author: SOUTHWICK, J„

text:
    Hugh Earl BARNES, Appellant, v. W.S. NEWELL, INC., Employer, and the Mississippi Associated General Contractors Workers’ Compensation Fund, Inc., Carrier, Appellees.
    No. 2005-WC-01602-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.

      John Hunter Stevens, Jackson, attorney for appellant.
    William D. Blakeslee, Gulfport, attorney for appellees.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J„

for the Court.

¶ 1. The Mississippi Workers’ Compensation Commission ordered that Hugh Barnes be reimbursed for travel expenses he incurred while traveling between a temporary residence in Kansas to his doctor’s office in Hattiesburg. We find the Commission applied the wrong legal standard and therefore reverse and remand for further proceedings.

FACTS

¶2. In June 1997, Hugh Barnes sustained an on-the-job injury while in the employ of W.S. Newell, Inc. Under the procedures for determining workers’ compensation benefits, Barnes’s injury was found to have caused the total loss of use of his left leg. Barnes was entitled to reasonable medical treatment. Barnes moved to Louisiana, which became his place of residence. In 2004, Barnes moved temporarily to Fort Riley, Kansas. There he assisted with the care of his grandchildren because his daughter and son-in-law were on military duty there. His son-in-law was later deployed to Iraq.

¶ 3. In August 2004, Barnes filed a motion to compel payment for mileage expenses he incurred in traveling from Kansas to Hattiesburg so that he could receive continuing treatment for the same injury from his orthopedist, Keith Melancon, M.D. This trip required round-trip travel of 1,874 miles. The Commission had previously ordered that Barnes receive payment for his mileage to Hattiesburg when he moved his residence to north Louisiana.

¶4. In August 2004, an administrative judge ordered payment of the Kansas-Mississippi travel expense. As we will explain, we interpret the order as having found justification only for two trips. The Commission affirmed. The Wayne County Circuit Court reversed in July 2005. The court held that the travel expense was unreasonable since similar treatment was available in Kansas. Barnes’s next level appeal has been deflected to this Court.

DISCUSSION

¶ 5. We defer to the decision of the Commission on factual issues. Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (Miss.2005). A decision is supported by substantial and sufficient evidence when it is not “clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. Questions of law are reviewed de novo. ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999).

¶ 6. Barnes argues that the circuit court applied the wrong standard of review in its reversal of the Commission’s decision. He also argues that the decision contained errors of law and that the court simply substituted its judgment for that of the Commission. Despite these arguments, our review will not focus on the circuit court’s opinion. Instead, the operative ruling in which error must be shown is that of'the Commission itself. Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991). We respect and consider the reasoning applied by the circuit court. Still, each level of judicial review evaluates whether the Commission’s order was arbitrary or capricious, whether it is supported by substantial evidence, whether it was within the Commission’s authority, and whether it complies with the operative statutes without violating constitutional rights. UCCCR 5.03. There is a wide range of discretion inherent in workers’ compensation decisions. It is the exercise of discretion by the Commission that receives deference at every stage of judicial review.

¶ 7. One of the initial questions is whether Barnes’s residence for purposes of payment of travel expenses was in Kansas. The administrative order adopted by the Commission refers to Barnes’s “residence in Kansas.” The trial court discussed the uncertainty of duration of “the change in residence” to Kansas. The employer and carrier accept that the current residence of Barnes is in Kansas. Since the parties do not dispute the point, we will not analyze whether a temporary move to a distant state will cause the new location to be considered the claimant’s residence.

¶ 8. How much travel reimbursement has been authorized by the Commission is our next preliminary consideration. The order of the administrative judge, adopted by the Commission, found the expectation was that Barnes’s move to Kansas was temporary, and that “due to the temporary nature of his residence in Kansas, if it is expected [Barnes’] stay there will be longer, I would expect the Employer to re-urge their motion and we would look at this again in one year.” Based upon the language in the order, the mileage from Kansas to Hattiesburg was only authorized as reasonable for one year. The order referred to a need for two trips to see Dr. Melancon in that one year period.

¶ 9. The Commission has the authority to adopt procedural rules. Miss. Code Ann. § 71-3-85(3) (Rev.2000). Language from one of the authorized rules is central to the parties’ arguments:

The employer shall select competent physicians ... and immediately furnish such services, including all emergency services, to the injured employee. The injured employee shall have the right to accept the services furnished by the employer or, in his discretion, to select one (1) competent physician.... Such physician(s) selected by the employer or the employee, including any authorized referral, shall be located in an area reasonably convenient to the place of injury or the residence of the injured employee, and the medical services shall be reasonably suited to the nature of the injury.

Miss. Workers’ Comp. Comm’n Gen. R. 9. This is just a brief excerpt from a much longer rule.

¶ 10. The Commission adopted the administrative judge’s order requiring transportation costs from Kansas to be paid for treatment in Mississippi because “the Claimant has satisfied provisions of General Rule 9 as Hattiesburg is reasonably convenient to the place of injury.” (Emphasis in order). The same order referred to Barnes as being a resident of Kansas. The most logical interpretation of the Commission decision is that if an otherwise acceptable physician was near either the place of injury or place of residence, the employer must pay for that physician and for the travel expenses that treatment entailed. Transportation costs incurred by a claimant to receive treatment are reimbursable under the Commission’s General Rule 14. Miss. Workers’ Comp. Comm’n Gen. Rule 14 (citing Miss.Code Ann. § 25-3-41 (Supp.2005)). Section 25-3-41 is a general travel statute authorizing payment for “each mile actually and necessarily traveled.”

¶ 11. The circuit court reversed because it found that the Hattiesburg doctor was not reasonably convenient to Barnes’s residence in Kansas. The court reasoned that what really was involved was not convenience but the preference of Barnes to keep his doctor in Hattiesburg. It was not reasonably convenient for the Barnes to travel over 1,800 miles to visit his Hattiesburg doctor when he could receive similar competent treatment in Kansas. The court supported its decision to reverse on General Rule 9 and two Mississippi Supreme Court opinions.

¶ 12. We have already quoted the operative language from the Rule, which concerns selecting physicians that are near the place of injury or the claimant’s residence. One of the precedents relied upon by the circuit court involved an employee injured in Mississippi but who established a new residence in Los Angeles and sought medical treatment near that home. R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1019 (Miss.1990). The court upheld the Commission order that allowed Hernandez, once she moved to Los Angeles, to be treated by her physician in Tijuana, Mexico since a suitable physician in Natchez could not be found. Id. at 1024. The court stated that once the competence of a selected physician has been established,

the focus should then turn, if necessary, to the issue of reasonableness of employing a physician allegedly located outside the “realm of convenience.” The boundaries of the “realm of convenience” can only be determined on a case-by-case basis. For example, the Commission may conclude in one case that the boundary reasonably extended over seven hundred miles to Charleston, South Carolina, where a renowned hospital specializing in treatment of burn victims is located. In another case, the Commission may find that a competent specialist could have been located in Mississippi and, therefore, the boundary line should not have extended beyond the State’s border.

Id. at 1023. The realm of convenience test was met because “the Commission found that Hernandez was unable to obtain an appointment to be examined by a competent physician in Natchez, Mississippi.” Id. The convenience test was “probably ... delineated for the protection of the employee — not the employer.” Id. That purpose protects against employers who may furnish services from an inconveniently located physician. Id. The Supreme Court’s preliminary view that “convenience” was solely for the employee’s protection might be affected by facts such as are presented to this Court today. We do not resolve this appeal based on that point, though.

¶ IB. Once Hernandez established a new residence in southern California, a doctor close to the border in Mexico provided care. What appeared to be the more significant issue was whether it was appropriate for a claimant to select a physician not credentialed in the United States. Id. at 1022-23. The analogous situation for Barnes is if he had chosen a doctor in the vicinity of Fort Riley and the employer refused to pay, saying that he should continue to be treated in Hatties-burg.

