IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-SA-00051-COA
JOHN C. SMITH APPELLANT
v.
PUBLIC EMPLOYEES RETIREMENT SYSTEM APPELLEE OF MISSISSIPPI
DATE OF JUDGMENT: 12/15/2020 TRIAL JUDGE: HON. ISADORE W. PATRICK JR. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: YANCY B. BURNS ATTORNEY FOR APPELLEE: AMELIA BARTLETT GAMBLE NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 05/03/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.
McCARTY, J., FOR THE COURT:
¶1. John Smith was a correctional officer. Smith was injured when he was attempting to
restrain an inmate. He subsequently applied for duty-related disability benefits. However,
the Public Employees’ Retirement System of Mississippi Medical Board denied his claim.
This decision was affirmed by both the PERS Disability Appeals Committee and the Hinds
County Circuit Court. The circuit court’s decision was not arbitrary or capricious, and it was
supported by substantial evidence, therefore we affirm.
FACTS
¶2. John Smith worked as a correctional officer at Washington County Regional Correctional Facility in Greenville, Mississippi. He began that position on February 1, 2016.
Smith’s job duties included overseeing and protecting inmates from hurting each other and
themselves. He stated his job required a lot of walking and standing, and he also transported
inmates from one location to another at the facility. Restraining inmates was part of his
regular job duties.
¶3. On March 29, 2016—just fifty-seven days after starting his job—Smith was injured
while attempting to restrain an unruly inmate at the correctional facility. Smith struck his
knee on the curb outside of the booking area while pulling an inmate from his cell.
A. Smith’s Post-Injury Medical History
¶4. That same day, Smith went to the doctor where he was diagnosed with a right-knee
strain. He was subsequently referred to an orthopedist. About a week later, an MRI revealed
a complete patellar tendon tear—the tendon had completely torn from Smith’s knee.
¶5. In April 2016, Smith underwent surgery to repair the knee tear. The surgery was
performed by Dr. Jason Craft. Smith then began physical therapy.
¶6. Months after his surgery, Smith returned to Dr. Craft with lower extremity pain. In
his notes, Dr. Craft wondered why Smith was still experiencing so much pain. Dr. Craft
ordered an MRI of the knee to evaluate the surgical repair and to check the lumbar area of
his back. Smith was told to stay off work.
¶7. The second MRI revealed the knee had torn again—in medical terms, this was
referred to as a postpatellar tendon reattachment with a recurrent tear. Dr. Michael
Winkelmann also evaluated Smith and recommended an MRI of his back in the thoracic
2 spine area.
¶8. Dr. Craft later diagnosed Smith with complex-regional-pain-syndrome, and he
recommended a trial of parasympathetic injections.
¶9. Afterward, Smith’s employer offered him light-duty employment. Smith declined the
offer. At the hearing, there was some dispute over the issue of whether Smith could return
to work to perform light duties. Smith testified that the sheriff told him that he couldn’t
return to work because “[Smith] was 90 percent, and he needed to be at 100 percent.” In
contrast, Smith’s employer testified he had conversations with the warden about a light-duty
job in the guard shack where Smith would be stationed to admit visitors to the facility.
¶10. Thereafter, Dr. Timothy Beacham also diagnosed Smith with complex-regional-pain-
syndrome, and right-lower extremity and chronic pain syndrome. Dr. Beacham restricted
Smith from standing for long periods of time, walking long distances, and lifting greater than
thirty pounds. The doctor expected Smith to be at maximum medical improvement within
six to twelve months. Additionally, Dr. Winkelmann diagnosed Smith with a knee injury and
a thoracic injury. Impairments and restrictions were not assigned pending the performance
of a functional capacity evaluation.
¶11. Almost a year after his injury at work, Smith filed for duty-based disability benefits
through PERS.
