text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant, v. Donald W. BISHOP, Appellee.
    No. 2005-CC-00931-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      Office of the Attorney General by Mary Margaret Bowers, attorney for appellant.
    Ronald D. Michael, Billy Bronson Ta-bler, Booneville, attorneys for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On September 17, 1999, Donald W. Bishop applied for disability benefits from the Public Employees’ Retirement System (PERS). PERS denied Bishop’s claim and Bishop filed a notice of appeal with the PERS Disability Appeals Committee. The committee heard testimony, reviewed the evidence, and made a recommendation to the PERS Board of Trustees that the Board deny Bishop’s request. The Board adopted the committee’s recommendation and entered an order denying benefits. Bishop appealed to the Circuit Court of Hinds County, which reversed the order of PERS Board of Trustees. The circuit court held that the Board’s decision was arbitrary and capricious and was not supported by substantial evidence. PERS appeals, asserting one issue:

I. DID THE CIRCUIT COURT ERR IN FINDING THAT PERS ACTED ARBITRARILY AND CAPRICIOUSLY IN DENYING BISHOP’S APPLICATION FOR DISABILITY BENEFITS?

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Prior to his disability, Bishop was employed as a Carpenter II with Mississippi State University for approximately nine and a half years. As a carpenter, Bishop was required to maintain, repair, replace, alter, or fabricate a wide variety of structural systems using numerous materials, tools and methods. His duties as a carpenter required some heavy lifting and strenuous activities.

¶ 4. In 1994, Bishop began to suffer from pain in his elbows, legs, and neck. In 1996 and 1997, Bishop notified Dr. Mike Mabry of his pain. Bishop contends that he was able to continue working for approximately five years thereafter because of the aid of his co-workers and the flexibility of his supervisor. On May 17, 1999, Bishop terminated his employment with Mississippi State University, alleging that he was not physically capable of performing his job duties. Mississippi State University did not offer alternative employment nor did it offer lesser duties in the same position or an alternate position.

¶ 5. On August 23, 1999, Bishop visited Ochsner Clinic in New Orleans. At Ochs-ner Clinic, Bishop was treated by a rheu-matologist, Dr. Jamie Bustamente. Dr. Bustamente determined that Bishop did not have a rheumatoid diagnosis and referred Bishop to Dr. Jeanette Salone, also a physician at Ochsner Clinic.

¶ 6. On August 23, 1999, Dr. Salone diagnosed Bishop with chronic fibromyalgia, diffuse myofascial disease, and chronic depression. Dr. Salone opined that Bishop’s disability was permanent and he would require an indefinite amount of treatment. Although Dr. Salone noted that Bishop could not work, she opined that Bishop needed to undergo a Functional Capacity Exam (FCE) for her to make a final determination. Bishop chose not to undergo the FCE because his insurance did not cover the exam. On September 2, 1999, Dr. Salone released Bishop as a patient because Bishop indicated it was too expensive to drive back and forth to New Orleans for exams. After Dr. Salone released Bishop, she indicated that Bishop could return to work if he chose to do so. Dr. Salone also recommended that Bishop see a physician in Mississippi. Dr. Sa-lone’s notes state that some objective evidence of Bishop’s abilities was necessary to make a determination of whether Bishop was permanently disabled and whether he could be gainfully employed.

¶ 7. In Mississippi, Bishop went to Dr. Everett McKibben for treatment. On August 27, 1999, Dr. McKibben opined that Bishop needed to lose weight, exercise, decrease alcohol consumption, and obtain treatment for depression. Dr. McKibben also noted that, although Bishop may need a vacation, there was no evidence to show that Bishop was totally or permanently disabled. Dr. McKibben did not conduct any tests. However, Dr. McKibben indicated that Bishop had degenerative joint disease and had a negative rheumatory work-up. Dr. McKibben referred Bishop to Dr. Laura Gray.

¶ 8. On September 13, 1999, Dr. Gray first saw Bishop. Dr. Gray performed lab work, x-rays and examinations. Bishop had several follow-up appointments with Dr. Gray. Dr. Gray opined that Bishop’s condition would not improve and he would be permanently disabled.

¶ 9. On September 17, 1999, PERS received Bishop’s request for disability benefits. PERS also received a Form 6B, an employer’s statement of job requirements, from Bishop’s supervisor, John Warner. The form stated:

Don cannot grip hand tools or power tools needed to perform his duties. He cannot lift or carry building materials used daily in the process of performing his duties. Don cannot climb ladders or scaffolds which is required daily in the process of performing his duties. Don is not able to help with the installation of new roofs or with the repairs of other roofs because of the kneeling, squatting and bending required. Don cannot form, pour or finish concrete because of the kneeling, squatting and bending required.

Warner also stated that Bishop was motivated to perform the duties required of him although he was unable to do so.

¶ 10. After review of Bishop’s application, PERS deferred its decision to obtain a FCE. On November 29, 1999, Bishop underwent a FCE under the supervision of Julie Walker, occupational therapist, at Methodist Rehabilitation Center. The FCE recommendations stated:

[t]rue abilities and limitations are difficult to determine as the patient was simply self limited by complaints of pain in numerous body parts.... The patient is functioning at restricted lighi/medium level of work, however, it is felt that he is capable of more. This evaluation represents what the patient was willing to do and not physiological maximum as this was not observed during the evaluation.

However, the FCE noted that Bishop “demonstrates significant pain behaviors during testing such as grunting, grimacing and very jumpy during physical assessment.” The FCE stated that Bishop “teared up on two occasions” during the exam. After reviewing the medical documentation, on December 30, 1999, PERS denied Bishop’s claim.

¶ 11. Bishop appealed the PERS decision on April 19, 2000, and additional medical documentation was submitted. The evidence was scheduled to be reviewed in August of 2000 and an appeal hearing date was scheduled for November 13, 2000. On August 24, 2000, Judge Mark Dawson, an administrative law judge for the Social Security Administration, found that Bishop was disabled. Judge Dawson stated that Bishop was unable to perform the past work because he had severe impairments including fibromyalgia, cervical, thoracic, lumbar degenerative changes, exogenous obesity and poorly controlled hypertension. Judge Dawson held “there are no jobs existing in significant numbers in the national economy which he can perform.”

¶ 12. On November 13, 2000, an appeals hearing was held before the PERS Disability Appeals Committee. At the hearing, Bishop testified that he enjoyed his employment; however, it was very physical work. Bishop described his medical problems including physical pain, flu-like symp-tomsj weakness in his hands and knees, physical limitations at work, abnormal sleep patterns and excessive snoring.

¶ 13. After the hearing, the PERS Disability Appeals Committee submitted a proposed statement of facts and conclusions of law. The statement of facts stated that the medical documentation was contradictory. The statement opined that fi-bromyalgia was “the subject of much debate in the medical community” and was difficult to assess. The statement of facts concluded that there was no objective medical evidence that Bishop’s diagnosis of fibromyalgia rendered him disabled and there was no indication as to what extent Bishop’s depression affected his ability to perform his job.

