Thomas v. PUBLIC EMPLOYEES'RETIREMENT SYS.

995 So. 2d 130, 2007 WL 1815860
CourtCourt of Appeals of Mississippi
DecidedJune 26, 2007
Docket2005-CC-02184-COA
StatusPublished
Cited by1 cases

This text of 995 So. 2d 130 (Thomas v. PUBLIC EMPLOYEES'RETIREMENT SYS.) 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
Thomas v. PUBLIC EMPLOYEES'RETIREMENT SYS., 995 So. 2d 130, 2007 WL 1815860 (Mich. Ct. App. 2007).

Opinion

995 So.2d 130 (2007)

Betty THOMAS, Appellant
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, Appellee.

No. 2005-CC-02184-COA.

Court of Appeals of Mississippi.

June 26, 2007.
Rehearing Denied February 19, 2008.

George S. Luter, Attorney for appellant.

Mary Margaret Bowers, Attorney for appellee.

Before LEE, P.J., BARNES and CARLTON, JJ.

*131 BARNES, J., for the Court.

¶1. Betty Thomas appeals the decision of the Hinds County Circuit Court, First Judicial District, which affirmed the ruling of the Public Employees' Retirement System of Mississippi's (PERS) Board of Trustees denying Betty Thomas, a former state employee, non-work related retirement disability benefits. Thomas applied for disability retirement benefits when chronic pain, headaches, and fatigue due to fibromyalgia rendered her unable to perform her duties as a child support enforcement officer for the Mississippi Department of Human Services. The circuit court found the decision by the PERS Board of Trustees was supported by substantial evidence. On appeal, Thomas argues that there was overwhelming, substantial medical evidence to support her disability claim. We agree and reverse the decision of the circuit court and the PERS Board of Trustees, thereby granting disability benefits to Betty Thomas.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Betty Thomas was employed by the Mississippi Department of Human Services as a child support enforcement officer. At the time of her application for PERS disability benefits, she had nine and three-quarters years of service and was forty-nine years old. Thomas's physical activities at work consisted of a sedentary desk job with some standing and pushing and pulling of files. Mentally, her position was highly stressful in that she had to deal with the public.

¶3. Thomas's medical problems pertaining to this case began in August of 2000, when she went to the emergency room in Winona, Mississippi for back pain resulting from sneezing. She complained of pain traveling down her right thigh along with migraine headaches. Thomas then saw a series of doctors who attempted to treat and diagnose her symptoms. Dr. Keith Rushing, her family practitioner, referred her to Jackson orthopedic surgeon, Dr. Patrick Barrett, who found she had "significant back pain" and diagnosed her with right side bursitis and right side lumbar strain. Dr. Barrett then referred Thomas to Dr. Jeffrey T. Summers, a pain specialist, who saw Thomas one time and treated her with a steroid injection and gave her a transcutaneous electrical nerve stimulation (TENS) pain control unit. In January of 2001, Thomas saw Dr. John C. Neill, a Greenwood orthopedic surgeon, who reported that Thomas's cervical spine MRI showed disc degeneration. Dr. Neill recommended spinal fusion in her neck, which was performed by him in February of 2001. Thomas took leave from work for this surgery and also for the death of her brother later that month. In March 2001, after recovering from this surgery, Thomas returned to work for several months, but her health worsened. In April and May of 2001, Thomas complained to her physicians of numbness, headaches, and bodily pain. In her last visit to Dr. Neill on May 11, 2001, however, he did note she had good plate alignment in her spine.

¶4. In October of 2001, Thomas saw Dr. Fred Sandifer, an orthopedic surgeon, for chronic back and hip pains. He stated the source of her constant and chronic pain was unclear and suggested a referral to a rheumatologist based upon the possibility of fibromyalgia. Dr. Rushing, Thomas's primary care physician, referred Thomas to Dr. James Hensarling, who, in a letter to Dr. Rushing dated January 28, 2002, felt Thomas had fibromyalgia in a "predominant pattern." Dr. Hensarling also stated that at this point Thomas "is in a state of chronic pain." He also thought Thomas had "developed secondary depression due to her chronic pain and job status which is *132 stressful," and recommended a psychiatrist. Finally, he advised three months of sick leave from work.

¶5. Dr. Hensarling referred Thomas to Dr. Levitch, a psychiatrist, to help her cope with her pain and depression. Thomas testified that she saw Dr. Levitch every two weeks for depression. He told her she would have a hard time doing her job. Thomas postulates this was because of stress and her memory problems. In April of 2002 the Social Security Administration notified Thomas she was entitled to federal disability benefits from February 26, 2002. Thomas claimed on her PERS disability retirement benefits form, which was filed on May 28, 2002, that February 25, 2002 was her last work day and she was subsequently on leave without pay. A Department of Human Services disability coordinator, Wilhelmina McCullough, wrote on the PERS employer certification of job requirements in May 2002 that Thomas "appears unable to sit for the time needed to perform the essential functions of her job." Additionally, since no accommodations had been offered Thomas, Thomas appeared unable to come to work and perform her duties at that time. In July 2002, on PERS's statement of examining physician form, Dr. Rushing stated Thomas's principal diagnosis was fibromyalgia, her prognosis for recovery was "fair," her estimated time of maximum medical improvement was "indefinite," and "at present patient cannot perform any type of work." On Thomas's private disability insurance form, Dr. Rushing also wrote on the attending physician's statement that she had fibromyalgia even though her diagnostic results were "unremarkable." He stated that mental stress worsened her physical capabilities, and she could not perform work of any kind, although she could do housework. Dr. Levitch, on his PERS's statement of examining physician form dated July of 2002, also stated Thomas suffered from major depression secondary to her medical issues.

¶6. In November of 2002, PERS administered a functional capacity examination ("FCE") on Thomas. The results found Thomas could sit for at least thirty minutes at one time, but was "self-limited by pain." The PERS evaluation recommended that Thomas, while "capable of performing at the sedentary to light level of work with some limitations.... would need to be given occasional rest breaks and alternate sitting and standing." The evaluation concluded that "[i]f these accommodations are not feasible, then the patient would not be able to productively return to work." Also, since "work place stress" was a "significant factor in her inability to return to work, it might also be efficacious for her to be evaluated by a psychiatrist." In November of 2002, Dr. Richard Sharp performed an independent medical examination for Thomas's private disability insurance carrier. It was his opinion that Thomas did have "classic fibromyalgia tender points, as well as associated symptoms, such as fatigue." Thomas's family leave time expired on June 1, 2002, and she was informed by letter in December 2002 that she was no longer employed as of December 31, 2002.

¶7. On February 6, 2003, PERS's executive director wrote Thomas a letter stating there was "insufficient objective evidence" to support her claim that she could not perform her job duties as a child support enforcement officer. Thomas appealed to the PERS Disability Appeals Committee ("Committee") of the Board of Trustees. The Committee held a hearing on March 28, 2003. Appearing at the hearing were Presiding Hearing Officer Sheila Jones, and Drs. Joseph Blackston and Mark Meeks. Thomas appeared pro se. Thomas testified to her numerous physical complaints and stated she left work in January *133

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Related

Thomas v. PERS
995 So. 2d 115 (Mississippi Supreme Court, 2008)

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Bluebook (online)
995 So. 2d 130, 2007 WL 1815860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-public-employeesretirement-sys-missctapp-2007.