IN THE SUPREME COURT OF MISSISSIPPI BRIEF OF APPELLANT

Transcription

1 E-Filed Document Oct :32: SA Pages: 15 NO.2015-SA IN THE SUPREME COURT OF MISSISSIPPI CATHY F. ROBERTS vs. VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI Appellant Appellee lee BRIEF OF APPELLANT GEORGE S. LUTER 405 Tombigbee Street Post Office Box 3656 Jackson, Mississippi Telephone: (601)( Facsimile: (601) MSB #1502 Attorney for Appellant

2 IN THE SUPREME COURT OF MISSISSIPPI CATHY F. ROBERTS VS. PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLANT NO SA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judge of this Court may evaluate possible disqualification or recusal. 1. Cathy F. Roberts, Appellant; 2. George S. Luter, Attorney for Appellant; 3. Pat Robertson, Executive Director, Public Employees' Retirement System of Mississippi; 4. Honorable Jim Hood, Attorney General of Mississippi; 5. Jane Mapp, Special Assistant Attorney General assigned to the Public Employees' Retirement System of Mississippi; 6. Sheila Jones, Presiding Hearing Officer of the Disability Appeals Committee of the Public Employees' Retirement System of Mississippi, and 7. Honorable Tomie T. Green, Hinds County Circuit Court. Respectfully submitted, GEORGE S. LUTER lsi George S. Luter ATTORNEY FOR APPELLANT

3 TABLE OF CONTENTS PAGE(S) CERTIFICATE OF INTERESTED PERSONS....i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENTS APPELLANT'S ARGUMENTS CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUmORITIES CASES Carter v. Chater, 73 F3d 1019, 1022 (10th Cir. 1996) Davis v. PER8, 750 So. 2d 1225, 1229 (Miss. 1999) Fulce v. PERS, 759 So. 2d 401 (Miss. 2000) Howard v. P ERS, 971 So. 2d 622 (Miss. App. 2002) Madrid v. Barnhart, 447 F3d 788 (loth Cir. 2006) P ERS v. Dearman, 846 So. 2d 1014 (Miss. 2003) PERS v. Marquez, 774 So. 2d 421 (Miss. 2001) P ERS v. Shurden, 822 So. 2d 258 (Miss. 2002) P ERS v. Trulove, 954 So. 2d 501 (Miss. App. 2007) P ERS v. Waid, 823 So. 2d 595 (Miss. App. 2002) OTHER AUTHORITIES Miss. Code Ann (6) Miss. Const. art. 3 United States Const., amend XIV 1,3,4,9, iii

5 BRIEF OF APPELLANT STATEMENT OF THE ISSUES 1. Was the decision of PERS finding Cathy F. Roberts not disabled and then not deciding whether she was duty disabled pursuant to Miss. Code (6) supported by substantial evidence? 2. Alternatively, should the decision of PERS should be reversed and remanded because they did not obtain the records of neurosurgeon Dr. Kelly Bernardo? STATEMENT OF THE CASE The appellant, Cathy F. Roberts, files this brief to urge the Court to reverse the order of the Circuit Court entered March 24, 2015 affirming the order of the Board of Trustees of the Public Employees' Retirement System of Mississippi (hereafter "PERS") which adopted the recommendation of the PERS Disability Appeals Committee on April 16, 2013 which found Roberts not disabled pursuant to Miss. Code (6). (R 97, RE 6) 1 STATEMENT OF THE FACTS The appellant, Cathy F. Roberts (hereafter "Roberts") was a psychologist I2 at Ellisville State School. At the time of the hearing Roberts was 60 years old and had years of service credit. (R 71, RE 26) Roberts applied for duty related disability benefits on December 5, (R 74, RE 27) Roberts reported her disability began as result of an in the line of duty injury on January 17, 2001 when she was kicked by an aggressive patient and she fell backward hitting the floor and then was kicked into the wall. (R 82). At her hearing held before the Disability Appeals Committee on January 14, 2013, Roberts testified that after the 2001 in the line of duty injury she could not get out of bed for two I Roberts was not eligible for non duty related disability since she did not elect the Tiered Disability Plan. 2 Although a Psychologist I, Roberts job required her to have direct contact with aggressive patients and suffered other work related injuries through the years as shown by the numerous reports of work injuries. (R 88, RE 30) 1