¶ 14. In the other decision relied upon by the circuit court, it was found to be unreasonable for an employer to require treatment from a doctor located 100 miles away from the claimant’s residence. Brogdon v. Link-Belt Co., 298 So.2d 697, 698 (Miss.1974). The distance was not reasonable because there “was no proof that satisfactory treatment could not be afforded appellant in the area near his residence.” Id. Here too, the case is better support for the proposition that Barnes should find treatment near his present residence in Kansas. Brogdon at least means, but perhaps only means, that the employer could not have insisted that Barnes travel 1800 miles for treatment.

¶ 15. The parties accept that if Barnes had permanently moved to Kansas, then he would have been required to obtain treatment from a physician local to his new residence. That concession is inconsistent with the order adopted by the Commission, since the holding appears to have been that a physician convenient either to the claimant’s residence — which can change — or the fixed place of injury could be insisted upon by a claimant because Commission General Rule 9 establishes a choice. However, the same order emphasized that the distant residence was temporary. Should the residence become longer-lasting, then a different analysis might apply. If convenience to place of injury is a sufficient basis to permit selection of a physician, then the temporary nature of the claimant’s distance from the place of injury should not matter. We find the Commission’s interpretation of the options under Rule 9 to be unclear.

¶ 16. Barnes elected to receive treatment at an inconvenient location, at least in any of the usual meanings of convenience. Visiting Dr. Melancon in Hatties-burg was inconvenient but preferred. Dr. Melancon’s deposition makes clear that benefits to Barnes in being treated in Hat-tiesburg were less medical than personal.

¶ 17. The concept of reasonableness is found in Commission General Rule 9 in two different situations. A treating physician must be “reasonably convenient” to the place of injury or residence of the injured party. There is no evidence that adequate medical treatment could not be obtained near Barnes’s residence in Kansas. The examples given in Hernandez of a “case-by-case” determination of convenience are inconsistent with the result reached by the Commission: “the Commission may conclude in one case that the boundary reasonably extended over seven hundred miles to Charleston, South Carolina, where a renowned hospital specializing in treatment of burn victims is located.” Hernandez, 555 So.2d at 1023. The only evidence here is that there was no unique expertise in Dr. Melancon’s treatment. The other example was “the Commission may find that a competent specialist could have been located in Mississippi and, therefore, the boundary line should not have extended beyond the State’s border.” Id. That example supports requiring Barnes to use competent physicians who would have been available in Kansas. The two examples in Hernandez are not meant to be exclusive, but they are instructive on meaning. We find that 1,800 miles is not within the realm of convenience as interpreted in Hernandez.

¶ 18. However, Rule 9 applies reasonableness in another context: “medical services shall be reasonably suited to the nature of the injury.” Miss. Workers’ Comp. Comm’n Gen. R. 9. This means that the treatment must be “reasonable and necessary.” John R. Bradley & Linda A. Thompson, Mississippi WORKER’S Compensation, § 5:70 (Thomson-West 2006). This “reasonable and necessary” standard is reflected in the official fee schedule. Id. (citing Miss. Workers’ Comp. Medical Fee Schedule 3 (Medical Cost Containment Rules, § 1(A)(1), General Provisions) (2002)). This standard for medical treatment has long been applied in Mississippi caselaw. See Barber Seafood, 911 So.2d at 462 (affirming the Commission’s finding that a surgical procedure was not reasonable and necessary); Central Elec. & Machinery Co. v. Shelton, 220 So.2d 320, 325 (Miss.1969) (employer was liable for “reasonable and necessary” medical treatment).

¶ 19. We have rejected that the Kansas to Mississippi travel is reasonably convenient as meant by Hernandez and Rule 9. What is an issue, though, is whether there was a medically reasonable and necessary basis for Barnes to obtain his treatment in Hattiesburg instead of in Kansas. What is clear from the record is that Barnes was not receiving specialized treatment that would only be available through Dr. Me-lancon or in Hattiesburg. The treatment involved Barnes receiving three shots in his knee over the course of a two-week period. Barnes would return to the doctor’s office three months after receiving the shots for a follow up, and the next treatment would be scheduled to take place three more months from the date of the follow up. This series of shots would be required twice per year. Dr. Melancon testified that the follow up for these treatments could be done over the phone if there were no problems with the treatment.

¶20. The record does not contain any evidence revealing what would be required for Barnes to obtain a physician to provide this treatment in Kansas. Dr. Melancon testified in his deposition that “there are certainly qualified orthopedic surgeons” where Barnes resided in Kansas. Still, Dr. Melancon was of the opinion that it was better for Barnes to return to Hatties-burg because of the length of their physician-patient relationship and the temporary nature of the Kansas residence.

¶21. There is little evidence that Barnes would medically benefit from continuing his treatment in Hattiesburg versus treatment in Kansas. The continued treatment in Hattiesburg may have been justified if, for example, a Kansas ortho-paedic surgeon would need to spend an inordinate number of hours examining Barnes’s medical records and conducting examinations before providing competent care. It is possible that there are other medical reasons for Barnes to continue his visits to Hattiesburg but we find little explanation in the record. There is no testimony that Barnes or Dr. Melancon even inquired about the necessary time and expense to transfer treatment. Patient preference alone does not meet the reasonable and necessary standard.

¶ 22. There is substantial discretion to be exercised in this administrative agency decision. We find that the Commission applied an incorrect legal standard in its analysis of the Supreme Court’s reasonably convenient standard found in Hernandez. We reverse the circuit court since it rendered judgment denying reimbursement. It may be possible to sustain the Hattiesburg treatment on the basis of what was medically necessary and reasonable. We remand to the Commission for such further proceedings as it deems appropriate consistent with this opinion.

¶ 23. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT IS REVERSED, THE ORDER OF THE WORKERS’ COMPENSATION COMMISSION IS SET ASIDE, AND THIS MATTER IS REMANDED TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, AND ISHEE, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Shirley DAWSON, Appellant, v. MISSISSIPPI STATE BOARD OF MASSAGE THERAPY, Appellee.
    No. 2005-CC-00519-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.

      George S. Luter, attorney for appellant.
    Office of the Attorney General, by Leyser Q. Hayes & Onetta Whitley, attorneys for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the Court.

¶ 1. The Mississippi State Board of Massage Therapy (the Board) found that massage therapist Shirley Dawson violated several rules governing massage therapists, and ordered her to pay a fine of $400, complete an ethics course, and be placed on probation for six months. Dawson then appealed to the Hinds County Circuit Court which reversed in part and affirmed in part. Dawson now appeals the judgment of the circuit court, raising the following issues:

I. Whether Dawson’s due process rights were violated

II. Whether the Board’s findings that Dawson violated Rules 9 and 11 of the Code of Ethics was supported by substantial credible evidence.

III. Whether the Board has authority to impose fines against Dawson.

Finding no error, we affirm.

FACTS

¶ 2. On April 11, 2003, Janice Gatewood received a thirty minute massage from Shirley Dawson, a registered massage therapist, at Ann’s Hair and Spa in Brandon, Mississippi. During the first part of the massage, Dawson used only her hands to massage Gatewood’s back. During the latter half of the massage, Dawson used an electrical massaging device to massage Gatewood’s back. Gatewood testified that she experienced pain during that part of the massage involving the electrical device, but that the pain had ceased at the conclusion of the massage. When Gatewood awoke the day after receiving the massage, her husband noticed bruises on the back of her arms, thighs, and hips. Gatewood took pain relievers for the next week, but did not seek medical attention.

¶ 3. On July 21, 2003, Gatewood filed a complaint with the Board, stating, “During massage used some type of kneading machine on neck, back, and legs. Massaged so deep on hips and thighs, left severe bruising. Told it hurt — to no avail.” A hearing before the Board on Gatewood’s complaint was held on February 19, 2004. At the conclusion of the hearing, the Board found that Dawson violated (1) Mississippi Code Annotated Section 73-67-7(h) (Rev. 2004) by using an electrical massaging device; (2) Provision 1 of the Code of Ethics by misrepresenting her qualifications; (3) Provision 9 of the Code of Ethics by failing to recognize Gatewood’s outward display of pain, and failing to modify the massage after said display of pain; and (4) Provision 12 of the Code of Ethics by exhibiting a lack of respect for the client’s boundaries and autonomy after the expression of pain by the client. The Board also found that each of the four violations also constituted four separate violations of Mississippi Code Annotated Section 73 — 67—27(f) (Rev. 2004). Accordingly, the Board fined Dawson $100 per violation, ordered her to complete an ethics course, and placed Dawson on probation for six months.

