        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-SA-00037-COA

KRISTI DEARMAN                                                          APPELLANT

v.

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM                                       APPELLEE
OF MISSISSIPPI

DATE OF JUDGMENT:                          12/08/2015
TRIAL JUDGE:                               HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH 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 Dearman was a guidance counselor for Stone County Schools. She had eleven

years of service credit before the nonrenewal of her contract, effective July 30, 2013.

Dearman applied for Public Employees’ Retirement System (PERS) non-duty related

disability benefits. The PERS Disability Appeals Committee (Committee) held a hearing and

recommended denying Dearman’s claim. After review, the PERS Board of Trustees (Board)

agreed with the Committee’s recommendation. Dearman appealed to the Hinds County

Circuit Court, which affirmed the Board.
¶2.    Dearman has appealed to this Court, asserting the following: (1) the Board’s decision

was not supported by substantial evidence; and (2) the Committee failed to obtain necessary

medical records before denying her claim. We find the Board was well within its discretion

in denying Dearman’s claim. Therefore, we affirm the judgment of the circuit court.

                                          FACTS

¶3.    Dearman worked ten years at Stone Middle School in the special-education

department. The last year of her employment, she was reassigned as the guidance counselor

at Stone Elementary School. During school district elections, Dearman stated that she did

not support the incumbent superintendent of education in his reelection campaign and instead

campaigned for another candidate (who later lost).

¶4.    Dearman last worked in February 2013 when the administration sent her home after

she violated the Family Educational Rights and Privacy Act, which protects the privacy of

student education records. Dearman said this stemmed from her helping a new special-

education instructor (the same person she supported in the election for superintendent) with

paperwork. She was paid through the end of the school year, but her employment contract

was not renewed for the following school year. Her application for PERS disability benefits

was filed June 24, 2013, shortly before her contract ended on July 30, 2013.

¶5.    Dearman appeared before the Committee pro se. She stated that she did not terminate

her job voluntarily, and thought the nonrenewal of her contract was political retaliation. She

also never requested a medical leave of absence. Instead, she drew unemployment from


                                              2
August 2013 through February 2014, and did not look for employment because she could not

figure out how to explain why she had lost her teaching contract. She also applied for Social

Security disability but was denied.

¶6.    At the time of her termination, Dearman’s job as guidance counselor involved

working with the elementary parents, students, and teachers. Usually the students saw

Dearman in her office, but she was in the classroom thirty percent of the time. Dearman said

her job entailed a lot of computer work and sitting, which became difficult. She also said her

job involved a lot of filing, which aggravated her joints.

¶7.    Sometime prior to her transfer to the elementary school, Dearman developed bilateral

rotator cuff tears. She had her left shoulder repaired, and she returned to work in November

2012, right around the time of the campaign. She also had a prior left carpal tunnel release

and bilateral tennis elbow release. As the only guidance counselor at the elementary school,

Dearman said the paperwork required by her job was enormous. She stated at the hearing

that the paperwork contributed to an increase in her right carpal tunnel hand pain. And while

she had the problem surgically repaired, she claimed to have permanent damage to the right

wrist because she waited too long. In late 2012 and early 2013, Dearman was able to work

with pain medications. She has been on narcotic medication since November 2012.

¶8.    After continued shoulder pain, Dearman’s orthopedic doctor referred her to a

rheumatologist, who diagnosed her with rheumatoid arthritis. She also had a number of

steroid injections in her elbows. Dearman stated that, due to her injuries, she had trouble


                                              3
sitting and could not drive because the pain medication made her drowsy.

¶9.    At time of the hearing, Dearman testified that she was seeing a psychologist, who

diagnosed her with post-traumatic stress disorder (PTSD) from losing her job. Dearman’s

sister accompanied her to the hearing and testified that she personally took Dearman to see

a psychologist and a psychiatrist the week before the hearing. According to her, both doctors

diagnosed Dearman with severe PTSD.

                                STANDARD OF REVIEW

¶10.   The standard of review on appeal from an administrative decision of the Board is

limited to a determination of whether the Board’s decision: (1) was supported by substantial

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

or (4) violated a statutory or constitutional right of the claimant. Pub. Emps’ Ret. Sys. v.

Walker, 126 So. 3d 892, 894-95 (¶5) (Miss. 2013). An appellate court is not entitled to

substitute its own judgment for that of PERS or reweigh the facts of the case. Id. at 895 (¶5).

“A rebuttable presumption exists in favor of PERS’s decision, and [Dearman] is left with the

burden of proving the contrary.” Brinston v. Pub Emps’ Ret. Sys., 706 So. 2d 258, 259 (¶5)

(Miss. Ct. App. 1998) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw Cty. Bd. of

Sup’rs, 621 So. 2d 1211, 1215 (Miss. 1993).

                                       DISCUSSION

¶11.   Mississippi Code Annotated section 25-11-113(1)(a) (Rev. 2010) lays out specific

requirements to prove a PERS disability:


                                              4
       [A]ny active member in . . . state service who has at least four (4) years of
       membership service credit may be retired by the [b]oard of [t]rustees . . .
       provided the [m]edical [b]oard, after an evaluation of medical evidence . . .
       certifies that the member is mentally or physically incapacitated for the further
       performance of duty, that the incapacity is likely to be permanent, and that the
       member should be retired.

Disability is defined in the same code section as the following:

       [T]he 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 he
       duties of any employment covered by the Public Employees’ Retirement
       System ([s]ection 25-11-101 et seq.) that is actually offered and is within the
       same general territorial work area, without material reduction in compensation.

Id.

