author: SMITH, Chief Justice,

text:
    Rebecca L. JACKSON and Gary Jackson v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2001-CT-01683-SCT.
    Supreme Court of Mississippi.
    Aug. 19, 2004.

      Lampton 0. Williams, Jr., Poplarville, attorney for appellants.
    Billy W. Hood, Jeffrey G. Pierce, Gulf-port, attorneys for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. This insurance coverage case is before this Court on writ of certiorari to review the judgment of the Court of Appeals which reversed the summary judgment of the Circuit Court of Pearl River County dismissing the insureds’ suit against the insurer as untimely.

¶ 2. Finding that the circuit court’s grant of summary judgment was eminently correct, we reverse the judgment of the Court of Appeals and affirm the judgment of the circuit court.

FACTS & PROCEDURAL HISTORY

¶ 3. On February 10, 1995, while stopped in her car at an intersection, Rebecca L. Jackson was “bumped” from behind by the vehicle driven by John Bordelon. Borde-lon had insurance coverage at the time of the accident. The car Rebecca was driving was insured with State Farm Mutual Automobile Insurance Co. in the name of her husband, Gary Jackson. The damage to the Jacksons’ vehicle was described as two scratches, and Bordelon’s insurance carrier ultimately paid $181.00 to repair the vehicle. The Jacksons did not notify State Farm about the accident.

¶ 4. Rebecca went to the emergency room that evening complaining of neck pain and Xrays and a CAT scan were taken of her cervical spine. She was given prescriptions and referred to a neurosurgeon if she had additional problems. Approximately two weeks later Rebecca saw the neurosurgeon and complained of neck pain and lower back pain. More Xrays were taken, and she was prescribed a few weeks of physical therapy and was to return when that was complete. On May 4, 1995, Rebecca returned to the emergency room complaining of increased pain in her lower back. An MRI revealed “[degenerative disc disease at L3-4, L4-5, and L5-S1 with central disc herniation and marginal spurs.” On May 10, 1995, Rebecca saw the neurosurgeon again. The records from that visit reveal that Rebecca postponed the prescribed physical therapy so that she could visit her husband in California, but that once she began therapy that it helped the neck pain. The medical records also discuss that her lower back pain had increased and that she went to the emergency room. Specifically, the medical records state,

She was seen in the Emergency Room by Dr. Floyd with these complaints. He obtained an MRI scan of the lumbosa-cral spine which shows considerable degenerative disc disease at L3-4, L4-5 and L5-S1. In fact, at the L4-5 level there is a probable central disc herniation which effaces the sac and the L5 roots.

The neurosurgeon further stated that he and Rebecca discussed the “focal disc rupture centrally at L4-5,” that he recommended additional conservative measures of treatment for her lower back, and “[s]he is in complete agreement with this approach.” (emphasis added). Rebecca continued with physical therapy treatments, home exercises, and visited with the neurosurgeon again on June 7, 1995. He noted that she showed significant improvement even though she had missed several physical therapy sessions. On August 14, 1995, Rebecca and Gary saw the neurosurgeon together. Even though she failed to do her home exercises as prescribed, her neck and back pain had diminished considerably and she had “virtually no neck discomfort.” The doctor declared that she had reached “maximum medical improvement” and released her from his care. All of the medical records indicate that the neurosurgeon fully discussed the prognosis with Rebecca and that she understood and agreed with him.

¶ 5. Some time before December 22, 1995, Rebecca and Gary hired an attorney to represent them against Bordelon. On November 10, 1997, two years and nine months after the accident and two years and four months after reaching maximum medical improvement, Rebecca returned to the neurosurgeon for reassessment. The medical records from that visit reveal that Rebecca called his office during the previous year “complaining of neck, back and/or leg pain” and had failed to show up for several visits. The neurosurgeon also states that he “reviewed the patient’s lumbar MRI scan with findings as outlined previously. I discussed the situation with Ms. Jackson.” Rebecca was again prescribed a course of physical therapy and home exercise. Rebecca saw the neurosurgeon again on December 10, 1997, and January 28, 1998, both times reporting that her condition was improving with physical therapy and home exercise. On January 28, 1998, she reported that she was pregnant and the neurosurgeon advised her to discuss her treatment with her other physician.

¶ 6. On February 3, 1998, just a few days before the statute of limitations would run, Rebecca and Gary filed their complaint against Bordelon and Ratcliff in the Circuit Court of Pearl River County. The Jacksons alleged that Bordelon was negligent and caused the February 10, 1995, collision and that Rebecca “was caused to suffer serious, permanent, painful and disabling injuries.” (emphasis added). Gary and Rebecca sought damages, which included compensation for Rebecca’s “personal injuries and personal disability,” her past, present and future medical expenses, lost wages, and Gary’s loss of consortium.

¶ 7. Rebecca returned to the neurosurgeon again on October 8, 1998. The medical records for the visit reveal that Rebecca delivered her baby about a month earlier and that she was experiencing back pain. The medical records state “any lifting will aggravate that pain” and that the neurosurgeon “discussed the situation with Ms. Jackson in some detail.” Rebecca was again prescribed a course of physical therapy and home exercise and agreed that her non-compliance with the exercise program was a problem.

¶ 8. On January 4, 1999, counsel for Bordelon and Ratcliff served their responses to the Jacksons’ first set of interrogatories. In those responses Bordelon and Ratcliff stated that they had insurance coverage for the accident with Mississippi Farm Bureau Insurance Company with coverage limits of $20,000 per person and $50,000 per accident.

119. Rebecca returned to the neurosurgeon again on September 1, 1999. The medical records for the visit state that when Rebecca called for the appointment she was having “tremendous problems with her lower back” because she had stopped doing her home exercises, but that she started doing them again and on the date of the visit was not having any pain.

¶ 10. On November 18, 1999, the Jack-sons’ attorney sent a letter to the neurosurgeon asking for his opinion to assist the Jacksons in their claim for personal injuries. The letter asked a total of five questions and provided two blanks under each question for the doctor to mark “yes” or “no.” The doctor’s responses restated his diagnosis and treatment discussed above. He signed his fill-in-the-blank responses before a notary public on November 23, 1999, and returned them to the Jacksons’ attorney.

¶ 11. On January 10, 2000, counsel for Bordelon and Ratcliff sent a letter to the Jacksons’ attorney advising him that the coverage amount stated in the response to interrogatory number 10 erroneously stated that the limit was $20,000 per person, when the limit was actually $25,000 per person. On that same day, the Jacksons contacted their local State Farm agent and reported their underinsured motorist claim arising from the February 1995 accident. On January 27, 2000, the Jacksons’ attorney gave State Farm notice of the lawsuit filed in February 1998 and provided State Farm with a copy of the complaint. On April 18, 2000, as part of its investigation of the claim, State Farm took Rebecca’s sworn statement. ■ In response to questions, Rebecca stated approximately 20 times that she could not remember facts and details relevant to the case. Following its investigation, State Farm concluded that the claim was time-barred pursuant to the Mississippi statute of limitations and that the Jacksons had failed to meet policy and statutory requirements concerning timely notice of claims and actions against the owner or operator of an underinsured vehicle and denied the Jacksons’ claim.

¶ 12. On July 12, 2000, five years and five months after the accident, the Jack-sons filed their amended complaint adding State Farm as a defendant. State Farm filed a motion for summary judgment, the Jacksons filed a response in opposition, and both parties submitted briefs. On September 21, 2001, the circuit court entered a twelve-page opinion and order, in which the trial court made findings of fact and conclusions of law and granted State Farm’s motion for summary judgment.

¶ 13. The circuit court found that the policy entered into between State Farm and Gary Jackson, an independent insurance adjuster, required that the insured “give State Farm notice of an accident or loss ‘as soon as reasonably possible,’ and, if suing an uninsured motorist, provide State Farm with ‘a copy of all suit paper.’ ” The circuit court noted that the Jacksons filed suit in February 1998 for Rebecca’s “severe, permanent and disabling injuries” and that, “at the time of filing suit, the Jackson’s were under the belief that Defendant Ratcliffs automobile insurance had policy limits of 20/50/20.” In a footnote, the trial court noted that the Jack-sons later learned that the coverage was actually $5,000 higher per person. The circuit court noted that the Jacksons admit that they did not give State Farm any notice until January 10, 2000. The circuit court also stated,

The Jackson’s claim they were unaware of the extent of R. Jackson’s injuries until her doctor, Dr. Kerry L. Bernardo checked the ‘Tes” box to five “yes or no” questions submitted to him in a letter dated November 18, 1999 ostensibly sent from Jackson’s counsel. The Jackson’s waited another approximately two months after receiving these “check the box” responses from Dr. Bernardo before finally informing State Farm of their underinsurance claim. State Farm took the Jackson’s sworn statements on April 18, 2000 and sometime shortly af-terwards denied their underinsurance claim.

After discussing statutory and case law, the circuit court applied that law to the facts of this case. The circuit court found that summary judgment was proper.

¶ 14. On October 16, 2001, the trial court entered the judgment of dismissal as to State Farm. The Jacksons appealed, and the case was assigned to the Court of Appeals. The Court of Appeals held that disputes of material fact required the case to be reversed and remanded. Jackson v. State Farm Mut. Auto. Ins. Co., 852 So.2d 641, 642 (Miss.Ct.App.2003). State Farm’s has filed its petition for writ of certiorari, which is supported by the amicus curiae brief of the Mississippi Defense Lawyers Association. The Jacksons have filed a response in opposition to the petition.

ANALYSIS

¶ 15. The parties, the circuit court, and the Court of Appeals agree that the issues in this case are governed by this Court’s decisions in Harris v. American Motorist Ins. Co., 240 Miss. 262, 126 So.2d 870 (1961), Vaughn v. State Farm Mutual Automobile Ins. Co., 445 So.2d 224 (Miss.1984), and Lawler v. Government Employees Ins. Co., 569 So.2d 1151 (Miss.1990). It is the application of that law to the facts of this case where the disagreement arises. After careful consideration we find that the record in this matter clearly supports the circuit judge’s decision to grant summary judgment.

