PUBLIC EMPLOYEES'RETIREMENT SYSTEM v. Dean

983 So. 2d 335, 2008 Miss. App. LEXIS 89, 2008 WL 307817
CourtCourt of Appeals of Mississippi
DecidedFebruary 5, 2008
Docket2006-SA-01692-COA
StatusPublished
Cited by4 cases

This text of 983 So. 2d 335 (PUBLIC EMPLOYEES'RETIREMENT SYSTEM v. Dean) 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. Dean, 983 So. 2d 335, 2008 Miss. App. LEXIS 89, 2008 WL 307817 (Mich. Ct. App. 2008).

Opinion

983 So.2d 335 (2008)

PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellant
v.
Jackie W. DEAN, Appellee.

No. 2006-SA-01692-COA.

Court of Appeals of Mississippi.

February 5, 2008.
Rehearing Denied June 3, 2008.

*337 Mary Margaret Bowers, attorney for appellant.

George S. Luter, Robert Q. Whitwell, Ashland, attorneys for appellee.

Before KING, C.J., BARNES and ISHEE, JJ.

KING, C.J., for the Court.

¶ 1. The Public Employees' Retirement System of Mississippi (PERS) appeals the Hinds County Circuit Court's decision that awarded disability retirement benefits to Jackie W. Dean. The circuit court reversed the finding by the PERS Board of Trustees that Dean was not disabled. Finding error in the circuit court's decision to reverse the determination rendered by PERS, this Court reverses the judgment of the circuit court and reinstates the decision of the PERS Board of Trustees.

FACTS

¶ 2. On October 20, 1994, while mowing grass for the City of Iuka, Dean's mower became stuck in mud. In his attempt to push the mower out of the mud, his back twisted and popped. After the injury, Dean went to Dr. Ben Kitchens, his family practitioner, who diagnosed him with one ruptured disc and two bulging discs. He was then referred to Dr. Thomas Weems.

¶ 3. After his consultation with Dr. Weems, Dean underwent a lumbar discectomy on December 27, 1994, to repair the injury to the ruptured disc. Two weeks later, Dean met with Dr. Weems and described an intense heel pain in his right foot, not the left leg that he hurt prior to surgery. Dr. Weems stated, in his report dated January 11, 1995, "I feel that the patient should be evaluated orthopedically and will send him to Dr. James Varner for evaluation." This referral was solely for what appeared to be heel pain. On January 16, 1995, Dr. Varner examined and treated Dean for the heel pain. He then scheduled a follow-up examination with Dean for two weeks later, but acknowledged that Dr. Weems was scheduled to see Dean on January 31, 1995. Further, Dr. Varner's report stated, "Work status to be determined by Dr. Weems." Dr. Varner's two reports indicated that he did not see Dean again until May, not two weeks later as stated in his January 16 report.

¶ 4. Dean continued to be treated by Dr. Weems. On April 5, 1995, Dr. Weems stated in his report that there would be no danger in Dean returning to work. However, he would keep Dean off work for one additional month, although he felt that Dean had already reached maximum medical benefit. One month later, Dr. Weems released Dean to return to regular duties with no restrictions. On the same day, he referred Dean to Dr. Varner for orthopedic evaluation and pain management and to Dr. Keith Atkins for a psychological evaluation for depression.

¶ 5. On May 11, 1995, Dr. Varner evaluated Dean and stated in his report that Dean could be gainfully employed, but a sedentary position would be preferable. On June 9, 1995, only three and a half weeks later, Dr. Varner sent a letter to the City of Iuka placing the following restrictions on Dean's employment: "no standing, no lifting, no driving, no prolonged sitting and sedentary conditions only." The letter further stated that these conditions appeared to be permanent. Upon receiving these restrictions, the mayor of the City of Iuka stated that the City did *338 not have any positions that would allow Dean to continue his employment there. Subsequently, Dean has been unable to gain employment in accordance with Dr. Varner's restrictions.