6 weeks and then was referred to Southern Bone and Joint where she was diagnosed with a pinched nerve. (R 32) She testified she was referred to physical therapy and then to a neurologist, had injections in her back, and had not improved since. (R33-34) Medical records indicate that Roberts consulted numerous physicians after the January 17,2001 in the line of duty injury. On February 23, 2001 she saw Dr. Charles Hernandez of Hattiesburg Clinic "in acute distress from her back pain." (R 190) She was prescribed Lortab and Celebrex, both drugs prescribed to treat pain and inflammation. Dr. Hernandez' records indicate Roberts continued to see him through 2009 for "chronic back pain" and "history of injury to the lower back and coccyx." (R 143) In January 2002, Roberts saw neurologist Dr. Bertha Blanchard who diagnosed her with "right sacroillitis, right sciatica which seems to be the result of an injury that occurred on 1117/01." (R 248) Dr. Blanchard later referred her to neurosurgeon Dr. Kelly Bernardo and that if he could not help her that "we could try medications such as A vinza, Duragesic, or Oxycontin." (R 237) [Dr. Bernardo's records were never obtained.] Roberts was sent to physiatrist Dr. David C. Collipp by PERS for an independent medical examination on March 23,2010. (R 264) He reported that she was told by neurosurgeon Dr. Kelly Bernardo that she "could benefit from low back surgery" but "none of Dr. Bernardo's records are available in her medical record." (R 264) Dr. Collipp stated Roberts "suffers from chronic low back pain..." (R 265) He believed she was limited to "light-medium" duty and that Dr. Bernardo's notes could provide "further insight" regarding her back condition. (R 266) SUMMARY OF THE ARGUMENTS The PERS Disability Appeals Committee erred in not finding Roberts disabled in light of her testimony of the chronic pain she suffered and further erred in not rmding her disability to be the result of her 2001 in the line duty injury. 2

7 The Committee further erred in not obtaining the records of neurosurgeon Dr. Kelly Bernardo since even PERS' own medical expert Dr. David C. Collipp indicated such could provide "further insight" regarding her back condition. (R 266) If the case is not reversed and rendered on argument one, the Court should remand this case for a new hearing to obtain and consider Dr. Bernardo's records and opinions. ARGUMENTS 1. The decision of PERS finding Roberts "not disabled" should be reversed and rendered because it is not supported by substantial evidence. a. The evidence clearly shows Roberts is disabled. Roberts, unrepresented until the time of her hearing, made application for in the line of duty disability retirement pursuant to Miss. Code Ann (6) which states: Miss. Code Ann (6) allows any active PERS member to qualify for disability retirement regardless of the number of years of service under the following conditions: "( 6) 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 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 such incapacity is likely to be permanent, may be retired by the board of trustees on the first of the month following the date of filing such application but in no event shall the retirement allowance commence before the termination of state service." Such statute goes on to exclude certain conditions which are not a direct result of a traumatic injury: "Permanent and total disability resulting from a cardiovascular, pulmonary, or musculo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability. A mental disability based exclusively on employment duties occurring on an ongoing basis shall be deemed an ordinary disability Disability is defined in the same code section as the following: 3