B. Smith’s Independent Medical Examination
¶12. In April 2017, Smith visited Dr. David Collipp for an IME. Dr. Collipp opined, “In
my opinion, within a reasonable degree of medical probability, given his diagnosis, I have
3 no specific restrictions from an objective standpoint for his right knee.” Dr. Collipp
continued, stating that “[g]iven his exam I will defer to his objective findings. He has no
present evidence of Complex Regional Pain Syndrome I or II, and his knee is grossly
functionally stable. I do not opine a spine injury.” Critically, Dr. Collipp further noted that
“his medium duty restrictions are not duty related by PERS definition.”
¶13. He also opined there was no spine injury. The doctor noted that Smith’s examination
was “complicated” and that he would limit Smith to medium activity and was restricted to
lifting up to sixty pounds “because of his general habitus of morbid obesity”—not due to his
right knee injury. Furthermore, Dr. Collipp did not assign any specific restrictions for
Smith’s now-healed right knee.
C. Smith’s Functional Capacity Examination
¶14. Smith then underwent a functional capacity examination to determine if he was able
to complete the tasks his job required. During the FCE, Smith expressed concerns about his
knee buckling. Yet he was able to perform all tasks without his right knee buckling and
without losing his balance. Indeed, the examination revealed that he had a good range of
motion and effective use of his right knee. Smith was able to stand, walk, crouch, and use
stairs without the use of a cane and without losing balance. According to the examiner,
Smith performed mostly with “max effort,” and “he was able to do all activities without his
cane.” He also made note of the fact that “[c]lient complained of thoracic pain more than
Right knee pain throughout entire FCE.”
¶15. The FCE examiner noted Smith did have some health problems unrelated to his knee.
4 For instance, “forward bending and standing were limited by complaints of back pain, not
knee pain.” The exam showed Smith performing at a medium to heavy level. However, the
examiner was unable to fully assess Smith’s ability to return to work, because Smith’s job
description was unavailable. In the examination summary, the evaluator noted that although
Smith denied chest pain or difficulties in breathing, his high heart rate during lifting
warranted examination by a cardiologist. Specifically, the examiner noted that “[t]his low
level lift, combined with an initial resting heart rate of 109 bmp, may be reason for client to
be evaluated by his cardiologist.” The doctor recorded Smith’s height at 5 feet 9 inches and
his weight at 307 pounds during the exam.
D. Smith Reaches Maximum Medical Improvement
¶16. Smith eventually reached maximum medical improvement from his work-related
injuries and attempted to return to work. Dr. Winkelmann reviewed the FCE and issued
Smith a return to work slip. In his notes, Dr. Winkelmann stated that “[a]ccording to the
AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition, as a result of his
injury, he has a 5% partial permanent impairment to the lower extremity with a sensory
impairment of 2% lower extremity to a 7% lower extremity.”
PROCEDURAL HISTORY
¶17. As a result of his medical records, the testimony heard at the hearing, the IME, and
the FCE, the PERS Medical Board denied Smith duty-related disability benefits. Smith filed
his notice of appeal to the Disability Appeals Committee. The Committee provided its
recommendation to the PERS Board of Trustees, proposing Smith’s claim for duty-related
5 disability benefits be denied. The Committee found insufficient objective medical evidence
that Smith was unable to perform his usual duties as a correctional officer. The Board agreed
with the Committee and adopted those findings on the same day.
¶18. Notably, in its “Proposed Statement of Facts, Conclusions of Law, and
Recommendation to the Board of Trustees,” the Committee noted in Smith’s FCE that Smith
could function at a level “adequate to perform his usual duties as a correctional officer,” and
that “[t]he limitations referred to in the FCE are related to obesity and coronary-related
questions, neither of which are the direct result of the injury sustained from the accident[.]”
Further, the Committee stated that “[d]isability resulting from cardiovascular, pulmonary, and
musculoskeletal conditions, not a direct result of a physical injury sustained from an accident
in the performance of duty, are deemed ordinary disabilities by law.”
¶19. The Committee acknowledged that Dr. Beacham diagnosed Smith with complex-
regional-pain-syndrome of the right-lower extremity and chronic pain syndrome. However,
they also noted Dr. Collipp’s opinion showing no basis for a diagnosis of complex regional
pain syndrome. The Committee stated, “[I]n any event, a large percentage of patients resolve
chronic regional pain syndrome within eighteen months. It would be unusual for the
condition to be permanent.” And “Mr. Smith’s back and lower extremity pain is subjective
and does not significantly limit his functional abilities. Any limitations he may have directly
related to this injury are not likely to be permanently disabling.”
