IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-SA-00306-COA
CARYL S. ULRICH APPELLANT
v.
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM APPELLEE
DATE OF JUDGMENT: 02/01/2018 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: HENRY BERNARD ZUBER III ATTORNEYS FOR APPELLEE: JANE L. MAPP SAMUEL MARTIN MILLETTE NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED: 04/02/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Caryl Ulrich applied for duty-related disability benefits from the Public Employees’
Retirement System of Mississippi (“PERS”) in 2015. Ulrich claimed to have been injured
from an electrical shock while working at Pascagoula High School. The PERS Medical
Board (“the Board”) denied her claim for disability benefits. The Board found that there was
“insufficient objective medical evidence to support the claim that [Ulrich’s] medical
condition prevents [her] from performing the duties of a teacher.” Furthermore, the Board
found that Ulrich failed to prove that her disability was related to a traumatic event that
occurred while teaching. The Board’s decision was affirmed by both the PERS Disability Appeals Committee (“Appeals Committee”) and the Hinds County Circuit Court. She now
appeals those decisions to this Court. We affirm the decision of the Board and the circuit
court.
FACTS
¶2. Caryl Ulrich taught at Pascagoula High School for over seventeen years until she
resigned in May 2015. A year before she retired, she claimed she was electrocuted while
flipping a light switch off in class. Ulrich told the Board and the Appeals Committee that
when she went to switch the light off, she heard a loud crackle or pop and saw a flash of fire
or a spark. She then collapsed against the metal door frame, and a student brought her a chair
to sit in until a nurse could come.
¶3. Ulrich went to MedWorks Clinic and received care from Dr. John Pessoney after the
incident. She complained of pain on her left side and a headache. There is nothing to
indicate she lost consciousness during the event. Ulrich was released without restriction by
Dr. Pessoney.
¶4. Three days later, Ulrich returned to the MedWorks Clinic for a follow-up evaluation.
Her headache had persisted, as well as the pain in her left arm and hand. Dr. Pessoney
indicated that Ulrich should go see a neurologist. On that same day, Ulrich went to the
emergency room and received a shot of Benadryl along with a dose of Hydrocodone.
¶5. Ulrich introduced evidence of a “burn” mark on her right hip. No such mark was
documented on the date of the incident. Ulrich initially believed the marks were hives.
2 Ulrich testified at her hearing before the Committee that she showed her neurologist, Dr.
Terrence Millette, the “burn” on her hip she believed to be an exit wound. Dr. Millette
advised her to take a picture of the mark, but Ulrich testified to the Appeals Committee that
she “didn’t at that point,” and it was not until six weeks later that she finally took the photo
of her hip that showed the markings. Ulrich’s testimony to the Appeals Committee indicated
she believed the burns were a result of the electricity potentially exiting her body.
¶6. Ulrich completed several different tests while in Dr. Millette’s care, along with three
separate cycles of physical therapy to correct her issues. Dr. Millette found that Ulrich
suffered from “mild carpal tunnel syndrome” in her right wrist. He also gave Ulrich Botox
injections in her neck for her pain caused by muscle spasms. The record shows that the
residual testing that Ulrich completed came back consistently normal. Ulrich, however,
continued to complain of pain in her left side, double vision, and dizziness with nausea. Her
medical records do not indicate that she ever explored corrective lenses to fix her double
vision, as was suggested by an Appeals Committee member at her hearing.
¶7. It was not until a year after the incident that Ulrich filed for duty-based disability
benefits through PERS. Ulrich had continued to work as a teacher, but claimed she suffered
from pain on her left side, double vision, and nausea. At that point, she was already
receiving workers’ compensation benefits. Dr. Millette completed the PERS “Statement of
Examining Physician” form, concluding that Ulrich was disabled due to pain in her left side.
While Ulrich claimed that nausea and double vision were some of her biggest issues that kept
3 her from doing her work, Dr. Millette did not reference any of those issues in his statement.
