P.E.R.S. v. Dishmon

• Decision Date: 23 July 2009
• Docket Number: No. 2008-CC-01183-SCT.,2008-CC-01183-SCT.
• Citation: 17 So.3d 87
• Parties: PUBLIC EMPLOYEES' RETIREMENT SYSTEM v. JANNIE M. DISHMON.
• Court: Mississippi Supreme Court

17 So.3d 87

PUBLIC EMPLOYEES' RETIREMENT SYSTEM v. JANNIE M. DISHMON.

No. 2008-CC-01183-SCT.

Supreme Court of Mississippi.

July 23, 2009.

Rehearing Denied September 24, 2009.

Mary Margaret Bowers, for Appellant.

George S. Luter, for Appellee.

EN BANC.

PIERCE, Justice, for the court.

¶ 1. This appeal by the Public Employees Retirement System (PERS) arises from an order entered by the Circuit Court of the First Judicial District of Hinds County, Mississippi, on March 19, 2008. The circuit court overturned an administrative decision by PERS denying disability benefits to Jannie M. Dishmon, a Department of Human Services (DHS) employee.

¶ 2. Dishmon's claim for disability benefits initially was reviewed and denied by the PERS Medical Board in 1997. That decision was appealed to the PERS Disability Appeals Committee. A hearing was held wherein testimony and evidence was received. The Committee presented its recommendation to the PERS Board of Trustees, and the Board denied Dishmon's claim. On appeal to the circuit court, Judge Tomie Green ruled in favor of Dishmon, finding that the Board arbitrarily and capriciously had ignored substantial evidence in support of disability. PERS appealed to this Court which found reversible error in the fact that a member of the Medical Board also had sat on the Disability Appeals Committee. Pub. Employees' Ret. Sys. v. Dishmon, 797 So.2d 888 (Miss.2001). This Court remanded the case to the circuit court with instructions that the matter be remanded to PERS for a fair and impartial review of Dishmon's disability claim. Following the hearing on remand, the Board again adopted the recommendation of the Disability Appeals Committee to deny Dishmon's application for disability benefits as defined in Miss.Code Section 25-11-113. Dishmon appealed PERS' decision to the circuit court. On March 19, 2008, Judge Green reversed the decision of the Board, finding PERS' actions to be arbitrary and capricious. Having reviewed the record, this Court affirms the circuit court's ruling.

STATEMENT OF THE FACTS

¶ 3. Dishmon began working as an eligibility worker for the Warren County DHS in March 1985. As an Eligibility Worker II, Dishmon was responsible for assessing the qualifications of potential recipients of food stamps and AFDC (Aid to Families with Dependent Children) funding. Her job entailed interviewing candidates, documenting her findings, and other related activities. During her employment, Dishmon suffered from a number of medical problems which she claimed included osteomyelitis, insulin dependent diabetes mellitus (IDDM), hypertensive cardiovascular disease (HCVD), cellulitis of the great toe, degenerative arthritis, atherosclerotic vascular disease to the lower extremities, carpal tunnel syndrome, anxiety, and depression. Dishmon was advised by her treating physician, Dr. Paul Pierce¹, to seek medical retirement. Dishmon took leave without pay from DHS on July 5, 1996.

¶ 4. Dishmon filed her initial claim with PERS for disability retirement benefits pursuant to Mississippi Code Section 25-11-113(1)(a) in March of 1997. Lois L. Price, Dishmon's supervisor, certified to PERS that Dishmon was unable to perform her job duties. Price also indicated that Dishmon was not offered another job within her agency or any other agency without material reduction in compensation or change in location of employment. Additionally, Dr. Pierce submitted a "Statement of Examining Physician" form to PERS which stated he found Dishmon to be permanently disabled.

¶ 5. In March of 1997, the Social Security Administration found Dishmon completely disabled and awarded her benefits. On March 21, 1997, Dr. Pierce again wrote a letter to PERS stating that Dishmon's "physical impairment preventing her from work remains unchanged," and that she "is still permanently disabled." The Medical Review Board reviewed her application, which included the Social Security award, letters from her physician, and her description of other physical implications. The Board did not find substantial evidence in support of a permanent disability as defined in Section 25-11-113. Miss.Code Ann. § 25-11-113 (Rev.2006). Dishmon then appealed the Medical Board ruling to the Disability Appeals Committee.