¶4. Dawson subsequently appealed to the Hinds County Circuit Court. The circuit court reversed and rendered the Board’s findings that Dawson violated Mississippi Code Annotated Section 73-67-7(h) and Provision 1 of the Code of Ethics. The Court affirmed the Board’s findings that Dawson violated Provisions 9 and 12 of the Code of Ethics.

ANALYSIS

Standard of Review

¶ 5. This Court will not disturb an administrative agency’s decision unless the decision, “1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” City of Vicksburg v. Winters, 928 So.2d 241, 243(¶ 9) (Miss. Ct.App.2006). A rebuttable presumption exists in favor of administrative agency decisions. Swinney v. Miss. Empl. Sec. Comm’n, 910 So.2d 742, 743(¶ 3) (Miss.Ct. App.2005). Reviewing courts are bound by the record, and are prohibited from reweighing the facts of the case. Id.

I. Whether Dawson’s due process rights were violated

¶ 6. Board member Connie Shanks investigated Gatewood’s complaint against Dawson. On the day of the hearing, Shanks voted with other Board members to move into executive session in order to hold the investigative proceeding. Shanks then testified at Dawson’s hearing. Dawson claims that Shanks’ participation in the investigation and the administrative hearing violated her due process right to a fair hearing. She also claims that the error was compounded when Shanks allegedly participated in the Board’s final decision.

¶ 7. “Due process always stands as a constitutionally grounded procedural safety net in administrative proceedings.” McFadden v. Mississippi State Bd. of Med. Licensure, 735 So.2d 145, 158(¶51) (Miss.1999) (quoting McGowan v. Mississippi State Oil & Gas Bd., 604 So.2d 312, 318 (Miss.1992)). The supreme court in McFadden held that one’s due process rights are not violated simply because a Board acts in both an investigative and adjudicatory capacity. Id. at (¶ 52). The court went on to note:

It is also very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrative Procedures Act, and it does not violate due process of law.

Id. (quoting Withrow v. Larkin, 421 U.S. 35, 56, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). Accordingly, Dawson’s argument regarding Shanks’ dual capacity as investigator and hearing participant fails as a matter of law.

¶ 8. Dawson’s claim that Shanks participated in the Board’s final decision is wholly unsupported by the record. In fact, the record indicates the opposite. At the end of the hearing, Dawson’s attorney asked the hearing officer if Shanks would be excused prior to the Board’s vote. The hearing officer replied that she was “about to get to all that.” A Board member then moved to make a closed determination of whether to go into executive session, and the motion was passed. The hearing officer then closed the proceeding asking members of the public to excuse themselves. The Board’s attorney then asked the court reporter to have the record reflect that Shanks had in fact left the room along with the members of the public. Therefore, Dawson’s assertion that Shanks cast a vote in the Board’s decision is without merit.

II. Whether the Board’s findings that Dawson violated Rules 9 and 12 of the Code of Ethics was supported by substantial credible evidence.

¶ 9. Rule 9 of the Board’s Code of Ethics advises practitioners to “respect the client’s rights to refuse, modify, or terminate therapy regardless of prior consent given.” The Board found that “Ms. Gate-wood’s outward display of pain should have been recognized and addressed by modification or halting of the massage.” Provision 12 of the Board’s Code of Ethics provides that practitioners should, “respect the client’s boundaries with regard to privacy, disclosure, exposure, emotional expression, beliefs, and the client’s reasonable expectations of professional behavior. Practitioners will respect the client’s autonomy.” The Board found that Dawson also violated this provision by exhibiting a lack of respect for Gatewood’s boundaries and autonomy by failing to modify or cease the massage after Gatewood’s expression of pain.

¶ 10. At the hearing, Gatewood was asked if she told Dawson that the massage was painful. Gatewood replied, “Yeah. I said, you know, I was like, oh, my God, you know. This is killing me. And she’s like, ‘It’s all you. It’s all you. I’m not doing it.’” Dawson continued performing the massage with the electrical device. Gate-wood admitted that she never used the word “stop” but that she did communicate that she was experiencing pain several times. Gatewood testified that she told Dawson, “I’ve never had a massage hurt like this,” to which Dawson merely replied, “Maybe you’ve never had a massage like this before.” Dawson testified that Gate-wood never expressed pain during the massage, nor told her to stop the massage.

¶ 11. The Board was faced with two conflicting accounts as to whether Gate-wood expressed that the massage was painful. The Board found that Gatewood’s testimony was credible, and this Court is prohibited from reweighing the facts of the case. Furthermore, Dawson has not rebutted the presumption in favor of the Board’s finding simply by denying Gate-wood’s allegations. This issue is without merit.

III. Whether the Board has authority to impose fines against Dawson.

¶ 12. Since this issue was not raised on appeal to the circuit court, Dawson is procedurally barred from raising it before this Court. Blackwell v. Miss. Bd. of Animal Health, 784 So.2d 996, 1002(¶ 14) (Miss.Ct.App.2001). However, we note that Mississippi Code Annotated Section 73-67-19 (Rev.2004) confers upon the Board power to impose civil penalties. This claim also fails.

¶ 13. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: IRVING, J.,

text:
    Deella WATTS, Appellant, v. HORACE MANN LIFE INSURANCE COMPANY and Leo Hawkins, Jr., Appellees.
    No. 2005-CA-00253-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.

      Precious Tyrone Martin, Dawn Laverne Stough, attorneys for appellant.
    Arthur F. Jernigan, Samuel Ernest Linton Anderson, Staci Bozant O’Neal, Ridge-land, attorneys for appellees.
    Before MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ.
   MODIFIED OPINION ON MOTION FOR REHEARING

IRVING, J.,

for the Court.

¶ 1. DeElla Watts purchased insurance policies from Horace Mann Life Insurance Company, covering the lives of two people. The record and briefs, including those of the plaintiff, variously describe the insureds as two of Watts’s children or as one of her children and a grandchild. The difference is unimportant for our review. It appears that a child and grandchild were insured. Fortunately, no claim for the death benefits arose. Shortly after the expiration of the policies, Watts sued Horace Mann and Leo Hawkins, Horace Mann’s salesman, on the theory that Horace Mann had misrepresented the nature of the policy to her. After discovery, the Sharkey County Circuit Court granted Horace Mann’s motion for summary judgment. Watts now appeals and contends that the grant of summary judgment was improper. There was no error, and we affirm.

FACTS

¶ 2. Watts purchased her first “joint life” policy from Horace Mann in 1990. She purchased her second such policy in 1993. As of 2003, both policies had expired and Watts declined to purchase new ones. Watts claims that Horace Mann and Hawkins, as its agent, told her that the policies covered both insureds — if one person died, the other would still be insured until the expiration of the policy. In reality, the policies were “joint life” policies that covered the death of either person, but would not provide benefits to both unless they died within thirty-one days of each other. The survivor would be entitled to a new policy without proof of insurability. Apparently the premiums on such a new policy would be at the then-applicable, potentially higher rate since the insured would be older than when the joint policy was acquired. Watts brought suit against Horace Mann on January 22, 2004, claiming several different theories of recovery.

