Thomas v. Pub. Employees' Ret. Sys. of Miss.

346 So.3d 921

Bobbie THOMAS, Appellant

v.PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, Appellee

NO. 2021-SA-00375-COA

Court of Appeals of Mississippi.

September 6, 2022

ATTORNEY FOR APPELLANT: GEORGE S. LUTER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: AMELIA BARTLETT GAMBLE, Jackson

BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.

WILSON, P.J., FOR THE COURT:

¶1. While working as a bus aide for Jackson Public Schools (JPS), Bobbie Thomas fell and hit her head. Thomas applied for duty-related disability benefits based on injuries she allegedly sustained as a result of her fall, but the Board of Trustees (Board) of the Public Employees’ Retirement System of Mississippi (PERS) found that Thomas failed to meet her burden to prove that she could no longer perform her duties as a bus aide as a result of the workplace accident. Accordingly, the Board denied Thomas's application. The Hinds County Circuit Court subsequently affirmed the Board's decision. We likewise conclude that the Board's decision is supported by substantial evidence and is not arbitrary or capricious. Therefore, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶2. Thomas was employed as a bus aide for JPS. Her job required her to monitor and assist student bus riders with special needs. In September 2014, Thomas noticed that a student had unfastened his seatbelt and left his seat. As Thomas tried to assist the student, the bus made a sudden turn, and Thomas fell down and hit her head on a wheelchair lift. Thomas was taken to the emergency room at St. Dominic Hospital.

¶3. Tests conducted at St. Dominic, including CT scans of Thomas's head and back and an MRI of her brain, showed no significant injury, and Thomas was discharged the same day. Thomas returned to the hospital one week later complaining of headaches and neck pain. An MRI of her brain and other tests were performed and again revealed no significant injury. Thomas was again discharged from the hospital shortly after her doctors reviewed her test results.

¶4. In May 2016, Thomas applied for PERS duty-related disability benefits based on the September 2014 incident.¹ Thomas stated that she could not return to work after the incident because she was experiencing headaches, dizziness, and balance issues and "seeing stars."

¶5. Dr. Jimmy Wolfe had treated Thomas and completed a PERS Form DSBL 7 (Statement of Examining Physician). Dr. Wolfe diagnosed Thomas with migraine variant and post-concussive syndrome. Dr. Wolfe found that Thomas's diagnoses were unlikely to improve and noted that Thomas had trouble staying focused on a task and tended to focus on pain. Dr. Wolfe indicated that Thomas had no restrictions from a neurological standpoint.

¶6. Dr. Edward Manning, a psychologist, evaluated Thomas and recommended "ongoing medical care for headaches." Dr. Manning also suggested "psychological treatment in the form of cognitive-behavior therapy that focuses on pain management [to] address[ ] [Thomas's] very poor psychological/behavior adaptation to her condition."

¶7. The PERS Medical Board deferred action on Thomas's application and asked Thomas to submit to independent medical examinations by Dr. Criss Lott, a clinical and forensic psychologist, and Dr. Philip Blount, a physiatrist. Dr. Lott concluded that Thomas "appeared to be grossly exaggerating her cognitive and psychological problems." Dr. Lott stated that he could not give an opinion regarding Thomas's functional capacity or prognosis due to a "lack of credible data obtained during [the] evaluation." However, Dr. Lott stated that "Thomas's psychological problems [were] amenable to treatment," although she had not yet received any treatment.

¶8. Dr. Blount found that Thomas had a normal neurologic exam with respect to strength, sensation, and reflexes. Dr. Blount concluded that Thomas did not have any restrictions or limitations from a cervical, lumbar, or musculoskeletal perspective. Dr. Blount noted that Thomas had preexisting low back pain and that it was "clear" that those "symptoms ha[d] not changed in quality or intensity since her [workplace] injury." Dr. Blount stated that with respect to any diagnosis of a post-concussive syndrome or mental health issues, he would defer to a neurologist and psychologist, respectively.

¶9. After reviewing Dr. Lott's report, the Medical Board asked Dr. Lott to clarify whether he believed that Thomas was disabled. In response, Dr. Lott stated that he could not "offer an opinion with confidence regarding the actual nature and severity of [Thomas's] reported cognitive and emotional problems." He reiterated that Thomas was "grossly exaggerating her cognitive and psychological problems" during his independent medical examination. He further stated that "Thomas's psychological problems [were] amenable to treatment" and that her "condition could improve with appropriate mental health treatment."