¶ 16. The Court of Appeals first found that “the Jacksons’ legal obligations for timely notice as opposed to timely litigation are controlled by different rules and precedent.” Jackson, 852 So.2d at 643. The Court of Appeals first discussed the timeliness of notice and determined that the obligation of timely notice could arise from the insurance policy and from statutes. Id. at 644 (citing Miss.Code Ann. § 83-11-105). The Court of Appeals then held,

¶ 16. Though the Jacksons failed to comply with the notice provisions under then* policy and Mr. Jackson failed to give the notice required once he joined in a suit, these omissions are not outcome determinative. The Supreme Court has held that where an insurance policy requires notice as a condition precedent to coverage, coverage may still be allowed unless the insurer suffered prejudice due to delay; that prejudice is a question of fact. Harris v. American Motorist Ins. Co., 240 Miss. 262, 126 So.2d 870, 873 (1961). A more recent precedent reached the same conclusion. “Because the questions of timely notice and prejudice were questions of fact for the jury to decide, the circuit judge erred in granting GEICO’s motion for summary judgment.” Lawler v. GEICO, 569 So.2d 1151, 1153 (Miss.1990).
¶ 17. State Farm argues that the existence of prejudice was clear from the undisputed facts and that therefore summary judgment was permissible on this issue. We need not determine whether prejudice is such a subjective standard as never to be the subject of summary judgment even when significant harm to an insurer is undisputed. It is enough to say that this is not such a case.

Jackson, 852 So.2d at 645. The Court of Appeals then held that the circuit judge erred when he granted summary judgment based on late notice and “[t]he question of prejudice remains a fact issue for consideration on remand.” Id.

¶ 17. The Court of Appeals next discussed the application of the statute of limitations. Citing Lawler and Vaughn supra, the Court of Appeals held,

We interpret the two decisions as being consistent. At least when there is reasonable uncertainty about whether the other party to an accident has adequate insurance, there is under this caselaw no accrual of a cause of action under a person’s uninsured motorist policy.
¶ 23. We note that Lawler did not require that the absence of coverage be determined in litigation before a cause of action for uninsured coverage commences. To that extent, Lawler applies the clarification that what is necessary for the accrual of a cause of action is some level of assurance that there is not going to be insurance from the tortfea-sor. A court judgment is not always needed.

Jackson, 852 So.2d at 646 (citing Lawler, 569 So.2d at 1153; Vaughn, 445 So.2d at 226). Applying its analysis to the facts of this case, the Court of Appeals held,

¶ 25. We synthesize these precedents and apply them to our facts as follows. Once someone who possesses uninsured motorist coverage knows, or reasonably should know, that the damages he or she claims to have suffered exceed the limits of insurance available to the alleged tortfeasor, the cause of action against the uninsured motorist carrier has accrued. It is at this point in time the potential plaintiff has a legally enforceable claim against the uninsured motorist carrier. This conclusion is based on Lawler’s clarification of Vaughn, which we apply by analogy to the situation that we face of insufficient primary insurance.
¶ 26. By statute and by insurance policy terms, notice of the claim must first be given the insurance company. Miss. Code Ann. § 83-9-5(e) (Rev.1999). No suit may be brought sooner than sixty days after written proof of loss has been given nor later than three years after the proof of loss. Miss.Code Ann. § 83-9-5(k)(Rev.2002). Therefore, if the Jacksons became, or should have become, aware of the shortfall in coverage under the tortfeasor’s own policy more than three years before they joined State Farm in this litigation, their suit against State Farm fails. We do not have sufficient evidence on this summary judgment to state that the issue is beyond factual dispute.

Jackson, 852 So.2d at 646.

¶ 18. Finally, the Court of Appeals rejected the Jacksons’ argument that no cause of action against the insurer accrues until there has been a denial of the claim by the insurer. The Court of Appeals stated, “[t]he difficulty with finding that no cause of action accrues until there is a denial of the claim, is to leave in the hands of the claimant an unlimited period of time to wait, intentionally or inadvertently, before making a claim. Only thereafter would the statute of limitations commence.” Id. at 647. The Court of Appeals concluded,

¶ 29. Still, waiting until the last possible moment under the statute of limitations to notify an insurer such as State Farm is not in either the insured or the insurer’s best interests. To state that the cause of action does not accrue until the time we have identified, does not in any manner delay the contractual or even the statutory obligation of notice. As we have pointed out, the concept of prejudice will determine whether a breach of the notice obligation will cause coverage to be lost. That prejudice may prevent coverage even if the statute of limitations does not.

Id.

¶ 19. The holding in Harris does not support the Court of Appeals’ conclusions, and in fact, supports summary judgment. In Harris, the chancellor found that the insured’s notice to the insurer, more than thirteen months after the accident, was not timely and entered judgment in favor of the insurer. Harris v. Am. Motorist Ins. Co., 240 Miss. 262, 126 So.2d 870 (1961). In that case, the insured argued that the insurer had not been prejudiced by the failure to give timely notice. This Court affirmed the chancellor, and held that the insured has the “duty to exercise reasonable care, due diligence as a reasonable and prudent man, to acquire information about the accident, so that he may be readily informed about claims out of which damage may arise.” Id. at 873 (citations omitted).

¶ 20. Contrary to the Court of Appeals’ holding, there are no questions of material fact in the present case. The medical records, provided by the Jacksons, show that on May 10, 1995, Rebecca and her doctor discussed her “considerable degenerative disc disease at L3-4, L4-5 and L5-Sl,” and the “probable central disc herniation” at the L4-5 level, and the “focal disc rupture centrally at L4-5.” The medical records also show that Rebecca and her doctor discussed this diagnosis again in June and August 1995. As pointed out in the circuit court’s opinion, Rebecca and Gary sued Bordelon on February 3, 1998, for Rebecca’s “serious, permanent, painful and disabling injuries.” The Jacksons’ contention that they were unaware of the extent of her injuries until her doctor filled out the check-the-box questions in November 1999, is clearly contrary to the evidence in the record.

¶21. Additionally, the Jacksons’ argument that they did not know that Bordelon’s insurance would be inadequate until they were advised that he actually had $5,000 more in coverage, defies logic. The circuit court found that in February 1998, when they filed suit against Borde-lon, the Jacksons were under the impression that Bordelon’s insurance coverage was limited to 20/50/20 and they knew they carried their own underinsurance coverage. It is clear from the record that the Jacksons added State Farm to the suit more than three years after they knew the extent of Rebecca’s injuries and knew the amount of Bordelon’s insurance coverage. Accordingly, their claims against State Farm are barred by the three-year statute of limitations, Miss.Code Ann. § 15-1-49 (Rev.2003).

¶ 22. This Court has stated that notice confers valuable rights upon the insurer. Timely notice protects the insurer’s right to investigate the events underlying the claim and allows the insurer to make decisions regarding the defense of that claim. Ross v. Crane Co., 350 So.2d 697, 699 (Miss.1977); see also Jackson, 852 So.2d at 644 (citing 8 Appleman, Insurance Law & Prac. § 4731 (Rev.2002)); State Mut., etc., Ins. Co. v. Watkins, 181 Miss. 859, 180 So. 78, 80 (1938); Downing v. Home Indem. Co. of New York, 169 Miss. 13, 152 So. 841, 842 (1934). The record shows that, after finally being notified in January 2000 about the February 1995 accident, State Farm attempted to investigate the Jacksons’ claim, including taking Rebecca’s sworn statement. The record shows that Rebecca could not remember important facts and details regarding the claim. She could not even remember if her car had been repaired. Pursuant to this Court’s holdings in Harris, Vaughn, and Lawler, the prejudice suffered by State Farm in this case is clear. We hold that summary judgment was proper.

CONCLUSION

¶ 23. For the foregoing reasons, we reverse the Court of Appeals’ judgment and affirm the trial court’s grant of summary judgment.

¶ 24. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Bordelon was 18 at the time and was driving his mother's car. His mother’s insurance covered him as a permissive driver. His mother will be referred to as "Ratcliff."

      . The Court of Appeals incorrectly defined ‘'insured” under the policy. The Court of Appeals incorrectly stated, "[t]he 'insured' in the present suit was not the injured party, Mrs. Jackson, but her husband. Mrs. Jackson's obligations arose under a different provision of the policy if she sought underinsured motorist coverage.” Jackson, 852 So.2d at 644. Actually, pursuant to the uninsured motorist coverages, the policy defines the insured as the person named on the declarations page and his or her spouse. Accordingly, Rebecca not only had the obligations discussed by the Court of Appeals as the injured person, but also had the same obligations as Gary as the insured.


source: Caselaw Access Project

author: COBB, Presiding Justice,

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Windell WILLIAMS.
    No. 2003-JP-02475-SCT.
    Supreme Court of Mississippi.
    Aug. 19, 2004.

      Luther T. Brantley, III, attorney for appellant.

      Carroll Rhodes, Hazlehurst, attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. This case is before the Court on the Joint Motion for Approval of Recommendations filed by the Mississippi Commission on Judicial Performance and Jefferson County Justice Court Judge Windell Williams. The motion requests that this Court accept the amended agreed statement of facts and proposed recommendation for discipline presented by the Commission regarding Judge Williams. We hold that the joint motion is well taken, and Judge Williams shall be publicly reprimanded, fined $228.50, and assessed costs of $100.

PROCEDURAL HISTORY

¶ 2. Acting on a citizen complaint, the Commission filed a formal complaint against Judge Williams on July 22, 2002, setting forth eight counts of judicial misconduct: counts one through five for engaging in specific actions in violation of Canons 1, 2A, 2B, 3A(1) and (4) and 5C(1) of the Code of Judicial Conduct of Mississippi Judges; count six for a similar action which occurred after the revision of the Code, in violation of Canons 1, 2A, 2B, 3B(2) and 3B(7); and count seven for engaging in the conduct set out in counts one though six. Count eight stated that these violations by Judge Williams constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such alleged conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution.

