IN THE SUPREME COURT OF MISSISSIPPI MOTION FOR REHEARING

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1 E-Filed Document Apr :43: SA SCT Pages: 10 NO.2014-SA IN THE SUPREME COURT OF MISSISSIPPI MARCIA F. HOWARD vs. VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI Appellant Appel/ee Appellee MOTION FOR REHEARING GEORGE S. LUTER 405 Tombigbee Street Post Office Box 3656 Jackson, Mississippi Telephone: (601)( Facsimile: (601) MSB #1502 Attorney for Appellant

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO SA-OI350 MARCIA F. HOWARD APPELLANT VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE MOTION FOR REHEARING COMES NOW, Appellant Marcia F. Howard, and would move the Supreme Court to reconsider its per curiam affirmance of the Circuit Court rendered April 10, Howard concedes the Court's decision as to In the Line of Duty disability since such requires a "direct injury" and only argues herein that the Court erred in affirming the Circuit Court affirmance ofpers' denial of Howard's application for Non Duty disability found in Miss. Code Ann (1)(a) Procedural History Howard was a Hancock County school teacher. She was assaulted by a student on September 9, 1996 and suffered physical and psychiatric injuries. She never returned to work and resigned her teaching job on July 31, She was found disabled by the Social Security Administration beginning January 28, (R 460) She applied for PERS disability on July 28, Upon appeal to the Mississippi Supreme Court, her case was remanded for a new hearing on June 23,2005. (R 39) PERS then had Howard examined by a physiatrist, psychiatrist, and a psychologist. Howard had a hearing before the PERS Disability Appeals Committee on June 12, They considered her case under two possible statutes:

3 Non duty disability found in Miss. Code Ann (l)(a) and In the line of duty disability found in Miss. Code Ann (6). PERS denied Howard both non duty and in the line of duty disability on August 25, (R 13) The Hinds County Circuit Court affinned PERS on September 2,2014. The Supreme Court entered its Per Curiam Affirmance on April 10, The Supreme Court erred in affirming the Circuit Court because the Circuit Court confused the requirements for in the line of duty disability and non duty disability as both requiring "an accident or traumatic event." In the Circuit Court's opinion the Court wrote" "Before the Court for a second time, the Board of Trustees again found that Appellant "failed to establish through objective and credible evidence that she suffered an accident or traumatic event that directly caused a pennanent and likely total occupational disability that would entitle her to either non-duty or duty related disability benefits." The Circuit Court misunderstood and misapplied the law. The Circuit Court apparently believed that non-duty disability requires "an accident or traumatic event." The Supreme Court erred in its affinnance. Non duty disability pursuant to Miss. Code Ann (1)(a) only requires you become disabled from any cause and have four years of service. Howard had four years of service and was disabled as the Social Security Administration found. Requirements of non duty PERS disability are stated at Miss. Code Ann : "... any active member in state service who has at leastfour (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 pennanent, and that the member shall be retired; however, the board of trustees may accept a disability medical determination from the Social Security Administration in lieu of a certification from the medical board " 2

4 2. The Supreme Court erred in affirming the Circuit Court because the Circuit Court as well as PERS did not correctly review the evidence. Howard would agree that the decision of an administrative agency must be undisturbed unless it (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope of power granted to the agency, or (4) violates one's constitutional rights. Public Employees' Retirement System v. Marquez, 774 So. 2d 421 (Miss. 2001) However, Howard would contend the Court erred in its Per Curiam Affirmance of the Circuit Court's affirmance of PERS denial of disability benefits. The Circuit Court incorrectly found: "This Court notes that the applicant for disability "has the burden of proving to the Medical Board and to the Appeals Committee that he or she is in fact disabled." Public Employees' Ret. Sys. v. Dishmon, 797 So. 2d 888, (Miss. 2001). Before this Court for a second time, the Board of Trustees again found that Appellant "failed to establish through objective and credible evidence, that she suffered an accident or traumatic event that directly caused a permanent and likely total occupational disability that would entitle her to either non-duty or duty related disability benefits." "As support, Appellee notes in its findings of fact several inconsistencies in testimony made by Appellant, a lack of objective evidence (medical records) to support Appellant's claims, and some evidence that Appellant was feigning some symptoms (the Board of Trustees found Appellant to lack credibility)." No accident or traumatic event is required for non duty disability: Only four years of service and you are mentally or physically incapacitated for the further performance of duty and such incapacity is likely to be permanent. The Circuit Court did not distinguish such. The Supreme Court erred in affirming the factually incorrect finding by the Circuit Court that substantial evidence existed in the record to adopt the finding of PERS because as stated: 1) 'several inconsistencies in testimony [were] made by Appellant'; 3

