THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLANT
VICKIE COMARDELLE APPELLEE
DATE OF JUDGMENT: 08/09/2013
HINDS COUNTY CIRCUIT COURT HON. WINSTON L. KIDD TRIAL JUDGE
ATTORNEY FOR APPELLANT: JANE L. MAPP
ATTORNEYS FOR APPELLEE: WILLIAM OWEN MAYFIELD ANGELA E. DAVIS-MORRIS
BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.
¶1. The Public Employees' Retirement System of Mississippi (PERS) appeals the decision of the Hinds County Circuit Court reversing the administrative decision to deny benefits to Vickie Comardelle. Comardelle applied for duty-related retirement disability benefits on May 25, 2008, after she twisted her ankle at work, which she claims prevented her from performing her required job duties. On June 22, 2010, following two hearings on Comardelle's application, PERS entered its order approving and adopting the PERS Disability Appeals Committee's recommendation and findings of fact denying Comardelle's request for disability benefits. Comardelle appealed the decision to the Hinds County Circuit Court, which found that PERS's decision to deny Comardelle benefits was not based on substantial evidence and reversed the order. Aggrieved, PERS filed the instant appeal.
STATEMENT OF FACTS
¶2. Comardelle was employed as a teacher's assistant by the Pearl River County School District for a little over five years. On October 7, 2003, Comardelle slipped and twisted her right ankle on some steps near the ladies' lounge while at work. At the time she fell, Comardelle was teaching art as an activities teaching assistant. After she twisted her ankle, she was transferred to the health and life-skills class because it did not require as much standing and walking during the day, and by that time, she was using arm crutches to help her stand and walk. Comardelle first saw Dr. Simon Finger on October 9, 2003, for ankle pain, and she was diagnosed with an ankle sprain, prescribed Darvocet, and given an ankle corset to wear. Dr. Finger ordered an MRI and a nerve conduction study (NCS). The MRI was performed on November 23, 2003, and showed a small benign-looking cyst in the neck of the talus; the NCS was given on December 12, 2003, and came back with normal results.
¶3. On February 20, 2004, Dr. Keith Melancon performed surgery on her ankle, at which time he did a tarsal tunnel release and an anterior tarsal tunnel release at Southern Surgery Center in Hattiesburg, Mississippi, to take pressure off the nerves in Comardelle's foot, and he removed the small benign cyst on her ankle. Comardelle followed up with Dr. Melancon every two months after the surgery. At each visit, Comardelle complained of pain in her right foot and ankle. On March 9, 2004, she went to the emergency room due to right lower leg pain and fever. On November 1, 2004, Dr. Melancon performed an MRI, which showed an area of resolving hematoma or cellulitis, but was otherwise normal. On November 9, 2004, Dr. Melancon saw Comardelle with complaints of nerve pain. He diagnosed her with early reflex sympathetic dystrophy (RSD), which occurred following her ankle sprain, and referred her to Dr. Thom Tarquinio with University Orthopaedics. Dr. Tarquinio performed a physical examination of Comardelle on February 10, 2005, and reviewed x-rays of her right ankle before he also diagnosed her with complex regional pain syndrome (CRPS), formerly known as RSD. Dr. Melancon then referred Comardelle to Dr. Matthew C. Wallack for a series of lumbar sympathetic blocks in March, April, and May 2005 to help relieve her pain. The sympathetic blocks seemed to relieve the pain for about two weeks after each injection. Dr. Wallack also diagnosed her with CRPS. Next, on January 12, 2006, Dr. Melancon referred Comardelle to Dr. Todd Sitzman at Advanced Pain Therapy LLC, who agreed with the CRPS diagnosis, and believed she would be a good candidate for a lumbar spinal neurostimulator. Comardelle then received three more sympathetic blocks from Dr. Wallack in January, February, and March 2006, with the same initial successful results that she had in 2005; but the blocks wore off quickly.
¶4. Before implanting the lumbar spinal neurostimulator, Dr. Sitzman referred Comardelle to Angela Koestler Ph.D. for a psychological evaluation. Dr. Koestler opined that Comardelle could undergo the implantation procedure, and she diagnosed Comardelle with adjustment disorder with anxiety and depressed mood based on the symptoms of anxiety and depression she was experiencing due to her concerns about her persistent pain and diminished quality of life. On June 2, 2006, Dr. Sitzman implanted a lumbar spinal neurostimulator that was successful in significantly reducing the pain Comardelle was experiencing in her right lower extremity for a couple of months. However, in September 2006, Comardelle began complaining of pain in her left buttock. After treating the site with no improvement, Dr. Sitzman recommended a pocket site revision, which was done on January 26, 2007. She continued to see Dr. Sitzman throughout 2007 with complaints of pain and weakness in her lower extremities.
