                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-CC-01184-SCT
JERRY FULCE
v.
PUBLIC EMPLOYEES RETIREMENT SYSTEM OF MISSISSIPPI

DATE OF JUDGMENT:                                06/14/1999
TRIAL JUDGE:                                     HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                       HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          MICHAEL H. STEELE
ATTORNEY FOR APPELLEE:                           MARY MARGARET BOWERS
NATURE OF THE CASE:                              CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                     REVERSED AND REMANDED - 04/20/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  5/11/2000



     BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.

     PRATHER, CHIEF JUSTICE, FOR THE COURT:


                                            INTRODUCTION

¶1. The issue before the Court is whether the decision of the Mississippi Public Employees Retirement
System (PERS) to terminate the disability benefits of Mrs. Jerry Fulce was supported by substantial
evidence, notwithstanding that she had previously been receiving said benefits for several years, and that she
continues to receive Social Security disability benefits. Mrs. Fulce also contends that a conflict of interest
exists within the PERS Disability Appeals Committee and that she was not sufficiently notified of her right to
the assistance of counsel while before the Committee.

                             STATEMENT OF THE FACTS AND CASE

¶2. In January, 1985, Mrs. Fulce began working with the State Department of Audit as a Property Officer
I. Her duties required her to visit public schools within her assigned area in order to check attendance
figures. In September, 1987, Mrs. Fulce suffered a fractured vertebrae in an automobile accident. She was
required to wear a cervical collar for approximately three (3) months, and as of August, 1988, she had
completely recovered and suffered no lasting adverse effects. In 1993, Mrs. Fulce underwent a
hysterectomy, during which a cervical carcinoma was discovered. She received two (2) radiation implants
as treatment of this condition. Effective June 30 , 1993, Mrs. Fulce resigned from her position as Property
Officer I. At that point, she had accumulated 8 ½ years of service credit with PERS. By Order dated
October 7, 1994, the Social Security Administration (SSA) found Mrs. Fulce to be disabled and awarded
her disability benefits. The Administrative Law Judge ruled that Mrs. Fulce had severe impairments because
of "neck and back pains secondary to a motor vehicle accident, a history of cancer of the cervix, and major
recurrent depression." Follow up medical exams throughout 1994 revealed that Mrs. Fulce was doing well
post-operatively in reference to her cancer, except for bouts with diarrhea which resulted from her colon
being burned by the radiation implants. She had no recurrence of her cervical cancer. Mrs. Fulce was
approved for PERS disability benefits effective December 1, 1994. At the time of her approval to receive
PERS benefits, it was the policy of PERS that any member who had been approved for SSA benefits
would also be approved for PERS benefits. That policy has since been discontinued. In January, 1997,
Mrs. Fulce was diagnosed as having sleep apnea, a sleeping disorder. For treatment of this condition, she
periodically uses a CPAP machine which helps her sleep better. When she uses it, she has done well on the
CPAP. Also, in October, 1997, Mrs. Fulce was diagnosed as having non-insulin dependent diabetes.

¶3. In addition to the conditions listed above, Mrs. Fulce asserts that she also suffers from or has suffered
from the following ailments: neck, leg, hip, and back pain; limited range of motion of the neck; cramping in
the legs and feet; tingling and numbness in the feet; stress fractures of both feet; nerve damage in the toes;
swollen feet, sometimes requiring elevation; degenerative disc disease in the back; a weight problem;
aggravation of her problem with diarrhea; depression; and daily loss of memory.

¶4. Under Miss. Code Ann. § 25-11-113 (3) (1999), individuals receiving a disability retirement allowance
may be required to undergo subsequent periodic medical exams in order to determine if said individual is
still disabled. Mrs. Fulce was required to do this, and PERS received her Statement of Reexamination by
Physician on November 5, 1997. The PERS medical board reviewed her medical documentation on
January 22, 1998, and again on March 19, 1998. Upon reviewing Mrs. Fulce's medical records, the PERS
Medical Board, pursuant to Miss. Code Ann. § 25-11-113(6), voted to terminate her disability benefits,
stating that the record did not support the claim of an inability to perform the job as a Property Officer I
with the State Department of Audit. On April 28, 1998, the PERS Board of Trustees voted unanimously to
adopt the findings of the Medical Board, and ordered the termination of Mrs. Fulce's benefits effective
August 1, 1998. Mrs. Fulce appealed, and PERS received her Notice of Appeal on June 9, 1998. Mrs.
Fulce's appeal was heard by the PERS Disability Appeals Committee on August 10, 1998. Upon
completion of the proceedings, the Appeals Committee recommended the termination of Mrs. Fulce's
benefits. By Order dated August 25, 1998, the Board of Trustees adopted the recommendation of the
Appeals Committee. Aggrieved, Mrs. Fulce appealed to the Circuit Court, First Judicial District of Hinds
County. By Order dated June 14, 1999, the Honorable W. Swan Yerger, Circuit Judge, affirmed the
decision of the Board of Trustees. Aggrieved by the decision of the circuit court, Mrs. Fulce now appeals
to this Court, raising the following issue:

                                                    ISSUE

      Whether the Public Employees Retirement System of Mississippi (PERS) ignored the
      substantial evidence in the record in terminating the disability benefits of Mrs. Fulce and
      whether procedural safeguards were improperly ignored by the PERS Committee in making
      its finding that she was no longer disabled.

