing back up, Roberts was kicked again by t he patient and f ell against a wall. Roberts stated she did not f eel any im m ediate pain f rom the incident, but d id com plete an incide n t r eport. Approxim ately one to two weeks l ater, Roberts testif ied that she c o uld not get out of bed due

to lo w e r - back pain. She was t old by som eone at w o rk t o see a doctor. 2 According to
R o b e r t s , t his doctor gave her an injection and pain m edicine. Roberts stated this doctor thought she h a d a p i n c h e d n erve and ref erred her to Dr. Susi Folse, a bone and joint specialist. ¶3. Dr. Folse n oted Roberts com plained of lower-back pain and recom m ended phy sical

1 R o b erts h ad 2 3 .7 5 y ears o f serv ice.

2 T h e reco rd is u n clear w h ich d o cto r R o b erts v i sited

. T h e earliest m ed i cal reco rd is f ro m an o f

f ice v i sit t o D r. C h arles H ern an d ez o n F eb ru ary 2 3 , 2 0 0 1

. T h e clin ic n o tes in d icate R o b erts h ad “p rio r h i sto r y o f b ack p ain an d w as u n d er th e c are o f D r. F ro m k e f

o r sciatica.” T h e D A C i n f

erred th at “D r. F ro m k e ” w as actu ally D r. S u si F o lse. A cco rd in g to o n e o f D r . F o lse’s clin i c n o t es, d a ted Ju n e 4 , 2 0 0 1 , R o b erts in f o rm ed h er t h at sh e h ad seen D r . H ern an d ez “a f

e w d ay s” af

ter th e in j u ry . 2therapy and pain m edicine. D r . Folse also ordered an x-ray , a n d h er clinic notes indicated

the x-ray showed “slight decr e a s e d d isc space at L5-S1 with m ild r etrolisthesis.” Roberts

saw Dr. Folse several m ore tim es f or her low-back pain. Dr. Folse’s assessm ent was “low back pain with m ild degenerative changes a nd m i l d r etrolisthesis.” Dr. Folse ordered an MRI, which was “within n orm a l l i m i ts.” Dr. Folse indicated Roberts suf f ered f rom sacroiliac joint d y sf unction. Roberts c onti n u e d w i t h p hy s i cal therapy and r eceived at l east two injections to reli e v e h e r p a i n . Dr. Folse then r ef erred Roberts to Dr. Bertha Blanchard, a neurologist. ¶4. The m e dical records bef ore us indicate Dr. Blanchard treated Roberts f r om January 22, 2002, through May 4, 2009. Dr. B l a n c h a r d i nitially diagnosed Roberts with “right sacroiliitis [ and] r ight sciatica[ ,] which seem [ ed] to be the result of an injury t hat occurred”

at work o n January 17, 2 001. However, af ter o rdering a bone scan, Dr. Blanchard c oncluded that Roberts’s pain was the result of “signif icant degenerative changes on the right side.” Dr. Blanchard’s im

pression w as “right sacroiliitis[ , ] which is secondary to d e g e n e r a tive changes. [ Roberts] also ha[ d] degenerative changes i n he r l u mb o s a cral spine o n the right based on [ the] b one scan.” Dr. Blanchard determ ined Roberts was at m axim um m edical im

provem ent (MMI) o n June 4, 2002, and gave her a f ive percent perm anent-partial rating. Dr. B lanchard also issued perm anent work restrictions—no lif ting, pushing, or pulling over ten pounds. Roberts was to c ontinue taking pain m edicine. Due to i ncreasing pain, Roberts continued to

see Dr. Blanchard periodically

. During this t im e, Roberts a lso b egan e xperiencing pain in her right knee. The last clinic notes in the record indicate “chronic sacroiliitis o n the right,

3secondary to a workers’ com p e n s a t i on injury

. Condition stable with m edication.

. . . [ Roberts] is contem

plating disability .” ¶5. A t o n e p o i n t , D r. B lanchard ref erred Roberts to D r. Jam es Sikes, an orthopaed i c
surgeon , f

or treatm ent of Roberts’s right-knee pain. Dr. Sikes perf orm ed arthroscopic
surgery on Roberts’s right knee in May 2008. Roberts returned to D r. Sikes approxim ately f ourtee n mo n t h s l ater com plaining of p ain in her right knee. Dr. S ikes n oted that she still suf f e red f rom “ ch ondrom alacia and osteoarthritis.” Dr. Sikes c oncluded Roberts had “degenerative joint disease of the right knee.” ¶6. Dr. Blanchard also ref erred Rober t s t o D r . K e l l y B e r n a rdo, a neurosurgeon. Dr. Bernardo’s records were never obtained. ¶7. The m edical records indicate that Roberts was under t he c a re of Dr. Hernandez, an internist, f