¶ 3. During discovery, Watts produced an affidavit by Matthew Thomas, an insurance agent offered as an expert. Thomas opined that the language of the policy purchased by Watts would “lead a reasonable person to the conclusion that both insureds, Antonio Watts and Felicia Watts, would have two separate ten year level term policies in one, single contract.” Several depositions were taken, and the policy language was produced for the court to review. After discovery was complete, the court granted summary judgment to Horace Mann on the grounds that Watts’s claim was time-barred and that her claim was made moot by the termination of the policies in 2003. Additional facts will be related as necessary during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

Standard of Review

¶ 4. When reviewing the grant or denial of summary judgment, we look at a lower court’s decision de novo. Price v. Purdue Pharma Co., 920 So.2d 479, 483(¶ 10) (Miss.2006). In reviewing whether summary judgment is proper, we look at “all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Aladdin Constr. Co. v. John Hancock Life Ins. Co., 914 So.2d 169, 174(¶9) (Miss.2005) (citations omitted). ■ When reviewing the evidence, we look at it “in the light most favorable to the party against whom the motion for summary judgment has been made.” Price, 920 So.2d at 483(¶ 10) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). If we find that any genuine issue of material fact exists, the decision of the lower court must be reversed. Id. at 484(¶ 10). However, the aggrieved party must provide “significant probative evidence showing that there are indeed genuine issues of material fact” to prevail. Aladdin, 914 So.2d at 175(¶ 9) (quoting Murphree v. Fed. Ins. Co., 707 So.2d 523, 529 (Miss.1997)).

Mootness

¶ 5. The court held that Watts’s claim was moot because it was brought after the termination of the policies. The court concluded that, since neither child died while the policies were active, Watts’s claim was moot because she had never attempted, and could never attempt, to collect under the policies. We disagree.

¶ 6. The claimed injury to Watts is the amount of money she spent paying for unwanted policies for thirteen years, an injury which is not moot. Watts specifically stated in the “damages” section of her complaint: “The Plaintiffs would not have purchased the policy, or would not have been willing to do so for the amount charged.... The Plaintiffs have suffered damages in the amount of the difference between the value of the products as represented ... and the substantially lower valued products as actually delivered.” Therefore, the court was incorrect in finding that Watts’s claim was moot. However, as discussed below, we agree that Watts’s claim was time-barred, and therefore affirm.

Time Bar

¶ 7. Watts does not dispute that she purchased her initial policy in 1990, and her second policy in 1993. She also acknowledges that her claim is subject to the three-year statute of limitations found in Mississippi Code Annotated section 15 — 1— 49, as amended. However, she contends that her claim is not time-barred because the language of the policies that she purchased was so ambiguous that she could not have determined the true nature of the policies by reading them. She also claims that the court “ignored the fact that Horace Mann through its agents repeatedly-represented to Mrs. Watts until 2003 that with the purchase of each policy she was receiving two policies ... when in fact, Mrs. Watts was receiving only one policy which would expire upon the death of either insured.” In short, Watts claims that “[t]he record shows a genuine issue for trial as to whether Mrs. Watts knew or should have known of her cause of action before 2003.”

¶ 8. Horace Mann responds that the terms of the policies were “clear and unambiguous,” and, therefore, any cause of action had to be filed within three years of Watts’s purchase of the policies (1993 and 1996, respectively). Horace Mann also argues that, even if “Watts was told anything different than what was stated in the policy, the necessary elements of reasonable reliance and damages are absent as a matter of law where the policy is clear and unambiguous and no claim for benefits ever accrued.”

¶ 9. In granting summary judgment to Horace Mann, the court found that “any claims or causes of action of Plaintiff are barred by the statute of limitations.... Watts had until 1993 to bring her action on the 1990 term life insurance policy and until 1996 to bring her action on the 1993 policy.” The court found specifically that “Watts had copies of the policies and a 15-day period to review and rescind the contracts and receive a refund. Watts did not use due diligence. Further, Horace Mann did no affirmative acts or conduct to prevent discovery of any claims after tending a copy of the policy.”

¶ 10. We agree with the findings of the lower court. The language of the policies was clear and unambiguous, despite Watts’s arguments to the contrary. The policies clearly stated:

The simultaneous death benefit

If the Insureds die within 31 days of each other and this policy is in force on the date of the first death- with all premiums paid, we will provide a simultaneous death benefit. Proof of each Insured’s death must be received at the Home Office. The simultaneous death benefit will be determined as of the date the Insureds died.

The surviving Insured may purchase a new policy

Within 31 days after the date of an Insured’s death, the surviving Insured may request a new policy. We will not require proof that the Insured is insurable. The new policy may be of the same coverage as this policy or any permanent plan of insurance currently being issued by us.

(emphasis in original).

¶ 11. There is no interpretation of these sections other than that the insurance would pay benefits for the death of both insureds only if they died within thirty-one days of each other. Otherwise, the second insured could automatically request a new policy, without showing proof of insurability, when the first insured died, provided that the request was made within thirty-one days of the death of the first insured. The copy provided to Watts stated in bold on the first page:

Right to examine policy for 15 days. It is important to us that you are satisfied with this policy. We hope that it meets the insurance goals for which you planned. If you are not satisfied, you may return the policy to us or the agent from whom you purchased it, within 15 days after it is delivered to you, and receive a full refund of any premiums that you have paid.

Therefore, not only were the policies clear and unambiguous, but they also encouraged Watts to carefully review her copy to ensure that she was satisfied.

¶ 12. Although Watts provided the affidavit of an “expert” on insurance matters, and Horace Mann did not present an expert for the court, we find that Watts’s expert was not sufficient to overcome the motion for summary judgment. Simply put, the contract at issue in this case did not require the opinion of an expert to understand. The language of the policies is clear and unambiguous and speaks for itself. After presenting a copy of the policies, Horace Mann needed to present no further evidence to prove that the language was clear and unambiguous.

¶ 13. Watts also contends that Robert Rich, a Horace Mann executive, admitted that the policy language was ambiguous. However, a reading of Rich’s deposition testimony does not reveal any admission that the policy language was ambiguous. When asked whether he thought the policies were ambiguous, Rich clearly responded “no.” When asked whether he thought the policy language could have been made clearer, Rich responded “not to me.” He further testified that he believed the language of the policy was “pretty straightforward.” The closest Rich came to admitting any problem with the policy was when he was asked: “Do you think that there should be a statement in that policy to the effect that upon the death of the first insured the policy is extinguished?” Rich responded: “Possibly. I mean, I — .” Before he could explain the reasoning behind his response, he was cut off by Watts’s attorney. Given the adamant nature of Rich’s previous responses, the hesitant nature of his above answer, and the fact that Watts’s attorney cut him off before he could fully explain his response, we find that Rich’s testimony did not constitute an admission of any deficiency or ambiguity with the language of the policies.

¶ 14. As to Watts’s assertion that Horace Mann or its agents fraudulently concealed the true nature of her contract, we also find that contention without merit. Although fraudulent concealment would operate to toll the statute of limitations, in order to succeed on a fraudulent concealment claim, a plaintiff must prove that: “(1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) [that] due diligence was performed on their part to discover it.” Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So.2d 78, 84(¶ 18) (Miss.2003). There is no evidence in the present case that any diligence was exercised by Watts to discover her claim.

¶ 15. During her deposition, Watts testified that she could read and write. When asked how she suddenly discovered her claim in 2003, Watts was unable to provide a clear answer. Watts also testified that individuals who sign an insurance contract should read the contract, although she qualified her answer: “But a lot of times, what you read, you do not understand.” She then went on to acknowledge that if she did not understand something in her contract, she should have asked someone at Horace Mann about what she could not understand. When Horace Mann’s attorney asked: “you haven’t read this policy, have you, yes or no,” Watts responded: “No then.” Watts later contradicted this answer when she testified that she had read the policy when she first took it out.

¶ 16. The Stephens court indicated that “whether an insured reads the entire insurance policy, the ‘knowledge of its contents would be imputed to them as a matter of law.’ ” Id. at 82(¶ 13) (quoting Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987)). As quoted in Stephens, “a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Id. at 82(¶ 14) (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991)). Watts contends that the language of the policies was so ambiguous that an ordinary layperson would not have been able to understand the policy. Having read the language, we disagree. The language was clear, and the portion of the policies detailing the simultaneous death benefit was emphasized in order to insure that the holder of the policy understood what coverage she was receiving.

¶ 17. Watts cites a number of cases that she contends support her position. In Hunt Oil Co. v. Berry, 227 Miss. 234, 245, 86 So.2d 7, 10-11 (1956), the Mississippi Supreme Court held that a party would not be held responsible for failing to read his contract where he had asked the appel-Mnt’s agent to explain the contract to him because he would not understand it if he read it. The present case is distinguished because no evidence was presented that Watts asked Horace Mann to explain the contract to her because she could not read it herself. In fact, Watts’s deposition testimony indicated that she was fully capable of reading and writing, and therefore could have understood the clear and unambiguous terms of her insurance policies if she had read them.