¶ 3. The record reflects that Judge Williams filed an answer to the formal complaint denying each of the eight counts, and the formal hearing on the merits was scheduled for January 23, 2003. On that date, Judge Williams and the Executive Director of the Commission, Luther T. Brantley, III, submitted an agreed statement of facts and proposed recommendation, to be effective upon acceptance and ratification of the full Commission. On May 12, 2003, in a letter to the Commission, counsel for Judge Williams requested the following additional mitigating facts to be considered by the Commission and included in the agreed statement:

Judge Williams had instructed the Deputy Justice Court Clerks to place the tickets referred to in the Amended Agreed Statement of Facts and Proposed Recommendation on his desk for consideration on the Court dates listed in the Amended Agreed Statement of Facts and Proposed Recommendation. The Tickets were placed on the Docket and on Judge Williams’ desk and disposed of on those court dates in the Justice Court Office pursuant to Section 9-11-5, Miss.Code Ann. (2001) The two Jefferson County Deputy Justice Court Clerks would have testified to the facts contained in this paragraph.

The letter went on to say, however, that Judge Williams, wanting “to put this matter to rest and move forward in performing his duties” had signed the Amended Agreed Statement of Facts and Proposed Recommendation, which contained a provision that “counsel reserve the right to submit additional statements in aggravation or mitigation along with the filing of this agreement.”

AGREED FACTS

¶ 4. The conduct complained of in the first six counts in this case took place on six separate occasions, involved six different defendants, and occurred between September 13, 2001, and May 24, 2002. Count three was not proven nor admitted and is not included in the agreed statement.

¶ 5. Count one arose from the trial of James E. Adams, who was found guilty on three charges: driving under the influence, driving while his license was suspended, and having no proof of insurance in a trial. In that proceeding, Judge Williams did not place Adams under oath, the charging officer was not present, the prosecutor was allowed to introduce the charging affidavits as the only proof of guilt, and Adams’s written waiver of his right to counsel was obtained only after the guilty verdict and without explanation.

¶ 6. Count two arose from the trial of Rezón W. King, on the same day as Adams’s trial. Judge Williams dismissed all four charges against King: driving under the influence, careless driving, speeding, and no proof of insurance, because the charging officer was not present for the trial.

¶ 7. Counts four, five, and six arose out of Judge Williams’s dismissal, on different days, of speeding charges (tickets) against Barbara A. Nix, Dereacer B. Turner, and Deborah H. McDonald. Even though none of these defendants appeared in court and their cases were not set for trial, Judge Williams entered findings of “not guilty” for each one. Nix also had an ex parte conversation with the judge on a prior date to ask him to “help her out on this ticket.”

¶ 8. The only facts offered as mitigation in the amended agreed statement were that Judge Williams “has been advised” and “now understands the significance of a properly executed waiver of attorney” and “that a criminal affidavit alone does not constitute evidence upon which a defendant may be convicted.” Further, he assured the Commission that conduct similar to that complained of in this case “will not recur in the future.”

¶ 9. The record reveals an ambiguity regarding the mitigating facts which bears mention. The June 23, 2003, minutes of the Commission show no discussion on this, or any issue, regarding Judge Williams’s discipline in general or the mitigating facts specifically. There is simply a motion by Judge Ray that the Commission accept and adopt the Agreed [not the Amended Agreed] Statement of Facts and Proposed Recommendation, seconded by Judge Wise and passed unanimously. The motion presently before this Court mentions both versions, and then states that the Commission accepted the Amended Agreed Statement. The record is entirely silent with regard to any mention of anything further by the Commission. For purposes of our decision, this Court has considered the additional mitigating facts submitted by Judge Williams, as under RMCJP Rule 10(E) we are to direct disciplinary action “based upon a review of the entire record.”

DISCUSSION

¶ 10. In judicial discipline proceedings, the appropriate standard of review stems from Rule 10(E) of the Rules of the Mississippi Commission on Judicial Performance, which states: “[biased upon a review of the entire record, the Supreme Court shall prepare and publish a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper. The Supreme Court may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.”

¶ 11. This Court reviews the Commission’s findings and recommendations de novo — that is, this Court does not defer to the Commission but reviews the matter anew. Miss. Comm’n on Jud. Performance v. Perdue, 853 So.2d 85, 86 (Miss.2003). Nevertheless, the Commission’s findings are given great deference when supported by clear and convincing evidence. Miss. Comm’n on Jud. Performance v. Chinn, 611 So.2d 849, 850 (Miss.1992). See Miss. Jud. Performance Comm’n v. Coleman, 553 So.2d 513, 515 (Miss.1989); In re Gamer, 466 So.2d 884, 885 (Miss.1985).

¶ 12. A number of mitigating factors may be considered in this Court’s determination of whether a public reprimand is a suitable sanction, including: the length and character of the judge’s public service, any positive contributions made to the courts and community by the judge, the fact that there is no prior judicial precedent of the issue in question, a judge’s commitment to fairness and innovative procedural reform, the magnitude of the alleged misconduct, and the number of persons who have been affected by the misconduct, and whether the misconduct involved moral turpitude. Miss. Jud. Performance Comm’n v. Hopkins, 590 So.2d 857, 862 (Miss.1991). Judge Williams made no submission related to any of these factors.

¶ 13. The Mississippi Constitution provides that the Court may remove from office, suspend, fine or publicly censure or reprimand any judge of this state for “willful misconduct in office; ... [and] conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” Miss. Const. art. 6, § 177A. This Court may also assess judges costs. Miss. Comm’n on Jud. Performance v. Russell, 724 So.2d 873, 874 (Miss.1998). Often the sanction for “fixing” tickets is a public reprimand, fine, and assessment of costs. See generally Miss. Comm’n on Jud. Performance v. Warren, 791 So.2d 194 (Miss.2001); Miss. Comm’n on Jud. Performance v. Boykin, 763 So.2d 872 (Miss.2000); Miss. Comm’n on Jud. Performance v. Bowen, 662 So.2d 551 (Miss.1995); Miss. Comm’n on Jud. Performance v. Gunn, 614 So.2d 387 (Miss.1993). See also Miss.Comm’n on Jud. Performance v. Warren, 791 So.2d 194 (Miss.2001).

¶ 14. Although there are unanswered questions regarding the mitigating facts in this case, we accept the recommendation before us, because it comes to us as an agreed recommendation. Judge Williams was represented by counsel, as was the Commission. There is nothing before us to indicate a need to set aside that agreement.

CONCLUSION

¶ 15. This Court is vested with broad discretion in determining whether to accept the agreement of the Commission and the judge regarding the appropriate discipline to be imposed. It is undisputed that Judge Williams and the Commission agreed upon the imposition of a public reprimand, a $228.50 fine which represents the amount of fines that would have been imposed in the three speeding cases, and costs of $100. The discipline imposed on Judge Williams is proportional with that imposed in similar cases, and this Court accepts the recommendation of the Commission and Judge Williams. The public reprimand order shall be forwarded to the Jefferson County Circuit Court to be read by the presiding circuit court judge, in open court with Judge Williams present on the first day of the next court terra, after this decision becomes final.

¶ 16. JEFFERSON COUNTY JUSTICE COURT JUDGE WINDELL WILLIAMS SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE JEFFERSON COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL, SHALL PAY A FINE OF $228.50, AND SHALL PAY THE COSTS OF THIS PROCEEDING OF $100.00.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . Counts one through five involved violations which occurred prior to the April 4, 2002, revision of the Code.

      . All but the last sentence of this requested language appeared in the original agreed statement of facts, but does not appear in the amended agreed statement of facts.


author: GRIFFIS, J., KING, P.J.,

text:
    The PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant, v. Willie SMITH, Appellee.
    No. 2002-CC-01026-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.
    Certiorari Denied July 29, 2004.

      Mary Margaret Bowers, attorney for appellant.
    George S. Luter, Jackson, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. The Appellee’s motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted.

¶ 2. Willie E. Smith, Jr. sought hurt-on-the-job disability benefits from the Public Employee’s Retirement System (“PERS”). The Medical Board denied the claim and the denial was upheld by the Disability Appeals Committee and the Board of Trustees affirmed the denial. Smith then appealed to the Circuit Court of Hinds County. The circuit court reversed the order of the PERS Board and granted hurt-on-the-job disability benefits to Smith. PERS appeals this decision.

¶ 3. On appeal, PERS argues that the circuit court erred in reweighing the evidence and substituting its judgment for that of the administrative agency. PERS contends that there was substantial evidence to support PERS’s determination that Smith was not disabled as the direct result of an on-the-job injury. We agree. Therefore, we reverse and render the judgment of the circuit court, and we reinstate the PERS order denying disability benefits to Smith.

FACTS

¶ 4. Smith began work as a laundry worker at the Mississippi State Hospital in Whitfield, Mississippi on October 1, 1992. Smith’s position as a laundry worker required bending over and lifting with no specific weight requirements listed. Smith claims that while lifting laundry on duty on November 11,1992, he felt a sharp pain in his back and reported this to his supervisor.

¶ 5. Smith went to the MEA Clinic where he was treated for a “pulled muscle.” Later, at the direction of some his co-workers, Smith went to Dr. John Frenz, a neurosurgeon, who diagnosed him with chronic low back syndrome and disc displacement herniation. On March 3, 1993, Dr. Frenz performed a lumbar exploration, right laminectomy and right radical diskec-tomy on Smith. A detailed review of Smith’s medical history and treatment, both before and after, is discussed below.

¶ 6. The injury at the State Hospital, in November of 1992, was neither Smith’s first nor his only back injury. Smith had previously worked for the Mississippi Fair Commission and hurt his back while lifting steel horse stables. Smith was treated by orthopedic surgeon Dr. Pat Barrett, who performed an anterior interbody fusion in 1990 and released him in 1991 with a thirty percent whole body impairment and a thirty pound lifting restriction. Smith also injured himself in November of 1991 when he fell out of bed. He complained of pain in his back for much of that year. Smith also slipped and fell in a store prior to the November 1992 incident in question. Smith was also involved in an automobile accident sometime later, but whether he received any injury is not noted by any of his treating physicians.