¶20. Ultimately, the Committee found Smith’s knee injury did not render him permanently
physically or mentally incapacitated from performing the usual duties of his employment as
6 a correctional officer.
¶21. Smith subsequently filed his appeal of the agency’s decision to the Circuit Court of
Hinds County. The Circuit Court affirmed the denial of disability benefits. Smith now
appeals to this Court.1
STANDARD OF REVIEW
¶22. “Well-settled law in Mississippi holds that judicial review of a Board ruling is
limited.” Henley v. Pub. Emps.’ Ret. Sys. of Miss., 26 So. 3d 1108, 1109 (¶8) (Miss. Ct. App.
2010) (internal quotation marks omitted). “As long as the reviewing court finds that the
Board’s decision was supported by evidence and absent of fraud, it shall render the Board’s
decision conclusive.” Id. (internal quotation marks omitted).
¶23. “The standard of review on appeal from an administrative decision of the PERS Board
of Trustees is limited to a determination of whether the PERS Board’s decision (1) was
supported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the
authority of the Board to make; or (4) violated a statutory or constitutional right of the
claimant.” Richardson v. Pub. Emps.’ Ret. Sys. of Miss., 290 So. 3d 1265, 1269 (¶6) (Miss.
1 Smith also sought benefits for the same injury in a Workers’ Compensation Commission case. See Washington Cnty. Bd. of Supervisors v. Smith, 2019-WC-01193-COA, 2020 WL 5525526 (Miss. Ct. App. Sept. 15, 2020). In that case, we affirmed in part, finding substantial evidence supported the Commission’s finding that Smith sustained a 100% loss of industrial use of his right leg and the Commission did not err in affirming the AJ’s separate order regarding the spinal cord stimulator. Id. at *1 (¶3). We further reversed and rendered the finding of a compensable mental injury. Id. Following this Court’s opinion, the parties settled, and the county’s motion for rehearing was dismissed. An “Order Approving Lump Sum Settlement” was subsequently entered by the Commission. See also Anthony v. Marion, 90 So. 3d 682, 688 (¶20) (Miss. Ct. App. 2012) (finding that “PERS law is separate and distinct from workers’ compensation law”).
7 Ct. App. 2019) (citing Thomas v. Pub. Emps.’ Ret. Sys. of Miss., 995 So. 2d 115, 118 (¶14)
(Miss. 2008)). “If the agency’s decision is supported by substantial evidence, then the
agency’s decision stands.” Ulrich v. Pub. Emps.’ Ret. Sys., 281 So. 3d 259, 262 (¶10) (Miss.
Ct. App. 2019).
¶24. “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. at
(¶11). “Substantial evidence requires ‘something more than a mere scintilla or suspicion.’”
Pub. Emps.’ Ret. Sys. v. Worlow, 172 So. 3d 745, 747 (¶13) (Miss. Ct. App. 2011) (internal
quotation marks omitted) (quoting Pub. Emps.’ Ret. Sys. v. Marquez, 774 So. 2d 421, 425
(¶13) (Miss. 2000)). “Substantial evidence has further been defined by this Court as ‘such
relevant evidence as reasonable minds might accept as adequate to support a conclusion.’”
Marquez, 774 So. 2d at 425 (¶13). “If an administrative agency’s decision is not based on
substantial evidence, it necessarily follows that the decision is arbitrary and capricious.”
Worlow, 172 So. 3d at 747 (¶13) (internal quotation marks omitted).
¶25. “An administrative agency’s decision is arbitrary when it is not done according to
reason and judgment, but depending on the will alone.” Richardson, 290 So. 3d at 1271
(¶12) (internal quotation marks omitted). And “[a]n action is capricious if done without
reason, in a whimsical manner, implying either a lack of understanding of or disregard for
the surrounding facts and settled controlling principles.” Id. (internal quotation marks
omitted).