¶5. Mrs. Fulce assigns as error (1) whether the standards of law in this case were correctly followed,
particularly whether the decision of PERS was supported by substantial evidence in the record; (2) whether
there existed conflicts of interest within the Disability Appeals Committee; and (3) whether she was fully
informed of her right to be represented by counsel at her hearing before the Disability Appeals Committee.
Therefore, this Court addresses these three questions.

                                           LEGAL ANALYSIS

               Were the applicable standards of law followed in this case, particularly

                    was the decision of PERS supported by substantial evidence?

¶6. "This Court's standard of review of an administrative agency's findings and decisions is well established.
An agency's conclusions must remain undisturbed unless the agency's order 1) is not supported by
substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency,
or 4) violates one's constitutional rights." Sprouse v. Mississippi Employment Sec. Comm'n, 639 So.2d
901, 902 (Miss. 1994); Mississippi Comm'n on Envtl. Quality v. Chickasaw County Bd. of
Supervisors, 621 So.2d 1211, 1215 (Miss. 1993); Mississippi Employment Sec. Comm'n v. PDN,
Inc., 586 So.2d 838, 840 (Miss. 1991). This Court may neither substitute its own judgment for that of the
agency which rendered the decision, nor reweigh the facts of the case. Mississippi Pub. Serv. Comm'n v.
Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss. 1992). "There is a rebuttable presumption in
favor of the action of an administrative agency and the burden of proof is on the one challenging its action."
Ricks v. Mississippi State Dep't of Health, 719 So.2d 173, 177 (Miss. 1998) (quoting County Bd. of
Educ. of Alcorn County v. Parents & Custodians of Students at Rienzi Sch. Attendance Ctr., 251
Miss. 195, 205, 168 So.2d 814, 818 (1964)). "[This Court] give[s] due deference to the factual findings of
the administrative agency and to the [judge], who adopted the same findings." State Farm Ins. Co. v.
Gay, 526 So.2d 534, 535 (Miss. 1988).

¶7. As noted above, Mrs. Fulce asserts that she suffers from a number of ailments. It is her contention that
these ailments are so severe as to render her permanently disabled, and thus, eligible for disability benefits
from PERS. The SSA found her to be disabled based on (1) injuries suffered in a September, 1987,
automobile accident, (2) cervical cancer discovered in 1993, and (3) depression, as diagnosed in 1994.
Regarding injuries sustained in the automobile accident, she suffered no neurological problems secondary to
the injury, and follow up visits with her treating physician through 1988 revealed that she was doing well and
not having any neck pain. Regarding her cervical cancer, follow-up exams through 1994 revealed that she
was doing well post-operatively. Mrs. Fulce admits her cancer is in remission. Regarding her depression,
she stated that she takes medication on a daily basis for this condition. However, the only time she has ever
been examined by a psychologist or psychiatrist was in 1994 (when she was diagnosed as suffering from
depression).

¶8. Furthermore, Mrs. Fulce asserts that she significantly suffers from diarrhea, sleep apnea, and diabetes.
Mrs. Fulce states that the radiation treatment she received because of her cancer burned her colon, causing
her diarrhea problems. Although she says this problem is serious, she admitted to the Appeals Committee
that she takes over-the-counter Immodium, and that is the only medicine she has ever tried for her diarrhea.
Additionally, she admits that other than undergoing a colonoscopy to initially address her problem, she has
never followed up with a gastrointestinal doctor regarding her diarrhea. Because of her sleeping disorder,
she has a CPAP machine, which effectively helps her sleep. When she uses the CPAP, she does very well.
However, she told the Appeals Committee that she only uses it anywhere from one to three times a week,
and on the nights that she does not use it, she feels sleepy the next day. Mrs. Fulce informed the Appeals
Committee that she was diagnosed as a non-insulin dependent diabetic. She takes Glucontrol two times a
day to control this condition.
¶9. In addition to these conditions, Mrs. Fulce also claims to suffer from various bodily pains and
abnormalities. Notwithstanding these asserted ailments, she admitted to the Appeals Committee that the
only physician she would ever go to, regardless of the problem, was a gynecologist. She further stated that
in the year prior to her appeal, she had only been to this doctor twice, once for her annual cancer exam, and
the other time was when she was diagnosed with diabetes.

