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Richardson v. Public Employees' Retirement System of Mississippi

Court of Appeals of Mississippi

September 17, 2019

SALLIE RICHARDSON, MOTHER AND NAMED BENEFICIARY OF DISABILITY RETIREMENT BENEFITS OF KARI WYNN PHILLIPS APPELLANT
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/20/2018

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT TRIAL JUDGE: HON. JEFF WEILL, SR.

          ATTORNEY FOR APPELLANT: GEORGE S. LUTER

          ATTORNEY FOR APPELLEE: SAMUEL MARTIN MILLETTE

          BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

          C. WILSON, J.

         ¶1. Sallie Richardson filed this appeal on behalf of her daughter, Kari Wynn Phillips ("Phillips"), seeking review of the Public Employees' Retirement System of Mississippi ("PERS") Board of Trustees' (the "PERS Board") August 24, 2010 decision to deny her request for non-duty-related disability benefits.[1] The PERS Medical Board ("Medical Board") reviewed Phillips's application and supporting documentation and subsequently denied her claim. Phillips appealed the Medical Board's decision and was granted a hearing before the PERS Disability Appeals Committee (the "Appeals Committee"), which took place April 9, 2010. The Appeals Committee, after considering the testimony and evidence, presented its recommendation to the PERS Board. The PERS Board adopted the "Proposed Statement of Facts, Conclusions of Law, and Recommendation" of the Appeals Committee to deny Phillips's request for payment of non-duty-related disability benefits. Phillips appealed the PERS Board's decision to the Circuit Court of the First Judicial District of Hinds County, Mississippi. The circuit court upheld the PERS Board's order, and Phillips appealed.

         ¶2. On appeal, Phillips raises the following issues: (1) whether the PERS Board's decision to deny Phillips disability benefits under Mississippi Code Annotated section 25-11-113 (Supp. 2008) is not supported by substantial evidence and, therefore, arbitrary and capricious; and (2) whether the PERS Board violated Phillips's due process rights to a fair hearing by not obtaining additional medical records. After a thorough review of the record, we affirm the PERS Board's decision to deny Phillips non-duty-related disability benefits. FACTS

         ¶3. Phillips worked as a Family Protection Specialist-Advanced for the Mississippi Department of Human Services. She was terminated from her job on October 24, 2008, after 23.75 years of service. On February 17, 2009, Phillips applied for non-duty-related disability benefits pursuant to section 25-11-113(1)(a), alleging disability due to depression, anxiety, nerves, attention deficit/hyperactivity disorder (ADHD), and migraines.

         ¶4. After conducting an independent medical evaluation, the Medical Board reviewed Phillips's application and supporting documentation and subsequently denied Phillips's claim. Phillips appealed the Medical Board's decision to the PERS Board, which granted a hearing before the Appeals Committee on April 9, 2010. The Appeals Committee, after considering the testimony and reviewing the medical records and other documentary evidence, recommended that the PERS Board deny Phillips's claim. In its "Proposed Statement of Facts, Conclusions of Law, and Recommendation," the Appeals Committee "found the evidence before it sufficient to make an informed and knowledgeable decision" and set out the evidence supporting its denial as follows:

The PERS statute requires that the medical disability must be the reason for the termination of employment. This is clearly a problem for Ms. Phillips' case. According to Ms. Phillips, she was terminated for reasons unknown to her. She hired counsel according to the medical records to defend her in her termination hearing, lending the appearance that she believed she was able to perform her job at that time. In fact, Ms. Phillips was apparently doing the tasks of her employment until March 21, 2008, when she was suspended and placed on leave after being accused of stealing narcotics and other medications from her clients and their families. She told this Committee that up until she was suspended, she was able to do her job. After the employee appeals board determined that her termination was for cause, Ms. Phillips did not appeal that decision. There is ample evidence that Ms. Phillips was terminated for reasons other than an alleged disability. She was terminated for misconduct. After termination, Ms. Phillips did apply for Social Security benefits and was approved for those around the time of her termination. This Committee is aware that it has the option of considering a disability determination from Social Security as the basis for a decision, but in this case, the Committee chooses to make a determination based on the evidence before us today and the PERS statute which has different requirements from that of the Social Security Administration.
With regard to the medical psychiatric condition Ms. Phillips alleges to be disabling for her, it is true that she has had some anxiety and depression over the years that seems to exacerbate with situations with her ex-husband, boyfriend, son, and father. Dr. Montgomery demonstrated that with his outline of Ms. Phillips' medical history. The record shows no psychiatric complaints between February of 2006 and July of 2007. Then, in July of 2007, Ms. Phillips tested positive for polysubstances, including marijuana and after that, she complained of severe headache pain and used Lortab for the pain but complained over and over that the Lortab was not providing relief. There were some concerns by doctors about prescriptions for Lortab, and Ms. Phillips' requests for more after losing a prescription, etc. Then, by March of 2008, Ms. Phillips was suspended after being accused of taking medications from her clients and their families. It was when she was accused of stealing drugs that her stress increased.
There is insufficient evidence to prove that Ms. Phillips is disabled. We noted the opinion from Dr. Middleton that Ms. Phillips is disabled, but she was not psychologically or medically disabled until after she was fired. She worked for 23.75 years with her underlying psychiatric pathology. She did not allege disability until after she lost her employee appeals hearing. Then, she applied for Social Security, and Dr. Whelan was the psychologist for them. Dr. Montgomery, on the other hand, is a board certified psychiatrist, and he tested Ms. Phillips using psychological testing specifically designed to identify malingering or feigning. Dr. Montgomery established through his objective testing that Ms. Phillips had a high probability of malingering or feigning. He also noted the discrepancies and problems with the diagnoses and prognoses of Dr. Middleton who had treated Ms. Phillips over time but not on a consistent basis. He noted that while Ms. Phillips did have pathology, that she had more of a depressive, mood etiology and that Dr. Middleton had written that Ms. Phillips was improving on Seroquel, but then Dr. Middleton concluded subsequently that Ms. Phillips was bipolar based on her actions and descriptions of problems. Dr. Montgomery properly and correctly noted that Ms. Phillips appeared more depressed, and it seemed to be situational and that one could not be manic and at the same time be in bed for long periods of time. The symptomatology and diagnosis by Dr. Middleton do not correspond or match.
Ms. Phillips probably has some situational depression and anxiety but her termination was not based on a medical or psychiatric condition for two reasons. The first reason was that she was terminated for reasons other than a medical or psychiatric problem. The second reason is that her psychiatric problems are not to the level of being disabling. That being the case, this ...

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