¶8. Ulrich also consented to an independent evaluation by Dr. Angel Minster. Dr. Minster
was given a copy of Ulrich’s PERS file and performed her own history and examination. Dr.
Minster did notice “trigger points” in her neck and left side, consistent with Dr. Millette’s
evaluation. Ulrich was asked to undergo a function capacity examination to determine if she
was able to complete the tasks her job required. Based on the results of the function capacity
examination, Dr. Minster concluded that Ulrich was not permanently disabled.
¶9. As a result of her medical records, the testimony heard at the hearing, and the function
capacity examination, the Board denied her benefits. Pursuant to Mississippi Code
Annotated section 25-11-120 (Rev. 2015), Ulrich disagreed with the Board’s finding and
appealed to the Appeals Committee. The Appeals Committee agreed with the Board and
affirmed its decision to deny disability benefits. Ulrich then appealed the Appeals
Committee’s decision to the Hinds County Circuit Court. The circuit court affirmed the
denial of disability benefits.
STANDARD OF REVIEW
¶10. Any review of an administrative agency is limited by this Court. The conclusion of
the agency withstands appellate review unless the order is: “(1) not supported by substantial
evidence; (2) is arbitrary and capricious; (3) is beyond the scope or power granted to the
agency; or (4) violates one’s constitutional rights.” Pub. Emps.’ Ret. Sys. v. Marquez, 774
So. 2d 421, 425 (¶11) (Miss. 2000). A decision by PERS has a rebuttable presumption in
4 favor of its initial ruling. Pub. Emps.’ Ret. Sys. v. Card, 994 So. 2d 239, 242 (¶3) (Miss. Ct.
App. 2008) (quoting Pub. Emps.’ Ret. Sys. v. Dishmon, 797 So. 2d 881, 891 (¶9) (Miss.
2001)). If the agency’s decision is supported by substantial evidence, then the agency’s
decision stands. Pub. Emps.’ Ret. Sys. v. Walker, 126 So. 3d 892, 895 (¶7) (Miss. 2013).
¶11. Substantial evidence has been defined by the supreme court as “such relevant
evidence as reasonable minds might accept as adequate to support a conclusion.” Id. (citing
Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991)). In short, the evidence must be more
than a “mere scintilla or suspicion.” Miss. Real Estate Comm’n v. Anding, 732 So. 2d 192,
196 (¶13) (Miss. 1999).
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-SA-00306-COA
CARYL S. ULRICH APPELLANT
v.
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM APPELLEE
DATE OF JUDGMENT: 02/01/2018 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: HENRY BERNARD ZUBER III ATTORNEYS FOR APPELLEE: JANE L. MAPP SAMUEL MARTIN MILLETTE NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED: 04/02/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Caryl Ulrich applied for duty-related disability benefits from the Public Employees’
Retirement System of Mississippi (“PERS”) in 2015. Ulrich claimed to have been injured
from an electrical shock while working at Pascagoula High School. The PERS Medical
Board (“the Board”) denied her claim for disability benefits. The Board found that there was
“insufficient objective medical evidence to support the claim that [Ulrich’s] medical
condition prevents [her] from performing the duties of a teacher.” Furthermore, the Board
found that Ulrich failed to prove that her disability was related to a traumatic event that
occurred while teaching. The Board’s decision was affirmed by both the PERS Disability Appeals Committee (“Appeals Committee”) and the Hinds County Circuit Court. She now
appeals those decisions to this Court. We affirm the decision of the Board and the circuit
court.
FACTS
¶2. Caryl Ulrich taught at Pascagoula High School for over seventeen years until she
resigned in May 2015. A year before she retired, she claimed she was electrocuted while
flipping a light switch off in class. Ulrich told the Board and the Appeals Committee that
when she went to switch the light off, she heard a loud crackle or pop and saw a flash of fire
or a spark. She then collapsed against the metal door frame, and a student brought her a chair
to sit in until a nurse could come.
¶3. Ulrich went to MedWorks Clinic and received care from Dr. John Pessoney after the
incident. She complained of pain on her left side and a headache. There is nothing to
indicate she lost consciousness during the event. Ulrich was released without restriction by
Dr. Pessoney.