¶ 7. On March 24, 1994, Smith applied to PERS for hurt-on-the job disability benefits, pursuant to Mississippi Code Annotated 25-11-114(6), claiming that he was injured at the State Hospital on November 11, 1992. By then, Smith had also applied for but had not been approved for Social Security disability benefits. He was approved for Social Security disability benefits on March 31, 1995, with a disability onset date of December 3,1992.

¶ 8. After his disability application was denied by the PERS Medical Board, Smith requested a hearing before the Disability Appeals Committee. At his hearing, Smith testified that he was injured on November 11, 1992, while pulling sheets from a tub at the Mississippi State Hospital.

¶ 9. During a supplemental hearing held before the Disability Appeals Committee, Smith introduced additional medical records and documentation from Dr. Frenz. The Disability Appeals Committee deferred a decision and ordered Smith to undergo a functional capacity evaluation. The evaluation indicated that Smith’s “abilities did not match the job requirements of laundry worker.”

¶ 10. The Disability Appeals Committee found insufficient evidence to establish that Smith was “permanently and totally disabled as a result of the on the job injury at the Medical Hospital.” Subsequently, Smith filed two separate “Request for Judicial Notice” stating that from 1986 to 1995 PERS had a policy of accepting the determination of the Social Security Disability as automatic proof of eligibility for PERS disability benefits.

¶ 11. On appeal, the circuit court reversed PERS and concluded that “[t]he overwhelming medical evidence supports a claim of hurt-on-the-job disability that precludes Smith from performing his duties as Laundry Worker.” The circuit court noted its reliance on the finding that Smith had been awarded disability benefits by the Social Security Administration.

STANDARD OF REVIEW

¶ 12. Judicial review of an administrative agency’s decision is severely limited. As long, as the reviewing court finds that the board’s decision was supported by evidence and absent of fraud, they shall render the board’s decision conclusive. Shannon Eng. & Constr. v. Emp. Sec. Comm’n, 549 So.2d 446, 449 (Miss.1989). Moreover, a court may only overturn a board’s decision if it was (1) unsupported by substantial evidence, (2) arbitrary and capricious, (3) beyond the agency’s authority to make, or (4) in violation of a statutory or constitutional right of the applicant. Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (¶ 13) (Miss.2003); Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (¶ 8) (Miss.2001).

¶ 13. “There is a rebuttable presumption in favor of a PERS ruling. Neither this Court nor the circuit court is entitled to substitute their judgment for that of PERS, and it is impermissible for a reviewing court to reweigh the facts of the case.” Id. at (¶ 9) (citations omitted). When reviewing an administrative agency’s decision, the circuit court must look at the full record before it in deciding whether the agency’s findings were supported by substantial evidence. Miss. State Bd. of Exam’rs for Social Workers & Marriage and Family Therapists v. Perkins-Sander, 757 So.2d 1079, 1084 (¶ 15) (Miss.Ct. App.2000). While the circuit court performs limited appellate review, “it is not relegated to wearing blinders.” Id.

ANALYSIS

¶ 14. There are two categories of disability benefits available to state employees: (1) regular disability benefits, pursuant to Mississippi Code Annotated Section 25 — 11—113(1)(a); and (2) hurt-on-the-job disability benefits, pursuant to Mississippi Code Annotated Section 25-11-114(6). Both categories use the same definition of “disability,” i.e., whether a claimant has the ability to perform the usual duties of the employment or lesser duties assigned.

¶ 15. To be eligible for regular disability benefits, the state employee must have at least four years of state service. If eligible, disability benefits would be paid based solely on the definition of disability and regardless of whether the injuries occurred as a result of work-related activities. Smith was not eligible for regular disability benefits because he had less than one year state service.

¶ 16. Smith, however, was eligible for hurt-on-the-job benefits. Mississippi Code Annotated Section 25-11-114(6) (Rev.2003) provides that:

Regardless of the number of years of creditable service upon the application of a member or employer, any active member who becomes disabled as a direct result of an accident or traumatic event resulting in a physical injury occurring in the line of performance of duty, provided the medical board or other designated governmental agency after a medical examination certifies that the member is mentally or physically incapacitated for the further performance of duty and such incapacity is likely to be permanent, may be retired by the board of trustees....

(emphasis added).

¶ 17. To establish his claim for hurt-on-the-job disability benefits, Smith must prove two elements. First, was Smith disabled as defined by Mississippi Code Annotated Section 25 — 11—113(1)(a)? Second, if he was disabled, did Smith become disabled as the direct result of an on-the-job injury as required by Mississippi Code Annotated Section 25-11-114(6)?

¶ 18. PERS determined that the second element was the ultimate issue to be decided. PERS weighed the evidence and held that Smith’s disability was not the direct result of an on-the-job injury. Adopting the Disability Appeals Committee’s findings, PERS concluded:

A great deal of the medical record indicates that Mr. Smith’s complaints are subjective, rather than objective. There are no objective measurements of pain, such as increased heart rate, other than subjective complaints of pain by Mr. Smith. Further, all of the medical documentation reviewed does not indicate that Mr. Smith sustained a hurt-on-the-job injury resulting in a disability. Mr. Smith has suffered back problems for several years from several accidents and there is no indication that the incident at the State Hospital is the injury he contends now renders him disabled. The Disability Appeals Committee finds that there is not sufficient evidence to show that Mr. Smith is permanently and totally disabled as the result of a reported on-the-job injury at the Medical Hospital.

(emphasis added.)

1. Whether Smith presented substantial evidence that he was disabled pursuant to Mississippi Code Annotated Section 25-11-113(1) (a).

¶ 19. The circuit court reversed PERS based on the finding that there is little dispute that Smith was disabled and unable to perform his former job as a laundry worker. Whether Smith was disabled was not the sole issue of his claim. As indicated above, PERS’s decision was not based on whether Smith met the Section 25-11-113(1)(a) definition of disability; rather, PERS concluded that Smith’s disability did not directly result from his on-the-job injury.

2. Whether Smith’s disability was the result of an on-the-job injury so as to meet the requirement of Mississippi Code Annotated Section 25-11-1U(6).

¶ 20. Smith “has the burden of proving to the Medical Board and to the Appeals Committee that he or she is in fact disabled” to obtain disability benefits. Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 893(¶ 15) (Miss.2001). Likewise, Smith has the burden of proving that he was disabled as a direct result of an on-the-job injury. Miss.Code Ann. § 25-11-114(6) (Rev.2003).

¶21. The decision to deny Smith disability benefits was made by PERS through its Medical Board and Disability Appeals Committee, which consist of five medical doctors. These doctors review medical records, testimony and other evidence to determine, based on their professional medical opinion, whether the statutory requirements have been met. In Public Employees’ Retirement System v. Howard, 2001-CC-01543, — So.2d-, 2003 WL 22861804 (¶ 23) (Miss. Dec. 4, 2003), the Mississippi Supreme Court held:

Sorting through voluminous and contradictory medical records, then deter-minating whether an individual is permanently disabled is better left to physicians, not judges. This is the idea behind the creation and expansion of administrative agencies. “The existence within government of discrete areas of quasi-legislative, quasi-executive, quasi-judicial regulatory activity in need of expertise is the raison d’etre of the administrative agency.” McGowan v. Mississippi State Oil & Gas Bd., 604 So.2d 312, 323 (Miss.1992). “Because of their expertise and the faith we vest in it, we limit our scope of judicial review.” Id.

(citations omitted.)

PERS, through its medical doctors, was in a far better position to evaluate Smith’s medical history and the evidence presented to decide whether there was a direct causal connection between Smith’s disability and the incident on November 11, 1992, at the State Hospital.

It 22. In Brinston v. Public Employees’ Retirement System, 706 So.2d 258, 259(¶ 4) (Miss.Ct.App.1998), the claimant was denied disability benefits under Mississippi Code Annotated Section 25-11-114 on the basis that the disability was not the direct result of work-related activity. Brinston was employed at the Ellisville State School, and she was diagnosed with bilateral carpal tunnel syndrome. The diagnosis predated the accident and injury in question. Id. at 259(¶2). Brinston was injured on May 7, 1993, when a patient shoved her against a wall, and she fell against her shoulder. At that time, Brin-ston had two years of service. Brinston claimed an on-the-job injury from her fall. She asserted that her condition deteriorated after the fall. She admitted, however, that she had medical problems with her hands before the incident.' Id. at 259(¶ 3).

¶ 23. Brinston’s claim for hurt-on-the-job disability benefits was denied by PERS “due to insufficiency of medical evidence to support the assertion that Brin-ston’s disability was the direct result of an accident or traumatic event occurring in the line of performance of duty.” Id. at 259(¶ 4). The evidence indicated' that Brinston had a preexisting injury and that the fall may have aggravated her condition. Id. at 260(¶ 8). PERS concluded “that there was insufficient evidence to support a finding that Brinston sustained a disability as a direct result of an accident or traumatic event occurring in the line of performance of duty is supported by substantial evidence. It is clear that there were many other factors which may have contributed to or caused Brinston’s condition and disability.” Id. at 260(¶ 9). This Court strictly interpreted the language of Mississippi Code Annotated Section 25-11-114(6) and held:

[Tjhis Court may only apply the law as it is written, and the statute calls for the disability to be the direct result of the accident or traumatic event. The disability in question evolved over a period of time and events. There was not one accident or traumatic event which caused Brinston’s disability. We therefore hold that the circuit court did not err in finding that the order and opinion of the Board was not in. violation of the statute.

Id. at 260(¶ 11).

¶ 24. Just as in Brinston, there was not one accident or traumatic event which caused Smith’s disability. Smith did not just have one back injury. Indeed, he had a significant history of multiple back injuries, accidents and medical treatment, both prior and subsequent to the November 11, 1992 incident at the State Hospital. Indeed, he was classified as disabled before he began work at the State Hospital. Smith’s burden was to prove that the disability he claimed was the direct result of the injury that occurred at the State Hospital.

¶ 25. Here, PERS determined that Smith failed to meet this burden of proof. PERS concluded that “all of the medical documentation reviewed does not indicate that Mr. Smith sustained a hurt-on-the-job injury resulting in a disability. Mr. Smith has suffered back problems for several years from several accidents and there is no indication that the incident at the State Hospital is the injury he contends now renders him disabled.”