¶10. Undoubtedly, Mrs. Fulce has suffered from a wide range of medical ailments in the past. However, the
lack of recent medical documentation in the record makes it impossible for this Court to determine whether
she is presently disabled, and therefore, ineligible for PERS disability benefits. She had not been under the
continuous care of a physician for some time prior to 1998. In her 1996 and 1997 Statements of
Reexamination by Physician, the reporting physician was of the opinion that Mrs. Fulce was still totally
and permanently disabled. However, these reports are extremely brief and provide very little information
regarding adverse medical conditions. Similarly, the PERS orders terminating Mrs. Fulce's benefits offer
little which would assist this Court in its present review. The fact that Mrs. Fulce continues to receive SSA
benefits is not helpful on this issue. At the time Mrs. Fulce was approved for PERS disability benefits, it was
the policy of PERS to accept a SSA determination of disability in lieu of a similar determination by its own
Medical Board, when considering an initial award of benefits. Miss. Code Ann. § 25-11-113(6) deals with
re-examination of recipients, and provides that if the Medical Board finds, after re-examination of a
disability benefits recipient, that the individual is able to return to work, the Board of Trustees, upon
certification of the Medical Board's findings, may terminate the individual's disability benefits. Based on the
lack of sufficient medical information in the record presently before this Court, we are unable to determine
whether the decision of PERS was supported by substantial evidence. Accordingly, we remand this matter
back to PERS, so that it may reconsider Mrs. Fulce's present condition once she has been throughly re-
examined by the appropriate medical personnel.

             Was there a conflict of interest within the Disability Appeals Committee?

¶11. "[T]here is a presumption that the officers conducting the hearing and the members of the Board
behave honestly and fairly in the conduct of the hearings and in the decision-making process. Absent some
showing of personal or financial interest on the part of the hearing officer or evidence of misconduct on the
officer's part, this presumption is not overcome. The hearing officer might well be an employee of the
permitting board or a member of the board itself." United Cement Co. v. Safe Air for the Env't, Inc.,
558 So.2d 840, 842-43 (Miss. 1990).

¶12. The Disability Appeals Committee which heard Mrs. Fulce's appeal on August 10, 1998, was
comprised of Special Assistant Attorney General Trish Abston and three physicians: Dr. Trespacz, Dr.
Duddleston, and Dr. Nicholas. During the course of the hearing, each of the physicians questioned Mrs.
Fulce about her health and prior medical treatment. On appeal, Mrs. Fulce argues that these physicians
assumed an adversarial role when they questioned her, and alleges that, in light of this supposed adversarial
position, a conflict of interest arose once the doctors voted on her appeal. She further asserts that it was
unnecessary for the physicians sitting on the Committee to question her at the hearing because PERS was
represented by counsel, said counsel being able to elicit all necessary information. She finishes her argument
by claiming to be prejudiced by this alleged conflict of interest. No authority has been cited by Mrs. Fulce
or found by this Court which supports her argument.

¶13. Mrs. Fulce also argues that some of the doctors who sat on the Disability Appeals Committee and
reviewed the Medical Board's decision to terminate her benefits also sat on the Medical Board itself. In
essence, she argues that these doctors were reviewing their own decision, which gave rise to a conflict of
interest. The record does not indicate who sat on the Medical Board that initially voted to terminate Mrs.
Fulce's disability benefits, and Mrs. Fulce fails to provide any proof as to the identities of the board
members. Therefore, this argument also fails, and we hold that no conflict of interest existed within the
Disability Appeals Committee.

              Was Mrs. Fulce fully informed of her right to be represented by counsel

                      at her hearing before the Disability Appeals Committee?

¶14. Mrs. Fulce claims that she was never clearly instructed that she had a right to have an attorney present
during the hearing before the Appeals Committee. PERS Regulation 42 states that, among other things,
individuals appealing a decision of PERS may have counsel present at any appeals hearing. The record
contains three letters from PERS addressed to Mrs. Fulce, those letters are dated May 11, 1998, June 18,
1998, and July 17, 1998. Each of these letters state that a copy of PERS Regulation 42 is enclosed. The
record also contains a Notice of Appeal, executed by Mrs. Fulce, dated June 8, 1998, which was sent to
PERS. This form is completely filled out, with the exception of paragraph two, which provides space for the
"[n]ame, mailing address and telephone number of Appealing Party's attorney, if any." At the very least,
Mrs. Fulce should have been made aware of her right to representation before the Appeals Committee
based on paragraph two of the Notice of Appeal she executed. Since she filled out every other paragraph
of the Notice of Appeal, she had to have read paragraph two. Even if she did not fully understand her right
to counsel after reading the Notice of Appeal, she should have inquired further about that right. It also
seems more likely than not that she received at least one of the three PERS Regulation 42 notices along
with the three aforementioned letters. Accordingly, we hold that Mrs. Fulce had been sufficiently informed
of her right of representation at the hearing before the Appeals Committee.

                                             CONCLUSION

¶15. This matter is reversed and remanded back to the Mississippi Public Employees Retirement System so
that it may further review Mrs. Fulce's medical condition once she has been re-examined by the necessary
medical personnel. The other assignments of error contained herein are not well-taken.

¶16. REVERSED AND REMANDED.

     BANKS, P.J., SMITH, MILLS, WALLER, COBB AND DIAZ, JJ., CONCUR. McRAE, J.,
     CONCURS IN RESULT ONLY. PITTMAN, P.J., NOT PARTICIPATING.
