IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-SA-00555-COA JONATHAN BRADLEY APPELLANT

v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/21/2018 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: GEORGE S. LUTER THOMAS UPTON REYNOLDS II ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SAMUEL MARTIN MILLETTE JANE L. MAPP NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 08/20/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., GREENLEE AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. Jonathan Bradley f iled an application to receive disability benef its t hrough the Public
Em ploy e es’ R etirem ent S y s tem of Mississippi (PERS). The PERS’s Medical Board determ ined that Bradley f ailed to provide suf

f icient evidence to support that h e was disabled under M i ssissippi Code Annotated section 25-11-113 and 25-11-114 (Rev. 2010). Bradley appealed the PERS Medical B oard’s decision to the PERS D isabili t y A p peals Com m ittee. The Com m ittee agreed with the PERS Medical Boa r d ’ s recom m endation t o deny both of Bradley ’ s claim s f

or non-duty and duty -related disability b enef its and s u b mi t t ed itsrecom m endation to the PERS Board of Trustees, which a g reed with the Com m ittee. Bradley

then appealed to the Circuit C ourt of Hinds County , and the circuit court af f i rm ed t he PERS Board of Trustees’ order. Aggrieve d , Bradley appeals to this Court. Af ter review of the record, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Bradley worked as a correctional supervi s o r f o r t h e M i s s i s s i p p i Departm ent of Corrections at the Greenwood Restitution Center. Bradley was vested in the sy stem at the tim e of the hearing with 24.75 y ears of service. Bradley described h i s ty p ical duties as inspecting the building f or cleanliness and observing staf f perf o rm their jobs, also

ma i ntaining docum entation. Bradley testif ied t hat h e occasionally had t o “shak e d o w n ” inm ates as they entered and exited the unit. His other occasional duties including p erf orm ing hourly counts of of

f enders, a c q u i r i n g “jobs” f or inm ates, perf

orm ing com

p uter work, and verif y ing schedules and em

ploy ee tim e sheets. He also had to d rive of f enders in t he van on certain occasions. Bradley stated he worked with of f enders about 90% of

the day

. ¶3. Between August 2008 a nd Septem ber 2009, Bradley was tem porarily rem o ved f

rom work by D r. Harold W heeler f or situational depression and anxiety

. In Novem ber 2009, Bradley c om

plained of u

p per a rm pain and sought treatm ent f r om Dr. J i mmy M i l l e r, a neurosurgeon, in Decem

b er 2009. Dr. Miller recom m ended phy s ical therapy

. ¶4. I n J a n u a ry 2 010, he s lipped on ice and f e ll while e scorting a n o f f e n d e r . A f

t e r Bradl e y ’ s f

all in January 2010, he was t reated at Greenwood Lef l ore Hospital by Dr. John Hollister f

or purported lower back pain on the lef t side and lef

t shoulder pain. An x-ray of

2the l um

bar (lower back) showed m ild degener a t i v e - d i s k d i s e a s e a t L5-S1; however, there was

no s ign of a n acute injury

. Bradley was prescribed anti-inf lam m a tory m e dicine f

or his shoulder and released. ¶5. In July 2010, Bradley sought treatm ent f r om Dr

. W h e e l e r f

o r b ack pain. In a f

orm listed as a “W orkm e n’s Com pensation Visit Report,” Dr. W hee l e r n oted that Bradley suf f e red f rom c hronic neck pain and recom m ended that B radley u s e a heating pad. Dr.
W h eeler also t e m

p oraril y r e m o v e d Bradley f rom work to undergo phy sical therapy ; however, Bradley w as released to return to work without restrictions in August 2010. ¶6. In M a rch 2011, Bradley tried to restrain an of f ender who h ad attacked another of f icer. Bradley w as struck several t im e s on his right f orearm a n d shoulder, resulting in a swollen right arm . Nurse Practitioner Y vonne Tanner, who worked f or Greenwood Com