¶ 26. The circuit court, however, relied on the Social Security Administration (“SSA”) determination letter as persuasive evidence for its decision to reverse PERS and grant Smith disability benefits. In doing so, the circuit court concluded that the Disability Appeals Committee’s omission of the SSA’s finding of disability suggests that PERS acted in an arbitrary and capricious manner. We disagree.

¶ 27. In essence, the circuit court reasoned that PERS erred because it did not consider the SSA disability determination. This is contrary to Mississippi Code Annotated Section 25-ll-113(l)(a)(Rev.2003), which provides that “the board of trustees may accept a disability determination from the Social Security Administration in lieu of a certification of a medical board.” Appellate courts of this state have uniformly-held that an SSA determination of disability is not binding on PERS. See Doyle v. Pub. Employees’ Ret. Sys., 808 So.2d 902, 907(¶ 16) (Miss.2002); Dishmon, 797 So.2d at 895-96(¶ 29); Pub. Employees’ Ret. Sys. v. Waid, 823 So.2d 595, 596 n. 1 (Miss.Ct.App.2002); Pub. Employees’ Ret. Sys. v. Thomas, 809 So.2d 690, 694(¶ 15) (Miss.Ct.App.2001).

¶28. In fact, the SSA determination letter contradicts Smith’s claim that his disability was the direct result of an on-the-job injury. The SSA determination was rendered by the SSA administrative law judge on March 31, 1995. The SSA granted social security benefits and made the following detailed findings of Smith’s extensive medical history:

The medical findings show that the claimant sustained an on-the-job injury to his back on March 21,1989 which was diagnosed initially as lumbar strain. In March of 1990 a CT scan of the lumbo-sacral spine revealed central disc herniation at the L3 — 4. X-rays revealed narrowing of the L5-S1 disc space. The claimant was diagnosed as having herniated nucleus pulposus and underwent a laminectomy and interbody fusion of the L4-5. In April of 1990, the claimant was admitted to the hospital for possible thrombosis of the left leg. It was determined that he had pain and irritation possibly secondary to the femoral nerve from the activity with continued use of his brace (Exhibit # 16). In November of 1990, after a CT scan revealed probable pseudarthrosis at L5-S1, the claimant was admitted for a myelogram of the lumbar and cervical areas due to continued cervical spasm. The myelogram was negative (Exhibit # 18). In January of 1991 the claimant was admitted to the hospital for a posterior lateral fusion and instrumentation after developing pseudoarthrosis of the fusion area (Exhibit # 19). On November 12, 1991, the claimant was considered to have reached maximum medical improvement and was given a 15 percent partial permanent impairment secondary to the pain and stiffness, he was restricted to lifting 30 pounds and to stand or sit for no longer than one hour at a time. In February of 1992, claimant re-injured his back in a slip and fall accident in a store (Exhibit # 20). A physical examination in January of 1993 revealed that the claimant had a markedly positive straight leg raising test at 20 degrees on the right, 60 degrees on the left. Lumbar motion was up to a maximum of 30% of the expected normal in any of the 6 directions. Claimant had decreased sensation over the L5-S1 dermatome on the right and a positive jugular compression test. He had pain and spasm in attempting to heel and toe walk. He was unable to squat for more than a little ways and had weakness of the right foot dorsiflexor and knee extensor along with diminished medial hamstring and deep tendon reflex on the right. He was diagnosed as having chronic low back pain syndrome; lumbar radiculopathy secondary to his third back injury and in-tervertebral disc displacement-herniation (Exhibit # 21). In March of 1993, claimant was admitted to the hospital for lumbar exploration with L3, 4 and L4, 5 right laminotomy and radical diskectomy after he was diagnosed as having lumbar disc herniation, nerve root compression syndrome with radiculopathy (Exhibit # 22). Subsequent to this surgery the claimant began treatment at the Pain Clinic of Mississippi. He was depressed and cried often as well as drug reliant (Exhibit # 23).

¶ 29. According to the SSA, Smith was hurt on-the-job in March of 1989, which resulted in several medical procedures through November of 1991. Smith was hurt again when he slipped and fell in February of 1992. SSA’s finding on Smith’s medical history cites each of the medical procedures performed in 1993, but it does not refer to any accident or injury that occurred in November 1992 at the State Hospital.

¶ 30. In addition, the SSA applied the Social Security Act definition of “disability.” The SSA’s administrative law judge was not concerned with “how” Smith was injured, but instead was concerned with how long Smith would be unable to engage in any substantial gainful activity due to the impairment. If Smith was unable to engage in any substantial gainful activity for at least a year, regardless of the cause, then he would be entitled to Social Security benefits. Thus, the SSA determination focused solely on Smith’s overall medical condition.

¶ 31. PERS’s analysis was different. Unlike the SSA, PERS considered whether Smith became “disabled as a direct result of an accident or traumatic event resulting in a physical injury occurring in the line of performance of duty,” which was required by Mississippi Code Annotated Section 25-11-114(6). The circuit court erred by relying on the SSA (determination letter as evidence to support a finding of disability; instead, it was evidence that the SSA concluded that the November 1992 incident was not relevant to Smith’s medical history and the SSA determination to grant disability benefits.

¶ 32. The pivotal question in this case is whether Smith’s disability occurred as a direct result of the on-the-job injury. Thus, in our review to determine whether the PERS decision was based on substantial evidence, we review the medical information available to PERS.

¶ 33. Smith’s first back injury occurred in 1989 when he was employed by the Mississippi State Fair Commission. According to a CAT scan and x-rays, Smith’s back appeared normal. By July of 1989, Smith was released to full duty.

¶ 34. By September of 1989, Smith was noted to have disruption of a disc in his spine. In 1990, surgery was discussed, and Dr. Pat Barrett told Smith that the procedure would have a fifty percent chance of helping significantly and a ten percent chance of making it worse. Smith underwent the surgery in early 1990.

¶ 35. In May of 1990, Smith injured himself when he fell out of bed. He complained of pain in his back for much of that year.

¶ 36. In November of 1991, Dr. Barrett opined that Smith reached “probably maximum benefit” and concluded that Smith had a fifteen percent partial permanent impairment to the arthrodesis and a fifteen percent partial permanent impairment to the pain and stiffness. Dr. Barrett concluded that Smith was left with a “thirty percent impairment to the whole man.” Dr. Barrett imposed a thirty pound lifting restriction and a limit of standing or sitting for one hour without a break.

¶ 37. Thereafter, but prior to the incident at the State Hospital, Smith slipped and fell in a store. As a result of this injury, he complained of low back pain. In March of 1992, Smith was released by Dr. Barrett to limited duty and to perform light lifting.

¶ 38. Prior to his employment with the State Hospital, Smith listed his occupation as “disabled” on a St. Dominic’s medical form.

¶ 39. Notwithstanding Dr. Barrett’s restriction, Smith went to work for the State Hospital in October of 1992. One month later, on November 11, 1992, Smith claimed that he was injured while at work. However, several days passed before Smith sought medical treatment. When he did, Smith went to the MEA Clinic and was treated for a “pulled muscle.” There was no evidence of any further treatment by the MEA Clinic. There was no evidence that the MEA Clinic physician(s) referred Smith to Dr. Frenz. Instead, the evidence clearly indicated that Smith went to Dr. Frenz at the direction of some of his co-workers.

¶ 40. At the Mississippi Pain Clinic in 1993, Smith was able to walk three laps on the track and he stood for more or less than twenty minutes attempting to play volleyball. Smith also claimed that he injured his back in the Pain Clinic’s pool. The Pain Clinic noted that Smith “said his pain level was 9.0 & [he] became defensive when questioned about intensity when he had just been outside talking & smoking.”

¶ 41. Additionally, Smith was involved in an automobile accident-a fact the circuit court failed to discuss, despite the automobile accident occurring during the time that Smith was being treated by Dr. Wink-elmann.

¶ 42. In April of 1996, Dr. Winkelmann noted that “I feel that he is probably most reluctant to return to any gainful employment.” In May of 1996, Dr. Winkelmann noted:

I feel a lot of his complaints are augmented. I do not feel that physical therapy is indicated for him and frankly of the same opinion as last time, that I do not feel that he is returning to work whatever we do. An MMPI may be an indicated test in order to clarify possibility of malingering. At this point however I am not scheduling him for any return visit and have discussed the case with Dr. Summers. Incidentally when the patient left the clinic he was walking with antalgic gait and getting up out of the chair extremely cautiously, complaining of pain. When however getting in to his car and walking outside, we observed him walking without an-talgic gait, and getting right into the car without any signs of discomfort, which only substantiates our concerns.

(emphasis added). The circuit court interpreted Dr. Winkelmann’s note to mean that “Smith would have difficulty returning to work.” However, Dr. Winkelmann’s notes clearly illustrated his medical judgment that casts doubt on the severity and nature of Smith’s claimed injury and associated pain.

¶ 43. Dr. Winkelmann’s initial conclusion that Smith’s complaints are “augmented” can only be interpreted to mean that, in his medical opinion, Dr. Winkelmann believed that Smith was enlarging or exaggerating his condition. Dr. Winkelmann’s notation of his observation of Smith leaving the clinic can only be interpreted as evidence that Dr. Winkelmann was skeptical of Smith’s claim of injury and associated pain.

¶ 44. PERS relied on a medical review of Smith’s extensive medical history of back pain, together with Dr. Winkelmann’s assessment, to make its conclusion. The PERS doctors denied Smith’s disability claim because they determined that Smith’s medical history and the medical evidence sufficiently discredited Smith’s allegation that his disability was the direct result of the November 1992 incident at the State Hospital.