5 2) 'a lack of objective evidence (medical records) support Appellant's claims'; and 3) 'some evidence that Appellant was feigning some symptoms (the Board of Trustees found Appellant to lack credibility)." First, the PERS decision never said "several inconsistency in testimony were made by Appellant. In fact, Howard did not even testify at her second hearing due to scheduled surgery. PERS merely stated "We have looked for consistencies and inconsistencies. We have read the various notes and letters from some of Ms. Howard's providers. We realize that some of the providers have stated that Ms. Howard is disabled. And obviously, under the Social Security disability statute, Ms. Howard has been awarded benefits. But this Committee is charged with applying the PERS statute to make a decision about the disability in this forum." (R 34-35) Second, the PERS decision said "we have not found persuasive and objective medical evidence that Ms. Howard was permanently and likely totally disabled from performing her job as a teacher." The Circuit Court blindly and erroneously accepted such statement by PERS even though Howard supplied voluminous records and reports and even PERS own medical doctor, Dr. Philip Blount stated "I do not feel that Ms. Howard can, at this time, return to her job as a teacher." (R ) The Supreme Court erred in accepting the Circuit Court's unfounded decision. Third, the Circuit Court erroneously based its decision on 'some evidence that Appellant was feigning some symptoms (the Board of Trustees found Appellant to lack credibility)." Rather, PERS' own mental experts, psychiatrist Dr. John Montgomery and psychologist Dr. Criss Lott never said Howard had "feigned symptoms" but stated "Dr. Lott and I appear to agree that Ms. Howard presents with a combination of malingered and genuine psychological problems." (R ) Dr. Lott found Howard to 'genuinely suffer' depressive disorder, anxiety disorder, 4

6 conversion disorder and chronic pain. (R 160) Dr. Montgomery effectively stated Howard could no longer do her job after September 1996: If the descriptions by previous mental health provider of her mental/status prognosis are reliable, then it is my clinical impression that the claimant would have difficulty tolerating the emotional stresses and demands of her profession after 26 Sep 96. The claimant may also have an underlying mood disorder, most likely cyclothymia or Bipolar II Disorder. Given her personality disorder and possible mood instability, she would have had difficulty relating appropriately to peers and students after 26 Sep 96." (R ) The Circuit Court erroneously based its opinion on 'feigning some symptoms' when such conclusion contains no factual basis in the record but exactly the opposite that Howard had genuine disabling mental conditions and the Supreme Court erred by affirming such conclusions. The Circuit Court, in relying upon PERS v. Marquez, 774 So. 2d 421 (Miss. 2000) did not give the 'blinderless review' which states the circuit court "must look at the full record before it in deciding whether the agency's findings were supported by substantial evidence." (774 So. 2d at 427) Court: Marquez, supra, is actually instructive in Howard's case. As stated by the Supreme "An objective review of Marquez's medical records clearly indicates that some of Marquez's medical conditions were satisfactorily treated. Some were treated by surgery, others were or are being treated by medication. However, the fact remains that there is recent medical evidence in the record suggesting Marquez is incapable of performing her duties as a school teacher." Neither PERS nor the Circuit Court performed an objective review of Howard's medical records. Had they done so, they would have found a dedicated teacher like Marquez who had some past medical conditions such as a back injury and---according to Dr. Montgomery---a personality disorder and a possible mood instability that had been successfully managed since Howard taught for a number of years until her 1996 assault and then became disabled. 5

7 Likewise the Circuit Court's reliance upon Dishmon v. PERS, 797 So. 2d 888 (Miss. 2001) in stating "This Court must decide whether there was evidence in support of the administrative agency's findings" is misplaced considering the same Circuit Court reversed Dishmon and the Supreme Court later affirmed such in the second Dishmon case Dishmon v. PERS, 17 3rd 87 (Miss. 2009) holding that "... this Court is unable to find that PERS' decision denying disability benefits is supported by the evidence." 3. The affirmance of the Circuit Court's erroneous ruling effectively overrules PERS v. Dearman. The Supreme Court has stated in PERS v. Dearman, 846 So. 2d 1014 (Miss. 2003) that PERS failure to offer any evidence medical evidence which disputed the opinions of claimant's treating physicians, especially where it chose not to exercise its right to an independent exam, "lacks evidentiary support" in the record and found PERS' denial was not supported by substantial evidence and was thus arbitrary and capricious. In Howard, PERS hired three medical providers to examine her. None of them contradicted her doctors. The affirmance of the Circuit Court's decision affirming PERS will in effect overrule Dearman and effectively set forth the standard that even when PERS exercises its right to a medical examination and that medical exam does not contradict the claimant's own treating physicians, PERS' decision can still be affirmed Howard's treating physicians all found her to be disabled: 1. Dr. Provenza: "She is functionally disabled. She is not able to work at the present capacity." (R 125) 2. Dr. Houser: "Abnormal EEG due to electrographic seizures..." (R 369) 3. Dr. Terry Passman: "Completely disabled for work purposes..." (R 325) 4. Dr. Marianne Saitz: "It is unlikely she will be able to return to work." (R 92) 5. Dr. Daniel Polansky: "Ms. Howard is a patient under my medical care. She is permanently disabled." (R 91) PERS' physiatrist, psychiatrist, and psychologist found Howard either unable to perform 6