¶5. Comardelle sought psychological counseling from Geralyn Datz Ph.D. to help her cope with her anxiety regarding her prognosis. Dr. Datz performed several tests and recommended she enroll in a twelve-session pain-management program and six sessions of individual psychotherapy for relaxation training. Dr. Datz diagnosed Comardelle with "Axis I – pain disorder with associated psychological factors and a general medical condition, " and Axis III–CRPS.
¶6. On October 1, 2008, PERS sent Comardelle to Dr. David Collipp of NewSouth NeuroSpine for an independent medical evaluation (IME). Dr. Collipp examined Comardelle and was of the opinion that there was no objective basis for the CRPS-I diagnosis. He believed that Dr. Melancon and Dr. Sitzman based their restrictions on subjective complaints; he did not think there were any restrictions for Comardelle, regarding her work injury or otherwise.
¶7. PERS also referred Comardelle to Julie Walker, an occupational therapist at Methodist Outpatient Rehabilitation, on January 19, 2009, for a functional capacity evaluation (FCE). Walker observed multiple times that Comardelle "demonstrated significant symptom magnification during evaluation." Walker noted that Comardelle had inconsistent tremors that were "volitional" at times and then absent at times. Walker stated that it was very difficult to make any recommendations because she believed Comardelle was magnifying and exaggerating her symptoms and because of the inconsistencies that she noted during Comardelle's evaluation.
¶8. Comardelle next went to see Dr. Jeff Summers on April 17, 2009. Dr. Summers noted that Comardelle was very anxious and that she appeared to have "tremors" in her upper and lower extremities; however, "the tremors would extinguish completely with distraction." On the day of her examination, Comardelle reported that her pain scale was a seven out of ten, and that, unless she was completely sedentary, her pain scores were never lower than that. Dr. Summers did not believe that Comardelle was suffering from CRPS at the time of the examination, but he did believe that she had "at some point." He attributed her leg discoloration to the chronic use of her electric blanket, since the anterior thigh and leg that were in contact with the blanket were more discolored than the posterior leg where the blanket was lightly wrapped, and the backs of her thighs were not discolored at all. He also included in his report the fact that in 2005, which was after her accident, Comardelle was able to run and swim with her children. Dr. Summers concluded by acknowledging that he did not have her most recent medical records, but he believed her problems involved a somatization or conversion disorder.
¶9. Finally, PERS ordered a complete psychiatric evaluation from forensic consultant John Montgomery. After evaluating Comardelle in his office on November 21, 2009, and reviewing Dr. Koestler's psychological report, Dr. Montgomery found that, in his opinion, Comardelle's primary psychiatric diagnosis was undifferentiated somatoform disorder and depression, secondary to a medical condition and pain disorder. He believed that Comardelle's physical limitations were not consciously feigned, but appeared to be psychogenic in nature. He further stated that while "the onset of Ms. Comardelle's symptoms appear[ed] to have occurred in the context of two work-related injuries[, ] it [was his] opinion that other interpersonal and psychological factors [were] likely contributing to her level of distress and impairment." Finally, Dr. Montgomery concluded that "[i]n her current state, Ms. Comardelle [was] not able to perform the duties of her former profession. To what extent her psychogenic/somatoform symptoms contribute[d] to her overall disability status [was] unknown."
¶10. The Disability Appeals Committee held two hearings on Comardelle's application for benefits on September 18, 2009, and March 5, 2010. PERS entered its order approving and adopting the Committee's recommendation and findings of fact denying Comardelle's request for disability benefits on June 22, 2010. Comardelle appealed this decision to the Hinds County Circuit Court. The circuit court found the PERS Board of Trustees' (Board) decision to be arbitrary and capricious and reversed the decision. Aggrieved, PERS filed this appeal.
STANDARD OF REVIEW
¶11. Uniform Rule of Circuit and County Court Practice 5.03 limits this Court's ability to reverse an agency's decision unless the decision was: (1) not supported by substantial evidence, (2) arbitrary and capricious, (3) beyond the agency's power to make, or (4) in violation of the complainant's statutory or constitutional rights. Case v. Pub. Employees' Ret. Sys., 973 So.2d 301, 310 (¶20) (Miss. Ct. App. 2008). The Mississippi Supreme Court has held: "the question here is not whether there was evidence in support of [the claimant's] disability, but whether there was substantial evidence to support the finding of the administrative agency. The standard of review limits this Court to reviewing the lower court's decision to determine whether the record can ...