¶4. Three days later, Ulrich returned to the MedWorks Clinic for a follow-up evaluation.
Her headache had persisted, as well as the pain in her left arm and hand. Dr. Pessoney
indicated that Ulrich should go see a neurologist. On that same day, Ulrich went to the
emergency room and received a shot of Benadryl along with a dose of Hydrocodone.
¶5. Ulrich introduced evidence of a “burn” mark on her right hip. No such mark was
documented on the date of the incident. Ulrich initially believed the marks were hives.
2 Ulrich testified at her hearing before the Committee that she showed her neurologist, Dr.
Terrence Millette, the “burn” on her hip she believed to be an exit wound. Dr. Millette
advised her to take a picture of the mark, but Ulrich testified to the Appeals Committee that
she “didn’t at that point,” and it was not until six weeks later that she finally took the photo
of her hip that showed the markings. Ulrich’s testimony to the Appeals Committee indicated
she believed the burns were a result of the electricity potentially exiting her body.
¶6. Ulrich completed several different tests while in Dr. Millette’s care, along with three
separate cycles of physical therapy to correct her issues. Dr. Millette found that Ulrich
suffered from “mild carpal tunnel syndrome” in her right wrist. He also gave Ulrich Botox
injections in her neck for her pain caused by muscle spasms. The record shows that the
residual testing that Ulrich completed came back consistently normal. Ulrich, however,
continued to complain of pain in her left side, double vision, and dizziness with nausea. Her
medical records do not indicate that she ever explored corrective lenses to fix her double
vision, as was suggested by an Appeals Committee member at her hearing.
¶7. It was not until a year after the incident that Ulrich filed for duty-based disability
benefits through PERS. Ulrich had continued to work as a teacher, but claimed she suffered
from pain on her left side, double vision, and nausea. At that point, she was already
receiving workers’ compensation benefits. Dr. Millette completed the PERS “Statement of
Examining Physician” form, concluding that Ulrich was disabled due to pain in her left side.
While Ulrich claimed that nausea and double vision were some of her biggest issues that kept
3 her from doing her work, Dr. Millette did not reference any of those issues in his statement.
¶8. Ulrich also consented to an independent evaluation by Dr. Angel Minster. Dr. Minster
was given a copy of Ulrich’s PERS file and performed her own history and examination. Dr.
Minster did notice “trigger points” in her neck and left side, consistent with Dr. Millette’s
evaluation. Ulrich was asked to undergo a function capacity examination to determine if she
was able to complete the tasks her job required. Based on the results of the function capacity
examination, Dr. Minster concluded that Ulrich was not permanently disabled.
¶9. As a result of her medical records, the testimony heard at the hearing, and the function
capacity examination, the Board denied her benefits. Pursuant to Mississippi Code
Annotated section 25-11-120 (Rev. 2015), Ulrich disagreed with the Board’s finding and
appealed to the Appeals Committee. The Appeals Committee agreed with the Board and
affirmed its decision to deny disability benefits. Ulrich then appealed the Appeals
Committee’s decision to the Hinds County Circuit Court. The circuit court affirmed the
denial of disability benefits.
STANDARD OF REVIEW
¶10. Any review of an administrative agency is limited by this Court. The conclusion of
the agency withstands appellate review unless the order is: “(1) not supported by substantial
evidence; (2) is arbitrary and capricious; (3) is beyond the scope or power granted to the
agency; or (4) violates one’s constitutional rights.” Pub. Emps.’ Ret. Sys. v. Marquez, 774
So. 2d 421, 425 (¶11) (Miss. 2000). A decision by PERS has a rebuttable presumption in
4 favor of its initial ruling. Pub. Emps.’ Ret. Sys. v. Card, 994 So. 2d 239, 242 (¶3) (Miss. Ct.
App. 2008) (quoting Pub. Emps.’ Ret. Sys. v. Dishmon, 797 So. 2d 881, 891 (¶9) (Miss.
