OF JUDGMENT: 04/03/2018
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. TOMIE T.
ATTORNEYS FOR APPELLANT: GEORGE S. LUTER THOMAS UPTON
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
SAMUEL MARTIN MILLETTE III JANE L. MAPP
CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ.
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) 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
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.
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.
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.
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.
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.
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 . . .
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
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.
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.
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).
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).
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.
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).
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 ...