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Stakelum v. Public Employees' Retirement System of Mississippi

Court of Appeals of Mississippi

November 12, 2019

LAURIE STAKELUM APPELLANT
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/26/2018

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L. KIDD

          ATTORNEY FOR APPELLANT: GEORGE S. LUTER

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SAMUEL MARTIN MILLETTE III

          BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

          McCARTY, J.

         ¶1. Laurie Stakelum suffered from medical conditions that caused her chronic pain. She applied for disability retirement benefits from the Public Employees' Retirement System (PERS). The agency denied her claim, and she appeals, arguing that the decision was not supported by substantial evidence and was arbitrary and capricious. For the reasons below, we affirm.

         STATEMENT OF FACTS

         ¶2. Stakelum was employed as a senior enforcement officer for the Mississippi Department of Transportation. In her capacity as senior enforcement officer, she performed various work duties such as inspecting trucks, conducting federal inspections, lifting and carrying scales, and assisting local law enforcement. She was required to wear a duty belt around her waist and stand for hours at a time. Her inspection duties occasionally required her to crawl in and under trucks and unload cargo. In assisting local law enforcement, she was sometimes required to use her firearm or pursue suspects on foot.

         ¶3. Stakelum experienced severe pain on the job, causing her to have trouble working. She was diagnosed with fibromyalgia and osteoarthritis and sought treatment for back, joint, abdominal, and muscle pain, as well as headaches, eye and vision problems, and swelling. She experienced the most pain in her back. She missed some work during 2011 and 2012 due to fibromyalgia and all of June and July 2013 due to back pain and headaches. In 2011, an MRI of her lumbar spine revealed degenerative disc disease causing mild nerve damage.

         ¶4. Stakelum saw neurologist Dr. Diane Ross for numbness and tingling, back pain, headaches, and tremors. Dr. Ross conducted a number of physical exams, finding only minor problems. She ordered an MRI of the brain, which revealed no findings. In 2013, an MRI showed that the degenerative disc disease in Stakelum's lumbar spine was no longer causing nerve damage and that there was mild disc disease in the cervical spine.

         ¶5. Dr. Ross completed a PERS Form 7 and a Family and Medical Leave Act (FMLA) form. On the PERS Form 7, the doctor listed Stakelum's restrictions as "unable [to perform] prolonged standing, lifting, [or] bending." Dr. Ross stated that Stakelum was not at maximum medical improvement (MMI) and that it was "unknown" when she would be. The doctor initially listed Stakelum's permanent partial impairments as "unknown," but she subsequently wrote fibromyalgia, cervical and lumbar stenosis, and headaches. On the FMLA form, Dr. Ross provided the same restrictions. She also stated Stakelum would be incapacitated for a single continuous period of time, and her conditions would cause flare-ups about two to three times a month, during which she would not be able to perform her job and would need time off.

         ¶6. Dr. Victor Bazzone, a neurosurgeon, examined Stakelum. He noted tenderness and a decreased range of motion in her neck, tenderness in her hips, and tenderness in her back, but no muscle spasms. Dr. Bazzone prescribed Aleve for her pain. Dr. Bazzone completed a PERS Form 7, listing her prognosis as "improvement expected." He assigned no work restrictions.

         ¶7. Dr. Thomas Francavilla, a neurosurgeon, examined Stakelum and also compared her 2011 and 2013 MRI results. He found that the degenerative disc in her lumbar spine was no longer causing nerve damage and that the condition of the cervical spine was "quite mild." The doctor believed the condition of the lumbar spine was not a "surgical situation." He also stated that surgery on the cervical spine would be unsuccessful due to Stakelum's fibromyalgia.

         ¶8. PERS referred Stakelum to independent practitioner Dr. Angel Mister for a PERS disability exam. Dr. Mister referred her to physical therapist Douglas Roll for a functional capacity evaluation (FCE) to determine if she was permanently disabled. The therapist described Stakelum's behavior during the FCE as self-limiting and self-restricting. For instance, Stakelum stopped several times during the FCE because she said she was in so much pain. But Roll noted that Stakelum did not exhibit an increase in heart rate, respiration, or perspiration-all signs typically seen in someone cooperating or putting forth effort. Stakelum scored 96/100 on a pain questionnaire, indicating she was either "bedridden or exhibiting over-reactive and symptom magnifying behaviors." While he could not accurately determine if Stakelum could perform her job duties, he believed "with reasonable medical probability that" she could perform such duties if she "focus[ed] less on her pain and more on her abilities and capabilities."

         ¶9. Stakelum officially resigned in October 2013 when she injured the second finger on her left hand during routine gun firing. Her finger had a contusion, small lacerations, decreased sensation, tenderness, and swelling. She was prescribed neuropathic cream and pain medications. Stakelum regained good strength and range in the finger, but her pain progressed from occasionally moderate to severe. Dr. Jim Thriffiley, who treated Stakelum's finger injury, provided on a workers' compensation evaluation and PERS Form 7 that her restrictions were no shooting and no lifting over five pounds with her left hand. He also stated that her prognosis for recovery was "poor" and that she had reached MMI, with a permanent-partial-impairment rating of one percent for her left second finger and zero percent for her whole person. Stakelum testified that she is right-handed.

         PROCEDURAL ...


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