E-Filed Document Apr :46: SA Pages: 12 NO.2016-SA IN THE SUPREME COURT OF MISSISSIPPI

Transcription

1 E-Filed Document Apr :46: SA Pages: 12 NO.2016-SA IN THE SUPREME COURT OF MISSISSIPPI KRISTI DEARMAN vs. VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI Appellant Appellee GEORGE S. LUTER 405 Tombigbee Street Post Office Box 3656 Jackson, Mississippi Telephone: (601) Facsimile: (601) MSB #1502 Attorney for Appellant BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED

2 IN THE SUPREME COURT OF MISSISSIPPI KRISTI DEARMAN VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLANT NO SA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges or justices of the Supreme Court or Court of Appeals may evaluate possible recusal. 1. Kristi Dearman, Appellant; 2. George S. Luter, Attorney for Appellant; 3. Pat Robertson, Executive Director, Public Employees' Retirement System of Mississippi; 4. Honorable Jim Hood, Attorney General of Mississippi; 5. Jane Mapp, Special Assistant Attorney General assigned to the Public Employees' Retirement System of Mississippi; and, 6. Sheila Jones, Presiding Hearing Officer of the Disability Appeals Committee of the Public Employees' Retirement System of Mississippi, and 7. Honorable William Gowan, Hinds County Circuit Court. Respectfully submitted, GEORGE S. LUTER lsi George S. Luter A TIORNEY FOR APPELLANT

3 T ABLE OF CONTENTS PAGE(S) CERTIFICATE OF INTERESTED PERSONS....i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES....iii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT... 3 APPELLANT'S ARGUMENTS CONCLUSION... 7 CERTIFICATE OF SERVICE

4 T ABLE OF AUTHORITIES CASES Davis v. PERS, 750 So. 2d 1225, 1229 (Miss. 1999) Fulce v. PER8, 759 So. 2d 401 (Miss. 2000) PERS v. Marquez, 774 So. 2d 421 (Miss. 2001) Stevison v. PER8, 966 So. 2d 874 (Miss. App. 2007) PAGE OTHER AUTHORITIES Miss. Code Ann (l)(a) Miss. Code Ann ,4, 7 III

5 BRIEF OF APPELLANT STATEMENT OF THE ISSUES 1. Did PERS err in denying Dearman's application for regular disability when her treating physicians have not released her for work and the PERS independent medical examiner did not have all of her records? 2. Did PERS violate Dearman's due process rights and err in denying Dearman's application for regular disability when the record does not contain all of her medical records and PERS based its decision on such when PERS has the statutory authority to obtain such records? STATEMENT OF THE CASE The appellant Kristi Dearman files this Brief to urge this Court to reverse the order of the Circuit Court which on December 8,2105 (R 63) affirmed the order of the Board of Trustees of the Public Employees' Retirement System of Mississippi (hereafter "PERS") entered October 28,2013 denying her disability retirement. (Rll, RE 3) The PERS Disability Appeals Committee almost totally based it recommendation to the Board on the lack of medical records in the record stating: "Ms. Dearman has produced almost no objective medical evidence regarding her physical and or psychological condition. The only office notes submitted are from Dr. Johansen, which pertain to Ms. Dearman's successful rotator cuff surgery. The only other material submitted from her health care providers are letters or statements without any supporting documentation or medical records, a number of which post-date her termination." (R 19, RE II). STATEMENT OF THE FACTS Kristi Dearman applied for non duty related disability pursuant to Miss. Code Ann (1)(a) on July 22,2013. Knight was a guidance counselor for the Stone County Schools. (R 86-88). 1

6 Dearman stated on PERS form 4-Medical Information Form that her disability was "PTSD, severe depression, chronic pain-both elbows, both shoulders, both wristslhands." (R89) Dearman reported on June 17,2013 on PERS form 5-Physician and Treating Facility History that she was being treated by Drs. Calvin Washington, Lance Johanson, Shawn Mei, and Kevin Passer. (R 91) PERS referred Dearman to family practitioner Dr. Angel Mister in Purvis, MS for an independent medical exam on December 2,2013. (R.93) Although it is uncertain what medical records of Dearman were provided to Dr. Mister, she reported that Dearman "has multiple joint pain, depression, and anxiety all of which can be managed with appropriate medications/treatment" and was not "permanently disabled." (R 96) Dr. Mister reported she evaluated Dearman for 25 minutes. (R 93) Dearman appeared at her hearing before the PERS Disability Appeals Committee on June 2,2014 without legal representation. (R 22) Member of the Committee were UMC internist Dr. David Nicholas, UMC endocrinologist Dr. William Nicholas, and Hearing Officer Sheila Jones. (R23). Upon questioning by Dr. Duddleston, Dearman testified she was a Stone County schools counselor and had rotator cuff surgery in October 2012 and was out five or six weeks and came back to school on November In June 2013 she had right carpal tunnel release and a partial tear on her right shoulder. (R 64) She stated she had increased paperwork to handle and she had left numbness in her hands and still had shoulder pain. (R 64) She added she had been diagnosed with rheumatoid arthritis and was taking Methotrexate. She also testified her spinal physician Dr., Eric Graham in Gulfport did an MRI which showed a herniated disc and he did some injections and said that she would probably need pain meds the rest of her life. (R 65) 2

