PUBLIC EMPLOYEES'RETIREMENT SYSTEM v. Ross

829 So. 2d 1238, 2002 Miss. LEXIS 319, 2002 WL 31599976
CourtMississippi Supreme Court
DecidedOctober 31, 2002
Docket2001-CC-01269-SCT
StatusPublished
Cited by14 cases

This text of 829 So. 2d 1238 (PUBLIC EMPLOYEES'RETIREMENT SYSTEM v. Ross) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PUBLIC EMPLOYEES'RETIREMENT SYSTEM v. Ross, 829 So. 2d 1238, 2002 Miss. LEXIS 319, 2002 WL 31599976 (Mich. 2002).

Opinion

829 So.2d 1238 (2002)

PUBLIC EMPLOYEES' RETIREMENT SYSTEM
v.
Steven T. ROSS.

No. 2001-CC-01269-SCT.

Supreme Court of Mississippi.

October 31, 2002.

*1239 Office of the Attorney General, by Mary Margaret Bowers, attorney for appellant.

William Owen Mayfield, attorney for appellee.

Before McRAE, P.J., EASLEY and CARLSON, JJ.

McRAE, P.J., for the Court.

¶ 1. This is an appeal from an order of the Circuit Court of Hinds County reversing the determination of the Public Employees' Retirement System (PERS) to deny disability benefits to Steven T. Ross, a former employee of the Mississippi Department of Transportation. Finding no reversible error by the circuit court, we affirm its judgment.

FACTS

¶ 2. In 1989, Steven T. Ross (Ross) began employment with the Mississippi Department of Transportation (MDOT). He held the position of Equipment Mechanic Master during his last three years. After nine years of total service, he took leave due to progressive medical problems.

¶ 3. In 1990, he was diagnosed with colon cancer and had the distal portion of his colon and rectum removed. He was treated post-operatively with radiation and chemotherapy and must wear an ostomy bag for the rest of his life. Ross's oncologist, Dr. Alva Bowen Weir, III, later found no remaining evidence of cancer. Ross continued to see Dr. Weir every six months and was released from his care in February 1995.

¶ 4. Ross has subsequently been followed by Dr. D.L. Harrison of Grenada, Mississippi, whose records, dating from April of 1997 to April of 1999, indicate that Ross suffers from chronic diarrhea, hypertension, and blindness in one eye.

¶ 5. The medical records of Dr. Michael Mancino and Michael Whelan, Ph.D., who *1240 evaluated Ross in September and October of 1998, respectively, in relation to Ross's Social Security Disability application, confirm Dr. Harrison's reports and indicate that Ross is also obese, suffers from incontinence, clinical depression, and bacterial infections which cause the chronic diarrhea.

¶ 6. Dr. Mancino's report concludes that Ross's bacterial infections and resulting diarrhea likely resulted from the physical stringency of Ross's employment. Likewise, the medical records of Dr. Whelan confirm that Ross indeed suffers from severe depression, and note that upon their initial meeting, Ross was suffering from a major depressive episode.

¶ 7. Ross testified that he also suffers occasionally from gout, shingles, dryness of the mouth, dehydration from the diarrhea, and numbness and tingling in his left arm. His medications include Cozaar for hypertension, Celebrex and Acyclovir for shingles, Lomotil for diarrhea, and Paxil for depression.

¶ 8. The hearing transcript shows that Ross sought consultation with an ostomy nurse, and was provided with alternate types of ostomy bags to address any concerns of leaking and soiling. The evidence shows that he has not continued to follow up with such a nurse or ostomy specialist, however, since soon after the surgery. But he testified that he had been advised that his present bag is state of the art.

¶ 9. According to Ross's testimony the primary factors affecting his ability to perform his job duties were the incessant struggle with ostomy bag problems, the chronic diarrhea, the incontinence, the resulting soiling of his person and clothing, and the depression. In fact, he stated that he did not think he would get well enough to go back to a job like the MDOT mechanic job. Additionally, he could think of no other job that he could perform in his condition. Although Ross worked for eight years with the ostomy bag, he testified that due to progressive health problems he had reached the point where it was just too much.

¶ 10. Ross's MDOT supervisor certified that Ross was no longer able to function in his job as a result of his medical problems. Ross testified, however, that if he saw a doctor who could straighten out the colostomy and bowel problems, along with all of the problems pertaining thereto, he thought he might be able to go back to work. But Ross was never offered any other job.

ISSUE

I. Is PERS' order denying disability benefits unsupported by substantial evidence and therefore arbitrary and capricious?

STANDARD OF REVIEW

¶ 11. This Court's review of PERS decisions is limited. We may only determine whether a PERS decision was (1) supported by substantial evidence, (2) arbitrary or capricious, (3) beyond the authority of the Board to make, or (4) violated the applicant's statutory or constitutional rights. Pub. Employees' Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (Miss.2001). Specifically, this Court may not reweigh the facts of the case or substitute its own judgment for that of the agency which rendered the decision. Pub. Employees' Ret. Sys. v. Marquez, 774 So.2d 421, 425 (Miss.2000). This Court must, however, look at the full record to determine whether the agency's findings were supported by substantial evidence. Id. at 427.

DISCUSSION

¶ 12. While framed above with the requisite formality, the issue in this case is more forthrightly framed this way: Is an auto mechanic, who must constantly, stoop, *1241 lift, bend and squat, who suffers from chronic diarrhea and bacterial infections, resulting incontinence, blindness in one eye, hypertension, clinical depression, who must wear an ostomy bag for the rest of his life, who is certifiably unable to perform his job, and, who has been diagnosed as disabled by three different doctors, disabled under the PERS disability statute? PERS contends that the answer is "no" and that substantial evidence supports its decision. We disagree.

¶ 13. PERS' findings of fact may not be disturbed on appeal "where sustained by substantial evidence." This Court has defined substantial evidence "as something more than a `mere scintilla' or suspicion." Marquez, 774 So.2d at 425. We have further determined that such evidence is that "which provides an adequate basis of fact from which the fact in issue can be reasonably inferred." Pub. Employees' Ret. Sys. v. Shurden, 822 So.2d 258, 263 (Miss.2002)(citing Dishmon, 797 So.2d at 893). If an administrative agency's decision is not based on substantial evidence, it necessarily follows that its decision is arbitrary and capricious. Marquez, 774 So.2d at 430; see also Shurden, 822 So.2d at 263 (citing Marquez, 774 So.2d at 430); Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So.2d 898 (Miss.1995).

¶ 14. An administrative agency's decision "is arbitrary and capricious when it is not done according to reason and judgment, but depending on the will alone." Miss. State Dep't of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 977 (Miss.1999). Further, "[a]n action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles." Id.

¶ 15. Finally, this Court has also ruled that a PERS decision is arbitrary and capricious where it puts forth no explanation as to controverting evidence "in the face of various medical diagnoses made by various credible doctors." Marquez, 774 So.2d at 429.

¶ 16.

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Bluebook (online)
829 So. 2d 1238, 2002 Miss. LEXIS 319, 2002 WL 31599976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-employeesretirement-system-v-ross-miss-2002.