¶ 18. Watts also cites Huntington Lumber, 584 So.2d at 1257-58, where the Mississippi Supreme Court held that a bidder was entitled to rely on the statement of a senior partner at an architectural firm. In the case, the bidder had in fact read his contract and then called the architectural firm to question an unexpected contingency clause. A senior partner at the firm, believing that the clause would be removed from the contract, told the bidder that the clause would be removed. Through the error of a junior partner, the clause was accidentally left in. It is clear from the facts of Huntington Lumber that the bidder exercised due diligence in attempting to clarify whether the contingency clause was intended to be in the contract. In the present case, by contrast, there is no evidence that Watts exercised any diligence in questioning the language of her policies.

¶ 19. In Johnson v. Brewer, 427 So.2d 118, 126-27 (Miss.1983), a Marion County Chancery Court set aside a lease because of fraud. The Mississippi Supreme Court affirmed, noting that the victim in the case was a man nearly eighty years of age, with a sixth grade education and “limited reading ability.” Id. at 119. The facts are notably different in this case, where Watts testified that she is educated and fully able to read and write. No evidence was introduced indicating that Watts was unable to read the policies or lacked the capability to understand them.

¶20. The nature of Watts’s policies, and any discrepancy between the policies and what had been represented to Watts, were discernable from a reading of the policies. Therefore, Watts failed to exercise due diligence in discovering her claim against Horace Mann, and cannot claim fraudulent concealment. Without any fraudulent concealment, Watts had until 1996, at the latest, to file her claim against Horace Mann. Therefore, Watts’s 2003 claim is time-barred, and the court did not abuse its discretion in granting summary judgment to Horace Mann.

Suitability

¶ 21. For the first time on rehearing, Watts alleges as a basis for a claim that the policies were not suitable for her needs. Either as an independent ground for recovery or as an additional argument to support fraud, this argument is presented too late in the proceedings to require examination. We examine only what was presented to the trial court on summary judgment, and affirm.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF SHARKEY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . The previous opinion of the Court is withdrawn and this opinion is substituted. The motion for rehearing is denied.

      . Rich's deposition was not included in the record, but an excerpt from it was included with Watts's brief. Although we do not have a complete copy of the deposition, it is clear even from the excerpt provided by Watts that Rich did not admit any deficiency with the language of the policies.


text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant v. Kelly L. WRIGHT, Appellee.
    No. 2005-CC-02188-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.

      Mary Margaret Bowers, attorney for appellant.
    Janice T. Jackson, Jackson, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. The Public Employees’ Retirement System of Mississippi (PERS) appeals the circuit court’s decision to award disability retirement benefits to Kelly Wright, reversing PERS’s finding that Wright was not disabled. Because the Court finds that the Disability Appeals Committee violated Wright’s constitutional right to due process, the Court reverses and remands this case to PERS for proceedings consistent with this opinion.

FACTS

¶ 2. On June 6, 2000, Wright was working as a registered nurse with the Mississippi Department of Health. On that date, Wright testified that she began experiencing chest pains and believed she was having a heart attack. A doctor at the facility where she worked gave her Paxil and had her rest before going home. When her symptoms did not subside, she sought treatment at a clinic on June 8, 2000. The clinic found no abnormalities. The next day, she saw another doctor, who conducted an electrocardiogram test (EKG) but found nothing abnormal.

¶ 3. On June 12, 2000, Wright saw Dr. Covington, a psychiatrist, who diagnosed her with panic disorder of recent onset and prescribed 50 mg. of Zoloft daily and Ati-van as needed. Following her appointment with Dr. Covington, Wright spent two weeks in bed and a third at home, recovering from her anxiety attack. During this time, Wright’s mother stepped in. She moved Wright and Wright’s young daughter into her home and took charge of Wright’s finances and all household chores.

¶ 4. After three weeks off from work, Wright returned to her job. She continued working for the Health Department and was transferred to a different facility within the Department several times until she finally left her job in September 2002. At the hearing before the Disability Appeals Committee, Wright’s mother testified that Wright was only able to continue working because she had no other responsibilities. Wright’s mother handled most of the household chores and was responsible for caring for Wright’s daughter.

¶ 5. Wright continued to see Dr. Coving-ton on a regular basis until February 5, 2001, when he transferred her to Dr. Bishop. She saw Dr. Bishop regularly and continued her course of medications with some increases in her dosage of Zoloft until November 2001, when she began seeing Dr. Gupta. Dr. Gupta diagnosed Wright with panic disorder, generalized anxiety disorder, and depressive disorder not otherwise specified. Her dosage of Zoloft was increased again to a maximum of 200 mg before Dr. Gupta changed her prescription to Prozac. She continued to take Ativan as needed. Dr. Gupta’s records also indicate that she was receiving psychotherapy. Also in 2002, Wright was diagnosed with fibromyalgia, a chronic condition characterized by fatigue and widespread pain in the muscles, ligaments, and tendons.

¶ 6. On April 3, 2002, Dr. Gupta determined that Wright was totally disabled due to her panic disorder and anxiety attacks. He issued an opinion of total disability on September 9, 2002, October 29, 2002, and March 6, 2003.

¶ 7. On August 19, 2002, Wright applied for benefits with PERS. Following a hearing, the medical board requested an independent medical examination. Wright saw Dr. Manning on January 16, 2003. His report stated that Wright “described a history of depression, anxiety, panic attacks and recent diagnosis of fibromyal-gia.” He found that her panic attacks were more indicative of agoraphobia and social phobia and dysthymic disorder, a chronic but less severe form of depression. His “opinion” stated that he believed a combination of medication and “empirically based psychological treatment ... would give her the best opportunity for improvement and possibly give her a better opportunity to return to work.” Dr. Manning did not, however, explicitly state whether, in his opinion, Wright was likely to be permanently disabled.

¶ 8. Wright’s initial application was denied on March 20, 2003. The medical board “determined that there was insufficient objective evidence” to support a finding that Wright was disabled and unable to perform her duties as a nurse.

¶ 9. Wright appealed that finding to the Disability Appeals Committee. The Committee held a hearing on May 19, 2003. Wright’s mother attended the hearing and testified on behalf of her daughter because she contended that her daughter could not handle the stress of testifying at the hearing. Wright’s mother testified that Wright would take her daughter to and from school and would, on occasion do a load of laundry, prepare a meal, or wash dishes. Otherwise, Wright spent most of her day resting and sleeping. Wright’s mother stated that despite the fact that Wright maintained a schedule with a minimal amount of stress, Wright continued to feel stressed and depressed and felt the onset of panic attacks several times a week.

¶ 10. This testimony is corroborated by Wright’s own statements to Dr. Manning, in which she stated that she needed ten to eleven hours of sleep per night plus regular naps during the day. Any activity must be interspersed with periods of rest. She also advised Dr. Manning that she had to avoid grocery stores and doctors (particularly dentists) and that any situational stress (a doctor’s appointment, a visit from a relative) caused her anxiety that would trigger a panic attack. While Wright stated that the medication prevented a full-blown attack, her symptoms lasted approximately thirty minutes to an hour.

¶ 11. Following the hearing, the Committee requested a second independent medical evaluation. Wright submitted to an examination by Dr. Webb on July 14, 2003. On July 28, 2003, the Disability Appeals Committee sent Wright a copy of Dr. Webb’s report with a letter stating that the Committee would reconvene on August 4, 2003, to take Dr. Webb’s report under advisement. The letter stated as follows: “Since the purpose of this meeting is to present additional medical testimony requested by the DAC, there will be no opportunity for testimony and your presence will not be required.”