¶ 6. The Committee conducted a formal hearing in its de novo review and agreed with the finding of the Medical Board that Dishmon had failed to prove she was unable to perform her duties as an Eligibility Worker II. The material for review consisted of Dishmon's testimony, findings of the Medical Review Board, her employer's statements, a letter from Dishmon's physician, Dishmon's medical records, and the disability award from the Social Security Administration. No physician on the Medical Board of PERS conducted a medical examination, nor did they request an independent physician to examine Dishmon. The record reflects the only evidence of medical examination and medical opinion of Dishmon's medical condition and disability were records submitted by Dr. Pierce, which included, however, diagnostics from other treating physicians.

¶ 7. Following the decision of the Medical Board to deny benefits, Dishmon appealed to the circuit court. The circuit court reversed the decision of the Board and found that PERS had acted arbitrarily and capriciously by disregarding substantial evidence in favor of Dishmon. PERS appealed the Circuit Court's decision to this Court. Dishmon, 797 So.2d 888. This Court reversed and remanded Dishmon's case for a new hearing after finding that one of the physicians who sat on the PERS Medical Board also had sat on the PERS Disability Appeals Committee. Id.

¶ 8. On remand, Dishmon was afforded a second hearing before the Disability Appeals Committee which then consisted of Special Assistant Attorney General Beverly Bolton, presiding hearing officer, and Drs. David Duddleston and Mark Meeks, University Medical Center physicians.

¶ 9. At the start of the hearing, on August 13, 2001, Dishmon requested that the record remain open to allow her to take Dr. Pierce's deposition. Hearing Officer Bolton stated she would take the request under advisement. Dishmon testified that she had left DHS in 1997 due to deteriorating health which resulted in several hospitalizations. Dishmon stated that, although she had attempted on several occasions to go back to work, she was unable to continue due to carpal tunnel syndrome in her right hand which caused excessive pain and difficulty, degenerative disc disease, and difficulty controlling her diabetes in addition to osteomyelitis, thyroid nodules, and pain in her upper and lower extremities and neuropathy causing burning pain in her feet.

¶ 10. Joyce Shepherd, Warren County Department of Human Services Supervisor II, testified that she had observed Dishmon "holler out" with pain, be unbalanced on her feet, and sometimes appear to be feeling unwell. Shepherd stated that, at the time Dishmon worked at DHS she had the highest caseload in the southeastern states and that Dishmon was handling a case load of around 350 people. She said that her job would require her to mark paper, take telephone calls, and have three or four people coming in at the same time. She added that it was a very stressful job and if one had any kind of physical or emotional illness, there was no way he or she could perform the job.

¶ 11. Shepherd further testified that Dishmon tried several times to come back to work after being off for a while; that Dishmon was a dedicated public servant; but that Dishmon could not do the job.

¶ 12. On November 22, 2001, Dishmon noticed the deposition of Dr. Paul Pierce to PERS Attorney Margo Bowers for November 29, 2001. On November 28, 2001, Bowers wrote and objected to such deposition and stated the medical records should "speak for themselves without necessity of a deposition."

¶ 13. In his deposition, Dr. Pierce testified that his prior statements regarding Dishmon's health were accurate and that, in his opinion to a reasonable degree of medical certainty, she was unable to perform her job as described in 1997. Dr. Pierce said that he thought he was more equipped to decide whether Dishmon was disabled than someone who only had reviewed her records or heard her testify briefly, adding:

I don't think there's any question I'm certainly in a better position to do that. I think you also have to look at my position and my record. I'm not one of these doctors that writes to put everybody on disability. In fact, I do not write for people on disability. I like people to continue to work, but in certain cases it's the proper thing to do, and in Ms. Dishmon's case I don't think there's any question about it.

¶ 14. On May 31, 2002, PERS informed Dishmon that her claim would be presented to the Disability Appeals Committee. On June 10, 2002, Dishmon appeared before the Disability Appeals Committee, consisting of new Hearing Officer Sheila Jones, and Drs. Duddleston and Meeks, and before whom the deposition and Dr. Pierce's additional records were introduced into evidence. The Disability Appeals Committee denied Dishmon's application for disability retirement. Jones wrote:

We understand and applaud Dr. Pierce for volunteering to be his patient's advocate and we believe that he had her best interest at heart, but there is a huge difference between our definition of disability and that of the medical community or other legal arenas, for that matter. Our definition is quite narrow and must be supported by objective and credible medical evidence. It must reach the level that this Committee be persuaded likewise. There is a lot of evidence, but not evidence that supports disability as defined by statute.

¶ 15. On August 27, 2002, the PERS Board of Trustees adopted the recommendation of the Disability Appeals Committee and denied Dishmon's application for disability retirement. Dishmon appealed that decision to the Circuit Court for a second time.

¶ 16. On appeal to the...