¶45. At the PERS hearing in 1999, James Fentress, a rehabilitation counselor, testified on behalf of Smith. Fentress became involved in the case just before the hearing, approximately seven years after the incident, and he did not see Smith until the day of the hearing. These facts cast serious doubt on Dr. Frenz’s affidavit of September 17, 1998, stating that it was his opinion “to a medical degree of probability that Mr. Smith’s resulting back injury resulting in my treatment of him directly resulted from the traumatic event he suffered on November 11, 1992, while doing his job as a laundry worker at the Mississippi State Hospital.” Fentress also testified that “according to the Dictionary of Occupational Titles laundry worker is described as medium work.”

¶46. After Smith’s first surgery, Dr. Barrett released him to return to light duty work not medium duty work, which according to Fentress was the type work Smith sought and accepted at the State Hospital. Prior to Smith’s accepting the State Hospital employment, in April of 1992, Dr. Barrett had determined that Smith’s back was not well, had restricted his work and had opined that he had a thirty percent disability to the whole man. Smith could not recall what happened to his back during the time period between April and October, when he accepted the position with the State Hospital.

¶ 47. Even after the November 1992 incident, Dr. Frenz’s post-incident assessment of Smith’s condition did not contradict Dr. Barrett’s pre-incident assessment. In 1998, Dr. Frenz opined that Smith had an “impairment, to the body as a whole, approximately 25 percent (25%) due to injuries sustained 11/11/92.”

¶ 48. Dr. Frenz’s conclusion that the impairment was due to the injuries sustained in the November 1992 incident is the only evidence that provides any causal connection. However, Dr. Frenz does not explain his conclusion. Dr. Frenz’s notes, dated December 7, 1992, also stated that Smith’s “symptoms were similar to those he experienced on prior occasions of low back trouble for which he had two lumbar surgical procedures [in] March 1990 and January 1991 by Dr. Pat Barrett.”

¶ 49. Dr. Frenz’s conclusion does not obligate PERS’s medical doctors to disregard their own professional opinions and accept Dr. Frenz’s statement as conclusive evidence of a causal connection. Just as in Brinston, there was substantial evidence for PERS to determine that Smith’s “disability in question evolved over a period of time and events. There was not one accident or traumatic event which caused [Smith’s] disability.” Brinston, 706 So.2d at 260(¶ 11).

¶ 50. The dissent contends that Smith’s workers’ compensation settlement is substantial evidence that Smith was hurt-on-the-job. Although the State Hospital paid benefits and reached a settlement with Smith over the injury, the settlement does not support a conclusion that Smith’s disabling injury occurred on November 11. The workers’ compensation settlement between Smith and his employer was not an admission of liability by Smith’s employer. Neither the circuit court nor this Court can or should treat it as such. Indeed, such a finding would be contrary to the express terms of the settlement. Smith’s employer joined Smith’s petition of final compromise settlement, before the Mississippi Workers’ Compensation Commission, with the following language:

Without any admission of liability whatsoever, this employer joins in the foregoing Petition and prayer thereof for the specific and only purpose of concluding and compromising this disputed claim.

The workers’ compensation settlement between Smith and his employer was without admission of liability. Therefore, it may not be relied on in a separate proceeding as an admission of liability by Smith’s employer.

¶ 51. We find that there was substantial evidence to support PERS’s finding that Smith’s disability was not the direct result of the November 1992 incident at the State Hospital. Accordingly, we find that there was substantial medical evidence to support the PERS’s denial of retirement benefits. We reverse and render the judgment of the circuit court and reinstate the PERS’s order.

¶ 52. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED AND THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM’S ORDER DENYING BENEFITS IS REINSTATED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., AND SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, AND CHANDLER, JJ„ CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING AND MYERS, JJ.

KING, P.J.,

Dissenting:

¶ 53. I dissent from the majority opinion herein.

1. Proof of Disability

¶ 54. After his injury on November 11, 1992, Smith went to the MEA clinic. He later went to Brandon neurosurgeon Dr. John Frenz on December 3, 1992, who diagnosed him with chronic low back syndrome and disc herniation. Dr. Frenz later performed a lumbar exploration, right laminectomy and radical diskectomy on March 5,1993.

¶ 55. Pain Clinic Director Dr. Ann Myers discharged Smith with little progress in controlling his pain and reported that Smith was “a poor candidate for return to previous employment” on May 5, 1993.

¶ 56. Consulting orthopaedic surgeon Dr. Sidney Berry examined Smith on September 30,1993, and found that Smith had failed back syndrome with chronic pain and assessed a 10% permanent impairment.

¶ 57. University Medical Center pain management physician Dr. Jeff Summers found on March 15,1994, that Smith’s back was “very significant” and recommended epidural injections.

¶58. On April 18, 1994, University Medical Center orthopaedic surgeon Dr. R.A. McGuire found that Smith was suffering from epidural fibrosis that was chronic, severe and of poor prognosis. He also found that Smith suffered from failed back syndrome with epidural scarring. Dr. McGuire stated that he considered the disability to be permanent.

¶ 59. On April 29, 1994, Dr. Frenz reported that Smith had a 25% permanent impairment to the body as a whole and could lift no more than 15-20 pounds.

¶ 60. Dr. Summers reported on June 2, 1994, that he had “nothing more to offer this patient.... He still has too much pain to be considered a good candidate for spinal cord stimulation.”

¶ 61. On June 29, 1994, Smith and the Department of Mental Health entered into a workers’ compensation settlement for the injury that Smith suffered on November 11,1992.

¶ 62. On March 31, 1995, the Social Security Administration rendered its opinion finding Smith disabled beginning December 3,1992.

¶ 63. On March 15, 1996, Dr. Michael Winkelmann saw Smith on referral from Dr. Summers. Dr. Winkelmann stated, “I do not feel he is returning to work whatever we do.” In his April 25, 1996 evaluation, Dr. Winkelmann described Smith as “a 37 year old black gentleman who is disabled secondary to a low back injury.” Dr. Winkelmann also wrote, “I feel that he is probably most reluctant to return to any gainful employment but believe that he does have a degree of pain.”

1164. In his April 30, 1996 letter to Dr. Summers, Dr. Salil Tiwari described Smith as “a 37 year old right-handed male who is disabled and presents to my office with low back pain.” In his history, Dr. Tiwari states that Smith “was doing well until a second injury in 1992. At that time the patient was in extreme pain and he went to see Dr. Frenz. Dr. Frenz reoperated on him. Unfortunately, the patient did not improve and in fact became worse.” Dr. Tiwari stated he would recommend non-surgieal pain management only.

¶ 65. In his May 15, 1996 clinic notes, Dr. Winkelmann noted that Smith had been in an automobile accident “that exacerbated his pain complaints” but he did not see any change in Smith’s physical exam. Dr. Winkelmann stated that “frankly I am of the same opinion as last time, that I do not feel that he is returning to work whatever we do.” He suggested that Smith might need to be tested “in order to clarify possibility of malingering.”

1f 66. Smith testified at his first hearing on October 20, 1997, that he had pain every day and took three prescription drugs to help him with the pain. Also testifying at the hearing was vocational expert James Fentress that Smith’s job as a laundry worker was a medium duty job and that Smith could not return to that job based on the restrictions imposed by Dr. Frenz, to lift no more than 15-20 pounds.

¶ 67. The functional capacity evaluation that Smith was ordered to undergo at the October 27, 1997 hearing and which was conducted on January 7, 1999, found that “the clients abilities do' not match the job requirements of laundry worker. Specifically the PDC level of Medium and the ability to frequently bend or stoop to perform job demands is not established.”

¶ 68. Dr. Frenz again saw Smith on January 18, 1999, and found Smith to suffer continued low back pain, lumbar radi-culopathy, and possible nerve impingement.

¶ 69. In denying the disability claim, the Claims Appeal Committee stated: “A great deal of the medical records indicates that Mr. Smith’s complaints are subjective rather than objective.” The court in Public Employees’ Retirement System v. Marquez, 774 So.2d 421, 427(¶22) (Miss.2000) rejected a similar argument from PERS stating that “[i]f medical diagnoses by licensed physicians are to be labeled ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.”

¶ 70. Based on the record before this Court, there seems little dispute that Smith is disabled and unable to perform his former job as laundry worker. While this Court and the circuit court must defer to the decision of the agency where it is supported by substantial evidence, that is not the case Here. “If an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Id. at 430 (¶35). Substantial evidence has been defined as “something more than a ‘mere scintilla’ or suspicion.” Id. at 425 (¶ 13). It has also “been defined as ‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion.’ ” Id. Here there is not substantial evidence to support PERS’s decision.

2. Social Security Disability

¶ 71. As a part of PERS assignment of error, the agency argues that the circuit court erred in finding the decision of the Social Security Administration persuasive.

¶ 72. As noted by the circuit court, between 1986 and 1995, PERS accepted a favorable determination by the Social Security Administration as automatic proof of eligibility for disability under PERS. Mississippi Code Annotated Section 25-11-113(a) (Rev.2003) provides that “the board of trustees may accept a disability medical determination from the Social Security Administration in lieu of a certification from the medical board.” The circuit court correctly found that “[wjhile Smith was not entitled to an automatic determination of eligibility for disability under PERS, the fact that he received a favorable determination from SSA is certainly persuasive .... ” However, when Smith filed his claim, it was the policy of PERS to accept the SSA determination of disability. This policy was changed after Smith’s claim was filed. If PERS chose to disregard its policy with respect to Smith’s claim, it had the burden of explaining the appropriateness of that decision. The failure to do so, would be indicative of an arbitrary and capricious action.

¶ 73. It is therefore curious that the opinion of the Disability Appeals Committee makes no mention of the determination by the Social Security Administration. While it is true that PERS is not required to adopt the findings of the Social Security Administration, it is not required to ignore them either.

¶ 74. On appeal, PERS tries to discredit the finding by the Social Security Administration by noting that a different date was used for the onset of disability. The date used was December 2, 1992, the date of Smith’s first visit with Dr. Frenz, less than a month after the November 11, 1992 injury.

¶ 75. The findings and decision of the Social Security Administration are set forth below.

