PUBLIC EMPLOYEES'RETIREMENT SYSTEM v. Card

994 So. 2d 239, 2008 WL 2247141
CourtCourt of Appeals of Mississippi
DecidedJune 3, 2008
Docket2007-SA-00109-COA
StatusPublished
Cited by14 cases

This text of 994 So. 2d 239 (PUBLIC EMPLOYEES'RETIREMENT SYSTEM v. Card) 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. Card, 994 So. 2d 239, 2008 WL 2247141 (Mich. Ct. App. 2008).

Opinion

994 So.2d 239 (2008)

PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellant/Cross-Appellee,
v.
Mary CARD, Appellee/Cross-Appellant.

No. 2007-SA-00109-COA.

Court of Appeals of Mississippi.

June 3, 2008.
Rehearing Denied September 16, 2008.
Certiorari Denied November 6, 2008.

*240 Mary Margaret Bowers, attorney for appellant.

George S. Luter, attorney for appellee.

Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.

GRIFFIS, J., for the Court.

¶ 1. Mary Card applied for hurt-on-the-job disability retirement benefits from the Public Employees' Retirement System ("PERS"), pursuant to Mississippi Code Annotated section 25-11-114(6) (Rev.2006). The Disability Appeals Committee ("Committee") recommended that her application be denied. The Committee also denied Card regular disability under Mississippi Code Annotated section 25-11-113(1)(a) (Rev.2006). The PERS Board of Trustees ("Board") adopted the Committee's recommendation and denied Card's claim. Card appealed the decision of the Board to the Circuit Court of Hinds County. The circuit court affirmed the Board's denial of hurt-on-the job benefits, but reversed the Board's denial of regular disability benefits.

¶ 2. PERS now appeals, claiming that the circuit court erred in awarding regular disability benefits under section 25-11-113(1)(a). PERS argues the circuit court improperly reweighed the evidence and substituted its judgment for that of the Board by finding that the Board's decision was not supported by substantial evidence. Card contends that the Board's denial of regular disability benefits is not supported by substantial evidence and was arbitrary and capricious.

¶ 3. Card filed a cross-appeal claiming that the circuit court erred in affirming the Board's decision to deny her hurt-on-the-job disability benefits under section 25-11-114(6). Card argues that the Board's decision was not supported by substantial evidence.

¶ 4. Finding error, we reverse and render in part and reverse and remand in part. As to Card's cross-appeal, we affirm the circuit court's ruling that Card is not *241 entitled to hurt-on-the-job benefits under section 25-11-114(6).

FACTS

¶ 5. Card was an accounting assistant at the University of Mississippi for fifteen years. She did not report to work after August 30, 2002, when she began to experience severe pain from writing all day long. She went to the emergency room that same evening because of the pain and numbness in her right hand. Card has remained on unpaid leave from her job since August 30, 2002. On December 12, 2002, she filed her claim for disability with PERS. A hearing before the Committee, comprised of two physicians and one nurse, was held on November 17, 2003. The Committee heard testimony regarding Card's medical history and her present condition in order to determine whether she qualified for disability.

¶ 6. Card was diagnosed with carpal tunnel syndrome in 1998. The record shows that she experienced problems with both of her hands and began receiving treatment for pain in 2001. The following year, she had carpal tunnel surgery on both hands. She improved with physical therapy, but the pain returned after the therapy was discontinued by her doctor.

¶ 7. Dr. Ernest B. Lowe, Jr., who performed Card's carpal-tunnel-release surgery, stated that Card could return to work at light duty with no repetitive wrist motion, but he also concluded that she could not return to her former job.

¶ 8. Dr. Cooper Terry, an orthopedist, performed an independent evaluation of Card's wrists. He noted that Card showed guarding of her wrists, but she had full range of motion and no signs of bruising or warmth. Dr. Terry also concluded that Card's subjective complaints of pain and numbness were fairly impressive. However, it was his opinion that Card was capable of returning to her former job because there were no objective findings that would prevent her from performing that type of work.

¶ 9. On March 31, 2003, after Card's last day of work, but before her hearing before the Committee, Card had heart bypass surgery that caused her vocal cords to become temporarily paralyzed. In a letter date October 22, 2003, her doctor recommended that she only use her voice for two hours per day for at least the next six months. This limitation prohibited her employer from transferring her to a receptionist job, which would have accommodated her problems associated with carpal tunnel syndrome.

¶ 10. Card was given a Functional Capacity Evaluation ("FCE") on July 22, 2003. She testified that she had trouble lifting with her hands and difficulty crawling on her hands and knees. She was self-limiting in 52% of the tasks; however, despite her self-limiting behavior, she was able to perform twelve of the fourteen physical requirements of her employer. The tester determined that Card could return to sedentary employment.

¶ 11. A Vocational Rehabilitation Evaluation ("VRE") was also performed on October 24, 2003. It concluded that Card sustained a 100% loss of access to the labor market. The test found that she had no transferable skills. The Committee attributed this result to the temporary restriction on the use of her voice.

¶ 12. Based on the recommendation of the Committee, Card's claim for disability benefits was denied by the Board. As to hurt-on-the-job disability, PERS found that Card had not met her burden of proving that an accident or trauma caused her alleged disability. Card was also denied regular disability because the Board found that complaints of pain alone were insufficient *242 to substantiate a disability. There was no objective evidence of carpal tunnel sufficiently significant to warrant permanent disability. The Board did not take into consideration the injury to her vocal cords because it occurred well after her last day of work.

¶ 13. The circuit court upheld the Board's decision as to hurt-on-the-job disability, but the court overturned the denial of regular disability benefits. PERS now appeals that portion of the circuit court's order granting regular disability benefits to Card. On cross-appeal, Card seeks reversal of the circuit court's order affirming the denial of hurt-on-the-job benefits.

STANDARD OF REVIEW

¶ 14. Judicial review of an administrative agency's decision is severely limited. 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. Shannon Eng'g & Constr. v. Employment Sec. Comm'n, 549 So.2d 446, 449 (Miss.1989). Moreover, a court may only overturn the Board's decision if it was (1) unsupported by substantial evidence, (2) arbitrary and capricious, (3) beyond the agency's authority to make, or (4) in violation of a statutory or constitutional right of the applicant. Pub. Employees' Ret. Sys. v. Dearman, 846 So.2d 1014, 1018(¶ 13) (Miss.2003); Pub. Employees' Ret. Sys. v. Dishmon, 797 So.2d 888, 891(¶ 8) (Miss. 2001).

¶ 15. "There is a rebuttable presumption in favor of a PERS ruling. 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." Dishmon, 797 So.2d at 891(¶ 9) (citations omitted). When reviewing an administrative agency's decision, the circuit court must look at the full record before it in deciding whether the agency's findings were supported by substantial evidence. Miss. State Bd. of Exam'rs for Social Workers & Marriage and Family Therapists v. Anderson,

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Cite This Page — Counsel Stack

Bluebook (online)
994 So. 2d 239, 2008 WL 2247141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-employeesretirement-system-v-card-missctapp-2008.