8 "... 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 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation." In considering whether Howard was disabled due to an in the line of duty injury pursuant to Miss. Code Ann ( 6) the PERS Disability Appeals Committee declined to decide whether she suffered an in the line of duty injury but merely stated that "her condition is not disabling." (R 17, RE 23) Roberts would contend that the medical record and her own testimony clearly indicate she could no longer perform the duties of her job due to the disabling pain she suffered as a result of her January 17, 2001 in the line of duty injury. 3 As stated previously herein, Roberts testified after the 2001 in the line of duty injury she could was bedridden two weeks and then referred to Southern Bone and Joint Clinic and diagnosed with a pinched nerve. (R 32) She underwent physical therapy, saw a neurologist, had injections in her back, and did not improve. (R33-34) Medical records indicate that Roberts consulted numerous physicians after the January 17, 2001 in the line of duty injury. On February 23, 2001 she saw Dr. Charles Hernandez of Hattiesburg Clinic "in acute distress from her back pain." (R 190) She was prescribed Lortab and Celebrex, both drugs prescribed to treat pain and inflammation. Dr. Hernandez' records indicate Roberts continued to see him through 2009 for "chronic back pain" and "history of injury to the lower back and coccyx." (R 143) Roberts suffered a knee irtjury on August 26, 2009 after a patient hit her in the face and tripped her and she fell on her right knee. (R 79). Roberts continued to seek treatment for her 2001 in the line of duty injury. In January 3 PERS' decision notes Roberts at the time of the hearing was still working; it is this writer's experience that many disability applicants remain working at their jobs while their disability application is pending. 4

9 2002, Roberts saw neurologist Dr. Bertha Blanchard who diagnosed her with "right sacroillitis, right sciatica which seems to be the result of an injury that occurred on 1117/01." (R 248) Dr. Blanchard referred her to neurosurgeon Dr. Kelly Bernardo and stated that "we could try medications such as Avinza, Duragesic, or Oxycontin." (R 237) [Dr. Bernardo's records were never obtained.] Roberts was referred to physiatrist Dr. David C. Collipp for an independent medical examination on March 23,2010. (R 264) He believed she was limited to "light-medium" duty and that Dr. Bernardo's notes could provide "further insight" regarding her back condition. (R 266) At her hearing Roberts testified that after the 2001 in the line of duty injury she would take two or three or four days off per month due to back pain. (R 47) She further testified that she took Flexeril and Lortab but she couldn't take the Lortab because it "relaxes me to the point that I can't do anything when I'm at work" but the last six months she had "been having to take at least half a pill going to work every day." She further testified that in the last year some months she had to take two to three days per month and the last couple of months five to seven days a month due to pain. (R 48) Roberts acknowledged at the hearing that her work caused her to suffer many work related injuries she was required to report. However she testified she recovered from those except the January 17,2001 injury in which an "aggressive patient kicked her and she fell backwards hitting the floor" caused her back and other problems." (R 56) She stated the frrst place she has pain is in her lower back and on scale of one to ten, it was a seven and a half to eight. She testified she had been given a psych tech to help her with her reporting duties. (R 60) Roberts' medical records bear out the severe pain she attempts to work with. Dr. Hernandez' note of 11120/09 states "She sustained an injury to her coccyx that resulted in chronic ongoing pain." (R 143) 5

10 Roberts' treating physicians confirm she suffers chronic pain. Hattiesburg Clinic physician Dr. Charles Hernandez on PERS form 7 reported Roberts suffered "chronic back pain with acute exacerbation moderate to severe." (R 124) His office records from February 23, 2001 through October 21, 2011 reports the 2001 back injury at work and continuously reports for over ten years the existence of "chronic back pain" such that she is continuously prescribed Lorcet and other medications. (R ) Southern Bone and Joint physician Dr. Susie Folse saw Roberts in July 2001 after her in the line of duty injury. (R 252) Dr. Folse noted conservative management of her pain had failed as well as injections and physical therapy. (R 252) Southern Neuroscience Center physician Dr, Beverly Blanchard saw Roberts beginning 2002 after referral from Dr. Folse and reported Roberts was injured after a 2001 in the line of duty injury. She indicated Roberts had two joint injections and physical therapy which did not help. (R 246) Dr. Blancard's records adduced at the hearing show she treated her at least from January 22, 2002 through May 4, (R 218) Dr. Blanchard gave Roberts a 5% permanent impairment rating to the body as a whole and diagnosed her with "chronic sacroillitis" and "chronic low back pain" (R 219,224). She prescribed mediations such as Mobic, Ultram and Lortab in addition to Neurotin. Even longtime PERS independent medical expert Dr. David C. Collipp, after acknowledging Roberts was injured in the line of duty in 2001, noted Roberts "suffers from chronic low back pain." (R 265) However, Dr. Collipp did not think the "gradual progression" of her back injury was caused by the 2001 injury, but significantly hedged his opinion by stating that the obtaining of neurosurgeon Dr. Kelly Bernardo's records could provide "further insight regarding her back condition and whether the progression is more likely related to the original injury." (R 266) The decision of the PERS Disability Appeals Committee and later adopted by the PERS 6