prehensive Med i cal Clinic, treated Bradley on behalf of Dr. W heeler and noted t hat while he had dif f iculty com ing to a standing position, he was able to return to work with no restrictions. This visit was also on a “W orkm e n’s Com p ensation Visit Report” f orm . ¶7. Bradley m ade appointm ents with Dr. Wh e e l er and Nurse Tanner again in 2011 and
2012 listing t h e m a s Workers’ Com pensation visits, citing c hronic back pain. As a result, Bradley was restricted f

rom bending and lif

ting m ore than 20 pounds; however, Dr. W heeler noted that Bradley

was able to perf

orm his regular em

p loy m ent duties. ¶8. In February 2012, Bradley was again treated f o r acute chronic back and n eck pain; but he was able to perf

orm his regular job duties. I n April 2012, at the request of PERS, Bradley underwent an Independent Medical E v a l u a tion (IME) conducted by Dr. David C ollipp at

3NewSouth NeuroSpine. Dr. C ollipp f o und t h a t w h i le Bradley s uf f ered f rom lum bar osteoarthritis, he was phy sically capable of perf orm ing his em

ploy m ent duties, had room f

or phy sical i m

provem ent, a nd no objective basis f or pe r ma n e n t r estrictions was f ound or recorded. Dr. Collipp concluded that the f all probably did cause lower b ack strain in addition

to the laceration on B radley ’s s houlder ; h o w ever, B radley ’s m edical r ecords r ef lected no objective reason f

or Bradley

to be assigned to perm anent restrictions. ¶9. In June 2012, Dr. W heeler tem porarily rem o ved Bradley f rom w ork due to increased back p ain. Nurse Tanner also noted that Bradley ’s am bulation required use of a cane and that he suf f ered f rom severe chronic-lum

bar strain and m oderate cervical spondy losis. 1 In July 2012, Bradley term inated his em p loy m ent a f t er eight m o nths of apply ing f or duty related d i s a b i l i t y . He cited pain i n h i s right shoulder, r ight leg, and chronic back problem s (f ro m neck to tailbone) as the reason f or his resignation. ¶10. Bradley a p p l i e d f o r P E R S disability benef i ts, under Mississippi Code Annotated sections 25

- 1 1

- 1 1 3 and 25-11-114(6), in May 2012 stating t hat he was disabled due to chronic neck an d back pain s uf f ered a f ter injuries he sustained in the line of duty

. Applications f

or disability b enef

its are review e d b y t

h e P E R S Medical Board, w hich arranges

a n d d ecides all m edical exam inations f or disability purposes. See Pub. Emps. Ret. Sys. v
. Marquez , 774 So. 2d 421, 424 (¶8) (Miss. 2000). The PERS Medical Board is com posed of three independent phy sicians appointed by the P E R S Board o f Trustees. See Miss. Code

1 S p o n d y lo sis ref

ers to d eg en erativ e ch a n g es i n th e sp in e s u ch as b o n e s p u rs an d d eg en eratin g in terv erteb ral d iscs b etw een t h e v erteb rae. S p o n d y lo sis ch an g es in th e sp in e are f req u en tly ref erred to as o steo arth ritis. 4Ann. § 25-11-119(7) (Rev. 2010). The PERS Medical Board determ ined that Bradley f ailed

to provide suf

f icient evidence that he was disabled f or the purposes of PERS dis a bility benef its. ¶11. Bradley a

ppealed th e P E R S M e d i c a l B oard’s decision and was granted a hearing bef ore the PERS D isability Appeals Com m ittee in Septem ber 2012. A ny person aggrieved by a determ i nation o f the PERS Medical Board m ay request a hearing bef ore the d esignated hearing of

f i cer o f t he PERS Board of Trustees pursuant to Mississip p i Code Annotated section 2 5-11-120 (Rev. 2 0 10); see also Pub. Emps. Ret. Sys. v. Stamps , 898 So. 2d 664, 672 (¶25) (Miss. 2005). ¶12. The PER S D i s a b i l i t y A p p e a l s C o mmi t t e e i s m ade up of two phy sicians and a presiding of

f icer to perf

orm the duties of a h earing of f icer a nd to the n m ake a

recom m endation to the PERS Board of Trustees. In all, f ive separate phy sicians, in addition

to t hose perf

o rm i ng any independent m e dical exam inations, review every disa b ility case bef ore a recom m endation is m ade. The Com m ittee presented its reco mme n d a t i on to the
PERS Board of Trustees to deny Bradley ’s claim

