PERS v. Bishop

942 So. 2d 259, 2006 WL 3199553
CourtCourt of Appeals of Mississippi
DecidedNovember 7, 2006
Docket2005-CC-00931-COA
StatusPublished
Cited by1 cases

This text of 942 So. 2d 259 (PERS v. Bishop) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PERS v. Bishop, 942 So. 2d 259, 2006 WL 3199553 (Mich. Ct. App. 2006).

Opinion

942 So.2d 259 (2006)

PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellant,
v.
Donald W. BISHOP, Appellee.

No. 2005-CC-00931-COA.

Court of Appeals of Mississippi.

November 7, 2006.

*260 Office of the Attorney General by Mary Margaret Bowers, attorney for appellant.

Ronald D. Michael, Billy Bronson Tabler, Booneville, attorneys for appellee.

Before LEE, P.J., CHANDLER and ROBERTS, JJ.

CHANDLER, J., for the Court.

¶ 1. On September 17, 1999, Donald W. Bishop applied for disability benefits from the Public Employees' Retirement System (PERS). PERS denied Bishop's claim and Bishop filed a notice of appeal with the PERS Disability Appeals Committee. The committee heard testimony, reviewed the evidence, and made a recommendation to the PERS Board of Trustees that the Board deny Bishop's request. The Board adopted the committee's recommendation and entered an order denying benefits. Bishop appealed to the Circuit Court of Hinds County, which reversed the order of PERS Board of Trustees. The circuit court held that the Board's decision was arbitrary and capricious and was not supported by substantial evidence. PERS appeals, asserting one issue:

I. DID THE CIRCUIT COURT ERR IN FINDING THAT PERS ACTED ARBITRARILY AND CAPRICIOUSLY IN DENYING BISHOP'S APPLICATION FOR DISABILITY BENEFITS?

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Prior to his disability, Bishop was employed as a Carpenter II with Mississippi State University for approximately nine and a half years. As a carpenter, Bishop was required to maintain, repair, replace, alter, or fabricate a wide variety of structural systems using numerous materials, tools and methods. His duties as a carpenter required some heavy lifting and strenuous activities.

*261 ¶ 4. In 1994, Bishop began to suffer from pain in his elbows, legs, and neck. In 1996 and 1997, Bishop notified Dr. Mike Mabry of his pain. Bishop contends that he was able to continue working for approximately five years thereafter because of the aid of his co-workers and the flexibility of his supervisor. On May 17, 1999, Bishop terminated his employment with Mississippi State University, alleging that he was not physically capable of performing his job duties. Mississippi State University did not offer alternative employment nor did it offer lesser duties in the same position or an alternate position.

¶ 5. On August 23, 1999, Bishop visited Ochsner Clinic in New Orleans. At Ochsner Clinic, Bishop was treated by a rheumatologist, Dr. Jamie Bustamente. Dr. Bustamente determined that Bishop did not have a rheumatoid diagnosis and referred Bishop to Dr. Jeanette Salone, also a physician at Ochsner Clinic.

¶ 6. On August 23, 1999, Dr. Salone diagnosed Bishop with chronic fibromyalgia, diffuse myofascial disease, and chronic depression. Dr. Salone opined that Bishop's disability was permanent and he would require an indefinite amount of treatment. Although Dr. Salone noted that Bishop could not work, she opined that Bishop needed to undergo a Functional Capacity Exam (FCE) for her to make a final determination. Bishop chose not to undergo the FCE because his insurance did not cover the exam. On September 2, 1999, Dr. Salone released Bishop as a patient because Bishop indicated it was too expensive to drive back and forth to New Orleans for exams. After Dr. Salone released Bishop, she indicated that Bishop could return to work if he chose to do so. Dr. Salone also recommended that Bishop see a physician in Mississippi. Dr. Salone's notes state that some objective evidence of Bishop's abilities was necessary to make a determination of whether Bishop was permanently disabled and whether he could be gainfully employed.

¶ 7. In Mississippi, Bishop went to Dr. Everett McKibben for treatment. On August 27, 1999, Dr. McKibben opined that Bishop needed to lose weight, exercise, decrease alcohol consumption, and obtain treatment for depression. Dr. McKibben also noted that, although Bishop may need a vacation, there was no evidence to show that Bishop was totally or permanently disabled. Dr. McKibben did not conduct any tests. However, Dr. McKibben indicated that Bishop had degenerative joint disease and had a negative rheumatory work-up. Dr. McKibben referred Bishop to Dr. Laura Gray.

¶ 8. On September 13, 1999, Dr. Gray first saw Bishop. Dr. Gray performed lab work, x-rays and examinations. Bishop had several follow-up appointments with Dr. Gray. Dr. Gray opined that Bishop's condition would not improve and he would be permanently disabled.

¶ 9. On September 17, 1999, PERS received Bishop's request for disability benefits. PERS also received a Form 6B, an employer's statement of job requirements, from Bishop's supervisor, John Warner. The form stated:

Don cannot grip hand tools or power tools needed to perform his duties. He cannot lift or carry building materials used daily in the process of performing his duties. Don cannot climb ladders or scaffolds which is required daily in the process of performing his duties. Don is not able to help with the installation of new roofs or with the repairs of other roofs because of the kneeling, squatting and bending required. Don cannot form, pour or finish concrete because of the kneeling, squatting and bending required.

*262 Warner also stated that Bishop was motivated to perform the duties required of him although he was unable to do so.

¶ 10. After review of Bishop's application, PERS deferred its decision to obtain a FCE. On November 29, 1999, Bishop underwent a FCE under the supervision of Julie Walker, occupational therapist, at Methodist Rehabilitation Center. The FCE recommendations stated:

[t]rue abilities and limitations are difficult to determine as the patient was simply self limited by complaints of pain in numerous body parts. . . . The patient is functioning at restricted light/medium level of work, however, it is felt that he is capable of more. This evaluation represents what the patient was willing to do and not physiological maximum as this was not observed during the evaluation.

However, the FCE noted that Bishop "demonstrates significant pain behaviors during testing such as grunting, grimacing and very jumpy during physical assessment." The FCE stated that Bishop "teared up on two occasions" during the exam. After reviewing the medical documentation, on December 30, 1999, PERS denied Bishop's claim.

¶ 11. Bishop appealed the PERS decision on April 19, 2000, and additional medical documentation was submitted. The evidence was scheduled to be reviewed in August of 2000 and an appeal hearing date was scheduled for November 13, 2000. On August 24, 2000, Judge Mark Dawson, an administrative law judge for the Social Security Administration, found that Bishop was disabled. Judge Dawson stated that Bishop was unable to perform the past work because he had severe impairments including fibromyalgia, cervical, thoracic, lumbar degenerative changes, exogenous obesity and poorly controlled hypertension. Judge Dawson held "there are no jobs existing in significant numbers in the national economy which he can perform."

¶ 12. On November 13, 2000, an appeals hearing was held before the PERS Disability Appeals Committee. At the hearing, Bishop testified that he enjoyed his employment; however, it was very physical work. Bishop described his medical problems including physical pain, flu-like symptoms, weakness in his hands and knees, physical limitations at work, abnormal sleep patterns and excessive snoring.

¶ 13.

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Related

Case v. PUBLIC EMPLOYEES'RETIREMENT SYSTEM
973 So. 2d 301 (Court of Appeals of Mississippi, 2008)

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Bluebook (online)
942 So. 2d 259, 2006 WL 3199553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pers-v-bishop-missctapp-2006.