¶10. In February 2017, the Medical Board denied Thomas's application for duty-related disability benefits. The Medical Board found that Thomas produced "insufficient objective medical evidence to support the claim that [her] medical condition prevent[ed] [her] from performing the duties of a Bus Aide."

¶11. Thomas appealed the Medical Board's denial to the PERS Disability Appeals Committee. In September 2017, the Appeals Committee held a hearing regarding Thomas's appeal. Thomas testified that she was unable to return to work after the incident because she was experiencing headaches, dizziness, and balance issues and "seeing stars." She testified that she was concerned that she would lose her balance while on the bus and hurt herself or a student. She said she sometimes had trouble with her balance while sitting or standing, although she had never fallen down. She also testified that her headaches produced "such a sharp, intense pain that [she could not] do anything." Thomas stated that she experienced headaches on a daily basis and that they struck her suddenly and sometimes lasted for three to four hours.

¶12. The Appeals Committee subsequently issued a thirteen-page proposed opinion that recommended that the PERS Board of Trustees deny Thomas's claim. Like the Medical Board, the Appeals Committee found that Thomas presented insufficient objective medical evidence to establish that she was unable to perform her duties as a bus aide as a result of the September 2014 incident. The Board of Trustees adopted the Appeals Committee's recommendation and denied Thomas's claim.

¶13. Thomas appealed the Board's decision to the Hinds County Circuit Court. The circuit court affirmed the Board's decision, concluding that it was supported by substantial evidence and was not arbitrary or capricious. Thomas again appealed.

ANALYSIS

¶14. On appeal, Thomas argues that the Board's decision "is legally incorrect and not supported by substantial evidence because Dr. Jimmy Wolfe's opinion that Thomas suffers from ‘post concussive syndrome ’ and is ‘unlikely to improve’ is not contradicted by" other evidence in the record. Thomas also argues that the Board's decision was arbitrary and capricious because the Appeals Committee did not "attempt to obtain" records from her Social Security Disability file and instead requested additional medical records that were, in Thomas's view, "less relevant." We address these issues in turn below.

I. The PERS Board's decision is supported by substantial evidence and is not arbitrary or capricious.

¶15. Our review of a PERS disability determination "is limited to a determination of whether the PERS Board's decision (1) was supported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the authority of the Board to make; or (4) violated a statutory or constitutional right of the claimant." Buckhaults v. Pub. Emps.’ Ret. Sys. , 296 So. 3d 727, 730-31 (¶8) (Miss. Ct. App. 2019) (citing Thomas v. Pub. Emps.’ Ret. Sys. , 995 So. 2d 115, 118 (¶14) (Miss. 2008) ), cert. denied , 297 So. 3d 1110 (Miss. 2020). "Because the [PERS Board is the] finder of fact, [we are] obligated to show substantial deference to any determination of credibility or trustworthiness of witness testimony." Id. at 731 (¶9) (quotation marks omitted). "There is a rebuttable presumption in favor of a PERS ruling." Id. (quoting Pub. Emps.’ Ret. Sys. v. Card , 994 So. 2d 239, 242 (¶15) (Miss. Ct. App. 2008) ). "[E]ven if we would have reached a different conclusion had we been sitting as finder of fact, we may not re-weigh the evidence and substitute our own opinion for that of the PERS Board." Id. ¶16. "Substantial evidence has been defined by this Court as such relevant evidence as reasonable minds might accept as adequate to support a conclusion." Davidson v. Pub. Emps.’ Ret. Sys. , 219 So. 3d 577, 581 (¶15) (Miss. Ct. App. 2017) (quotation marks omitted) (quoting Knight v. Pub. Emps.’ Ret. Sys. , 108 So. 3d 912, 915 (¶13) (Miss. 2012) ). "To be substantial, the evidence must be something more than a mere scintilla or suspicion." Knight , 108 So. 3d at 915 (¶13). A "decision is arbitrary when it is not done according to reason and judgment, but depending on the will alone." Buckhaults , 296 So. 3d at 732 (¶12) (quoting Pub. Emps.’ Ret. Sys. v. Howard , 905 So. 2d 1279, 1285 (¶16) (Miss. 2005) ). A decision is capricious if it is made "without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles." Id. (quoting Howard , 905 So. 2d at 1285 (¶16) ).

¶17. For purposes of PERS disability determinations, "disability" is defined 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 [PERS] that is actually offered and is within the same general territorial work area, without material

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