2001)). If the agency’s decision is supported by substantial evidence, then the agency’s
decision stands. Pub. Emps.’ Ret. Sys. v. Walker, 126 So. 3d 892, 895 (¶7) (Miss. 2013).
¶11. Substantial evidence has been defined by the supreme court as “such relevant
evidence as reasonable minds might accept as adequate to support a conclusion.” Id. (citing
Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991)). In short, the evidence must be more
than a “mere scintilla or suspicion.” Miss. Real Estate Comm’n v. Anding, 732 So. 2d 192,
196 (¶13) (Miss. 1999).
ANALYSIS
¶12. A member can claim disability benefits from PERS in two scenarios, either of which,
if proven, entitle the member to disability benefits. The first is for members who are vested
and become disabled for any reason. Miss. Code Ann. § 25-11-113. The second is duty
related disability benefits for any members, no matter how many years of credible service,
that are injured in conjunction with their employment duty. Miss. Code Ann. § 25-11-114
(Supp. 2015). Disability is defined as the “inability to perform the usual duties of
employment.” Miss. Code Ann. § 25-11-113(1)(a).
¶13. Any member that claims they are in need of disability benefits has the burden to prove
the following elements through sufficient evidence:
1) the claimant is mentally or physically incapacitated for the further performance of their duty;
5 2) the incapacity is likely permanent; and
3) the claimant should retire.
Id. Along with the requirements under section 25-11-113, an individual who applies
specifically for duty related disability benefits must prove that they were disabled as a “direct
result of an accident or traumatic event resulting in a physical injury occurring in the line of
performance of a duty.” Miss. Code Ann. § 25-11-114 (Supp. 2015).
¶14. Ulrich applied for duty related disability benefits. The Board found that there was
“insufficient objective medical evidence to support the claim that [Ulrich’s] medical
condition prevents [her] from performing the duties of a teacher.” Furthermore, the Board
found that Ulrich failed to prove that her disability was related to a traumatic event that
occurred while teaching.
¶15. Even where contradictory evidence is in the record, PERS is charged with the duty to
“determine which evidence to believe and which evidence should be given greater weight.”
Pub. Emps.’ Ret. Sys. v. Howard, 905 So. 2d 1279, 1290 (¶30) (Miss. 2005). Here, PERS
found the additional testing and Ulrich’s other medical records more persuasive and binding
on its decision to deny benefits.
¶16. Ulrich also rests her claim on the fact she was given benefits from the Mississippi
Workers’ Compensation Commission. As PERS points out, both workers’ compensation
benefits and PERS disability benefits are based on different standards. Ulrich’s workers’
compensation claims have no bearing on whether or not she had a valid claim with PERS for
6 duty related disability. While she could very well have a valid workers’ compensation claim,
that does not immediately green-light her disability standing with PERS.
¶17. Ulrich cites Public Employees’ Retirement System v. Trulove, 954 So. 2d 501 (Miss.
Ct. App. 2007), in order to support her contention that she presented sufficient objective
evidence to support her request for disability benefits. In Trulove, this Court affirmed the
decision of the Hinds County Circuit Court that Trulove had met her burden to show a
disability suffered at work. Id. at 505 (¶16). In Trulove, the question was not “if” Trulove
was disabled, but if her disability was connected to a duty-related traumatic event. At the
onset, Ulrich was found not to be disabled. Therefore, the Board could not truly consider
whether or not her disability was caused from a traumatic event related to her work as a
teacher.
¶18. Mississippi law mandates that where there is “more than a scintilla” of evidence to
support a Board’s decision, this Court is bound to affirm. While the incidents described by
Ulrich are certainly concerning, and she obviously tried to continue working despite her
conditions, our review of the record indicates that there was sufficient evidence to support
a denial of Ulrich’s duty related disability benefits. As a result, we affirm the decisions of
the Board and ultimately the Hinds County Circuit Court’s judgment.
¶19. AFFIRMED.
BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR. CARLTON, P.J., NOT PARTICIPATING.