        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-SA-00555-COA

JONATHAN BRADLEY                                                            APPELLANT

v.

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM                                           APPELLEE
OF MISSISSIPPI

DATE OF JUDGMENT:                          03/21/2018
TRIAL JUDGE:                               HON. TOMIE T. GREEN
COURT FROM WHICH 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 filed an application to receive disability benefits through the Public

Employees’ Retirement System of Mississippi (PERS). The PERS’s Medical Board

determined that Bradley failed to provide sufficient evidence to support that he was disabled

under Mississippi Code Annotated section 25-11-113 and 25-11-114 (Rev. 2010). Bradley

appealed the PERS Medical Board’s decision to the PERS Disability Appeals Committee.

The Committee agreed with the PERS Medical Board’s recommendation to deny both of

Bradley’s claims for non-duty and duty-related disability benefits and submitted its
recommendation to the PERS Board of Trustees, which agreed with the Committee. Bradley

then appealed to the Circuit Court of Hinds County, and the circuit court affirmed the PERS

Board of Trustees’ order. Aggrieved, Bradley appeals to this Court. After review of the

record, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Bradley worked as a correctional supervisor for the Mississippi Department of

Corrections at the Greenwood Restitution Center. Bradley was vested in the system at the

time of the hearing with 24.75 years of service. Bradley described his typical duties as

inspecting the building for cleanliness and observing staff perform their jobs, also

maintaining documentation. Bradley testified that he occasionally had to “shake down”

inmates as they entered and exited the unit. His other occasional duties including performing

hourly counts of offenders, acquiring “jobs” for inmates, performing computer work, and

verifying schedules and employee time sheets. He also had to drive offenders in the van on

certain occasions. Bradley stated he worked with offenders about 90% of the day.

¶3.    Between August 2008 and September 2009, Bradley was temporarily removed from

work by Dr. Harold Wheeler for situational depression and anxiety. In November 2009,

Bradley complained of upper arm pain and sought treatment from Dr. Jimmy Miller, a

neurosurgeon, in December 2009. Dr. Miller recommended physical therapy.

¶4.    In January 2010, he slipped on ice and fell while escorting an offender. After

Bradley’s fall in January 2010, he was treated at Greenwood Leflore Hospital by Dr. John

Hollister for purported lower back pain on the left side and left shoulder pain. An x-ray of



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the lumbar (lower back) showed mild degenerative-disk disease at L5-S1; however, there was

no sign of an acute injury. Bradley was prescribed anti-inflammatory medicine for his

shoulder and released.

¶5.    In July 2010, Bradley sought treatment from Dr. Wheeler for back pain. In a form

listed as a “Workmen’s Compensation Visit Report,” Dr. Wheeler noted that Bradley

suffered from chronic neck pain and recommended that Bradley use a heating pad. Dr.

Wheeler also temporarily removed Bradley from work to undergo physical therapy; however,

Bradley was released to return to work without restrictions in August 2010.

¶6.    In March 2011, Bradley tried to restrain an offender who had attacked another officer.

Bradley was struck several times on his right forearm and shoulder, resulting in a swollen

right arm. Nurse Practitioner Yvonne Tanner, who worked for Greenwood Comprehensive

Medical Clinic, treated Bradley on behalf of Dr. Wheeler and noted that while he had

difficulty coming to a standing position, he was able to return to work with no restrictions.

This visit was also on a “Workmen’s Compensation Visit Report” form.

¶7.    Bradley made appointments with Dr. Wheeler and Nurse Tanner again in 2011 and

2012 listing them as Workers’ Compensation visits, citing chronic back pain. As a result,

Bradley was restricted from bending and lifting more than 20 pounds; however, Dr. Wheeler

noted that Bradley was able to perform his regular employment duties.