¶ 12. The Disability Appeals Committee met on August 4, 2003, to receive and review Dr. Webb’s report and make its decision. Dr. Webb’s report stated that he took her medical and family history and conducted a mental status exam. His report also stated that Wright advised him that she had panic attacks every other day, but once she took her medication, the initial symptoms subsided so that she did not suffer a full-blown attack. Dr. Webb’s report further stated that Wright “does suffer with panic disorder but it is in full remission with the Prozac and Ativan and she is doing quite well.” He concluded that Wright chose not to work and was not disabled or incapacitated due to her panic disorder. He found that her panic disorder was not permanent, severe, or debilitating. He determined that “[returning her to work would do her quite well.”

¶ 13. After receiving and reviewing Dr. Webb’s report, the Committee deliberated and made its decision. In its recommendation, also dated August 4, 2003, the Committee determined that, based on Dr. Webb’s opinion that Wright was not disabled but was choosing not to work, Wright was not entitled to disability benefits. The Committee noted as follows: ‘We recognize that there are several contrary opinions in this case, but psychiatric problems are generally fluid in nature and obviously, the panic disorder from which Ms. Wright suffers is not disabling at all, when it is treated correctly. She is presently being treated optimally and according to Dr. Webb, not only is Ms. Wright ready to go back to work, but work would be good for her.” The Board of Trustees adopted the Committee’s recommendation on August 26, 2003.

¶ 14. Wright then appealed that decision to the circuit court. The trial court reversed the ruling of the Disability Appeals Committee and granted Wright disability retirement benefits. In his opinion, the trial judge concluded that the Committee either ignored or failed to consider the medical evidence regarding Wright’s constant struggle with anxiety and depression, despite continued medical treatment and that, as a result of the Committee’s failure, the Committee’s decision was not supported by substantial evidence.

STANDARD OF REVIEW

¶ 15. In reviewing the action of a state administrative agency, this Court applies the same standard of review that the trial court must follow. Unless the order of the administrative agency “(1) was unsupported by substantial evidence; (2)was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party,” the Court must affirm the agency’s decision. Mississippi Sierra Club v. Mississippi Dep’t of Envtl. Quality, 819 So.2d 515, 519(¶ 15) (Miss.2002).

ANALYSIS

¶ 16. On appeal, PERS contends that the trial court erred in re-weighing the evidence that the Commission considered in reaching its determination that Wright was not disabled. PERS argues that the Commission’s decision was supported by substantial evidence and, therefore, is not arbitrary and capricious.

¶ 17. Wright argues in response that the trial court did not re-weigh the evidence but properly found that the sole contradictory opinion from Dr. Webb, when balanced against the overwhelming weight of evidence that supported a finding of disability, did not constitute substantial evidence. Wright also states that PERS violated her constitutional right to due process under the Fifth and Fourteenth Amendments to the United States Constitution when it accepted and relied upon Dr. Webb’s report without offering Wright the opportunity to correct what she contends are numerous factual errors in his report.

¶ 18. Administrative agencies must afford minimal due process consisting of notice and an opportunity to be heard. See, e.g., State Oil & Gas Bd. v. McGowan, 542 So.2d 244, 246 (Miss.1989). While the Committee gave Wright the opportunity to be heard at the initial hearing, it purposely excluded her from its August 4, 2003, hearing, in which it received and reviewed Dr. Webb’s examination. The Committee notified Wright of the upcoming hearing by letter dated July 28, 2003. The July 28, 2003, letter enclosed a copy of Dr. Webb’s report but advised Wright that she should not attend because, although new medical evidence would be presented (in the form of Dr. Webb’s report), “there will be no opportunity for testimony.”

¶ 19. After receiving Dr. Webb’s report at the August 4, 2003, hearing, the Committee then made its decision regarding Wright’s disability. In that decision, the Committee relied heavily on Dr. Webb’s report, adopting his finding that Wright’s panic disorder was in full remission with medication and that Wright was choosing not to work. Wright contested much of the medical history and many of the conclusions that Dr. Webb listed in his report. She attempted to submit those corrections as part of the record on appeal, as she was not given the opportunity to refute Dr. Webb’s report prior to the Committee’s decision.

¶ 20. The Committee dismissed the findings of Wright’s treating physician and the other objective evidence of her disability and relied solely on Dr. Webb’s report in reaching its decision to deny her benefits. By accepting Dr. Webb’s report as new evidence and relying on it without providing Wright with the opportunity to contest Dr. Webb’s report or supplement her own medical records with her most recent treatment reports, PERS denied Wright the opportunity to be heard in a meaningful way.

¶ 21. Accordingly, this Court holds that the Committee, by accepting new evidence without providing Wright the opportunity to rebut the evidence or supplement her own records, violated Wright’s procedural due process rights and the concept of fundamental fairness. This holding is consistent with decisions of other courts, which have held that, in the context of an administrative hearing, the agency’s decision to accept additional evidence without providing the opportunity for rebuttal of that evidence violates due process. See Ryker v. Town of Bethany, 97 Conn.App. 304, 904 A.2d 1227, 1234 (2006) (holding that while administrative hearings, such as the workers’ compensation hearing at issue, generally are informal, “administrative hearings must be conducted in a fundamentally fair manner so as not to violate the rules of due process.... [Procedural due process mandates that the commissioner cannot consider additional evidence submitted by a party without granting the opponents ... the opportunity to examine that evidence and to offer evidence in explanation or rebuttal.”); State ex rel. Chrysler Plastic Prods. Corp. v. Industrial Comm’n of Ohio, 39 Ohio App.3d 15, 528 N.E.2d 1279, 1281 (1987) (holding that “when new evidence is considered due process demands that the opposing party be given the opportunity to rebut that evidence or submit additional evidence,” particularly when the new evidence is outcome-determinative); Nationwide Mut. Ins. Co. v. Insurance Comm’r, 67 Md.App. 727, 509 A.2d 719, 725 (1986) (holding that “procedural due process is denied when an administrative agency uses extra-record evidence given it after a hearing for the basis of its decision,” citing Temmink v. Board of Zoning Appeals, 205 Md. 489, 109 A.2d 85 (1954)).

¶ 22. Because Wright suffered a violation of her Fifth and Fourteenth Amendment right to procedural due process, this Court reverses the finding of the circuit court and remands the case to PERS’ Disability Appeals Committee. On remand, the Committee shall provide Wright with the opportunity to refute Dr. Webb’s report and provide supplemental evidence from her treating physician.

¶ 23. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED TO THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Zoloft is prescribed for major depression — a persistently low mood that interferes with everyday living.... Zoloft is also used to treat the following: Premenstrual dysphoric disorder (PMDD), a condition marked by a depressed mood, anxiety or tension, emotional instability, and anger or irritability in the two weeks preceding menstruation. Obsessive-compulsive disorder (unwanted thoughts that won’t go away and an irresistible urge to keep repeating certain actions, such as hand-washing or counting). Panic disorder (unexpected attacks of overwhelming anxiety, accompanied by fear of their return). Social anxiety disorder (extreme shyness in social situations that interferes with an individual's work and social life). Post-traumatic stress disorder (re-experiencing a dangerous or life-threatening event through intrusive thoughts, flashbacks, and intense psychological distress). Zoloft belongs to a class of drugs called selective serotonin re-uptake inhibitors (SSRIs). http://www.pdrhealt h.com/drugJmfo/rxdrug-profiles/drugs/zoll503.shtml (last visited January 24, 2007)(Physician's Desk Reference website).
      Ativan is used in the treatment of anxiety disorders and for short-term (up to 4 months) relief of the symptoms of anxiety. It belongs to a class of drugs known as benzodiaze-pines. .. .Anxiety or tension related to everyday stress usually does not require treatment with Ativan, http: //www.pdrhealth.com/ drug-info/rxdrugproflles/drugs/ati1036.shtml (last visited January 24, 2007)(Physician’s Desk Reference website).

      . Definition of fibromyalgia provided by the Physician’s Desk Reference website at http:// www.pdrhealth.com/patient-education/BHG 01RH02.shtml (last visited January 24, 2007).


author: LEE, P.J.,

text:
    Brenda SMITH, Victor Smith, Linda Wilson, Okimo Williams, Randy Enge and Sherri Enge, Appellants/Cross-Appellees v. CITY OF GULFPORT, Mississippi, Appellee/Cross-Appellant.
    No. 2005-CA-01153-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.

