Public Employees' Retirement System v. Trulove

954 So. 2d 501, 2007 Miss. App. LEXIS 250, 2007 WL 1121474
CourtCourt of Appeals of Mississippi
DecidedApril 17, 2007
DocketNo. 2006-SA-00550-COA
StatusPublished
Cited by6 cases

This text of 954 So. 2d 501 (Public Employees' Retirement System v. Trulove) 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
Public Employees' Retirement System v. Trulove, 954 So. 2d 501, 2007 Miss. App. LEXIS 250, 2007 WL 1121474 (Mich. Ct. App. 2007).

Opinion

IRVING, J.,

for the Court.

¶ 1. Phyllis Trulove filed an application for duty-related disability benefits with the Public Employees’ Retirement System (PERS). The Disability Appeals Committee and the Board of Trustees denied Trulove’s request on the ground that her disability does not meet the statutory provisions of a duty-related disability. The Hinds County Circuit Court reversed PERS’ decision and granted Trulove duty-related disability benefits. Aggrieved, PERS appeals and asserts that the circuit court erred in finding that Tru-love suffered injuries as a direct result of [502]*502an accident that occurred during the course of her job duties.

¶2. Finding no error, we affirm the circuit court.

FACTS

¶ 3. At the time of the incident in question Trulove was employed as a Nurse II with the Lowndes County Department of Health. She had been employed with the Mississippi Department of Health for a total of ten and one-half years, previously working as a home health nurse for the Department of Health’s Tombigbee Home Health Agency.

¶ 4. On August 8, 1995, Trulove suffered injuries to her neck and shoulder when she was involved in an automobile accident in Clay County while performing her duties as a visiting home health nurse for the Department of Health. On May 23, 1996, she had magnetic resonance imaging (MRI) of her neck which revealed that she had suffered a herniated disk at the C4-5. On June 4, 1996, she underwent an anteri- or cervical discectomy. She also underwent several years of physical therapy, as well as other pain management procedures, in an effort to alleviate the pain caused by her shoulder injury, all to no avail.

¶ 5. Despite her constant complaints of pain, Trulove returned to work with the Tombigbee Home Health Agency as a medical re-certification nurse, rather than as a visiting nurse, which provided her with a more comfortable work environment. She was subsequently laterally transferred to the Department of Health as a Nurse II, where she worked in a clinic, the position she held at the time of the incident at issue. While working at the clinic, Trulove’s duties included completing paperwork, immunizing babies, giving injections, conducting physicals, and postpartum home visits.

¶ 6. On October 10, 2000, Trulove claims to have suffered a second duty-related injury, which prompted her to file an incident report with the Department the next day. In the incident report, Trulove stated that she was restraining a twelve-year-old boy who was about to receive an injection when she felt a “pop” in her neck which was immediately followed by pain in her head and arms. She also stated that her arm became weak and she released the child. On October 17, 2000, Trulove visited Dr. John D. Davis complaining of pain in her neck and right arm. On December 7, 2000, Trulove underwent surgery to repair a herniated nucleus at the C5-6 to alleviate the severe pain that she was experiencing in her neck and arm. She returned to work following the surgery, under a fifteen pound weight restriction.

¶ 7. On March 19, 2002, she applied for duty-related disability benefits for the October 10, 2000 incident, claiming to have reinjured her neck. Trulove testified before the Disability Appeals Committee that the pop felt like “electricity going through [her] head.” Trulove also testified that the incident on October 10, 2000, aggravated the shoulder injury that she had suffered in the car accident. Prior to the second injury, she underwent surgery in 2001 to repair a partial rotator cuff tear caused by the 1995 car accident.

¶ 8. Trulove further testified that she has pain in her neck and lower back that radiates down to her left leg which causes numbness and tingling. She stated that the pain has become unbearable and it affects every aspect of her daily life. She has been prescribed several pain relievers, but she is allergic to most and others make her drowsy, which causes her apprehension about taking them while performing her job duties. Trulove also testified that as a result of the pain, she lies down six or [503]*503seven hours a day. She testified that she is in pain twenty-four hours a day, seven days a week. As a result, on March 31, 2002, Trulove terminated her employment with the Department of Health.

¶ 9. Additional facts, as appropriate, will be related during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. This Court has limited judicial review of an administrative decision of an agency or board and shall uphold the decision of the Board unless its decision: (1) is not supported by substantial evidence, (2) is arbitrary and capricious, (3) is beyond the authority of the Board to make, or (4) violates Trulove’s statutory or constitutional rights. Sprouse v. Miss. Empl. Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994). “There is a rebuttable presumption in favor of a PERS ruling. Neither this 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.” Pub. Emples. Ret. Sys. v. Dishmon, 797 So.2d 888, 891(¶9) (Miss.2001) (citing Miss. Pub. Serv. Comm’n v. Merchs. Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992)).

¶ 11. Employees of the State of Mississippi are eligible for regular disability benefits and duty-related benefits. In order to qualify for regular disability benefits an employee must have at least four years of state service. Miss.Code Ann. § 25-11-113(l)(a) (Rev.2006). PERS does not dispute that Trulove is disabled within the meaning of section 25 — 11—113(1)(a), which defines disability as:

the 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 (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

The Disability Appeals Committee found that “it is our unanimous decision that Ms. Trulove does suffer from a disability as defined by the statute and it is our recommendation that she be awarded Regular Disability Benefits.”

¶ 12. However, in order to be eligible for duty-related disability benefits the burden is on Trulove to show that her disability is a direct result of an accident or traumatic event which occurred while she was performing her job duties. Miss.Code Ann. § 25-11-114(6) (Rev.2006). Mississippi Code Annotated section 25-11-114(6) provides, in part:

Regardless of the number of years of creditable service upon the application of a member or employer, any active member who becomes disabled as a direct result of an accident or traumatic event resulting in a physical injury occurring in the line of performance of duty, provided that the medical board or other designated governmental agency after a medical examination certifies that the member is mentally or physically incapacitated for the further performance of duty and the incapacity is likely to be permanent, may be retired by the board of trustees....

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954 So. 2d 501, 2007 Miss. App. LEXIS 250, 2007 WL 1121474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-employees-retirement-system-v-trulove-missctapp-2007.