11 Board of Trustees after reviewing medical records of Roberts acknowledge that "The testimony and medical evidence clearly show that while she has pain, Ms. Roberts goes to work every day, and while she testified she is in pain, she also testified she is able to perform her job each day. Ms. Roberts has failed to provide sufficient evidence to meet the first prong of her burden of proof in this matter that she is, in fact, medically incapable of performing her usual duties of employment." (R 18, RE 24) The decision goes on to state: "Since the Committee has found that Ms. Roberts is not disabled, there is no need to make a determination regarding duty-related causation." (R 18, RE 24) The law is clear in Mississippi that the decision of an administrative agency must be undisturbed unless it is ( 1) not supported by substantial evidence, (2) is arbitrary and capricious, (3) is beyond the scope or power granted to the agency, (4) violates one's constitutional rights. Public Employees' Retirement System v. Marquez. 114 So. 2d 421 (Miss. 2001); Fulce v. Public Employees' Retirement System, 159 So. 2d 401, 404 (Miss. 2000); Davis v. Public Employees' Retirement System, 150 So. 2d 1225, 1229 (Miss. 1999). Roberts would assert that PERS' decision is not supported by substantial evidence and is arbitrary and capricious in that the decision of PERS failed to note that Roberts testified she was missing work five to seven days per month due to pain---not working every day as the decision states. Further, Roberts' employer must have recognized her inability to perform all of the duties of job since she testified she was assigned a psych tech to assist her with report preparation. (R 60)4 Further, Roberts testified she had pain on a scale of one to ten at a seven and one half to eight. Moreover, her medication list entered at her hearing showed she was taking four separate medications for pain relief. (R 293) Appellate courts in Mississippi have noted in numerous PERS disability cases the " This writer would assert that his experience has been state employers often keep applicants in their jobs while their disability claims are adjudicated at which time they retire if they are successful at receiving disability retirement. 7

12 existence of pain leading to a finding of disability. See P ERS v. Marquez, 774 So. 2d 421 (Miss. 2001) [atypical face pain]; PERS v. Thomas, 809 So. 2d 690 (Miss. App. 2001) [constant pain]; Howard v. PER8, 971 So. 2d 622 (Miss. App. 2007) [chronic pain secondary to that and requires powerful analgesics for control of this pain]; PERS v. Shurden, 822 So. 2d 258 (Miss. 2002) [had to be hospitalized for pain] ; PERS v. Dearman, 846 So. 2d 1014 (Miss. 2003) [constant pain] PERS v. Waid, 823 So. 2d 595 (Miss. App. 2002) [pain on the job which caused her to utilize substantial amounts of leave]. Roberts' testimony of disabling pain and the continuous noting in her medical records of Roberts' disabling pain requiring continuing pain medication should show that Roberts is disabled due to pain alone and that substantial evidence does not exist in the record to hold otherwise. PERS' declaration that Roberts has failed to "provide sufficient evidence" to show such is arbitrary and capricious and legally incorrect. b. It is uncontradicted that Roberts became disabled due to the 2001 in the line of duty injury. Roberts reported her disability began as result of an on the job injury on January 17,2001 when she was kicked by an aggressive patient and she fell backward hitting the floor and then was kicked into the wall. (R 82). She timely reported this work related and in the line of duty injury as required by law. (R 43) The records of her treating physicians all note she was injured on that date on the job. Even Independent medical examiner Dr. Collipp acknowledges that Dr. Kelly Bernardo's records could provide "further insight regarding her back condition and whether the progression is more likely related to the original injury." (R 266) Further, Roberts satisfied her burden of showing she suffered an in the line of duty injury the same as did Ms. Trulove wherein the Court of Appeals in Public Employees' Retirement System v. Phyliss Trulove, 954 So. 2d 501 (Miss. App. 2007) noted that Trulove satisfied her burden to show she suffered an in the line of performance of duty job injury: 8

