        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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