rom F ebruary 23, 2 001, thro u g h O c t o ber 21, 2011. Dr. Hernandez’s records indicate R oberts continue d t o s e e him f or treatm e nt of her chronic back pain as well as obesity and h y

pertension. Dr. Hernandez com pleted a PERS Form 7 on N o vem ber 7, 2011, indicating that Roberts suf f ered f rom m oderate t o severe chronic back pain. Dr. Hernandez did not list any im

pairm ents but did list restrictions such as no heavy lif t ing, pu l l i n g , or pushing and no prolonged standing or sitting. ¶8. Beginning in late 2 0 09, Roberts periodically visited Dr. Joseph Farina, a neurologist.
D r . Farina com

p l eted a PERS Form 7 on Novem ber 30, 2 011, indicating tha t R o b e r t s suf f e red chief

ly f rom chronic sacroiliitis and lim itations included no heavy l i f t ing or prolonged standing.

4¶9. Roberts was sent to Dr. David Collipp f or an i ndependent m e dical e x am ination (IME)

on February 21, 2012. Dr. C ollipp noted h e had p reviously com pleted an IME o n Roberts

on March 23, 2010, as requested b y PERS. 3 Af ter reviewing Roberts’s m edical r ecords and conducting an exam ination, Dr. Collipp concluded t hat Roberts’s current m edical condition

was not caused by h er on-the-job injury on January 17, 2001. Rat h e r , h e r b ack pain was consistent with the “progression of degenerative disease and o b e s i t y involvem ent.” Dr. Collipp stated tha t R o b e r t s was phy sically capable of working but lim ited her to lif ting no

m ore than twenty -f

ive pounds. ¶10. In 2012, Roberts w as diagnosed with carpal tunnel s y ndrom e . T here was testim ony concerning this diagnosis and the pain experienced b y Roberts; however, Roberts does not allege that this is related to her on-the-job injury o n January 17, 2001. R oberts also had other work-related injuries over the y ears, but recovered f r om them

. ¶11. The record indicates Roberts w a s a b l e t o perf orm the f unctions of h er j ob with the restrictions f

or over ten y ears. R oberts testif ied h er job requirem ents included com pleting paperwork, e ntering data into t he com puter, and perf

orm ing client intervention t raining with the staf f

. A f t e r her i njury , she was no longer required to perf o rm phy sical work, such as
rest r a i ning clients. Roberts i ndicated she did m iss work when her pain was severe,

som etim es as m

uch as s everal day s per m onth in the y ear prior to t he hearing on January 14,

3 T h e reco rd is u n clear w h y P E R S o rd ered th is IM E

. In t h is IM E , D r. C o llip p co n clu d ed th at R o b erts’s “g r ad u al p ro g ressio n o f h er b ack c o n d itio n sin ce 2 0 0 1 is n o t cau sed b y h er 2 0 0 1 in

j u ry .” D r. C o llip p d id n o te t h at D r. B e r n ard o ’s r eco r d s m ig h t b e h elp f u l sin ce R o b e rts i n d icated D r. B ern ard o t o ld h e r sh e mi g h t b e n e f it f ro m lo w -b ack su rg e ry . 52013.
STANDARD OF REVIEW

¶12. The scope of r eview o f a c t i o n s b y a d m i n i s t r a t i ve agencies is w ell established. According to Unif

orm Circuit and County Court R u l e 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 bey ond t he power o f t h e a g e n c y to m ake; or (4) violated s om e statutory or constitutional right of the com p laining party

. See also Pub. Emps.
Ret. Sys. v. Dearman , 8 46 So. 2d 1014, 1 018 (¶13 ) ( M i s s . 2 0 0 3); Pub. Emps. Ret. Sys. v. Dishmon , 797 So. 2d 888, 891 (¶8) (Miss. 2001). The applicant f or disability incom e bears the burden of proving t hat she is actually disabled. Dishmon , 797 So. 2d at 893 (¶15). There is a rebuttable presum

ption in f avor of a PERS r

uling. Brinston v
. Pub. Emps. Ret. Sys. , 706 So. 2d 258, 261 (¶6) (Miss. Ct. App. 1998).
DISCUSSION
I. Substantial Evidence ¶13. Roberts claim s the B oard’s dec i s i o n i s n o t s u p p o r t e d b y s u b s tantial evidence. Specif ically , Roberts argues that t he evidence indicates she w as disabled as a r e s u l t of her on-the-job injury on January 17, 2001. According to Mississippi Code A nnotated section 25- 11-114(6) (Rev. 2010), Regardless of t he num

ber of y ears of creditable s e rvice, upon the application of a m em b e r o r e m

ploy er, any active m em

ber who becom es disabled as a direct result of an accident or traum atic event resulting in a p hy sical injury occurring in the line of perf orm a nce 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 p h y sically incapacitated f or t he f urther