¶8.    In February 2012, Bradley was again treated for acute chronic back and neck pain; but

he was able to perform his regular job duties. In April 2012, at the request of PERS, Bradley

underwent an Independent Medical Evaluation (IME) conducted by Dr. David Collipp at



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NewSouth NeuroSpine. Dr. Collipp found that while Bradley suffered from lumbar

osteoarthritis, he was physically capable of performing his employment duties, had room for

physical improvement, and no objective basis for permanent restrictions was found or

recorded. Dr. Collipp concluded that the fall probably did cause lower back strain in addition

to the laceration on Bradley’s shoulder; however, Bradley’s medical records reflected no

objective reason for Bradley to be assigned to permanent restrictions.

¶9.    In June 2012, Dr. Wheeler temporarily removed Bradley from work due to increased

back pain. Nurse Tanner also noted that Bradley’s ambulation required use of a cane and that

he suffered from severe chronic-lumbar strain and moderate cervical spondylosis.1 In July

2012, Bradley terminated his employment after eight months of applying for duty related

disability. He cited pain in his right shoulder, right leg, and chronic back problems (from

neck to tailbone) as the reason for his resignation.

¶10.   Bradley applied for PERS disability benefits, under Mississippi Code Annotated

sections 25-11-113 and 25-11-114(6), in May 2012 stating that he was disabled due to

chronic neck and back pain suffered after injuries he sustained in the line of duty.

Applications for disability benefits are reviewed by the PERS Medical Board, which arranges

and decides all medical examinations for disability purposes. See Pub. Emps. Ret. Sys. v.

Marquez, 774 So. 2d 421, 424 (¶8) (Miss. 2000). The PERS Medical Board is composed of

three independent physicians appointed by the PERS Board of Trustees. See Miss. Code



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         Spondylosis refers to degenerative changes in the spine such as bone spurs and
degenerating intervertebral discs between the vertebrae. Spondylosis changes in the spine
are frequently referred to as osteoarthritis.

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Ann. § 25-11-119(7) (Rev. 2010). The PERS Medical Board determined that Bradley failed

to provide sufficient evidence that he was disabled for the purposes of PERS disability

benefits.

¶11.   Bradley appealed the PERS Medical Board’s decision and was granted a hearing

before the PERS Disability Appeals Committee in September 2012. Any person aggrieved

by a determination of the PERS Medical Board may request a hearing before the designated

hearing officer of the PERS Board of Trustees pursuant to Mississippi Code Annotated

section 25-11-120 (Rev. 2010); see also Pub. Emps. Ret. Sys. v. Stamps, 898 So. 2d 664, 672

(¶25) (Miss. 2005).

¶12.   The PERS Disability Appeals Committee is made up of two physicians and a

presiding officer to perform the duties of a hearing officer and to then make a

recommendation to the PERS Board of Trustees. In all, five separate physicians, in addition

to those performing any independent medical examinations, review every disability case

before a recommendation is made. The Committee presented its recommendation to the

PERS Board of Trustees to deny Bradley’s claim. The Board adopted the Committee’s

proposed statement of facts and conclusions of law, denying Bradley’s claim for non-duty

and duty-related disability benefits. Bradley appealed to the circuit court, and the circuit

court upheld PERS’ decision to deny disability benefits. Bradley now appeals.

                               STANDARD OF REVIEW

¶13.   “As this Court has often stated, our review of an administrative agency’s findings and

decisions is limited: ‘an agency’s conclusions must remain undisturbed unless the agency’s



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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. Howard, 905 So. 2d 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 deny Bradley disability benefits was
               supported by substantial evidence.

¶14.   Bradley asserts that PERS ignored the fact that his duties as a correctional supervisor

sometimes required him to act as a correctional officer. As a result, he maintains that the

restrictions imposed on him by his treating physicians precluded such work as a correctional

officer and that there was substantial evidence in support of a finding of permanent disability.

“Substantial evidence has been defined as that which provides an adequate basis of fact from

which the fact in issue can be reasonably inferred.” Pub. Emps. Ret. Sys. v. Dishmon, 797

So. 2d 888, 892 (¶13) (Miss. 2001) (citing Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss.

1991)).

¶15.   Bradley applied for regular disability benefits and duty-related disability benefits.

