IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-SA-01362-COA
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM APPELLANT
v.
KRISTIE JAMES APPELLEE
DATE OF JUDGMENT: 08/18/2015
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL
BY: JANE L. MAPP
ATTORNEY FOR APPELLEE: GEORGE S. LUTER
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: REVERSED DECISION BY BOARD OF
TRUSTEES AND AWARDED DISABILITY
BENEFITS
DISPOSITION: AFFIRMED - 11/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., JAMES AND GREENLEE, JJ.
LEE, C.J., FOR THE COURT:
¶1. The Board of Trustees (the Board) of the Public Employees’ Retirement System
(PERS) denied Kristie James’s request for non-duty-related disability benefits. The Hinds
County Circuit Court, First Judicial District, reversed the Board’s decision and awarded
James disability benefits. PERS now appeals, asserting that the circuit court erred in
awarding James disability benefits.
PROCEDURAL HISTORY
¶2. Citing chronic back pain, James applied for disability benefits in December 2008. At
the time of her disability hearing in 2009, James was a seventh-grade teacher at Caledonia
Middle School in Lowndes County, Mississippi. James had been employed by the local
school district for approximately fourteen years.
¶3. The PERS Medical Board reviewed James’s application and denied her disability
benefits. James then appealed to the Disability Appeals Committee (DAC), which granted
her a hearing. The DAC recommended to deny James disability benefits, and the Board
adopted the DAC’s recommendation. As previously stated, the circuit court reversed the
Board’s decision and awarded James disability benefits.
FACTS
¶4. James testified that she began experiencing back pain in 2007. James first consulted
a chiropractor, but her pain was not alleviated. James then saw Dr. Timothy Bassett, who
diagnosed her with a minimal disc bulge and a small annular tear in her L5-S1 region.
According to James, Dr. Bassett recommended three months of physical therapy. Finding
physical therapy unhelpful, James then saw Dr. Tom McReynolds twice for joint injections
due to low-back pain, lumbar bulging disc, lumbar facet arthropathy, and lumbar spondylosis.
¶5. In March 2008, James had back surgery (a spinal fusion) to alleviate her pain. James
testified this surgery provided relief for about three months. Dr. Patrick Curlee had
performed the surgery and continued to see James for follow-up appointments. Dr. Curlee’s
clinic notes from September 15, 2008, stated that James could “return to normal daily
activities, including work, with some limitations. No standing duties at work. The patient
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should be able to return to work immediately.” Dr. Curlee also prescribed James pain
medication. Dr. Curlee’s clinic notes from January 8, 2009, diagnosed James with an
“incomplete boney fusion at L5-S1 both post-laterally and in the intervertebral space.” He
recommended that James try an external bone stimulator to alleviate her pain.
¶6. The last clinic notes in the record are dated September 10, 2009. In these notes, Dr.
Curlee stated that “secondary to her back pain, [James] is unable to perform all of the
necessary duties of her job.” Dr. Curlee diagnosed James with “Lumbar Pseudarthrosis L5-
S1,” which resulted from the failed spinal-fusion surgery. Dr. Curlee also noted James’s
long-term narcotic usage, but stated James was “taking a very reasonable amount of narcotics
given her diagnosis. She has proven very responsible with her medication usage over the last
couple of years.”
¶7. Dr. Curlee completed a PERS Form 7 on January 8, 2009, indicating that due to
James’s back pain, she was unable to “bend, twist, stoop, climb or crawl. [She] also cannot
stand for extended periods of time.” Dr. Curlee listed her restrictions as “no prolonged
standing or heavy lifting.” Under “prognosis for recovery,” Dr. Curlee wrote “poor.” And
he assigned James a permanent partial impairment rating of “twenty-three percent whole
person” and “thirty percent lumbar spine.”
¶8. James was sent to Dr. Laura Gray for an independent medical examination (IME) on
April 14, 2009. After reviewing James’s medical records and conducting an examination,
Dr. Gray concluded that James had “no specific clinical indication [that] would prevent her
from returning to work.” Dr. Gray noted that James “appear[ed] to be over-using narcotic
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medications” and “would be better served to be on a lower dose of narcotic[s] with focus on
physical activity.” Dr. Gray reported James’s range of motion was within normal limits for
all areas except for her back. Due to this, Dr. Gray recommended that James “should return
back to her usual and customary duty with limitation in lumbar flexion.” Although Dr. Gray
noted she reviewed all of James’s medical records, including those from Dr. Curlee where
he did impose restrictions, Dr. Gray stated “the patient has no restrictions noted.”