. T h e Board adopted the Com m ittee’s proposed statem ent o f f

acts and conclus i o n s of law, deny i ng Bradley ’s c laim f or non-duty and d u t y - r e l a t e d d isability b enef its. Bradley appealed to the circuit court, and the circuit court upheld PERS’ decision to deny disability benef its. Bradley

now appeals.
STANDARD OF REVIEW ¶13. “As this Court has of ten stated, our review of an adm inistrative agency ’s f indings and decisions is lim ited: ‘an agency ’ s conclusions m ust rem ain undisturbed unless t he agency ’s

5order: (1) is not supported by substantial evidence, (2) i s arbitrary or capricious, ( 3) is bey ond

the scope or power granted t o t he agency , or ( 4) v iolates one’s constitutional rights.’” Pub. Emps. R et. Sys. v. Howard , 905 So. 2 d 1279, 1284 (¶13) ( Miss. 2005) (quoting Pub. Emps. Ret. Sys. v. Marquez , 774 So. 2d 421, 425 (¶11) (Miss. 2000)).
DISCUSSION
I. Whether PERS’ decision to d eny Bradley dis ability benefits w as supported by substantial evidence. ¶14. Bradley asserts t hat PERS ignored the f act that h is duties as a c orrectional s upervisor

s om etim es required him to act as a correctional o f f icer. As a result, he m aintains that the restrictions im

posed on him by his treating phy sicians precluded such work as a correctional of f icer and that there was substantial evidence i n support of a f inding of perm anent disability

. “Substantial evidence has been d ef ined as that which provides an a dequate b asis of f act f rom which the f

act in issue can be reasonably inf e r red.” Pub. Emps. Ret. Sys. v. Dishmon , 797
So. 2d 888, 892 (¶13) ( Miss. 2001) (citing Delta CMI v. Speck , 5 86 So. 2d 768, 773 (Miss. 1991)). ¶15. B r a d l e y applied f

or regular disability benef its a n d duty -related disability benef i t s . There are 2 categories o f d i s a bility benef its available to PERS m em bers: (1) a regular disability benef

i t pay able to m e m

bers who are vested and who bec o me d i s a b led f or any
reason, and (2) a duty -related disability benef it, p ay able to m em

bers regardless o f the num ber of y ears of credible s ervice, whe r e t h e mem b er becom es d isabled as a direct result of a phy sical injury sustained f r om another or traum atic event o ccurring in the line of duty

. See Miss. Code Ann. §§ 25-11-113 & -114.

6¶16. Disability is def ined in Mississippi Code Annotated section 25-11-113(1)(a) as the inability to p erf

orm the usual duties of em p loy m e nt o r t he i ncapacity to perf orm such l esser duties, if any , as the em ploy er, i n its discretion, m a y a ssign without m aterial reduction in com p ensation, or t he incapacity to perf o rm the d u ties of any em

ploy m ent covered by the Public Em ploy ees’ Retirem en t Sy stem (Section 2 5-11-101 et seq.) that is a ctually of f ered a n d i s w ithin the sam e general territorial work area, w ithout m ateri a l r e d u c t i o n i n c o m

p e n s ation. ¶17. To be eligible f

or PERS disability benef

its, the c l a i mant h as t he burden of proving through suf

f icient evidence (i) that he is m entally or phy sically i ncapacitated f or the f urther perf orm ance of duty , (ii) that s uch incapacity is likel y t o b e p erm a nent, and (iii) that he should be retired. See Miss. Code Ann. § 25-11-113(1)(a). ¶18. Here, Bradley was never deem ed perm anen t l y d i sabled a nd the only specialist that Bradley ever saw w as in 2009, prior to the other work-related i ncidents. There was never a

m edical o pinion that Bradley was incapacitated f rom perf orm ing his duties. B r a dley was treated b y two p hy sicians and neither stated that he was perm anently di s a b l e d