¶ 14. The Disability Appeals Committee recommended to PERS that Bishop’s benefits be denied. The PERS Board of Trustees adopted the recommendation of the Disability Appeals Committee. Per the Board’s order of December 12, 2000, Bishop’s benefits were denied and Bishop was determined not to be permanently disabled according to Mississippi Code Annotated section 25-11-113 (Rev.2003).

¶ 15. On January 11, 2001, Bishop filed his notice of appeal in the First Judicial District of Hinds County. The court held that “the decision of the Board and the Disability Appeals Committee of PERS was not supported by substantial evidence, was arbitrary and capricious, and should be reversed and rendered.” The court stated:

[i]n the instant case, the record reflects that Mr. Bishop’s examining physicians, Drs. McKibben and Salone, indicated that additional evidence was needed to determine whether Mr. Bishop was permanently disabled. However, the Court finds that there is substantial evidence that indicates otherwise. Dr. Salone performed an examination on Mr. Bishop August 23, 1999 and rated him a 77% on a pain severity test. Because of Mr. Bishop’s high level of pain, Mr. Bishop admitted to Dr. Salone that he stays in bed four out of seven days of the week. In addition, Dr. Salone diagnosed Mr. Bishop with moderate to severe chronic fibromyalgia and major to severe depression. Dr. McKibben performed an evaluation of Mr. Bishop on August 27, 1999 to determine disability. Although Dr. McKibben found no evidence that Mr. Bishop was totally or permanently disabled, he acknowledged that degenerative joint disease was present. Lastly, Dr. Gray submitted a letter to PERS recommending Mr. Bishop apply for disability due to the fact that in her professional opinion, Mr. Bishop’s medical condition would not improve. Dr. Gray determined that Mr. Bishop is unable to perform the job duties required of him as a Carpenter II at Mississippi State University. Mr. Bishop meets the definition of disabled as defined by § 25-11-113 of the MS Code of 1942.

Aggrieved by the circuit court’s decision, PERS appealed.

STANDARD OF REVIEW

¶ 16. “PERS is a state entity designed to provide state employees with alternative disability and retirement income that is accorded to others under the Social Security Act.” Pub. Employees’ Ret Sys. v. Dishmon, 797 So.2d 888, 891(10) (Miss. 2001) (citing Miss.Code Ann. § 25-11-3 (Rev.1999)). Employees of the State of Mississippi are entitled to disability retirement benefits if they meet the requirements stated in Mississippi Code Annotated section 25-11-113. Id. at (4). Under Mississippi Code Annotated section 25-11-113:

any active member in state service who has at least four years of membership service credit may be retired by the board of trustees ... provided that the medical board, after a medical examination, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired.

Miss.Code Ann. § 25-ll-113(l)(a) (Rev. 1999).

¶ 17. The statute dictates standards by which a person may be determined disabled. A person may be disabled when he is unable “to perform the usual duties of employment.” Id. The employee must also be unable “to perform such lesser duties, if any, as the employer ... may assign without material reduction in compensation.” Id. Finally, the employee seeking benefits must be unable “to perform the duties of any employment covered by the PERS that is actually offered and is within the same general territorial work area, without material reduction in compensation.” Id.

¶ 18. There is a rebuttable presumption which favors the agency’s decision and the challenging party has the burden of proving the contrary. Dishmon, 797 So.2d at 891(9). “Neither this Court nor the circuit court is entitled to substitute its own judgment for that of PERS, nor may we re-weigh the facts of the case.” Purnell v. Pub. Employees’ Ret. Sys., 894 So.2d 597, 601(20) (Miss.Ct.App.2004) (citing Dishmon, 797 So.2d at 891(9)). Once PERS has made a decision regarding the application of disability benefits, the decision shall not be disturbed unless it is unsupported by substantial evidence; is arbitrary and capricious; is beyond the agency’s scope or powers; or the decision violates the constitutional or statutory rights of the aggrieved party. Fulce v. Pub. Employees Ret. Sys., 759 So.2d 401(6) (Miss.2000).

LAW AND ANALYSIS

I. DID THE CIRCUIT COURT ERR IN FINDING THAT PERS ACTED ARBITRARILY AND CAPRICIOUSLY IN DENYING BISHOP’S APPLICATION FOR DISABILITY BENEFITS?

¶ 19. PERS contends that the decision rendered by the PERS Board was based upon substantial evidence and, therefore, should be reinstated. Bishop claims that the ruling of the circuit court should be affirmed because there was not substantial evidence to support the Board’s decision.

¶ 20. “If an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Pub. Employees’ Ret. Sys. v. Marquez, 114 So.2d 421, 430(35) (Miss.2000) (citing Miss. State Dep’t of Health v. Natchez Community Hosp., 743 So.2d 973, 977(13) (Miss.1999)). Substantial evidence is “that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Dishmon, 797 So.2d at 892(13). Substantial evidence has been defined as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Marquez, 774 So.2d at 425(13). “The question here is not whether there was evidence in support of [Bishop’s] disability, but whether there was substantial evidence to support the finding of the administrative agency.” Dishmon, 797 So.2d at 892(12).

¶ 21. PERS correctly observes that “determining whether an individual is permanently disabled is better left to physicians, not judges.” Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1287(23) (Miss.2005). Certainly, PERS has the discretion to determine which documents garner more weight than others. Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434, 438(15) (Miss.2000). However, while this Court performs limited appellate review, “it is not relegated to wearing blinders.” Miss. State Bd. of Exam’rs for Social Workers and Marriage and Family Therapists v. Anderson, 757 So.2d 1079, 1084(15) (Miss.Ct.App.2000).

¶22. Here, PERS’s decision to deny benefits is not supported by substantial evidence. Bishop underwent a FCE at PERS’s request. The results of the FCE and the opinion of Dr. Bustamente indicated that further information was needed to determine whether Bishop was permanently disabled. These inconclusive medical opinions were not substantial evidence to support PERS’s decision.

¶23. The only other evidence which supports PERS’s ruling is the opinion of Dr. McKibben. The Disability Appeals Committee noted that “Dr. Everett McKibben submitted a Form 7 in which he recognizes degenerative disk disease, but indicates Mr. Bishop has no rheumatologic abnormalities of note, and no evidence to support permanent disability from employment.” The committee failed to note that Dr. McKibben did not fill out any of the relevant portions of Form 7. Of the four sections on Form 7, Dr. McKibben only completed section 1, which was history of disability. In section 1, Dr. McKibben briefly noted “[h]e has degenerative joint disease — has a negative Rheumatology work-up in Ochsner Clinic — I agree with Dr. Bustamente there — he needs [weight] loss, exercise, treatment of depression, and decreased alcohol consumption — he might need a vacation but I see no evidence that he is totally or permanently disabled.” Dr. McKibben failed to complete sections II through IV which related to physical examination, diagnosis, and conclusion. Additionally, Dr. McKibben did not conduct any tests on Bishop. Rather, Dr. McKibben referred Bishop to Dr. Gray for further evaluation. Dr. McKibben’s opinion is not substantial evidence when considered along with the other objective medical evidence presented.