¶9. James testified that her work day began at 7:00 a.m. and lasted until 3:30 p.m. at the
earliest. Her work day consisted of frequent standing, walking, and bending, with the
occasional lifting of boxes or books. She stated she could not stand for long periods of
time—thirty minutes maximum—and could not lift heavy items. James stated her pain level
was typically an eight on a scale of one to ten, but a ten at the end of a work day. At the time
of the hearing, James had prescriptions for a pain patch and hydrocodone. She testified that
she took the hydrocodone two to three times per week and changed the pain patch every three
days and that the pain medication did not eliminate her pain; it only took “the edge off.”
¶10. Karen Pittman, the principal at the school, completed a PERS Form 6B, noting that
James had difficulty performing her duties due to her constant pain and that consistent
attendance was required. Pittman listed James’s duties as “standing, walking, sitting,
bending, reaching, stooping, and pushing.” Pittman indicated that James could not perform
her job. At the hearing, Pittman testified that James was an excellent teacher, and James’s
contract was renewed despite her physical limitations.
STANDARD OF REVIEW
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¶11. The standard of review of actions by administrative agencies is well established. 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. 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
¶12. In its only issue on appeal, PERS claims its decision is supported by substantial
evidence. 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.
In denying James’s request for disability benefits, the Board found the following:
This Committee finds James’s testimony very credible. After hearing her
testimony and looking at the records, this Committee agrees that James has
what the medical community calls “failed back syndrome.” That terminology
simply means that James had surgery to alleviate back pain but even after the
surgery, she has back pain. As noted by both Dr. Curlee and Dr. Gray, James’s
back exam is basically normal. There is nothing pathologic in her back. The
Committee believes James has muscular back pain[,] and she has been stable
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since her back surgery. We note that Dr. Curlee has written that James has
numerous limitations, but those are not based on structural problems. Those
problems with the discs have been repaired as evidenced by the MRI. There
is no evidence of sciatic pain[,] and all muscle groups are equal in strength and
reflex. The limitations written by Dr. Curlee are based on James’s complaints
of pain. Pain without physical limitations cannot justify the recommendation
of disability. And clearly, James is working[,] albeit she says she is in pain.
This Committee cannot recommend disability based on the evidence before us
today. There are other modalities that may relieve some of James’s muscular
back pain if she wishes to pursue them.
¶13. A similar situation occurred in Knight v. Public Employees’ Retirement System, 108
So. 3d 912, 920 (¶31) (Miss. 2012), where the Mississippi Supreme Court determined that
PERS’s denial of disability benefits was unsupported by substantial evidence. Knight
worked as a committee assistant for the Mississippi Senate, and her job required her to be on
her feet constantly. Id. at 918 (¶21). PERS claimed that Knight had failed to produce
“persuasive and credible objective medical evidence of a disability.” Id. at 916 (¶16). Thus,
PERS denied her benefits, finding that “[t]here is no statutory provision wherein an award
of disability can be granted for pain when no objective reason for that pain can be produced.”
Id. However, the supreme court determined that there was evidence that Knight was
disabled—the determination was not based solely on subjective evidence as PERS had
concluded. Id. at 920 (¶31). One of Knight’s doctors indicated she could only do sedentary
work, which the supreme court noted “is a conclusion that she could not return to her
employment under the statute.” Id. Furthermore, no doctor concluded that Knight was not
disabled, and one doctor indicated she was at maximum medical improvement (MMI). Id.
¶14. The Board cites to Laughlin v. Public Employees’ Retirement System, 11 So. 3d 154
(Miss. Ct. App. 2009), for support. However, one of Laughlin’s treating physicians did not
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indicate that she suffered from any permanent partial impairments (PPI); had reached MMI;
or would be subject to any job restrictions. Id. at 156 (¶8). Another treating physician
indicated Laughlin had reached MMI, but did not find that she suffered from any PPI. Id.
And this physician, along with a third physician, noted Laughlin would most likely make a
full recovery. Id. at 157 (¶8). The physician who performed an IME stated that Laughlin
“had no abnormal pain behaviors or pain magnification.” Id. at 155-56 (¶5).
¶15. In this instance, we find the Board’s decision was not supported by substantial
evidence. James produced sufficient evidence of her disability in order to rebut the
presumption. James’s job duties included “standing, walking, sitting, bending, reaching,
stooping, and pushing.” And Pittman indicated that James could not perform her job duties.
Although Dr. Gray noted no restrictions in James’s medical records, Dr. Curlee clearly
indicated James had a poor prognosis for recovery and had numerous restrictions. Dr. Curlee
also assigned her a PPI rating of “twenty-three percent whole person” and “thirty percent
lumbar spine.” Thus, there was objective medical evidence of James’s impairment. This
issue is without merit.
¶16. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES
AND GREENLEE, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.
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