6perf

orm ance of d

uty a n d t h e incapacity is likely to be perm anent, m ay be retired . . . . Mississippi Code Annotated section 25-11-113(1)(a) (Rev. 2010) def ines “disability ” as the inability to p erf

orm the usual duties o f e m ploy m e n t or t he i ncapacity to perf orm such l esser duties, if any , a s the em ploy er, in its discretion, m a y a ssign without m aterial reduction in com p ensation, or the incapacity to perf orm the duties of any em

ploy m ent covered b y [ P E R S ] t h a t is actually of f ered and is within the sam e gen eral territorial work area, without m aterial reduction in com pensation. ¶14. The Board, by

adopting the DAC’s opinion, determ ined that Roberts f ailed to show that she w as incapable of perf o rm ing the usual d

uties of her em

p loy m e nt. The opinion noted that Roberts continued to work f o r over ten y e ars in the s am e position af te r her on-the-job injury with m inim al r e s t r i c t ions. The Board noted that Roberts’s em ploy er had

accom m odated her by n o longer requiring her to do m any of the phy sical and hands-on jobs she had done e arlier in h e r c a r e e r . H e r em ploy er also allowed her to change positions as of ten as needed. ¶15. The Board noted that a lthough Roberts did suf f er f r om chronic back and knee pain, the m edical evidence did not support a f inding t hat Roberts was d isabled as a result of an onthe-job i njury

. One o f Dr. Hernandez’s clinic notes, d ated Novem ber 20, 2009, states he believed R oberts was “disabled due to her ch r o n i c p a in.” That is the only m ention of disability in the recor d

. A n d i n h is Form 7, Dr. Hernandez did not i ndicate R oberts was disabled. In f

act, the phrase “not applicable” was written under “ l ist any im pairm ents,” and “im provem e nt” was w r i t t en under “prognosis f or recovery , i m

p rovem ent and/or deterioration.” N o o ther doctor f ound Roberts was disabled a s a result o f her on-the-job

7injury

. F urtherm o re, Dr. Collipp determ ined that Roberts’s condition was degenerative and

not caused by her on-the-job injury

. And Dr. Blanchard determ ined Roberts’s chronic pain

was caused by “signif

icant degenerative changes on the right side.” A s a result, we f ind the Board’s decision was supported by substantial evidence. This issue is without m erit.
II. Medical Records ¶16. Roberts argues that the Board’s decision should b e reversed because it did not obtain
Dr. Bernardo’s records. R oberts contends that because Dr. Collipp suggested in h is f irst IME of Roberts on March 23, 2010, that Dr. Bernardo’s r ecords m ight be helpf ul, the DAC should have postponed the hearing and obtained these m edical records. PERS argues that this IME report i s not applicable since i t was not obtained in conjunction with R oberts’s curr e nt disability claim

. Regardless, clinic notes f r om Dr. Blanchard and Dr. Hernandez state that Dr. Bernardo did not recom m end surgery , only m ore phy sical therapy

. ¶17. Roberts c ites to Mississippi Code A nnotated section 25-11

- 1 2 0 ( 1 ) ( R ev. 2010), which

states that “the hearing of f icer shall have the a

uthority to d ef

er a decision in order to request

a m edical evaluation or t est or additional existing m edical records not previously f urnished by t he claim ant.” However, Roberts only raised this issue f or the f i r s t tim e w hen she appealed the Board’s decision t o the circuit c o urt. Furtherm ore, Roberts did not list Dr. Bernardo on her PERS m edical-inf orm a tion f

orm as one of the phy sicians who had treated her w ithin t he l ast f

ive y ear s . A n d Roberts did not m e ntion D r. Bernardo during her testim o ny bef ore the DAC. This issue is without m erit. ¶18. THE JUDGME N T O F T H E H I N D S C O U N T Y CIRCUIT C OURT, FIRST JUDICIAL DISTRICT, I S AFFI R M E D. ALL COSTS OF THIS A PPEAL ARE

8ASSESSED TO THE APPELLANT.

IRVING A ND GRIFFIS, P.JJ. , B A RNES, ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. JAMES, J., C ONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.

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