¶ 24. Although the results of the FCE were inconclusive, the FCE report noted that Bishop “demonstrates significant pain behaviors during testing.” In its recommendation to deny benefits, the committee notes that Dr. Salone claimed additional evidence was needed to determine if Bishop could be gainfully employed. However, on August 23, 1999, Dr. Salone stated that Bishop’s disability was permanent and he would require an indefinite amount of treatment. Dr. Salone diagnosed Bishop with diffuse myofascial disease, chronic depression and chronic fibromyalgia.

¶ 25. The committee stated that “[f]i-bromyalgia is the subject of much debate in the medical community.” The committee opined, because fibromyalgia is difficult to assess, “such cases must be undertaken on a case-by-case basis.” Although the committee noted that Dr. Gray determined “Mr. Bishop is permanently disabled due to fibromyalgia and depression,” they contrarily concluded that there was no evidence that Bishop’s diagnosis of fibromyal-gia rendered him disabled.

¶ 26. The rationale for PERS’s decision was vague. After reciting the facts, the committee’s recommendation concluded that “the Committee finds no objective medical evidence that Mr. Bishop’s diagnosis of fibromyalgia renders him disabled from his position....” In McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 322 (Miss.1992), the court required administrative agencies to “say at least minimally why they do what they do so someone can see whether it be arbitrary and capricious.” In McGowan, the court “emphasized the need for understanding why an agency rules in a certain way in order to determine whether the Board acted arbitrarily and capriciously and whether substantial evidence undergirds its actions.” Marquez 774 So.2d at 429(30).

¶ 27. As stated above, substantial evidence has been defined as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id. at (13). In support of its conclusion, PERS has noted only that Bishop lacks sufficient objective medical evidence. In light of the objective diagnoses made by treating physicians, PERS’s conclusion is not substantiated by the record. Therefore, this Court affirms the judgment of the circuit court reversing PERS’s denial of benefits.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    In re S.T.M.M., a Minor. In re S.S.A.R., a Minor. In re C.A.R., Jr., a Minor. In re T.T.T.M., a Minor.
    Nos. 2005-CA-01283-COA to 2005-CA-01286-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.

      Sheila Havard Smallwood, attorneys for appellant.
    Sara Barrett Harvey, attorneys for ap-pellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This case is an appeal of a termination of parental rights. Following allegations of neglect, the mother’s four children were removed from her custody, and she entered into an agreement with the Department of Human Services that stipulated those tasks she would have to complete to reunite her family. After over a year and a half, and several review hearings tracking her progress, or lack thereof, it was determined that the mother had failed to comply with the agreement, and, coupled with the lack of any clean drug test, the mother’s parental rights were terminated. She now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. A.E.R. is the natural mother of the four minor children at the heart of this appeal, namely S.T.T.M., T.T.T.L.M., C.A.R., Jr., and S.S.A.R. T.T.T.L.M., C.A.R., Jr., and S.S.A.R. came into the custody of the Forrest County Department of Human Services (DHS) on June 26, 2003, by orders of the County Court of Forrest County, Youth Court Division granting temporary custody as a result of alleged neglect and/or abuse. S.T.T.M. came into the custody of DHS on August 4, 2003, under identical circumstances. Within each child’s neglect and abuse petition, the DHS stated that the Department of Human Services in Texas was investigating A.E.R. regarding drug use and unsupervised children. The Texas DHS informed the DHS that A.E.R. had a history of drug use, physical neglect, and physical abuse. On May 23, 2003, prompted by the information above, a social worker, Lisa Simpson, performed a courtesy interview of A.E.R.’s home and found no reason to remove the children from A.E.R.’s custody. Less than a month later, based on reports of uncontrolled fighting, another interview was performed. This visit revealed the deplorable conditions in which the children lived and the presence of extreme bug bites and head lice affecting each child. Subsequent to this discovery, DHS received a report from the children’s guardian ad litem from Texas indicating that A.E.R. had tested positive for cocaine and marijuana. A hearing was held in which each child was adjudicated neglected within the meaning given in the Youth Court Act of the State of Mississippi, Section 43-21-105 of the Mississippi Code Annotated (Rev.2004). As such, DHS was given legal custody of each child in orders filed on August 21, 2003.

¶ 3. On June 27, 2003, A.E.R. and DHS entered into a service agreement with the goal of allowing A.E.R. to adequately provide for her children and regain custody. The service agreement stipulated that A.E.R. was to complete a psychological evaluation, individual and family counseling, parenting classes, anger management classes, obtain and maintain housing and employment, receive random drug screens (at A.E.R.’s expense), outpatient drug treatment, and maintain regular visitation with her children. Simpson, the social worker initially assigned to A.E.R.’s case, was responsible for making referrals for parenting classes, anger management classes, counseling, and arranging visitation. A permanency order was entered on November 18, 2003, as to each child, in which the youth court found that A.E.R. had moved to Mississippi in order to avoid Texas DHS jurisdiction, and, as a result of other evidence presented, referred each child for termination of parental rights. Three review hearings were held throughout 2004 in which the lower court found that DHS had made reasonable efforts to reunite A.E.R. with her children, and the best interests of the children required DHS to retain custody. As early as the March 9, 2004 review hearing, the court noted that it was apparent, despite DHS’s efforts, little or no actual progress had been made, and the County Court of Forrest County, Youth Court Division, ordered that DHS was not required to make any further efforts to assist A.E.R. in complying with the service agreement as a result of her lack of improvement or a clean drug test.

¶ 4. A hearing was held on November 23, 2004, in order to determine if A.E.R.’s parental rights would be terminated as to her four children. At the start of the hearing, A.E.R.’s attorney presented to the court a motion ore tenus for a continuance, which was subsequently denied. At the conclusion of the hearing, and after considering the facts before it, the Forrest County Youth Court issued its final judgments) terminating the parental rights of A.E.R. as to C.A.R., Jr., S.S.A.R., S.T.M.M., and T.T.T.L.M. This appeal followed, and A.E.R. raised the following issues:

I. The youth court judge erred in finding that proof met the clear and convincing burden of proof necessary to terminate the parental rights of the appellant.

II. Did the Forrest County Department of Human Services fail to follow its mission statement to provide services and reunite the family?

III. Did the youth court judge err in failing to grant the motion for continuance prior to the trial on the merits?

IV. Was the services agreement economically unreasonable with respect to its terms and conditions?

STANDARD OF REVIEW

¶ 5. While the basis for terminating parental rights is clear and convincing evidence, on appeal, our standard of review dictates that we may reverse the decision of the youth court “only if reasonable men could not have found as the youth court did beyond a reasonable doubt.” May v. Harrison County Dep’t of Human Sens., 883 So.2d 74(¶ 10) (Miss.2004). Additionally, where no jury was involved, the lower court’s factual determinations will only be disturbed if the record lacks substantial supporting evidence. Id. Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” G.Q.A. v. Harrison County Dep’t of Human Sens., 771 So.2d 331(¶ 15)(Miss.2000) (quoting Hooks v. George County, 748 So.2d 678(¶ 10)(Miss.1999)).