There are 2 categories of disability benefits available to PERS members: (1) a regular

disability benefit payable to members who are vested and who become disabled for any

reason, and (2) a duty-related disability benefit, payable to members regardless of the number

of years of credible service, where the member becomes disabled as a direct result of a

physical injury sustained from another or traumatic event occurring in the line of duty. See

Miss. Code Ann. §§ 25-11-113 & -114.


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¶16.   Disability is defined in Mississippi Code Annotated section 25-11-113(1)(a) as

       the 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.

¶17.   To be eligible for PERS disability benefits, the claimant has the burden of proving

through sufficient evidence (i) that he is mentally or physically incapacitated for the further

performance of duty, (ii) that such incapacity is likely to be permanent, and (iii) that he

should be retired. See Miss. Code Ann. § 25-11-113(1)(a).

¶18.   Here, Bradley was never deemed permanently disabled and the only specialist that

Bradley ever saw was in 2009, prior to the other work-related incidents. There was never a

medical opinion that Bradley was incapacitated from performing his duties. Bradley was

treated by two physicians and neither stated that he was permanently disabled. The IME

went further and stated Bradley was physically functionally capable and had room for

physically functional improvement. Moreover, surgery was never recommended by any of

his treating physicians and neither of them noted any permanent disability.

¶19.   Therefore, it appears that Bradley’s only assertion is that his pain was so debilitating

that it inhibited him from performing his work duties. But, this Court has previously upheld

the denial of disability benefits even with a party’s complaint of debilitating pain resulting

in a resignation. In Laughlin v. Public Employees’ Retirement System, 11 So. 3d 154, 155

(¶3) (Miss. Ct. App. 2009), “Laughlin filed an application for non-duty related disability

benefits.” “[S]he resigned from her position . . . after working for over ten years as a

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teacher.” Id. Laughlin was evaluated for bursitis of her left hip and . . . complained of neck,

low back, left hip, right hand, and right arm pain.” Id. at 155 (¶4). But a physical

examination, performed by Dr. Collipp, revealed that “Laughlin had no abnormal pain

behaviors or pain magnification.” Id. at 155-56 (¶5). This Court affirmed the denial of

disability benefits because neither of the physicians in that case concluded that Laughlin was

disabled. Id. at 160 (¶23).

¶20.   Here, Dr. Wheeler was the only physician to find that Bradley’s pain was too severe

to return to work immediately. But, this finding was temporary because Dr. Wheeler later

recommended physical therapy and released Bradley to return to work. Moreover, Dr.

Collipp noted that Bradley’s right upper and lower extremity complaints were not explained

by the back and neck injuries that he sustained. Consequently, he also concluded that

Bradley was capable of returning to work.

¶21.   “A reviewing court cannot substitute its judgment for that of the agency or reweigh

the facts of the case.” Pub. Emps. Ret. Sys. v. Howard, 905 So. 2d 1279, 1285 (¶15) (Miss.

2005). After review of the record, we find that the denial of Bradley’s disability benefits was

supported by substantial evidence.

       II.    Whether the circuit court’s decision to affirm should be upheld.

¶22.   “Chancery and Circuit Courts are held to the same standard as this Court when

reviewing agency decisions.” Id. (citing Miss. State Bd. of Pub. Accountancy v. Gray, 674

So. 2d 1251, 1253 (Miss. 1996)). “When we find the lower court has exceeded its authority

in overturning an agency decision we will reverse and reinstate the decision.” Id.



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¶23.   There was a substantial amount of evidence to support the PERS Board of Trustees’

decision. Neither one of Bradley’s treating physicians ever stated that Bradley was disabled

at the time of his resignation (i.e., voluntary termination). Furthermore, medical records

indicated that Bradley suffered only a contusion and strain, not an acute injury. Therefore,

the circuit court’s decision to affirm was not arbitrary and capricious and should be upheld.

¶24.   AFFIRMED.

    BARNES, C.J., CARLTON, P.J., GREENLEE, TINDELL, McDONALD,
LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., NOT
PARTICIPATING.




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