7 She stated she had been seeing pain specialist Dr. Mei since November 2012 and his plan was to do a steroid injection in her back. (R 66) Upon questioning by Dr. Nicholas, Dearman testified that Dr. Baliog found she had a positive rheumatoid factor and that her hands were painful and swollen. (R 67) Upon cross examination by PERS attorney Jane Mapp, Dearman stated that she "was not very informed going into this" apparently meaning the issues at her hearing, but she had applied for Social Security disability. (R 68) Dearman further testified her contract was not renewed due to an alleged violation of student privacy laws and she was seeing a psychologist who referred her to a Dr. Flanders for PTSD. (R 70) Dearman's sister Monica Rhodes testified she had to drive Dearman everywhere and that PERS independent medical examiner Dr. Angel Mister only saw Dearman for five minutes. She said she personally took Dearman to a psychologist and psychiatrist the week before the hearing and they diagnosed her with severe PTSD. (R 70) At the close of the hearing, Hearing Officer Sheila Jones told Dearman "if we need something else from you, such as another doctor's record or to see anther doctor, then PERS will send you a letter in the next week telling you what is is we want." (R 70) Apparently PERS did not want any additional records and rendered their decision the same day, June 2, (R 20) The PERS Board of Trustees adopted such decision on October 28,2014. (R 11) Dearman timely appealed to Circuit Court on November 19,2014. (R 8) SUMMARY OF THE ARGUMENT PERS' decision was arbitrary and capricious because her treating physicians had not released her to return to work and were still treating her and the PERS independent medical examiner did not have all of her records. Further, PERS violated Dearman's due process rights to fair hearing when they closed the record without obtaining all of her medical records. 3

8 ARGUMENT 1. PERS erred in denying Dearman's application for regular disability when her treating physicians had not released her for work and the PERS independent medical examiner did not have all of her records and the Circuit Court erred in its affirmance. The legal requirement of proving PERS disability is stated at Miss. Code Ann (1 )(a) which states: "... any active member in state service who has at least four (4) years of membership service credit may be retired by the Board of Trustees... provided the Medical Board, after medical examination shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member shall be retired." Disability is defined in the same code section as the following: "... 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 the Public Employees' Retirement System (Section et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation." The law is clear in Mississippi that the decision of an administrative agency must be undisturbed unless it is (1) not supported by substantial evidence, (2) is arbitrary and capricious, (3) is beyond the scope or power granted to the agency, (4) violates one's constitutional rights. Public Employees' Retirement System v. Marquez. 774 So. 2d 421 (Miss. 2001); Fulce v. Public Employees' Retirement System, 759 So. 2d 401, 404 (Miss. 2000); Davis v. Public Employees' Retirement System, 750 So. 2d 1225, 1229 (Miss. 1999). Dearman testified she was a Stone County schools counselor and had rotator cuff surgery in October 2012 and was out five or six weeks and came back to school on November In June 2013 she had right carpal tunnel release and a partial tear on her right shoulder. (R 64) 4

9 She stated she had increased paperwork to handle and she had left numbness in her hands and still had shoulder pain. (R 64) She added she had been diagnosed with rheumatoid arthritis and was taking Methotrexate. She also testified her spinal physician Dr., Eric Graham in Gulfport did an MRI which showed a herniated disc and he did some injections and that she would probably need pain meds the rest of her life. (R 65) She stated she had been seeing pain specialist Dr. Mei since November 2012 and his plan was to do a steroid injection in her back. (R 66) Dearman would argue that substantial evidence does not exist in the record to support PERS' denial of her application for disability retirement. The Mississippi Supreme Court in Freeman v. PERS, 822 So. 2d 274 (Miss. 2002) has indicated that PERS Forms should be considered evidence. Dr. Shawn Mei completed such form and stated Dearman had bilateral osteoarthritis moderate on the left and severe on the right and was not at maximum medical improvement. (R 107) In a letter of May 9, 2014, Dr. Mei stated Dearman recently had lower back pain with radiculitic symptoms that had gotten worse and she had developed anxiety and he recommended she consult a pain psychologist. (R ) Other reports of physicians also stated their belief Dearman was not well and needed further treatment. In a letter of April 29, 2014, Dr. Cristotomo Balig, a Mobile internist, wrote that Dearman "had commenced treatment for a diagnosis of Rheumatoid Arthritis characterized by pain, swelling, and stiffness especially of the small joints of the hands and feet." He added "it may take some time to find the right combination of steroid sparing agent until she can go back to her usual activities of daily living and baseline level of activity." (R 120) Hattiesburg clinic physician Calvin Washington indicated on PERS Form 7 that Dearman had anxiety and depression and had been referred to a psychiatrist or psychologist. (R 98) Dr. Lance Johansen of the Mississippi Orthopaedic Institute stated on PERS Form 7 that Dearman had a limited range of motion due to shoulder surgery, was currently doing physical therapy, had 5