       1.     The Board’s Denial of Dearman’s Claim

¶12.   To establish her claim, Dearman was required to produce medical evidence that, as

of the date her contract ended, she was likely to be permanently occupationally disabled due

to her medical conditions. Miss. Code Ann. § 25-11-113(1)(b) (Rev. 2010).

¶13.   Dr. R. Lance Johansen, an orthopedist, saw Dearman on June 17, 2013, following

arthroscopic surgery of the left shoulder. Dearman complained of right shoulder pain,

tingling, and weakness with a cortisone injection in both shoulders two weeks prior. An MRI

of her right shoulder showed a full-thickness rotator cuff tear. After a physical exam, Dr.

Johansen diagnosed Dearman with right shoulder bursitis, impingement, rotator cuff tear, and

right carpal tunnel syndrome. He recommended an arthroscopy of the right shoulder

followed by a right carpal tunnel release. Dearman immediately had the right rotator cuff


                                               5
tear repaired, with the Dr. Johansen writing that he accomplished an “excellent

decompression.”

¶14.   Dr. Johansen completed a PERS DSBL 7, a “statement of examining physician” form,

dated July 18, 2013, writing that Dearman had a repaired right rotator cuff tear and

osteophytosis of the right shoulder, with a good prognosis. At that time she had limited range

of motion due to the surgery a month prior, but she was attending physical therapy. He noted

that she did not have any permanent impairment. She was not yet at maximum medical

improvement (MMI), and he did not want her to return to work until she was medically

cleared. On August 1, 2013, Dearman returned to Dr. Johansen’s office complaining of

multiple joint pain. He referred Dearman to rheumatologist Dr. Crisotomo Baliog.

¶15. Dearman submitted a letter from Dr. Baliog dated April 29, 2014, indicating that he

had treated Dearman for rheumatoid arthritis. He stated that they were in the process of

controlling her symptoms with a steroid sparing agent, but that it may take time to find the

best medications for her. Dr. Baliog thought Dearman could return to her usual baseline

level of activity when he figured out a satisfactory medication regimen. No medical records

accompanied Dr. Baliog’s letter.

¶16.   Dr. Shawn Mei of Gulf Coast Interventional Medicine was Dearman’s pain-

management doctor. He also completed a PERS DSBL 7, dated July 26, 2013, but no

medical records were attached. Dr. Mei noted that Dearman had bilateral osteoarthritis,

moderate on the left and severe on the right. She was not at MMI but would likely have


                                              6
improvement from physical therapy.       He marked that she had no permanent partial

impairments, but that she should avoid heavy lifting. Dearman presented a letter signed by

Dr. Mei, dated May 9, 2014, addressed “to whom it may concern.” Dr. Mei stated that

Dearman had received significant pain relief in her shoulder area following surgery, but

recently her lower back pain with radiculitic symptom had gotten worse, and that she had

developed anxiety. He recommended she consult a pain psychologist.

¶17.   Dr. Calvin Washington, Dearman’s pain psychologist, submitted a PERS DSBL 7,

dated September 25, 2013, without office notes or medical records. Dr. Washington wrote

that Dearman had depression and anxiety, both moderate, noting she was referred to

psychiatry for treatment and that while she was not at MMI, she had no impairment,

limitations, or restrictions.

¶18.   In December 2013, PERS had requested Dearman be sent for an independent medical

examination performed by Dr. Angel Mister. Her report was admitted into evidence. In

preparation for the exam, Dr. Mister reviewed Dearman’s file and performed her own

physical examination. She noted Dr. Johansen’s restriction of “no heavy lifting” and

mentioned that Dearman’s job did not require heavy lifting. Based on Dearman’s history and

her examination, and in conjunction with the review of medical evidence and job

requirements, Dr. Mister opined that Dearman had multiple joint pain, depression, and

anxiety, but they could be managed with appropriate treatment. Dr. Mister wrote that she did

not believe Dearman’s medical problems met the criteria for permanent disability.


                                             7
¶19.   Dearman failed to present any medical evidence showing she likely suffered a

permanent disability, as required by section 25-11-113(1)(a). Thus, we find the Board’s

decision was supported by substantial evidence and was not arbitrary or capricious.

       2.     Dearman’s Unobtained Medical Records

¶20.   “In case of disability appeals, the hearing officer shall have the authority to defer a

decision in order to request a medical evaluation or test or additional existing medical records

not previously furnished by the claimant.” Miss. Code Ann. § 25-11-120(1) (Rev. 2010).

Dearman cites Stevison v. Public Employees’ Retirement System, 966 So. 2d 874 (Miss. Ct.

App. 2007), for her argument that the Committee erred in failing to request additional

medical records before denying her claim.

¶21.   In Stevison, a physician stated the claimant had permanent damage because she had

not timely received the proper diagnosis. Id. at 876 (¶7). Without requesting additional

medical records, the Committee held the claimant had not meet her burden of proof because

she provided no objective medical records in support of her claim. Id. at 878 (¶14). On

appeal, this Court held that because medical testimony had shown the claimant likely

suffered permanent damage, the Committee erred in failing to request additional medical

records. Id. at 881-82 (¶¶24-27).

¶22.   The present case is distinguishable from Stevison. No physician stated that Dearman

was permanently disabled. The Committee pointed out that Dearman “produced almost no

objective medical evidence regarding her physical and or psychological condition,” and what


                                               8
she did produce did not support a finding of permanent disability. The Committee also

pointed out that neither Dr. Baliog nor Dr. Mei’s letters concluded that she was permanently

disabled. We find no error in the Committee’s decision not to request any additional medical

records.

¶23. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
JAMES AND GREENLEE, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.




                                             9