¶26. “There is a rebuttable presumption in favor of a PERS ruling.” Id. at 1270 (¶7) (citing
8 Pub. Emps.’ Ret. Sys. v. Card, 994 So. 2d 239, 242 (¶15) (Miss. Ct. App. 2008)). “Neither
the appellate court nor the circuit court is entitled to substitute its own judgment for that of
PERS, and it is impermissible for a reviewing court to re-weigh the facts of the case.” Id.
So, “even if we would have reached a different conclusion had we been sitting as the finder
of fact, we may not reweigh the evidence and substitute our own opinion for that of the PERS
Board.” Id.
ANALYSIS
¶27. The sole issue Smith raises on appeal is whether the agency’s decision to deny him
duty-related disability benefits is “clearly erroneous, contrary to law and not supported by
substantial evidence” as defined by Mississippi Code Annotated section 25-11-113(1)(a)
(Rev. 2018). Smith asserts that the PERS decision to deny his request for duty-related
disability benefits was arbitrary and capricious. Smith maintains that the Committee’s
recommendation and the Board’s finding that his “diminished functional capacity is a
consequence of morbid obesity, not the traumatic injury, is not supported by substantial
evidence.” He also argues PERS relied too heavily on Dr. Collipp’s opinion that obesity was
the cause of Smith’s diminished functional capacity.
¶28. The question before the PERS Medical Board, the Committee, and the Board of
Trustees was whether Smith met the statutory requirements to receive duty-related disability
benefits. For a claimant to be entitled to receive PERS disability retirement benefits, they
must first prove that they are disabled. Miss. Code Ann. § 25-11-113(1)(a). Any member
seeking disability benefits must prove to the medical board that they are “mentally or
9 physically incapacitated for the further performance of duty, that the incapacity is likely to
be permanent, and that the member should be retired.” See Miss. Code Ann. § 25-11-
113(1)(a) (emphasis added).2 “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.’” Ulrich v. Pub. Emps.’ Ret. Syst., 281
So. 3d 259, 262 (¶13) (Miss. Ct. App. 2019) (quoting Miss. Code Ann. § 25-11-114 (Supp.
2015)). “Disability is defined as the ‘inability to perform the usual duties of employment.’”
Id.3
¶29. So “in order to approve a claim for disability benefits, PERS must find sufficient
medical evidence of a physical or mental condition that is likely to be permanent and that
renders the applicant incapable of performing his or her job or another job offered by the
employer within the same geographic area and with no material reduction in pay.”
2 Smith is only eligible for duty-related benefits because he is an unvested member of PERS, as he had only worked fifty-seven days before his injury occurred. See Miss. Code Ann. § 25-11-113(1)(a). “A member can claim disability benefits from PERS in two scenarios, either of which, if proven, entitle the member to disability benefits.” Ulrich v. Pub. Emps.’ Ret. Sys., 281 So. 3d 259, 262 (¶12) (Miss. Ct. App. 2019); see also Miss. Code Ann. § 25-11-113. “The first is for members who are vested and become disabled for any reason.” Ulrich, 281 So. 3d at 262 (¶12). “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.” Id. 3 The medical board defines disability as “[t]he 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 . . . that is actually offered and is within the same general territorial work area, without material reduction in compensation.” Miss. Code Ann. § 25-11-113(1)(a).
10 Richardson v. Pub. Emps.’ Ret. Sys. of Miss., 290 So. 3d 1265, 1271 (¶11) (Miss. Ct. App.
2019); see Miss. Code Ann. § 25-11-113(1)(a).
¶30. “The applicant for disability benefits carries the initial burden of proving to PERS,
through objective medical evidence, that she is disabled.” Worlow, 172 So. 3d at 747 (¶14).4
¶31. “The question before this Court is not whether there is evidence to support a finding
that [Smith] is disabled, but rather whether there is evidence in the record to support the
PERS Board’s decision to deny disability benefits.” Richardson, 290 So. 3d at 1271 (¶12).