10 not reached maximum medical improvement, and "cannot return to work until medically cleared." (R 100) On May 26, 2014, clinical psychologist Dr. Simone Simone referred Dearman to psychiatrist Dr. Jim Flanders for post traumatic stress disorder. (R 122) As noted, Dearman applied for disability retirement on July 22, (R 86-88). It is obvious that almost a year later at the time of her hearing on June 2, 2014 that Dearman was still under the care of numerous physicians and was unable to work. The opinion of PERS' medical examiner Dr. Angel Mister can hardly be substantial evidence to uphold PERS when Dr. Mister admitted Dearman had "multiple joint pain, depression, and anxiety all of which can be managed with appropriate medications/treatment" and merely stated Dearman was not "permanently disabled." (R 96) Significantly, Dr. Mister's opinion is without basis since she did not have all of Dearman' s medical records or those reports of Drs. Mei, Balig, or Simone. The decision of PERS is not supported by substantial evidence, is arbitrary and capricious and the Circuit Court should reverse their decision and order disability benefits to be paid to Dearman. 2. PERS violated Dearman's due process rights and erred in denying Dearman's application for regular disability when the record does not contain all of her medical records and PERS based its decision on such when PERS has the statutory authority to obtain such records and the Circuit Court erred in its affirmance. The decision by the PERS Disability Appeals Committee specifically finds that Dearman, a layman who did not have a lawyer represent her before or at her hearing 1 : "has produced almost no objective medical evidence regarding her physical and or psychological conditions. The only office notes submitted are from Dr. Johansen, which pertain to Ms. Dearman's successful rotator cuff surgery." (R 19) I In fact at her hearing, Deannan stated she apparently didn't know what was required to prove disability: "I was not very well infonned going in to this." (R. 68) 6

11 Pursuant to Miss. Code Ann the PERS Disability Appeals Committee has the "authority to defer a decision in order to request a medical evaluation or test or additional medical records not previously furnished by the claimant." Miss. Code Ann For PERS to conclude that a Dearman has not provided medical records and is thus not disabled is arbitrary and capricious. Such a conclusion has been has been expressly condemned in Stevison v. Pub. Emp. Ret. Sys., 966 So. 2d 874 (Miss. App. 2007) where the Court of Appeals stated: "PERS had the ability to populate the record with the information needed to render its decision, yet it chose to forego this option. PERS instead decided to assume the missing information contained opinions of no disability. Thus, it manufactured evidence adverse to Stevison. This was impermissible in light ofpers's ability to obtain the records and the requirement that PERS base its decision on record evidence. We hold that, when PERS foregoes its option to order additional medical records, it cannot assume the missing records contained opinions of no disability. " F or the Committee to imply that Dearman did not supply all medical records is further evidence of the arbitrary and capricious decision they rendered and the Supreme Court should either reverse and render their decision or remand her case for a new hearing. CONCLUSION Dearman would state that the foregoing arguments should make it clear that the decision by the Disability Appeals Committee is legally incorrect, unsupported by substantial evidence and is arbitrary and capricious. The Supreme Court should reverse the Circuit Court's affirmance ofpers's order and award benefits or alternatively, remand it for a new hearing. Respectfully submitted, KRISTI DEARMAN, Appellant BY:/s/ George S. Luter GEORGE S. LUTER, Her Attorney 7

12 CERTIFICATE OF SERVICE I, George S. Luter, attorney for Appellant, hereby certify that I have electronically served a copy of the foregoing Brief of Appellant to the following: Hon. William Gowan Hinds County Circuit Court Hinds County Courthouse Jackson, MS Jane Mapp, Esq. Public Emp. Retirement System 429 Mississippi Street Jackson, MS SO CERTIFIED this the 26th day of April, /s/ George S. Luter GEORGE S. LUTER, Attorney for Appellant GEORGE S. LUTER Attorney for Appellant 405 Tombigbee Street Post Office Box 3656 Jackson, Mississippi Telephone: (601) Facsimile: (601) georgeluter@gmail.com MSB#1502 8