8 her duties or declined to say she was not disabled: 1. UMC physiatrist Dr. Philip Blount: "I do not feel that Ms. Howard can, at this time, return to her job as a teacher." (R ). After an ex parte contact by PERS, Dr. Blount refused to give a further opinion. (R 236) 2. Psychiatrist Dr. John Montgomery: "Given her personality disorder and possible mood instability, she would have difficulty relating appropriately after 26 Sep 96." (R ) After ex parte contacts by PERS Dr. Montgomery changed his opinion only to say at the time of his ten year later evaluation Howard was not then mentally ill, but added "It remains my opinion that Ms. Howard experienced an exacerbation of anxiety and depression of a result of her work injury that may have impact her ability to perform her job duties." (R ) 3. Psychologist Dr. Criss Lott: lilt is my impression that Mrs. Howard began suffering anxiety and depression following her injury in J 996, and it appears that she is (and probably has been) exaggerating her psychological problems- possibly as a IIcry for help" and to convince others of the nature and severity of her problems." (R 161) Dr. Lott further stated, "It remains my opinion that Ms. Howard experienced an exacerbation of anxiety and depression as a result of her work injury that may have impacted her ability to perform her job duties." 4. The affirmance of the Circuit Court's erroneous ruling effectively overrules decisions that give some weight to a finding of disability by the Social Security Administration. On April 24, 1998, Social Security Administration Administrative Law found Howard disabled since January 28, 1997 [within six months of her resignation]. Numerous Supreme Court and Court of Appeals decisions indicate such is evidence in support of Non duty disability. "While PERS is not bound by the determination of the Social Security Administration that a person is disabled, this is further evidence in support of the claim of disability." P ERS v. Allen,834 So. 2d 50, 54 (Miss. App. 2002). See also, Public Employees' Retirement System v. Ross, 829 So. 2d 1238 (Miss. 2002), where the Mississippi Supreme Court 7

9 said such findings by the Social Security Administration "They may be taken into account." Th affirmance by the Supreme Court of the Circuit Court's affirmance of PERS' decision effectivel) reverses such holdings. 5. The affirmance of the Circuit Court's erroneous ruling effectively overrules PER~ v. Marquez. The Mississippi Supreme Court announced in Public Employees' Retirement System v. Marquez, 774 So. 2d 421 (Miss. 2001): "If medical diagnoses by licensed physicians are to be labeled "subjective" evidence of medical ailments, it is unclear what PERS would consider to be objective evidence." Howard put forth medical diagnoses by numerous physicians as to her disability yet PERS in its opinion chose to state"... we have not found persuasive and objective medical evidence that Ms. Howard was permanently and likely totally disabled from performing her job as a teacher." (R 35) Such reasoning ignores the Court's ruling in Marquez. The affirmance by the Supreme Court of the Circuit Court's affirmance ofpers' decision to deny Howard even Non duty disability pursuant to Miss. Code Ann (1)(a) will ensure that the PERS' can ignore opinions of licensed medical professionals whether the treating physician of the claimant or their own hand picked medical examiners and overrule Marquez. CONCLUSION Teachers of the State of Mississippi should not fear the denial of their applications for even non duty disability if they become disabled after being assaulted or if the assault indirectly exacerbates previous physical or mental impairments that then cause disability. Sixty-five (65) PERS decisions have been written since The affirmance of Howard's case will overrule long standing PERS disability law and render instability into decision making of such cases. 8

10 The Supreme Court should grant Howard's Motion for Rehearing, invite further briefs and oral argument on the issue of whether or not Howard met the requirements for Non duty disability pursuant to Miss. Code Ann (l)(a) or either reverse their prior Per Curiam Affirmance and promulgate an opinion of the Court reversing the affirmance of the Circuit Court ofpers' denial of Non duty disability pursuant to Miss. Code Ann 25-1 I-I 13(l)(a). Respectfully submitted, MARCIA F. HOWARD, Appellant BY: lsi George S. Luter GEORGE S. LUTER, Her Attorney CERTIFICATE OF SERVICE I, George S. Luter, attorney for Appellant, hereby certify that I have hand delivered or electronically delivered a copy of the foregoing Motion for Rehearing to the following: Hon. Tomie Green Hinds County Courthouse Jackson, MS Jane Mapp, Esq. Public Employees'. Retirement System 429 Mississippi Street Jackson, MS SO CERTIFIED this the 17th 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 9