      Ben F. Galloway, Gulfport, attorney for appellants.
    Jeffrey S. Bruni, Gulfport, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS

¶ 1. This case involved the flooding in 2001 of several homes in the Faust Drive subdivision in Gulfport, Mississippi. The cause of this flooding, according to the residents, was overflow from a drainage ditch that runs along the northern and western edge of the Faust Drive subdivision and through a culvert under Dedeaux Road to the south.

¶2. This area was part of the county until January 1994 when it was annexed into the City. The neighborhood residents testified that while the ditch was under county maintenance, water never rose, even during hard rains, above the banks of the ditch high enough to come into their homes. When the area came under control of the City, the residents noticed that the ditch was not being regularly cleaned, and the build-up was impeding the flow of water and making the area unsightly. The residents testified that the county consistently removed silt and overgrowth from the ditch, but since the area was annexed the ditch was not cleaned.

¶ 3. After complaining to the City about the condition of the ditch, the residents noticed the City picking up some debris, but tree branches, old tires, cans, and appliances were still noticed in the ditch. In some areas, the ditch had once been four to five feet deep but was reduced to less than a foot because of the build up of sand and debris. Some areas began to resemble the rest of the terrain rather than a ditch. Several more calls were made to the City requesting that the ditch be cleaned, but no maintenance was done.

¶ 4. Tropical storm Allison hit the Mississippi Gulf Coast on June 11, 2001. The Civil Defense and National Weather Service recorded 6.36 inches of rainfall in Gulfport on the morning of June 11. During the storm, the homes on Faust Drive were flooded. According to the residents’ testimony the City’s failure to properly maintain the ditch caused the neighborhood to flood.

PROCEDURAL HISTORY

¶ 5. On October 22, 2001, fifteen residents of the Faust Drive area of Gulfport filed a complaint in the Circuit Court of Harrison County against the City of Gulf-port alleging that the City’s failure to properly maintain the drainage ditch directly and proximately caused their property to flood. The City responded arguing that it had contracted out all maintenance of the ditch to Operations Technologies, Inc. (Optech), and, thus, Optech was a necessary party. An agreed order was entered to allow an amendment, and on September 9, 2003, plaintiffs amended their complaint to include Optech as a defendant. The trial judge later granted summary judgment in favor of Optech.

¶ 6. Before trial, the City moved for summary judgment. Its motion was denied on February 17, 2005. A bench trial began on February 21, 2005. At the conclusion of the trial on February 23, the residents sought to introduce the deposition testimony of their sole expert witness. The City renewed its previously filed motion to strike the deposition which was granted by the trial judge. The trial court then granted the City’s motion for directed verdict pursuant to M.R.C.P. 41(b).

¶ 7. Six residents (hereinafter “Smith”) now appeal to this Court asserting the following issues: (1) the trial court erroneously excluded or struck the deposition of the subdivision residents’ expert, M.E. Thompson, based on a misapplication of M.R.C.P. 32 and an erroneous requirement on the method of stating opinions with sufficient certainty; (2) the trial court erred in determining that as a matter of law expert testimony was required to prove causation in a failure to properly maintain drainage flooding case; (3) the trial court applied an incorrect legal standard in regard to proximate causation; and (4) the trial court’s finding concerning the absence of testimony of any direct observation of anything blocking the flow of water in the ditch was clearly erroneous. The City of Gulfport cross-appeals asserting: (1) the trial court reviewed the City’s summary judgment motion under an incorrect legal standard; (2) improper documents were considered in opposition to the motion for summary judgment and there was lack of evidentiary support for plaintiffs’ negligence theory; and (3) alternatively, the plaintiffs’ claims were merit-less and/or the City was immune from liability under the Mississippi Torts Claims Act.

¶ 8. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN EXCLUDING THE RESIDENTS’ EXPERT’S DEPOSITION?

¶9. M.E. Thompson, a civil engineer, was Smith’s sole expert witness concerning the source of flooding on Faust Road. According to Smith’s counsel, Thompson was available to testify on the first two dates that this case was scheduled for trial. On the third date, however, when this matter came to trial, Thompson was not available to testify as he was a defendant in a federal trial taking place simultaneously in Gulfport. Smith offered Thompson’s deposition in lieu of his live testimony. The City moved to exclude the deposition on the ground that it did not have notice that the deposition was taken for trial purposes.

¶ 10. The trial judge excluded Thompson’s deposition as not complying with Rule 32 of the Mississippi Rules of Civil Procedure. When Smith’s attorney asked for clarification on the ruling, the judge stated, “I’ll go ahead and also incorporate in there that the failure to lay the predicate and heighten the awareness in the witness’s mind to give his opinion based on reasonable certainty or scientific proof, and that would give you another basis. I would incorporate that into the ruling.” Smith argues to this Court that both of the reasons given by the trial judge are erroneous.

Standard of Review

¶ 11. The admission of deposition testimony is within the sound discretion of the trial court. Robinson v. Lee, 821 So.2d 129, 133(¶ 16) (Miss.Ct.App. 2000). While the admission of evidence is within the discretion of the trial judge that discretion is not unfettered. Id. at 134(¶ 19). It is especially not unfettered where the deposition of an absent witness is sought to be introduced pursuant to M.R.C.P. 32(a)(3). Id. The party offering the deposition must show that it fits into one of the stated exceptions. Id. Where the exercise of the court’s discretion is not supported by the evidence, this Court is obligated to find an abuse of discretion. Id.

Failure to Comply with Rule 32

¶ 12. Mississippi Rule of Civil Procedure Rule 32(a)(3) states:

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) that the witness is a medical doctor or (F) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be so used.

¶ 13. The only feasible subsection that applies in this case is Rule 32(a)(3)(F). Rule 32(a)(3)(C) is not applicable, although Smith attempts to argue that being a defendant in a federal trial is comparable to being imprisoned. Rule 32(a)(3)(D) is not applicable since no subpoena was issued. Smith argues that the trial court should have taken judicial notice of the fact that their expert was a party in a federal trial and, thus, unavailable to be subpoenaed. Smith asserts no law in support of this argument and did not ask for judicial notice to be taken at the trial level. Therefore, we will not address whether judicial notice should have been taken.

¶ 14. Rule 32(a)(3)(F) gives the trial court discretion to use a witness’s deposition if, upon application and notice, exceptional circumstances make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. Smith argues that the trial court erred by interpreting Rule 32(a)(3) to require that proof, other than counsel telling the court that the witness was unavailable, was needed. Smith argues that proper “application and notice” was given and such exceptional circumstances existed to necessitate the use of Thompson’s deposition. The first notice of record given to the City and the trial court of Thompson’s unavailability was approximately a week before trial, which was to begin on February 21, 2005. Smith’s attorney did not ask for the trial to be rescheduled. On appeal, the City accuses Smith of making “a veiled attempt at hiding Thompson from cross-examination.”

¶ 15. Smith also argues that the trial judge erred in his ruling because he believed that ten days written notice of unavailability was required before a deposition could be admitted. Smith provided no cite for this proposition, and we find nothing in the record where the trial judge stated that ten days written notice was required.

¶ 16. Again, the admission of deposition testimony is within the sound discretion of the trial court. The trial court found the City’s motion to strike Thompson’s deposition well taken, and we find no error in his finding. The burden was on Smith to show that Thompson’s deposition fit into one of the stated exceptions. The record before this Court does not establish that any of the Rule 32(a)(3) exceptions were met. The trial court did not abuse its discretion, and the exclusion of the deposition is affirmed.