¶ 6. On July 12, 1995, Dean applied for in-the-line-of-duty disability retirement with PERS pursuant to Mississippi Code Annotated Section 25-11-114(6) (Rev. 2006). In accordance with the application, Dr. Weems's and Dr. Varner's reports were submitted. Dr. Weems reported that Dean had a 16% impairment rating, chronic post-op discectomy with mild severity, and a good prognosis. Dr. Varner reported that Dean had a 15% impairment rating and a sedentary job would be preferable.

¶ 7. On October 16, 1995, Dean's attorney referred him to Dr. James Crowder, a vocational expert and psychologist. Dr. Crowder stated that Dean was of borderline intelligence, and he considered Dean to be 100% vocationally disabled "in terms of reduced access to the labor market." Through a referral by PERS, Dean was evaluated by Dr. Rahul Vohra. Dean testified that Dr. Vohra performed only a fifteen-minute physical evaluation. Dr. Vohra stated that Dean had a light level job, and he "should be able to perform this." Dean then saw Dr. Carl Welch, a family practitioner. Dean testified that Dr. Welch performed a four-hour-and-thirty-minute physical examination. Dr. Welch did not feel that "Dean is or ever will be able to engage in any type of gainful employment working an 8 hour day — 40 hours per week."

¶ 8. In addition to the opinions provided by the various doctors, Dean testified that he had received several epidural steroid blocks from Dr. Angel Rodriguez since his evaluation with Dr. Varner. Also, Dean received a ruling from the Social Security Administration that he was determined to be disabled in accordance with their standards.

¶ 9. After receiving various reports, notes, and records from various physicians, PERS found that the reports conflicted with each other regarding whether Dean was disabled. PERS found that Dr. Weems and Dr. Vohra felt that Dean was not disabled, while Dr. Varner, Dr. Crowder, and Dr. Welch all felt he was permanently disabled. PERS placed more weight on Dr. Weems's opinion since he was the treating physician. PERS found that, while Dean would have periodic back pain, the pain was not disabling. After finding that Dean was not disabled, the Board of Trustees denied Dean disability benefits in accordance with Section 25-11-114(6).

PROCEDURAL HISTORY

¶ 10. After Dean was informed by the mayor of the City of Iuka that it did not have any available positions for him, he applied for hurt-in-the-line-of-duty disability benefits in accordance with Section 25-11-114(6). The PERS Medical Board found that Dean was not disabled and denied Dean any disability benefits. Upon Dean's request, a hearing was held on November 25, 1996, before the PERS Disability Appeals Committee. Following the hearing, the PERS Board of Trustees adopted the Committee's proposed statement of facts, conclusions of law, and recommendation to deny Dean's request for disability benefits.

¶ 11. Aggrieved, Dean appealed to the Circuit Court of Hinds County, and it affirmed the decision of PERS. Through further appeals, the case made its way through the Court of Appeals, Dean v. Public Employees' Retirement System, 98-CC-00033-COA (Miss.Ct.App. Apr. 20, 1999), and the supreme court, Dean v. Public Employees' Retirement System, *339 797 So.2d 830 (Miss.2000). The supreme court reversed the decision of PERS and remanded the case for a new hearing. The supreme court found that PERS had improperly allowed two members of the Medical Board, Dr. Vohra and Dr. Winkelman, to also sit on the Disability Appeals Committee. Id. at 836 (¶ 26). The supreme court stated that there was no "failure to provide due process [to Dean], in so far as Dr. Vohra examined Dean and provided a diagnosis and recommendation, and then voted with his fellow members of the Medical Board to deny Dean's application." Id. at (¶ 24).

¶ 12. On September 10, 2001, a second hearing was conducted by the PERS Disability Appeals Committee, and a supplemental hearing was held on June 10, 2002.

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Cite This Page — Counsel Stack

Bluebook (online)
983 So. 2d 335, 2008 Miss. App. LEXIS 89, 2008 WL 307817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-employeesretirement-system-v-dean-missctapp-2008.