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Escott v. Public School Employees' Retirement Board

Court of Appeals of Michigan

July 18, 2017

LINDA ESCOTT, Petitioner-Appellee,
v.
PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD, Respondent-Appellant.

         Allegan Circuit Court LC No. 15-055070-AA

          Before: Sawyer, P.J., and Hoekstra and Beckering, JJ.

          PER CURIAM.

         We are presented with the question whether respondent has the authority to grant a non-duty disability retirement pension in the absence of a certification by the Independent Medical Advisor (IMA) that the applicant is totally and permanently disabled from the applicant's position as a school teacher. Respondent had rejected petitioner's application on this basis, but the circuit court reversed. We agree with respondent that the certification by the IMA is a prerequisite for respondent to grant the non-duty disability retirement pension.

         Petitioner was employed by the Pontiac School District until March 8, 2013, when she accepted a voluntary layoff. She applied for non-duty disability benefits based upon her vision deficit known as bilateral optic atrophy. While she has central vision of 20/25 corrected by glasses, her peripheral vision is reduced to a field of between five and seven degrees, causing a type of tunnel vision. She was first diagnosed with the condition as a child. It is undisputed that the condition is not correctable, but it has been stable throughout her teaching career.

         While petitioner acknowledges that her condition has been present throughout her 21-year teaching career, she maintains that changes in the classroom render her unable to continue to perform her teaching duties. Specifically, she refers to technological changes, as well as pedagogical changes and anticipated increases in class size.[1]

         After petitioner applied for non-duty disability benefits, respondent designated Dr. R. S. Henderson as the IMA. Dr. Henderson sent petitioner for an independent medical exam and disability determination by Dr. Florence Thomas, an internist. Dr. Thomas' report stated: "Bilateral optic atrophy by history. No gross abnormalities on today's examination. Defer further evaluation to ophthalmology." Dr. Thomas' conclusion was that, "[b]ased on findings of my exam today, I do not find limitations to prevent this examinee from being able to perform job duties." Petitioner testified below that the only vision test she was asked to perform was reading an eye chart with and without her glasses. Additionally, the Office of Retirement Services (ORS) never sent her for further evaluation by an ophthalmologist as suggested by Dr. Thomas.

         The IMA, who specializes in physical medicine and rehabilitation, did not conduct a physical examination and based his conclusion on a review of the medical records. Dr. Henderson prepared an official IMA Statement of Disability and stated the following in the certification section:

Although the medical evidence shows that Ms. Escott has diagnoses of hyperthyroidism, mild hyperinflation of the lungs and a history of bilateral optic atrophy. Her condition for all symptoms and ailments are stable and controlled with medication. She also has diagnoses of chronic obstructive pulmonary disease diagnosis [sic]. However, even with her continued smoking, her recent pulmonary function test revealed mild obstructive lung disease. Ms. Escott is able to perform the duties of her past job as a teacher or any other similar position reasonably related to her education, training or experience. She is able to stand/walk six out of eight hours and lift up to twenty pounds both of which are requirements for being a teacher. Therefore, she does not have a total and permanent medical condition. Thus, she is not eligible for a non-duty disability retirement.

         Based upon this report, ORS notified petitioner that her request for non-duty disability benefits was denied. Petitioner requested a hearing and the hearing officer concluded that petitioner was properly denied benefits. This determination was upheld by respondent.

         Plaintiff appealed to the circuit court. The basis of her argument was that the eye examination was inadequate and, therefore, the determination was not supported by competent, material, and substantial evidence. She requested a remand to the retirement board to obtain an adequate evaluation of her vision condition. The circuit court found that respondent's decision was not supported by competent, material, and substantial evidence and that it was arbitrary and capricious or constituted an abuse of discretion. The circuit court remanded the matter to respondent with directions to have petitioner "examined by a specialist with expertise in bilateral optic atrophy or a certified ophthalmologist." On reconsideration, the circuit court agreed that it could not remand for an examination by an ophthalmologist. Otherwise, the court upheld its earlier determination. Respondent now appeals.

         This case involves interpretation of the Public School Employees Retirement Act (PSERA). We review questions of statutory interpretation de novo. Nason v State Employees' Retirement Sys, 290 Mich.App. 416, 424; 801 N.W.2d 889 (2010).

         In pertinent part, MCL 38.1386, section 86 of the PSERA, states.

(1) A member whom the retirement board finds to have become totally and permanently disabled for purposes of employment by his or her reporting unit by reason of personal injury or mental or physical illness before termination of reporting unit service and employment shall receive ...

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