ANALYSIS

I. Whether the youth court erred in terminating A.E.R.’s parental rights.

¶ 6. Mississippi Code Annotated § 93-15-103 (Rev.2004) provides, in pertinent part,

(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, ..., the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(d) When the child has been in the care and custody of a licensed child caring agency or the Department of Human Services for at least one (1) year, that agency or the department has made diligent efforts to develop and implement a plan for return of the child to its parents, and:
(ii) The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child caring agency is unable to return the child to said parent; or
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction ...; or
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent;

¶ 7. The facts of the case sub judice show that A.E.R. tested positive for cocaine and marijuana at the outset of the involvement of DHS on or around August 13, 2003. While the service agreement entered into by A.E.R. and DHS required her to take random drug tests throughout her period of review, the record indicates that she failed to take a single drug test. At the November 2004, hearing, she explained that the reason she had failed to take a drug test was that she could not afford to as her income, at least at the time of the hearing, was $500 per month. This excuse was lackluster at best as Josie Brown, the social worker then assigned to A.E.R.’s case, testified that she informed A.E.R. the day of the hearing that DHS would pay for a drug test if she took one that day, but A.E.R. refused, stating that she would test positive. A.E.R. explained that she believed she would test positive as a result of one “hit” she took off a marijuana cigarette while drinking at a friend’s house. Notwithstanding A.E.R.’s explanation, the youth court judge was left with a parent who tested positive for drug use at the outset of DHS’s involvement and admitted she would test positive at the hearing to determine if her parental rights would be terminated. Given that factual scenario, we find that reasonable men could have found beyond a reasonable doubt that termination was appropriate under Mississippi Code Annotated Section 93 — 15—103(3)(e) (Rev.2004).

¶ 8. While not explicitly stated in the lower court judgments terminating parental rights, we also find that termination was appropriate under Mississippi Code Annotated Section 93 — 15—103(3)(d)(ii) (Rev. 2004). The record shows that T.T.T.L.M., C.A.R., Jr., and S.S.A.R. came into the custody of DHS on June 26, 2003. S.T.T.M. followed on August 4, 2003. At the time of the hearing, the children had been in the care and custody of DHS for well over the statutorily mandated time period of one year, thus satisfying the first requirement of Section 93-15-103(3)(d). Secondly, A.E.R. entered into a service agreement, or plan, in which she agreed to fulfill certain requirements. As the testimony from the November 2004 hearing shows, A.E.R. failed to complete those requirements. As per the service agreement, A.E.R. was to participate in a physiological evaluation. She failed to do this, explaining that she could not afford a $1,000 cost. While A.E.R.’s failure to meet this requirement is not, in and of itself, troubling, given the cost of the service relative to her level of income, her own testimony indicates that she had not even attempted to comply, testifying that at the time of the hearing she had saved nothing towards the evaluation.

¶ 9. Many other requirements of the service agreement were also not completed, to include drug tests, parenting classes, and anger management classes. A.E.R. explained that her inability to complete parenting classes or anger management classes was a result of her lack of transportation, money for gasoline, and scheduling conflicts between the classes and her job(s). Given the time frame A.E.R. had to complete the requirements, almost a year and a half, we find this excuse lacking as well. DHS provided these classes free of charge to A.E.R. with the only real requirement being she attend the classes. She failed to do this despite enrolling in four separate classes.

¶ 10. Another requirement of the service agreement was that A.E.R. maintain regular visitation with her children. Brown testified that A.E.R. visited T.T.T.L.M. and S.T.M.M. once in May of 2003, and visited S.S.A.R. and C.A.R., Jr. twice in August 2004 and once in October 2004. While A.E.R. testified she thought she visited her children more often, the frequency of A.E.R.’s visits can hardly be considered to be “regular visitation.” Given the facts above, we find that there was clear, convincing, and substantial evidence to justify termination of A.E.R.’s parental rights under either Mississippi Code Annotated Sections 93-15-103(3)(e) or 93-15-103(3)(d)(ii) (Rev.2004).

II. Whether the DHS failed to follow its mission statement.

¶ 11. A.E.R. next argues that “[t]he Department failed to implement a reasonable plan or optimize any resource to assist in the reunification of this family ... ”, in accordance with its mission statement. Based on the facts enumerated above, and the lower court’s findings at each review hearing, we find that DHS made every effort to assist A.E.R. to reunite her family under conditions that would promote the children’s safety and well being. As such, this issue is without merit.

¶ 12. We also note that the lower court and DHS gave more time to comply with the service agreement than what the applicable statute allowed. Mississippi Code Annotated § 43-15-13(4) (Rev.2004) states, in pertinent part, that “the child’s natural parent(s) will have a reasonable time to be determined by the court, which shall not exceed a six-month period of time, in which to meet the service agreement” before termination of parental rights can be initiated. A.E.R. had well over one year to complete the requirements, and in that time she failed to not only complete the requirements, but failed even to make any notable progress toward completion.

III. Whether the youth court erred in failing to grant A.E.R.’s motion for continuance.

¶ 13. A.E.R. next argues that she was making progress towards completion of her sendee agreement in that she was currently employed and enrolled in anger management and parenting classes, and given more time she could have completed the service agreement requirements. Whether to grant or deny a motion for continuance is a decision left to the discretion of the trial judge, and should not be reversed unless a manifest injustice occurred as a result of the decision. Stack v. State, 860 So.2d 687(¶ 7)(Miss.2003). While A.E.R.’s “progress” towards completion of the service agreement was technically true at the time of denial of her motion, she failed to mention in her brief that she had been employed in her current position for less than three weeks and had become a veteran enrollee in anger management and parenting classes, enrolling in, and subsequently quitting or being dis-enrolled from three previous classes. In considering the motion, the lower court stated:

There [is] really no verification or anything to show that [A.E.R.] had made-or had been in substantial compliance with the requirements [of the service agreement], especially with regard to the drug testing. And so all those things, taken into consideration of the statutes that require we move these cases through to give some kind of permanency-the objective being what’s in the best interests of the children so they can either be placed in some type of permanent care or custody or else where adoption is needed to secure the stable and safe placement of the children ... However let’s see, one, two, three, four different review hearings, we gave [A.E.R.] the opportunity to come in and show that she had done something and was trying to make some type of concerted effort to have reunification with her children. That was not shown. I don’t have any good cause for a continuance at this time.

Based on the facts surrounding A.E.R.’s motion for continuance, giving substantial weight to the time in which A.E.R. had to complete the service agreement’s requirements, we find that the lower court’s denial of her motion for continuance did not result in a manifest injustice. Therefore, this issue is without merit.

IV. Whether the requirements of the service agreement were economically unreasonable.

¶ 14. A.E.R. argues that the requirements of the service agreement were financially out of reach, and DHS should have known they would have been unattainable given her income. The facts of this case paint a different picture. Brown testified that both the parenting and anger management classes would not have cost A.E.R. anything to attend. All she had to do was show up and participate. She failed to accomplish this. Secondly, while the required drug tests were generally not free of charge, DHS offered to pay for a drug test the day of trial, which A.E.R. refused because she admittedly would have failed it. Lastly, testimony revealed that the psychological evaluation would have cost A.E.R. between $500 and $1,000, and, while this is a substantial sum, A.E.R. admitted that she had made no effort to comply with the requirement, testifying that she had not saved one dollar towards the cost. It is evident that the reason A.E.R. did not comply with the service agreement is not the cost of the requirements, but her lack of desire to do so, failing even to complete those requirements with no cost. We find that this issue is without merit. Accordingly, we affirm the lower court’s ruling.

¶ 15. THE JUDGMENT OF THE FORREST COUNTY YOUTH COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.


text:
    Richard BOOZE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00598-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.

      Paul McGerald Luckett, McComb, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. After a three-day trial, a jury sitting before the Pike County Circuit Court found Richard Booze guilty of the murder of Roderick Dillon, aggravated assault of Lauria Patterson, and aggravated assault of Bobby Gordon. The circuit court sentenced Booze to life imprisonment for murder and fifteen years for each count of aggravated assault. Additionally, the circuit court set the sentences to run consecutively. Aggrieved, Booze appeals and raises two issues, listed verbatim:

I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION OF MURDER.

II. WHETHER THE COURT HAD A DUTY TO PROVIDE THE JURORS WITH A LESSER-INCLUDED OFFENSE OF MANSLAUGHTER INSTRUCTION.

Finding no error, we affirm.

FACTS

112. The events that set Booze’s appeal into motion took place on June 4, 2004. On June 4th, Booze visited family and friends at James Patterson’s barber shop in Magnolia, Mississippi. Dining Booze’s visit, he felt insulted by comments from Roderick Dillon. Evidence indicated that Dillon insulted Booze’s family when he said, “f— the n. from New Orleans.” Evidence also indicated that Dillon made inappropriate remarks about Booze’s fifteen-year-old niece.

¶ 3. Booze retrieved a .40 caliber Smith and Wesson pistol from the trunk of his car. He then walked back to Patterson’s barber shop and opened fire. Booze fired the pistol at Dillon until he emptied his pistol’s ammunition magazine. Booze shot Dillon at least eight times. Dillon died as a result. In the process, Booze also shot two bystanders. Booze shot James Patterson’s wife, Lauria Patterson, in the stomach and he shot Bobby Gordon in his right hand and the lower portion of his right leg. Both Lauria Patterson and Bobby Gordon survived.

PROCEDURAL HISTORY

¶ 4. On August 13, 2004, a grand jury sitting before the Pike County Circuit Court returned a three count indictment against Booze. The first count accused Booze of murdering Dillon in violation of section 97-3-19 of the Mississippi Code Annotated. Counts two and three were for aggravated assault incident to Booze’s shooting Patterson and Gordon. Those two counts alleged violations of section 97-3 — 7(2)(b) of the Mississippi Code Annotated. Booze pled not guilty to all three charges. Accordingly, the matter proceeded to trial.

¶ 5. Booze’s trial commenced on February 15, 2005, and lasted until February 17, 2005. The State called sixteen witnesses over the course of the three-day trial. After the State concluded its case-in-chief, Booze rested without calling any witnesses. As mentioned, the jury found Booze guilty of all charges. Booze appeals.

ANALYSIS

I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION OF MURDER.

¶ 6. Booze requested a directed verdict after the State completed its casein-chief. The circuit court overruled Booze’s request. On appeal, Booze claims the circuit court erred because the State presented insufficient evidence that he acted with malice.

¶ 7. A motion for directed verdict challenges the legal sufficiency of the evidence. Jefferson v. State, 818 So.2d 1099 (¶ 30) (Miss.2002). Appellate review is limited to whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed, and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836 (¶ 16) (Miss.2005). After viewing the evidence in the light most favorable to the State, the evidence is sufficient if any rational trier of fact could have found the defendant committed each element of the crime beyond a reasonable doubt. Id.

¶ 8. “The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed.... ” Miss.Code Ann. § 97 — 3—19(l)(a) (Rev. 2006). Booze claims that the State presented insufficient evidence that he acted with malice. Though Booze attacks the sufficiency of the evidence of malice, section 97-3-19(l)(a) does not contain a reference to “malice.” Essentially, it is of no matter, as malice aforethought and deliberate design mean the same thing. Tran v. State, 681 So.2d 514, 517 (Miss.1996). Said another way, the definition of “malice aforethought” is synonymous with the definition of “deliberate design.” Id.

¶ 9. In any event, according to Booze the evidence showed that he acted in the heat of passion.

Heat of passion has been defined as a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. The passion felt by the person committing the act should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.

McClendon v. State, 748 So.2d 814 (¶ 13) (Miss.Ct.App.1999) (citations and internal quotations omitted). Booze admits that he shot Dillon. However, Booze claims Dillon provoked him when he insulted his family members through his comment, “f— the n. from New Orleans.” Booze points out Reese’s testimony that the only people from New Orleans in Patterson’s shop were Booze’s family members. Booze also claims that Dillon provoked him when he made improper, sexually crude remarks directed towards Reese’s daughter, Booze’s fifteen-year-old niece.

¶ 10. According to Booze, he “had reached the highest degree of exasperation.” Booze also asserts that he “was obviously exasperated with Dillon. Not only had Dillon insulted him, Dillon also insulted his niece, ... his brother-in-law, ... and his cousin, James Patterson.”

¶ 11. The State claims that there was sufficient evidence that Booze acted with deliberate design when he killed Dillon. The State points out testimony that “[a]f-ter Dillon disrespected Booze and others, Booze left the shop and went to his car for several minutes where he retrieved a .40 caliber Smith and Wesson pistol.” The State also notes that Booze “returned to the shop and shot Dillon no fewer than eight times. Booze didn’t stop firing until the slide kicked back on the pistol indicating it was out of bullets.”

¶ 12. According to the State, “[a] reasonable and fairminded juror could have found there was ample time, prior to the first shot being fired, for the formation of a deliberate and premeditated design or specific intent to kill Booze’s adversary.” We agree. We can safely say that a reasonable person would very well likely consider Dillon’s comments to be crude and insulting. However, it has long been the law in Mississippi that “[m]ere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.” Tyler v. State, 784 So.2d 972 (¶ 12) (Miss.Ct.App.2001). Coupled with evidence that Booze left the scene of the altercation, went to his car for several minutes, retrieved a pistol, returned to the scene of the altercation, and then shot Dillon at least eight times, there can be no doubt that the jury heard sufficient evidence to find deliberate design. Accordingly, we affirm.

II. WHETHER THE COURT HAD A DUTY TO PROVIDE THE JURORS WITH A LESSER-INCLUDED OFFENSE OF MANSLAUGHTER INSTRUCTION.

¶ 13. Booze acknowledges that he did not request a manslaughter instruction. Nevertheless, Booze claims that “[ejven though defense counsel did not request a jury instruction on the elements of manslaughter, the trial court should have provided a manslaughter instruction because the defendant raised this issue in his motion for a directed verdict when he stated that the State had failed to prove malice aforethought.”

¶ 14. It is entirely possible that Booze’s counsel made a tactical decision to refrain from requesting a manslaughter instruction. That is, by declining to offer a manslaughter instruction, Booze’s counsel could have been expecting the jury to find no evidence of deliberate design. In that event, the jury would have had no option save acquittal.

¶ 15. In any event, we will not find reversible error predicated on the failure of a circuit court to give an instruction that was not requested. Blocker v. State, 809 So.2d 640 (¶23) (Miss.2002). Put differently, a trial court does not have a duty to instruct the jury sua sponte, “nor is a court required to suggest instructions in addition to those which the parties tender.” Wansley v. State, 734 So.2d 193 (¶ 20) (Miss.Ct.App.1999). This assignment of error is meritless.

¶ 16. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE IMPRISONMENT; COUNT II AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS; AND COUNT III AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS, ALL COUNTS TO RUN CONSECUTIVELY TO ONE ANOTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: GRIFFIS, J,

text:
    NISSAN NORTH AMERICA and Royal Insurance Company of America, Appellants, v. Ricardo V. SHORT, Appellee.
    No. 2005-WC-01522-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.

      Simpson Gray Edmondson, Franklin Williams, attorneys for appellant.
    Byron Russell Mobley, William Albert Brown, Hernando, attorneys for appellee.
    Before LEE, P.J., CHANDLER, GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J,

for the Court.

¶ 1. Nissan of North America and Royal Insurance Company of America (collectively referred to as “Nissan”) appeal the award of workers compensation benefits to Ricardo Short. We find no error and affirm.

FACTS

¶ 2. Short was employed at Nissan. On May 25, 2.000, Short suffered a back injury while unloading a courier truck. The parties stipulate that Short’s injury was com-pensable.

¶ 3. After his injury, Short visited Dr. Walt Carnahan, a family practitioner, who provided prescription medication and restricted Short to light duty. After the pain worsened, Dr. Carnahan referred Short to Dr. Craig Clark, a neurosurgeon, for further treatment. Dr. Clark diagnosed Short with a herniated disc. On July 11, 2000, after unsuccessful treatment that consisted of prescription medications and rest, Dr. Clark performed surgery on Short. On October 25, 2000, Dr. Clark released Short for work with the restriction of light duty.

¶ 4. When he arrived at Nissan on October 25, 2000, Short was informed that he was on lay-off status subject to re-hire. His status was pursuant to Nissan’s leave of absence policy. The policy stated that if Short returned from medical leave within twelve weeks or less, he would be reinstated to his current or equivalent position. Short’s twelve week medical leave period ended on September 10, 2000. As a result, pursuant to the leave policy, Nissan permanently filled Short’s position.

¶ 5. Short then began to search for other employment. He sent out thirty resumes and visited around twenty different businesses. After a fairly thorough search, Short gained part-time employment at Oasis Imagining, Inc., for which he was paid $9.50 an hour. After working for Oasis part-time, he was hired on a full-time basis and paid $14.33 an hour, with a bonus of $1 per hour for a full forty hour week. Short’s work duties include inventory control, which seldom requires lifting and when lifting is required Short receives help.

¶ 6. As of January 31, 2001, Dr. Clark determined that Short had reached maximum medical improvement and assessed a ten percent impairment rating to the body as a whole. Dr. Clark assigned no permanent restrictions to Short.

¶ 7. Short continued to complain of stiffness, pain and cramping in his back and legs. However, Short did not return to Dr. Clark for further treatment or additional pain medication. Instead, Short went to see Dr. Shawn Helmhout, another family practitioner, for pain medication, muscle relaxers, and a cortisone injection.

¶ 8. Short worked for Nissan for twelve years, ten years in Chicago and two years in Olive Branch. Prior to that, he worked at Tell Labs in Illinois in their warehouse and also in the warehouse for Micro Mart in Atlanta. While in Chicago, Short attended Prairie State Community College for three semesters and has a certificate of completion in auto mechanics, although he never worked in that area. For most of his career, Short worked as a warehouse operator, which required him to lift boxes of varying weight.

¶ 9. Short filed a claim for workers’ compensation benefits. The administrative law judge awarded Short $50 per week for 450 weeks for permanent partial disability. Short appealed to the Workers’ Compensation Commission. The Commission awarded Short $256.82 per week for 450 weeks. Both parties then appealed to the Circuit Court of DeSoto County. The circuit court affirmed the Commission. Nissan appeals the circuit court’s decision, and the appeal has been deflected here for review.

STANDARD OF REVIEW

¶ 10. It is well settled that the Mississippi Worker’s Compensation Commission is the ultimate fact-finder in cases of this kind. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1123-24 (Miss.1992). The findings of fact by the Commission are binding on the appellate court as long as they are supported by substantial evidence. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994). This Court will reverse the Commission’s order “only if it finds that the order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Fought v. Stuart C. Irby, 523 So.2d 314, 317 (Miss.1988) (citing Myles v. Rockwell International, 445 So.2d 528, 536 (Miss.1983)). The supreme court has defined a decision as clearly erroneous when “although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” Good Earth Dev., Inc. v. Rogers, 800 So.2d 1164, 1166 (¶ 4) (Miss.Ct.App.2001) (quoting J.R. Logging v. Halford, 765 So.2d 580, 583 (¶¶ 12-13) (Miss.Ct.App.2000)). However, “where the Commission has misapprehended the controlling legal principles, we will reverse, for our review in that event is de novo.” Smith, 607 So.2d at 1125.

ANALYSIS

¶ 11. The question presented is whether the Commission should have awarded Short permanent partial disability benefits of $256.82 per week for 450 weeks. Nissan alleges several errors in how the Commission arrived at this particular amount. Nissan argues that we should reverse because: (1) the Commission’s order contains substantial errors of law; (2) the Commission erred with the computation of post-injury wage earning capacity, and (3) Short cannot demonstrate a loss of wage earning capacity.

I. Whether the full order contains substantial errors of law.

A. The Commission misstates the controlling statute.

¶ 12. Nissan argues that the Commission misstated the controlling statute, Mississippi Code Annotated Section 71-3-17 (Rev.2000). Nissan contends that since this is an injury to the body as a whole then Section 71-3-17(25) applies. Section 71-3-17(25) provides in part that: “compensation shall be sixty-six and two-thirds percent (66-2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise!.]” (emphasis added). The Commission’s order provided that compensation is “calculated by computing sixty-six and two-thirds of the difference between the claimant’s average weekly wage pre- and post-injury, subject to the maximum weekly benefits, which in the case of Mr. Short was $303.35 per week.” In this finding, the Commission incorrectly replaced post-injury wage-earning capacity, as stated in the statute, with actual post-injury wage.

¶ 13. Indeed, this was a misstatement of the statute. Nevertheless, we must examine how the Commission determined Short’s partial disability. It appears that the Commission did not make its determination based solely on Short’s actual post-injury wages. In the following sentence, the Commission discounted post-injury earnings as being “not necessarily determinative of wage earning capacity.” This tends to establish that the Commission’s misstatement of the governing statute was merely a scrivener’s error, since the Commission actually calculated a loss of earning capacity as required by the appropriate statute. If the calculation was based solely on actual wages, the Commission would have not have addressed Short’s medical impairment and pain.

¶ 14. While the Commission did misstate the controlling statute as alleged by Nissan, the Commission used the post-injury weekly wage to aid in the determination of Short’s loss of earning capacity. Therefore, by determining wage-earning capacity and not basing its calculation solely on post-injury wage, the Commission did not commit reversible error on this allegation of error. We find no merit to this issue.

B. Whether the Commission misapplied case law.

¶ 15. Nissan next argues that the Commission was wrong in its application of case law, in the determination of Short’s loss of earning capacity. The ultimate objective of the Commission in determining post-injury earning capacity is to “determine the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured.” Karr v. Armstrong Tire and Rubber Co., 216 Miss. 132, 139, 61 So.2d 789, 792 (1953). This Court recently restated a number of factors the Commission should use to aid it in determining earning capacity. Richards v. Harrah’s Entertainment, Inc., 881 So.2d 329, 332 (¶ 7) (Miss.Ct.App.2004). In Richards, the following factors are listed:

(1) an increase in general wage levels, (2) increased maturity or training, (3) longer hours worked, (4) sympathy wages, (5) temporary and unpredictable character of post-injury earnings, (6) employee’s inability to work, (7) employee’s failure to be hired elsewhere and- (8) the continuance of pain and other related circumstances.

Id. “The determination must be made by evaluating the evidence as a whole.” Id. (citing Guardian Fiberglass, Inc. v. Lesueur, 751 So.2d 1201, 1204-05 (¶ 10) (Miss.Ct.App.1999)). In Karr, the supreme court held that the determination of earning capacity should be made “on the strength not only of actual post-injury earnings but of any other available clues.” Karr, 216 Miss. at 138, 61 So.2d at 792. It is clear that while the most recent recitation of the factors suggested by Richards does not specifically mention it, actual post-injury wages are a factor to be considered.

¶ 16. The Commission’s order followed the factors mentioned in Richards by holding:

Considering the record as a whole, including the nature of the claimant’s impairment, the medical evidence, his pre and post-injury wages, along with other industrially related factors such as his age, education, work history, geographic location and the claimant’s continued complaints of painful symptoms which impact his ability to perform his job, it is the opinion of the undersigned that claimant has sustained a loss of wage-earning capacity which entitles him to receive permanent partial disability benefits at the rate of $256.82 per week.

From this statement, the Commission thoroughly examined the evidence presented by both parties to arrive at the figure of $256.82. It does not appear that the Commission overlooked all other factors and focused on merely post-injury wages as suggested by Nissan. Instead, the Commission examined the numerous factors established by the supreme court and considered the evidence as a whole to reach its determination.

¶ 17. The Commission also found that “[w]hile we admit that post-injury earnings are not necessarily determinative of wage earning capacity, they do create a presumption of wage earning capacity commensurate with the post-injury wage.” While such a presumption does exist in workers’ compensation cases, this presumption has normally been applied where the post-injury wage actually matched or exceeded the pre-injury wage. Karr, 216 Miss. at 139, 61 So.2d at 792; Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 313 (¶20) (Miss.1997). The presumption was that no loss of earning capacity existed. This presumption could be rebutted by the claimant through a number of factors to show that post-injury wages were not an accurate calculation of post-injury earning capacity. Karr, 216 Miss. at 138-39, 61 So.2d at 792. While Nissan points to several cases where the presumption applied when post-injury wages were higher than pre-injury wages, it fails to cite to any case that specifically does not allow the presumption to be used in a situation like the one here.

¶ 18. Nissan argues that the Commission improperly relied on the presumption from Karr and based its determination only on post-injury wages and not post-injury earning capacity as required by the statute. To determine if the presumption unduly influenced the Commission’s decision, this Court looks at the purpose of the presumption.

¶ 19. In Walker v. Delta, 878 So.2d 113, 117 (¶ 9) (Miss.Ct.App.2003), this Court defined a presumption as a “short-cut in proof. If certain predicate facts are shown to exist, then the ultimate fact will be presumed, subject to rebuttal from the other party.” Id. This Court also held that “[i]f the presumption does not arise until evidence on the entire range of issues is presented, then no presumption is in operation.” Id. at (¶ 12).

¶ 20. The Commission is to look at the evidence as a whole to determine what the theoretical earning capacity was following a compensable injury, no matter what amount, if any, the injured employee may receive. Richards, 881 So.2d at 332 (¶ 7); Karr, 216 Miss. at 139, 61 So.2d at 792. Here the Commission, in its order, stated that it viewed the evidence as a whole, not just post-injury wages. Both parties presented all of the evidence to the administrative law judge before the matter reached the Commission. This suggests that they did not use an evidentiary shortcut, since “the entire range of issues had been presented” before the case reached the Commission. Walker, 878 So.2d at 117 (¶ 9). From its opinion, the Commission seems to use post-injury wages as a starting point to determine Short’s wage earning capacity. There are several starting points that the Commission could use in determination of wage earning capacity, which include post-injury wages, medical impairment rating, or total disability. This does not mean that the end result will be the same as the starting point, but based on the evidence it could fluctuate much higher or lower.

¶ 21. We now look to determine if the post-injury earning capacity found by the Commission was supported by the evidence as a whole. The supreme court held that wage-earning capacity is “the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured.” Karr, 216 Miss. at 139, 61 So.2d at 792.

¶ 22. Short’s post-injury wage was a viable starting point according to the evidence. After being placed on layoff status by Nissan, Short diligently sought other employment. Short and his wife sent out a total of thirty resumes to various employers, and he hand-delivered twenty resumes to other possible employers. After this fairly exhaustive search, Short obtained employment at Oasis Imaging, Inc., for a weekly wage of $613.20 (when working a forty hour week, Short would receive $15.33 per hour). In this position, Short performed inventory control which required little to no lifting. When lifting was required, he was given help. On “bad days,” Short’s supervisor would allow him to “take it easy.” From these facts, the amount of wages Short received from Oasis Imaging, Inc., was a viable starting point for the determination of post-injury earning capacity.

¶ 23. The Commission’s order stated that it took into account age, education, work history, geographic location and the claimant’s continued complaints of painful symptoms which impact his ability to perform his job in determining loss of wage-earning capacity. Short was forty-two years old at the time of the hearing and he lived in Olive Branch. He had received three semesters of schooling at Prairie State Community College and a certificate of completion in auto mechanics, though he worked primarily in warehouses for most of his career. Dr. Clark did not assign any work restrictions, but did assign a ten percent impairment rating to the body as a whole. From this evidence, the Commission found a loss of earning capacity.