FINDINGS

After careful consideration of the entire record, the Administrative Law Judge makes the following findings:

1. The claimant met the disability insured status requirements of the Act on December 3, 1992, the date the claimant stated he became unable to work, and has not engaged in substantial gainful activity since that date.
2. The medical evidence establishes that the claimant has, which constitute (s) a severe impairment, but does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, regulation No. 4.
3. The claimant’s complaints of symptoms and limitations are credible.
4. The claimant lacks the residual functional capacity to perform sustained activity at any exertional level.
5. The claimant is unable to perform past relevant work as a auto detailer, janitor, car deliverer, laundry or dry wall finisher-rock sheet worker.
6. The claimant is 36 years old, which is defined as a younger individual, and has a limited education.
7. The claimant does not have any transferable skills to perform other work within his physical and mental residual functional capacity.
8. Based upon the claimant’s residual functional capacity and vocational factors, there are no jobs existing in significant numbers which he can perform. This finding is based upon Section 202.00(h) of the Medical-Vocational Guidelines.
9. The claimant has been under a “disability,” as defined in the Social Security Act, since December 3, 1992. (20 CFR 404.1520(f)).

DECISION

It is the decision of the Administrative law Judge that, based on the application filed on January 4, 1994, the claimant is entitled to a period of disability commencing on December 3, 1992, and to disability insurance benefits under Section 216(i) and 223, respectively, of the Social Security Act.

¶ 76. These findings are consistent with the claim of a November 1992 injury, rather than a February 1992 slip and fall.

¶ 77. Even without the Social Security Administration’s findings, the overwhelming medical evidence still supports the conclusion that Smith was disabled. PERS points to no specific evidence to the contrary.

S. Proof of On-the-job Injury

¶ 78. On September 17,1998, Dr. Frenz gave an affidavit that it was his opinion “to a medical degree of probability that Mr. Smith’s resulting back injury resulting in my treatment of him directly resulted from the traumatic event he suffered on November 11, 1992, while doing his job as a laundry worker at the Mississippi State Hospital.”

¶ 79. Smith testified at his hearing that he was injured on the job pulling linen sheets from a tub on November 11, 1992, at the Mississippi State Hospital and reported this to his supervisor.

¶ 80. Consistent with the position taken by the employer in the workers’ compensation settlement reached with Smith, the representative of the Mississippi State Hospital stated in a document filed with PERS that he was unable to certify whether Smith was injured on the job. Somehow PERS wants this to be read as a denial that the injury occurred, which it is not. Nevertheless, the employer paid benefits and reached a settlement with Smith over the injury. At best, the settlement with the employer supports Smith’s position that a disabling injury occurred on November 11. At worst, it merely represents a declaration of lack of knowledge by the employer.

¶ 81. In the absence of other evidence, the only conclusion is that there was sufficient proof of an on-the-job injury. PERS has not shown otherwise.

Jh PERS Procedure

¶ 82. At the first appeal hearing before the Disability Appeals Committee on October 20, 1997, Smith’s counsel asked for the names of the members of the Medical Review Board which had initially reviewed and denied Smith’s disability claim. PERS’s counsel objected, and no one present at the hearing could answer the question. Subsequently, Smith’s counsel was able to obtain an unsigned document showing that the doctors on the Medical Review Board were Drs. Perrin L. Berry, Raul Vohra, and Michael Winkelmann. Drs. Vohra and Winkelmann were in a business practice together at the Institute of Physical Medicine. Also in that practice was Dr. David Collip, who initially served as a member of the Disability Appeals Committee, which reviewed the Medical Review Board’s denial of Smith’s disability claim. Dr. Winkelmann was also a treating physician of Smith.

¶ 83. Smith’s counsel filed a letter with the hearing officer of the Appeals Committee alleging a conflict of interest in Dr. Collip’s sitting on the Appeals Committee. Dr. Collip did not sit at the subsequent hearings before the Appeals Committee.

¶ 84. In a series of cases, this Court and the Mississippi Supreme Court found that it was error for a member of the Medical Board to sit on the Appeals Committee. Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888 (Miss.2001); Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434 (Miss.2000); Dean v. Pub. Employees’ Ret. Sys., 797 So.2d 830 (Miss.2000); Pub. Employees’ Ret. Sys. v. Allen, 834 So.2d 50 (Miss.Ct.App.2002); Flowers v. Pub. Employees Ret. Sys. 748 So.2d 178 (Miss.Ct.App.1999). The present case dobs not involve the same situation, but does involve the same Dr. Winkelmann and casts serious doubts as to the integrity of the process by which PERS reviews its disability claims. We also note that the opinions of Dr. Winkelmann had a prominence in the opinion of the Disability Appeals Committee which seem disproportionate to his role in the treatment of Smith.

¶ 85. A rebuttable presumption exists in favor of PERS’s decision and the burden of proving to the contrary is on the claimant, here Willie Smith. Dishmon, 797 So.2d at 891(¶ 9). In this case, the circuit court correctly found that Smith had carried his burden of proof, and that PERS’s decision was arbitrary and capricious and not supported by substantial evidence. The evidence presented clearly shows that Smith was disabled as the result of an on-the-job injury. I would therefore affirm.

IRVING AND MYERS, JJ., JOIN THIS OPINION.

      . The date is sometimes given as November 4, 1992.

      . PERS also points to other valid reasons it had for not considering the SSA letter as conclusive evidence in this case. Under PERS's rules, three physicians made the initial decision. At the SSA, lay personnel using a code book make the initial determination. The SSA allows the admission of non-medical evidence, e.g., an applicant’s statement of pain that is not substantiated by objective medical evidence. Indeed, there were sufficient reasons and protections in place to substantiate PERS's decision not to rely upon the SSA decision. PERS’s decision to disregard the SSA decision was neither arbitrary nor capricious.

      . Smith’s medical records from MEA could not be found at the time he presented his claim for disability. Contrary to the position taken by PERS, this was not evidence that Smith was never treated. Dr. Frenz's medical records show that he received medical X-rays from Smith's visit to the MEA clinic.


author: KING, C.J.,

text:
    Herman E. HEIDKAMPER, Appellant v. W.W. ODOM, DeAnna Odom and Charlotte LeBlanc, Appellees.
    No. 2003-CA-00882-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2004.

      Lee B. Agnew, Kate S. Eidt, Jackson, attorneys for appellant.
    W.W. Odom, DeAnna Odom and Charlotte LeBlanc, appellees, pro se.
   KING, C.J.,

for the Court.

¶ 1. Charlotte LeBlanc, W.W. Odom and DeAnna Odom sought an injunction to enjoin Herman Heidkamper from further flooding their land with overflow from his pond. The Chancery Court of Hinds County enjoined Heidkamper from further damaging the Odoms’ property, and ordered him to install additional drainage pipes, make repairs, and pay damages to LeBlanc in the amount of $4,000, and $2,000 jointly to the Odoms and LeBlanc for attorney’s fees. Aggrieved by this decision, Heidkamper appeals, and asserts the following quoted issues:

I. The Chancellor erred in his issuance of injunctive relief by failing to counterbalance his broad discretion with his duty to apply great caution, care and deliberation.

II. The Chancellor erred in his issuance of injunctive relief in so far as the record contained conflicting testimony pertaining to the character and effects of the Appellant’s pond.

III. The Chancellor’s issuance of injunc-tive relief at the trial level was improper due to the absence of imminent, irreparable harm.

IV. The Chancellor erred by issuing a mandatory injunction without the evidence reaching the required burden of proof.

V. The Chancellor’s failure to balance the equities between the parties resulted in an unfounded depravation of the use and enjoyment of Appellant’s pond.

Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. W.W. and DeAnna Odom have lived for twenty-one years on a two-plus acre lot in Raymond where they maintain dairy cows. LeBlanc has lived on a similar sized lot, to the north of the Odoms, for about eight years. Herman Heidkamper purchased the lot situated between the Odom and LeBlanc properties. Sometime in the year 2001, Heidkamper built a 0.3 acre pond on his property. LeBlanc and the Odoms had no problem with the pond until Heidkamper built a dam on the side of the pond adjacent to the Odom property. Subsequently, moderate amounts of rain began to cause the pond to overflow onto the property of the Odoms, and caused water to back up on LeBlanc’s property. In an attempt to correct the overflow problem, Heidkamper installed a drainage pipe from the pond to the front of his property, and also built a retaining wall toward the road from the pond on the Odom/Heidkamper property line.

¶3. On November 14, 2001, Charlotte LeBlanc and the Odoms filed a complaint in the Chancery Court of Hinds County for injunctive relief and damages, alleging that their properties were damaged from the overflow of Heidkamper’s pond.

¶ 4. The Odoms alleged that water overflowed and flooded the small barn used for sheltering their dairy cows, and damaged their fence by washing out its stable foundation. The Odoms also alleged that the retaining wall Heidkamper built encroached two inches onto their property.

¶ 5. LeBlanc alleged that the back-up of water onto her property washed out cavities in the landscape, and rendered a portion of her pasture a useless bog. She also claimed that Heidkamper damaged her fence with his vehicle, killed vines which she had cultivated along their common property line, and that the flooding ruined a sump pump of hers which had to be reinstalled in concrete.

¶ 6. In his answer, Heidkamper alleged that the saturated condition of the Odom and LeBlanc properties was due to the natural topography of the land, as it existed prior to the construction of his pond.

¶ 7. On September 17, 2002, a hearing was held. On November 18, 2002, the chancellor issued a ruling, which (1) permanently enjoined Heidkamper from further flooding the Odom and LeBlanc properties and from intentionally destroying any plants belonging to LeBlanc, (2) ordered him to lower the level of his pond by two feet, (3) to install two additional drain pipes, and (4) to repair the fences of both the Odoms and LeBlanc. The chancellor also ordered Heidkamper to pay $4,000 in damages to LeBlanc for the purposes of repairing the cavities on her property caused by the backup of water from the overflow of Heidkamper’s pond, and to pay $2,000 jointly to the Odoms and LeBlanc for attorney’s fees. The chancellor held that the muddy floor in the Odoms’ shed was not caused by Heidkamper’s pond, and found it unreasonable to require Heidkam-per to remove the retaining wall for no more than a two inch encroachment onto the Odom property.

ISSUES AND ANALYSIS

I.