¶32. Here, Smith applied for duty-related disability benefits. Critically, the IME doctor
stated, “[I]n my opinion, within a reasonable degree of medical probability, given his
diagnosis, I have no specific restrictions from an objective standpoint for his right knee.”
The doctor further stated, “[H]is knee is grossly functionally stable. I do not opine a spine
injury.” The FCE noted Smith complained about more back pain than right-knee pain
throughout the entire evaluation.
¶33. Accordingly, the Committee found that there was “insufficient objective medical
evidence that Mr. Smith is unable to perform his usual duties as a Correctional Officer for
the Washington County Regional Correctional Facility as a result of the accident[.]” Further,
4 “‘Objective medical evidence’ means reports of examinations or treatments; medical signs that are anatomical, physiological, or psychological abnormalities that are observed and documented by medical professionals; psychiatric signs that are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings that are anatomical, physiological, or psychological phenomena that are shown by medically acceptable laboratory diagnostic techniques, including, but not limited to, chemical tests, electrocardiograms, electroencephalograms, X-rays, and psychological tests.” Miss. Code Ann. § 25-11-113(1)(b).
11 “[a]ny limitations he may have directly related to this injury are not likely to be permanently
disabling.” The Committee noted the FCE revealed he had good range of motion and
effective use of his right knee. The Committee also reiterated the findings of the IME,
which concluded there was no evidence of chronic pain and no spine injury, and no specific
restrictions were assigned for the right knee and Smith’s right knee was “grossly, functionally
stable.” According to the FCE, Smith “can function at a level adequate to perform his usual
duties as a correctional officer.” Critically, the Committee stated that the limitations referred
to in the functional capacity examination were related to obesity and were coronary-related
questions, “neither of which are the direct result of the injury sustained from the accident on
March 29, 2016.”
¶34. Smith argues that the Committee lacked substantial evidence to deny his claim since
“[n]ot one physician correlated any morbid conditions with Smith’s post injury residual
functional capacity as measured by the FCE.” He also argues that “PERS fused the FCE
findings with the premature opinions of Dr. Collipp to arrive at a medical-legal finding that
Smith’s disability is attributable to morbid obesity.” Yet Smith’s arguments ignore both Dr.
Collipp’s and the FCE examiner’s findings that the right knee was “grossly, functionally
stable” and the fact that Smith was able to perform all activities without his cane. Further,
what pain he was experiencing was attributed to his back and not his right knee. In sum,
Smith’s right knee had substantially healed from the injury he suffered at work in March
2016.
¶35. While two physicians may have diagnosed Smith with complex-regional-pain-
12 syndrome, neither came to the conclusion that he was in fact permanently disabled for
purposes of Mississippi Code Annotated section 25-11-113(1)(a). To the contrary, both the
IME and the FCE determined he was not permanently disabled as a result of the work injury.
¶36. In fact, the doctor who performed the IME opined Smith was only limited to medium
activity and only able to lift up to sixty pounds “because of his general habitus of morbid
obesity.” Additionally, the doctor found no present evidence of chronic pain and was of the
opinion there was no spine injury. Dr. Collipp also concluded Smith’s right knee was
“grossly, functionally stable.” Crucially, the physician opined Smith’s medium duty
restrictions were not “duty related” by PERS’ definition.
¶37. Furthermore, the FCE demonstrated Smith was able to stand, walk, crouch, and take
stairs without the use of a cane and without losing his balance. The examination went on to
note that “forward bending and standing were limited by complaints of back pain, not knee
pain.” The limitations referred to were related to obesity and coronary-related questions.
And the evaluator noted Smith performing at a medium to heavy level and he would be able
to return to work under the functional capacity examination restrictions. Smith presented no
contrary evidence to the findings of the FCE and IME.
¶38. “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.” Ulrich, 281 So. 3d at 263 (¶18).
Our review of the record demonstrates there was sufficient evidence for PERS to deny Smith
duty-related disability benefits. Both the IME and FCE determine Smith was not
permanently disabled. As a result, we affirm the denial of duty-related disability benefits and
13 uphold the decision of the Hinds County Circuit Court.
¶39. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR.