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Lang v. Public Employees' Retirement System of Mississippi

Court of Appeals of Mississippi

November 5, 2019

GLORIA LANG APPELLANT
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/03/2018

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. TOMIE T. GREEN JUDGE

          ATTORNEYS FOR APPELLANT: GEORGE S. LUTER THOMAS UPTON REYNOLDS II

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SAMUEL MARTIN MILLETTE III JANE L. MAPP

          BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ.

          CARLTON, P.J.

         ¶1. Gloria Lang, a corrections officer with the Mississippi Department of Corrections (MDOC), filed for non-duty-related disability retirement benefits with the Public Employees' Retirement System (PERS). The PERS Board of Trustees (Board)[1] initially denied Lang's application for benefits. Lang appealed the Board's decision, and the circuit court reversed the Board's denial of non-duty-related disability benefits. PERS appealed, and this Court remanded the matter to the PERS Disability Appeals Committee (Committee) for further proceedings consistent with the opinion.

         ¶2. Following remand, the Committee held a hearing and ultimately recommended that the Board deny Lang's request for non-duty-related disability retirement benefits. The Board adopted and approved the recommendation of the Committee. Lang appealed to the Hinds County Circuit Court, which affirmed the Board's decision to deny Lang's request for benefits. Lang now appeals, arguing that the Board's decision was not supported by substantial evidence.

         ¶3. After our review, we find that the Board's decision that Lang was not disabled is not supported by substantial evidence. We therefore reverse and render the circuit court's judgment affirming PERS's order denying non-duty-related disability retirement benefits.

         FACTS

         ¶4. In 2010, Lang first appealed PERS's decision denying her application for non-duty- related disability retirement benefits. This Court addressed that appeal in Public Employees' Retirement System v. Lang, 104 So.3d 856, 856 (¶1) (Miss. Ct. App. 2012) (Lang I). In Lang I, the Committee "determined that 'Lang's degenerative disease is not severe enough to support her claim for disability'" and recommended denial of Lang's claim. Id. at 858 (¶11). The Board adopted and affirmed the Committee's findings and recommendation. Id. Lang appealed to the circuit court, which reversed the Board's decision. Id. at (¶13).

         ¶5. PERS then appealed, arguing that the Board's denial of disability benefits to Lang "was supported by substantial evidence and was not arbitrary and capricious." Id. On appeal, this Court found that the Board and the circuit court used an incorrect date for determining disability. Id. at 857 (¶1). The circuit court had considered whether Lang was disabled as of October 25, 2007, the last day she actually worked for MDOC. Id. This Court clarified that "under PERS Regulation 45A(103)(2), a person is still an active member of PERS even if she is on leave without pay." Id. at 861 (¶21). This Court therefore remanded the case to the Committee for a hearing to determine whether Lang was disabled as of June 12, 2009-the date that the last of Lang's medical records were introduced into evidence and the record was closed. Id.

         ¶6. In accordance with this Court's guidance upon remand, the Committee held proceedings on May 13, 2013, and September 16, 2013, where it heard additional testimony and reviewed evidence to determine whether Lang was disabled as of June 12, 2009. However, the record reflects no motion by Lang or PERS to reopen the record and add into evidence two documents that were issued after the record was already closed in Lang I: (1) the Social Security Administration's November 12, 2009 decision finding that Lang "has been under a disability as defined in the Social Security Act since October 25, 2007, the alleged onset date of disability" and (2) the MDOC's November 6, 2009 termination notice informing Lang that her employment with MDOC was terminated effective November 6, 2009. At oral argument in the present case, PERS confirmed that these two documents were not in the appellate record and were not considered by the Committee or the Board. PERS also confirmed that there was no indication that a motion was made to reopen the record to introduce these two documents into evidence. PERS maintains that the administrative record was closed as of June 12, 2009.[2]

         ¶7. On September 16, 2013, the Committee entered its "Proposed Statement of Facts, Conclusions of Law, and Recommendation" and recommended that the Board deny Lang's request for non-duty-related disability retirement benefits. The Committee explained that "[b]ecause this matter has been before this Committee previously, this summary will only include records dated between October 25, 2007, the date previously used to assess disability, and June 12, 2009, the date we now use to consider disability." The Committee also set forth that "all prior records were also re-reviewed and considered by the Committee . . . ."

         ¶8. In an order dated February 25, 2014, the Board adopted the "Proposed Statement of Facts, Conclusions of Law, and Recommendation" of the Committee and denied Lang's application for non-duty-related disability retirement benefits.

         ¶9. Lang appealed this decision to the circuit court. On April 2, 2018, the circuit court entered an order affirming the Board's decision. On April 13, 2018, Lang filed her notice of appeal from the circuit court's order.

         DISCUSSION

         ¶10. On appeal, Lang argues that PERS's decision denying her application for non-duty-related disability retirement benefits is arbitrary and capricious and not supported by substantial evidence. Lang asserts that in denying her application, PERS failed to consider the following factors: Lang was close to retirement age; she was found disabled by the Social Security Administration on October 25, 2007; her restrictions and complaints of pain precluded her ability to perform her job in June 2009; and that in November 2009, MDOC terminated Lang due to her inability to perform her job. Lang also submits that PERS's decision focused entirely on Lang's back problems and gave little consideration to the cumulative effects of her pain and other medical problems, including generalized arthritis, right knee arthritis, diabetes, and back pain. Lang maintains that she was disabled on June 12, 2009, and as a result of her disability, she could not perform her job and duties as a correctional officer. For the reasons set forth below in our analysis, we find that PERS's findings and decision were arbitrary and capricious and were not supported by substantial evidence.

         ¶11. When reviewing the decision of an administrative agency, we recognize that "[a]n agency's conclusions must remain undisturbed unless the agency's order: 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one's constitutional rights." Pub. Emps.' Ret. Sys. v. Walker, 126 So.3d 892, 894-95 (¶5) (Miss. 2013). Stated differently, "[t]he issue before this Court is not whether there was evidence in support of [Lang's] disability, but whether there was substantial evidence to support the finding of [PERS]." Doyle v. Pub. Emps.' Ret. Sys., 808 So.2d 902, 905 (¶8) (Miss. 2002). This Court has defined "substantial evidence" 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). "To be substantial, the evidence must be something more than a mere scintilla or suspicion." Knight v. Pub. Emps.' Ret. Sys., 108 So.3d 912, 915 (¶13) (Miss. 2012). "When reviewing an administrative agency's decision, the circuit court must look at the full record before it in deciding whether the agency's findings were supported by substantial evidence." Pub. Emps.' Ret. Sys. v. Marquez, 774 So.2d 421, 427 (¶20) (Miss. 2000).

         ¶12. On appeal, "[t]his Court may neither substitute its own judgment for that of the agency which rendered the decision nor reweigh the facts of the case." Walker, 126 So.3d at 895 (¶5). "A rebuttable presumption exists in favor of PERS's decision, and the claimant has the burden of proving the contrary." Davidson, 219 So.3d at 581 (¶15).

         ¶13. For a claimant to be entitled to receive PERS disability retirement benefits, she must first prove that she is disabled. Walker, 126 So.3d at 895 (¶6). At the time Lang filed her application with PERS seeking disability benefits, Mississippi Code Annotated section 25-11-113(1)(a) (Supp. 2007) defined disability as:

[T]he 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 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

         "The PERS Medical Board also must certify that the claimant is 'mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired.'" Walker, 126 So.3d at 895 (¶6) (quoting Miss. Code Ann. § 25-11-113(1)(a)). The supreme court has cautioned that "PERS should not stray from the purpose of [section] 25-11-113, to compensate disabled employees that have not met the 25 year retirement criteria, in denying benefits nor set the bar so high that this purpose is frustrated." Pub. Emps.' Ret. Sys. v. Shurden, 822 So.2d 258, 264 (¶19) (Miss. 2002).

         ¶14. Regarding PERS's regulations, at the time Lang filed her application for disability retirement benefits in 2008, the PERS Board Regulations simply required that "[t]he member shall submit medical evidence of the disability to the Medical Board for review." PERS Bd. Reg. 45A(103)(2) (as amended in 2007). In August 2010, the Board amended PERS Board Regulation 45A to add subsection (105)(3). This subsection stated that Lang "is responsible for providing sufficient objective medical documentation to the Medical Board in support of his or her claim for disability." PERS Bd. Reg. 45A(105)(4). This regulation clarifies that "PERS does not have the burden of proving that an applicant is not disabled." Id. This regulation further states that for the purposes of section 25-11-113, "'medical evidence' shall be defined as 'objective medical evidence.'" PERS Bd. Reg. 45A(105)(4). The PERS Board Regulations defined objective medical evidence as

reports of examinations or treatments; medical signs which are anatomical, physiological, or psychological abnormalities that are observed and documented by medical professionals; psychiatric signs which are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings which are anatomical, physiological, or psychological phenomena that are shown by medically acceptable laboratory diagnostic techniques, including, but not limited to, chemical tests, electrocardiograms, electroencephalograms, X-rays, and psychological ...

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