. The IME

went f urther and s tated Bradley was phy sically f unc t i o n a l l y capable a nd had room f or phy sically f

unctional im

provem ent. Moreover, surgery was never r ecom m ended by any of his treating phy s icians and neither of them noted any perm a nent disability

. ¶19. Theref

ore, it appears that Bradley ’s only assertion is t hat his p ain was so debilitating that it inhibited him f

rom perf orm ing his work duties. But, this Court has previously upheld the denial of

disability benef its even with a party ’s com plaint of debilitating pain resulting in a resignation. In Laughlin v. Public Employees’ Retirement System , 1 1 S o. 3d 154, 155 ( ¶ 3 ) (Miss. Ct. App. 2009), “Laughlin f iled an application f

or non-duty related disab i l i t y benef its.” “[ S]he r esigned f

r om her p osition

. . . af

t e r working f

or o ver ten y ears as a

7teacher.” Id

. Laughlin was evaluated f or bursitis of h er lef

t hip and

. . . com

plained of neck, low back, lef

t hip, right han d , a n d r i g h t a rm pain.” Id. at 155 (¶4). B ut a phy sical

exam ination, perf

orm ed by Dr. Collipp, revealed that “ L aughlin had no ab n o r ma l pain behaviors or pain m a gnif i c ation.” Id

. at 155-56 (¶5). This C ourt af f irm ed t he denial of disability benef

its because neither of t he phy sicians i n that case concluded that Laughlin was disabled. Id . at 160 (¶23). ¶20. Here, Dr. W heeler was the only phy sician to f ind that Bradley ’ s pain w as too severe
to return to work im m ediately

. But, this f inding was tem

porary because Dr. W heeler later

recom m ended phy sical therapy an d released Bradley to return to work. Moreover, Dr. Collipp n oted that Bradley ’ s right upper and lower extrem ity com p laints were not e xplained b y t he b ack a nd neck injuries that he s ustained. Consequently , he also conclud e d t h a t Bradley w as capable of

returning to work. ¶21. “A reviewing court cannot substitute its judgm ent f o r that of the a gency

or reweigh the f acts of t he case.” P ub. E

mps. Ret. Sys. v. Howard , 905 So. 2d 1279, 1285 (¶15) (Miss. 2005). Af ter r e view of the record, we f ind that the denial of B radley ’s disability benef its was supported by

substantial evidence.
II. Whether the circuit court’s decision to affirm should be upheld. ¶22. “Chancery and Circuit Courts are hel d t o t h e s a me s t a n dard a s this Court when reviewing agency decisions.” Id

. (citing Miss. State Bd. of Pub. Accountancy v. Gray , 674
So. 2d 1251, 1253 (Miss. 1996)). “W h en we f ind t he lower c ourt has exceeded its authority in overturning an agency

decision we will reverse and reinstate the decision.” Id

.

8¶23. There w as a substantial am ount of evidence to support t he PERS Board of Trustees’ decision. Neither one of Bradley ’ s treating phy sicians ever stated that Bradley was disabled

at the tim e o f his resignation (i.e., voluntary term ination). Furtherm o re, m edical re c o rds indicated that Bradley suf f ered only a contusion a nd strain, not an acute injury

. Theref ore, the circuit court’s decision to a f f irm was not arbitrary a nd capricious and should be upheld. ¶24. AFFIRMED. BARNES, C .J., CARLTON, P .J., G REENLEE, TINDELL, M cDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., NOT PARTICIPATING.

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