The Chancellor erred in his issuance of injunctive relief.

¶ 8. “When reviewing decisions rendered by our chancery courts we must remember that our “[chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Lupo v. State Dept. of Transp., 771 So.2d 358, 360—61(¶ 8) (Miss.2000) (citations omitted).

¶ 9. Heidkamper contends that the chancellor erred in granting injunctive relief due to conflicting testimony, the absence of imminent, irreparable harm, and the lack of necessary proof to meet the burden required to issue a mandatory injunction. Heidkamper also argues that the issuance of an injunction resulted in unfounded de-pravation of the use and enjoyment of his pond, and that the chancellor failed to counterbalance his broad discretion with his duty to apply great care, caution, and deliberation.

¶ 10. The testimony of Deanna Odom, and LeBlanc sharply conflicted with the testimony of Heidkamper’s expert witness, Ross Ulmer of the USDA Soil and Conservation Service. Ulmer testified that all three tracts of land had a long history of wetland saturation, that Heidkamper’s pond actually benefitted the adjacent tracts because it served as a depository for the upstream flow of water, and the existing moisture in the land was the result of the natural slope combined with a soil type that allows for little moisture absorption. LeBlanc and Deanna testified that the land was not saturated with moisture until Heidkamper built his pond, and damages from the overflow were not the result of natural conditions of the land and soil. The Odoms and LeBlanc presented no expert testimony. Although this testimony is sharply contradictory, the chancellor is afforded broad discretion when deciding which testimony to believe. In Carter v. Carter, this Court held:

The resolution of disputed questions of fact is a matter entrusted to the sound discretion of the chancellor. On appeal, we are limited to searching for an abuse of that discretion; otherwise, our duty is to affirm the chancellor. Our job is not to reweigh the evidence to see if, confronted with the same conflicting evidence, we might decide the case differently. Rather, if we determine that there is substantial evidence in the record to support the findings of the chancellor, we ought properly to affirm. The chancellor, by his presence in the courtroom, is best equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses. It is necessarily the case that, when conflicting testimony on the same issue is presented, the chancellor sitting as trier of fact must determine which version he finds more credible.
As to matters of law, however, a different standard applies. In that case, our review is de novo, and if we determine that the chancellor applied an incorrect legal standard, we must reverse.

Carter v. Carter, 735 So.2d 1109, 1114 (¶¶ 18-20) (Miss.Ct.App.1999) (citations omitted). The chancellor found the testimony of Deanna and LeBlanc the most credible, and based his decision on that testimony. When there is substantial evidence to support the chancellor’s decision, as in the case sub judice, we are powerless to overturn it, and that decision must stand.

¶ 11. The party requesting an injunction must show a threat of imminent harm, rather than mere fear or apprehension alone. “To obtain a permanent injunction, a party must show an imminent threat of irreparable harm for which there is no adequate remedy at law.” Punzo v. Jackson County, 861 So.2d 340, 347 (¶ 26) (Miss.2003). “It is likewise true, however, that the remedy by injunction is preventive in its nature, and that it is not necessary to wait for the actual occurrence of the injury, since, if this were required, the purpose for which the relief is sought would, in most cases, be defeated.” McGowan v. McCann, 357 So.2d 946, 949 (Miss.1978).

¶ 12. Heidkamper argues there is no evidence to support an injunction as there is an absence of imminent, irreparable harm to the adjacent property owners. Heidkamper contends he has already taken remedial measures with the installation of the drainage pipe, and since its installation the Odoms and LeBlanc have not experienced any flooding on their properties. He notes that the Odoms and Le-Blanc have admitted that their land is currently dry, but that they feared an overflow in the future.

¶ 13. Heidkamper’s expert witness, Ul-mer, testified that it would take a ten, twenty-five, or fifty year rain to produce enough rainfall for the pond to overflow again. These are storms that statistically, rather than chronologically, occur every ten, twenty-five, and fifty years, and are so delineated by the amount of rainfall. Ul-mer stated, that while it is statistically unlikely, that there is no way to predict when these rains will actually occur, and that is it possible to have closely recurring twenty-five and fifty year storms.

¶ 14. As previously mentioned, it is not necessary to wait for the actual occurrence of the injury as an injunction is preventative in nature. See McGowan, at 949. It was not an abuse of discretion for the chancellor to find an injunction necessary based on the likelihood that the pond, in its present condition, would overflow causing further damage to the adjacent properties.

¶ 15. Even though the language of the order appears prohibitory, Heid-kamper argues that the chancellor issued a mandatory injunction, and that the evidence presented failed to meet the required burden of proof for a mandatory injunction. Heidkamper contends that the chancellor’s order requiring him to add extra drainage pipes and lower the level of his pond by two feet created a mandatory injunction to be completed under the guise of a prohibitory injunction. A prohibitory injunction simply prohibits certain conduct, while a mandatory injunction requires an affirmative act or course of conduct. “Mandatory injunctions will never be granted unless extreme or very serious damage at least will ensue from withholding that relief; nor will they be issued in doubtful cases.” Mississippi State Highway Comm’n v. Spencer, 233 Miss. 155, 101 So.2d 499, 506 (Miss.1958).

¶ 16. Heidkamper refers us to Warrior, Inc. v. Easterly, 360 So.2d 700 (Miss.1978), to argue that the necessary proof was not presented to issue a mandatory injunction. The Warrior case held that the burden of proof for a mandatory injunction must be beyond a reasonable doubt. However, a case handed down last year by the supreme court on the subject of mandatory injunctions overruled the requirement of Warrior that mandatory injunctions be proven beyond a reasonable doubt, and stated:

In Reynolds v. Amerada Hess Corp., 778 So.2d 759, 765 (Miss.2000), we stated, “To obtain a permanent injunction, a party must show an imminent threat of irreparable harm for which there is no adequate remedy at law.” In Reynolds, this Court made no mention of a requirement of proof beyond a reasonable doubt, which the trial court stated is the proof required.
¶ 27. In Hall v. Wood, 443 So.2d 834, 841 (Miss.1983), though this Court suggested use of extreme caution in granting a mandatory injunction, we did not require a showing of proof beyond a reasonable doubt. We stated, “A mandatory injunction should be ordered where such is the only ‘effective remedy.’ ” For further clarification, we explained,
Mandatory injunctions should be granted only where that which they demand is reasonably practicable. A mandatory injunction requiring a “practical impossibility” should never issue. Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970). The expense and hardship to the party enjoined should also be considered. That these may be substantial counsels caution and restraint. This decision does require that the remedy be practicable.
¶ 28. In Pattillo v. Bridges, 247 So.2d 811 (Miss.1971), this Court did cite Thomas [u Mississippi Power & Light Co., 170 Miss. 811, 152 So.2d 269 (1934),] but not to the requirement of proof beyond a reasonable doubt....

Punzo v. Jackson County, 861 So.2d 340, 347-48 (Miss.2003) (citations omitted). The burden of proof for a mandatory injunction is as stated in Reynolds, “requiring the requesting party to show an imminent threat of irreparable harm for which there is no adequate remedy at law, and in keeping with Homes, Inc., a mandatory injunction should be granted only if reasonably practicable.” Punzo, 861 So.2d at 348 (¶ 29). Punzo requires that a mandatory injunction be issued when there is an imminent threat of irreparable harm for which there is no adequate remedy, and although mandatory injunctions must be reasonably practicable, they need not be proven beyond a reasonable doubt.

¶ 17. The chancellor in this case, not only prohibited certain conduct, but required affirmative acts to remedy the damage from the prohibited act, and as such he did in fact issue a prohibitory as well as a mandatory injunction. See generally Hall v. Wood, 443 So.2d 834, 841 (Miss.1983). In his order the chancellor issued a prohibitory injunction when he stated, “the defendant, Herman Heidkamper, be and he is hereby permanently enjoined from flooding the W.W. Odom, Deanna Odom, and Charlotte LeBlanc property.” However, the chancellor went on to order Heid-kamper to lower the level of his pond by two feet, install additional drainage pipes, and to repair the fences of both adjacent property owners. These actions are affirmative acts thereby creating a mandatory injunction.

¶ 18. We now turn to the evidence presented to determine whether a mandatory injunction was warranted. As noted, a mandatory injunction requires that the party seeking the injunction must first show “an imminent threat of irreparable harm for which there is no adequate remedy at law.” Punzo, 861 So.2d at 347. Ulmer’s testimony indicates that there is a threat of imminent harm to the Odom and LeBlanc properties, since he admitted that heavy rains could cause the dam to overflow. The harm resultant in the overflow of the pond, was property damage to the adjacent property owners from standing water on LeBlanc’s property and overflow onto the Odoms’ property. In his order, the chancellor held that there was no other remedy available at law to the Odoms and LeBlanc. He stated “[t]he Court was, however, convinced that Herman would not have taken any significant measures, if any at all, given the attitude he was said to have had in response to the plaintiffs attempts at simple neighborly communication to correct the problem the overflow from his pond was causing Charlotte and the Odoms.”

¶ 19. The Punzo case requires that a mandatory injunction be granted only if reasonably practicable. Heidkamper contends that the injunction was impracticable. He argues that since his pond is shallow lowering it two feet would make it too shallow to hold fish, and render it virtually useless for any purpose. Heid-kamper also contends that the injunction is impracticable in requiring him to install two additional six inch drain pipes, as he has already installed two overflow pipes, and since their installation Deanna Odom and LeBlanc testified that their land has remained dry. Although, bothersome as it may be, the chancellor’s decision to require Heidkamper to install additional drainage pipes, and lower his pond by two feet, is not an unreasonably impracticable requirement to alleviate future flooding of Heid-kamper’s pond.

¶20. Finally, Heidkamper alleges that the chancellor failed to apply great caution, care and deliberation when issuing the injunction. We are not of the opinion that the chancellor abused his discretion in issuing this injunction, and we find his findings of fact and conclusions of law sufficient to support the granting of an injunction.

¶ 21. We cannot say that the chancellor did not make a correct disposition of the issues presented. We find no abuse of discretion, and therefore allow the injunction to stand.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.