Failure to Give Expert Opinion Based on Reasonable Certainty or Scientific Proof

' ¶ 17. Smith argues that the trial court erred by holding, in part, that Thompson’s deposition should be excluded for his failure to give opinions based on scientific certainty. This was specifically addressed in Catchings v. State, 684 So.2d 591 (Miss.1996). The issue in Catchings was “whether medical experts are required to state their opinions ‘to a reasonable medical certainty’ in order that their opinions be given probative value and therefore be admissible as evidence.” Id. at 597. In holding that this specific phrase is not required, the supreme court stated that:

The phrase “with a reasonable degree of medical certainty” is a useful shorthand expression that is helpful in forestalling challenges to the admissibility of expert testimony. Care must be taken, however, to see that the incantation does not become a semantic trap and the failure to voice it is not used as a basis for exclusion without analysis of the testimony itself.
Situations in which the failure to qualify the opinion have resulted in exclusion are typically those in which the expert testimony is speculative, using such language as “possibility.” ....
Accordingly, while the particular phrase used should not be dispositive, it may indicate the level of confidence the expert has in the expressed opinion. Perhaps nothing is absolutely certain in the field of medicine, but the intent of the law is that if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision.

Id. (citations omitted). We note that while Catchings applied to medical testimony, this standard is also applicable to scientific testimony.

¶ 18. While the parties to the deposition stipulated that the deposition was to be “taken for discovery and all other purposes, in accordance with the provisions of the Mississippi Rules of Civil Procedure,” the trial judge noted that the atmosphere indicated “that it was a casual setting and they were just getting what he was about to testify, more so a discovery than for trial.” To the trial judge, the deposition seemed like “pure casual conversation.” Counsel for the plaintiffs asked no questions during the deposition. The one hundred eighteen page deposition consisted of questioning by counsel for Optech and counsel for the City of Gulfport.

¶ 19. While no specific language, such as “with a reasonable degree of scientific certainty,” is required, an expert witness must still form his or her opinion with scientific certainty. Miss. Transp. Comm’n v. McLemore, 868 So.2d 31, 36(¶ 11) (Miss.2003) The expert’s opinion cannot be mere speculation. Id. The trial judge was concerned after reading the deposition that, even if it was admitted, Thompson’s opinions were too speculative to prove causation.

¶20. The failure to use the phrase “with a reasonable degree of scientific certainty” is not required, and the trial judge erred in his ruling requiring such specific language to be used. However, since the admission of deposition testimony is within the sound discretion of the trial court and the trial judge gave valid reasons for excluding the testimony, we cannot find error in the exclusion of the deposition.

II. DID THE TRIAL COURT ERR IN DETERMINING THAT AS A MATTER OF LAW EXPERT TESTIMONY WAS REQUIRED TO PROVE CAUSATION IN A FAILURE TO PROPERLY MAINTAIN DRAINAGE FLOODING CASE?

¶ 21. Smith argues that the lay testimony of the residents and photographs of the ditch were enough to find the City liable for negligence in failing to properly maintain the ditch. Under the same heading, Smith also argues that the City was under a non-delegable duty to maintain storm sewers, drains, and ditches in a reasonably safe condition, and therefore, the City is liable to the property owners based on their testimony that the City was given notice and did not correct the problem.

¶ 22. The trial court’s findings on causation are as follows:

It’s the position of this Court because of the complex nature of the facts in this case as outlined at this point, in addition to finding that based on the record made at this time that the causation issue has not been met or the breach by the standard required and I’m going to go ahead and go out on a limb and say that in this case, and in the complex nature that I perceive it to be that an expert would be required to testify.
The testimony of the witnesses in this case, again I think the Court has stated that that testimony basically is what they saw, and that they reached a conclusion that it had to be the fact that it was dirty that contributed to the flooding of their homes. The Court judges that testimony in the light that that is weak opinion testimony, albeit that it’s lay.

¶ 23. Smith cites City of Meridian v. Bryant, 232 Miss. 892, 100 So.2d 860 (1958); Cain v. City of Jackson, 169 Miss. 96, 152 So. 295 (1934); and City of Vicks burg v. Porterfield, 164 Miss. 581, 145 So. 355 (1933), for the proposition that lay witness testimony alone is sufficient to prove causation. None of these cases mention whether expert testimony is or is not required to prove causation. While the cases discuss a municipality’s duty to maintain a ditch, none specifically addresses what type of testimony was used in proving the City’s failure to maintain the ditch. Further, these cases are distinguishable as each dealt with an alteration to the existing landscape which affected the drainage.

¶24. Smith next argues that Porter-field, 164 Miss. 581, 145 So. 355, in combination with Mississippi Rule of Evidence 701 provides strong support that lay witness testimony is sufficient to establish causation. Rule 701 states:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Returning to the trial court’s findings, we find that Smith’s argument, even if correct, is unfounded. The trial court did not find that expert testimony was required to prove causation in all cases regarding failure to maintain a city ditch. The trial court instead found that the testimony of the lay witnesses was not helpful or determinative. The trial court found that an expert was needed in this case because all that could be gathered from the lay witnesses’s testimony was “guesswork, speculation or conjecture as to what caused the ditch to overflow.”

¶25. The trial court did not make a blanket statement that expert testimony was required in all drainage cases to prove causation, and thus this argument is without merit.

III. DID THE TRIAL COURT APPLY AN INCORRECT LEGAL STANDARD IN REGARD TO PROXIMATE CAUSATION?

¶ 26. The standard of review for application of the wrong legal standard by the trial court is de novo. Quitman County v. State, 910 So.2d 1032, 1085(116) (Miss.2005). This Court does not hesitate to reverse where the trial judge has applied an erroneous legal standard. Id.; McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989).

¶ 27. Smith argues that the trial court erred by suggesting that proof of the extent of flooding caused by the City’s negligence was required. Smith cites Kiddy v. Lipscomb, 628 So.2d 1355, 1358 (Miss. 1993), for the proposition that as long as the defendant’s negligence contributed to the injury, it is no defense that the injury would not have resulted from the defendant’s negligence alone.

¶ 28. There is no need for this Court to conduct a de novo review with regard to causation as we find that the trial court did not apply the wrong legal standard. Although the trial judge stated that there were “multiple reasons that may exist as to why the ditch overflowed,” his ruling was that Smith failed to prove that the City’s negligence was one of the reasons. No clear evidence existed in the record to show that the City’s negligence caused the ditch to overflow.

¶ 29. We find this issue to be without merit as Smith misstates the trial court’s findings.

IV. WAS THE TRIAL COURT’S FINDING CONCERNING THE ABSENCE OF TESTIMONY OF ANY DIRECT OBSERVATION OF ANYTHING BLOCKING THE FLOW OF WATER IN THE DITCH CLEARLY ERRONEOUS?

¶ 30. Smith argues that “the trial court found there was no testimony that the residents actually observed any obstruction in the ditch.” Smith further argues that “[t]he trial court also stated there was no testimony that after the water receded anyone observed anything that would have blocked the flow of water.” The trial court’s actual finding was as follows:

I think one of the plaintiffs testified that he walked the area, and there was no testimony showing that he observed any obstruction. All he saw was, like I say, a sea of water. There is no testimony after whatever water was there had receded as to anything that would have blocked — I’m not talking about impeded, but have blocked the flow of water.

f 31. The trial court recognized that testimony existed that debris impeded the flow of water in the ditch. This is consistent with the residents’ testimony that vegetation, silt, appliances, and other debris impeded the flow of water. The testimony regarding these obstructions was not sufficient to reach a conclusion that the City’s failure to remove the debris caused the neighborhood to flood.

¶ 32. This issue is without merit.

ISSUES ON CROSS-APPEAL

I. DID THE TRIAL COURT USE AN INCORRECT LEGAL STANDARD IN REVIEWING THE CITY’S SUMMARY JUDGMENT MOTION?

II. WERE IMPROPER DOCUMENTS CONSIDERED IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT AND WAS THERE WAS LACK OF EVIDENTIA-RY SUPPORT FOR PLAINTIFFS’ NEGLIGENCE THEORY?

III.WERE THE PLAINTIFFS’ CLAIMS MERITLESS AND/OR WAS THE CITY IMMUNE FROM LIABILITY UNDER THE PROVISIONS OF THE MISSISSIPPI TORTS CLAIMS ACT?

¶ 33. Having found for the City, there is no need for this Court to rule on whether the denial of summary judgment was improper.

¶ 34. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED ON DIRECT AND AFFIRMED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . The actual date Thompson’s unavailability was noticed is not apparent from the record, and the briefs are in conflict on this issue. . It appears to be sometime between February 12 and 17.