13 "By providing the Committee with her medical records and the incident report, Trulove has satisfied her burden of establishing that she is disabled as a result of an on-thejob-injury." Therefore, Roberts would assert substantial evidence does not exist in the record to support the decision of PERS that she was not disabled due to pain and that such disability was a direct result of the 2001 in the line of duty injury she suffered on January 17, T The Court should reverse and render their denial of her application for in the line of duty disability retirement pursuant to Miss. Code Ann (6). 2. Alternatively, the decision of PERS should be reversed and remanded because they did not obtain the records of Roberts' neurosurgeon Dr. Bernardo. If the Court does not choose to reverse and render PERS denial of Roberts' application in for in the line of duty disability retirement pursuant to Miss. Code Ann (6), it should reverse and remand her cause for a new hearing because the Disability Appeals Committee did not obtain the records of neurosurgeon Dr. Kelly Bernardo, particularly since their own expert, Dr. Collipp, stated that such records could provide "further insight" regarding her back condition. (R266) Effective July 1, 2002, after the passage of House Bill 1148, the PERS Disability Appeals Committee was given the "authority to defer a decision in order to request a medical evaluation or test or additional medical records not previously furnished by the claimant." Miss. Code Ann Further, both the United States and Mississippi Constitutions guarantee the right to due process of law before an administrative agency. U.S. Const. amend XIV; Miss. Const. art. 3, sect. 14. PERS, through its statutory adjudicatory body, the Disability Appeals Committee, violates Roberts' due process right to a fair hearing when it does not obtain all medical records, 9

14 particularly those whom its own expert witness, Dr. Collipp, states might explain Roberts' disabling back pain. and particularly when it has express statutory authority to do so post hearing. Further, administrative law judges in the Social Security Administration, like the Disability Appeals Committee in PERS, have authority and the duty to insure that all medical records are obtained. Surely a fiduciary agency like PERS also has such duty. In Madrid v. Barnhart, 447 F. 3d 788 (10th Cir. 2006) the claimant's case was reversed and remanded due to the ALJ's failure to obtain all medical records: "Nevertheless, because a social security disability hearing is a nonadversarial proceeding, the ALJ is "responsible in every case 'to ensure that an adequate record is developed during the disability hearing consistent with the issues raised. '" [Citations omitted] "Generally, this means that the "ALJ has the duty to... obtain [ ] pertinent, available medical records which come to is attention during the course of the hearing." Carter v. Chater, 73 F 3d. 1019, 1022 (10th Cir. 1996). Based on the foregoing, the Court should reverse and remand Roberts' case for a new hearing to enable all pertinent medical records to be obtained, particularly neurosurgeon Dr. Kelly Bernardo. CONCLUSION The Court should reverse and render PERS' denial of Robert's application for in the line of duty disability benefits pursuant to Miss. Code Ann (6). Alternatively, the Court should reverse and remand Roberts' case for a new hearing to enable all pertinent medical records to be obtained, particularly neurosurgeon Dr. Kelly Bernardo, if it does not reverse and render on Argument 1. Respectfully submitted, CATHY F. ROBERTS, Appellant lsi George S. Luter By: GEORGE S. LUTER, Her Attorney 10

15 CERTDnCATE OF SERVICE I, George S. Luter, attorney for Appellant, hereby certify that I have filed electronically and mailed postage prepaid a copy of the foregoing Brief of Appellant to the following: Jane Mapp, Esq. Public Employees'. Retirement System 429 Mississippi Street Jackson, MS Hon. Tomie T. Green Hinds County Circuit Court Hinds County Circuit Courthouse Jackson, MS SO CERTIFIED this the 28th day of October, sf George S. Luter GEORGE S. LUTER, Attorney for Appellant GEORGE S. LUTER Attorney for Appellant 405 Tombigbee Street Post Office Box 3656 Jackson, Mississippi Telephone: (601) Facsimile: (601) georgeluter@gmail.com MSB#