¶ 24. This Court finds that the Commission viewed the evidence as a whole and made an accurate finding of post-injury earning capacity. The Commission accurately determined what wage “would of been paid in the open labor market under normal employment conditions to claimant as injured.” Karr, 216 Miss. at 139, 61 So.2d at 792. This Court finds that the calculation of a loss of earning capacity of $303.35 was supported by substantial evidence. This issue has no merit.

II. Whether Short can demonstrate loss of wage earning capacity

A. Failed to return to employer

¶ 25. Nissan alleges that Short failed to return to work. Therefore, Short is not entitled to a finding of a loss of wage earning capacity. Nissan cites Lane Furniture Indus., Inc. v. Essary, 919 So.2d 153 (Miss.Ct.App.2005). Lane held that the claimant failed to establish total permanent disability because she did not show four things:

(1) that she was medically unable to return to Lane, so as not to require that she seek re-employment there, (2) that any restrictions placed upon her employment were not subject to reasonable accommodation at Lane, (3) that Lane failed or refused to re-employ her, and (4) that considering any restrictions, she made reasonable efforts to seek similar or other employment.

Id. at 159 (¶ 23). This places the burden of returning to the employer upon the employee for a finding of total disability, instead of requiring the employer to seek out the employee.

¶ 26. The present case differs from Lane. First, Short did not seek total permanent disability, only partial permanent disability. Second, Short returned to Nissan on October 25, 2000. Upon returning to work with light duty restrictions, Short was informed by Nissan that subject to its leave-of-absence policy he was placed on lay-off status subject to rehire. Lastly, Short found other employment, albeit at a lower wage, after he was placed on layoff status by Nissan. Therefore, Short has shown the requisite effort to seek employment from Nissan and other sources to preclude a finding of no partial permanent disability. This issue has no merit.

B. Whether the Commission’s finding of permanent partial disability is supported by substantial evidence

¶27. Nissan’s final argument is that there is insufficient evidence to support the award. Nissan correctly cites the proposition that “[ijncapacity to earn wages and the extent thereof must be supported by medical findings.” Greenwood Utilities v. Williams, 801 So.2d 783, 791 (Miss.Ct.App.2001). Suggesting that the medical evidence doesn’t support the finding of the Commission, Nissan cites Kemper Nat. Ins. v. Coleman, 812 So.2d 1119 (Miss.Ct.App.2002).

¶ 28. In Kemper, this Court affirmed an order of the Commission that denied permanent partial disability for a mental injury. Id. at 1128 (¶ 29). The physician did not assign any impairment to the employee beyond that of skittishness about future bosses, and the administrative law judge called such an impairment as “within the realm of normal, healthy skepticism about life in any workplace.” Id. at 1127 (¶ 26).

¶ 29. The case before this Court is quite different. Dr. Clark, assigned a permanent ten percent impairment rating to the body as a whole, but did not impose permanent work restrictions on Short. Short’s situation is much more akin to the facts in Hall of Mississippi, Inc. v. Green, 467 So.2d 935 (Miss.1985). In Hall, Green suffered a back injury that required surgery. Id. at 936. The doctors assigned Green a fifteen percent impairment rating, but testified that Green should have been able to perform the same duties he did before the surgery. Id. at 937. The testimony of the doctors in Hall is very similar to the deposition of Dr. Clark in that the patient received an impairment rating, yet no work restrictions. Both Green and Short testified they suffered continued pain from the injury.

¶ 30. In Hall, the employer challenged the finding of disability from the back injury. The supreme court held that “disability need not be proved by medical testimony as long as there is medical testimony which will support a finding of disability.” Id. at 938. It held the assignment of the impairment rating was medical testimony to support the finding. Id. In both Green and Short’s cases, the Commission found that pain affected the ability of the employees’ earning capacity, making it more difficult to find future employment. Hence, there was substantial evidence to justify a finding of partial permanent disability.

¶ 31. Nissan also argues that there was insufficient evidence to support the Commissions’s finding of “complaints of painful symptoms which impact his ability to perform his job.” We disagree. Indeed, there was substantial evidence that Short continued to experience pain. Short testified of cramping in his leg and foot, as well as, good and bad days at work. Short’s wife testified that the pain continued at home and caused Short to wake up during the night due to cramping. Dr. Clark testified at his deposition that, while Short enjoyed “good pain relief,” he still encountered slight and occasional pain. The record provides more than enough evidence from which the Commission could base its finding.

¶ 32. Accordingly, this Court finds that there was substantial medical evidence to support the Commission’s finding of a partial permanent disability. Therefore, this issue is without merit.

CONCLUSION

¶ 33. We find that the award of permanent partial disability payments of $256.82 for 450 weeks is supported by the evidence. Finding no reversible error, this Court affirms the decision of the Circuit Court upholding the award of the Mississippi Workers’ Compensation Commission.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: BARNES, J.,

text:
    Clyde Douglas HOLT and Mable Holt, Appellants v. Jeffery T. SUMMERS, M.D., Appellee.
    No. 2005-CA-01181-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.

      Richard Manning Lingle, Jackson, Ronald Henry Pierce, attorneys for appellants.
    John Lewis Hinkle, Al Nuzzo, Ridge-land, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Clyde and Mable Holt appeal the judgment of the Circuit Court of the First Judicial District of Hinds County granting partial summary judgment to Jeffery T. Summers, M.D. and from the circuit court’s order dismissing the remaining cause of action for failure to prosecute.

¶ 2. The Holts assert on appeal that the circuit court erred by granting Dr. Summers’s motion for partial summary judgment because: (1) expert testimony was not required in this case pursuant to the “layman’s” exception; and, (2) the circuit court should have allowed the Holts’ negligence claim to proceed to trial based on the doctrine of res ipsa loquitur. The Holts make no argument on appeal nor do they cite any authority challenging the circuit court’s characterization of the Holts’ case as “stale” and dismissing the remaining claim for failure to prosecute; therefore, we will not address this issue nor will we disturb the circuit court’s “Order of Dismissal with Prejudice.” Finding no error in the circuit court’s grant of partial summary judgment to Dr. Summers, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On or about May 18, 1994, Dr. Jefferey T. Summers admitted Clyde Douglas Holt to Surgicare of Jackson at which time Dr. Summers performed an intercostal nerve block upon Mr. Holt. During the course of this procedure, one of Mr. Holt’s lungs was punctured. As a result, Mr. Holt required emergency treatment and was subsequently admitted to St. Dominic-Jackson Memorial Hospital.

¶ 4. The Holts filed a complaint on March 8, 1996, claiming that Dr. Summers failed to adequately inform Mr. Holt of the potential risks involved in the intercostal nerve block. Specifically, the complaint alleged, inter alia, that Dr. Summers negligently failed to “advise Mr. Holt of the reasonable risks of the procedure such as lung puncture” and that Mr. Holt would not have consented to the procedure had he been adequately informed. Consequently, the Holts claimed that Dr. Summers committed battery by performing the procedure without informed consent. Additionally, the Holts’ complaint alleged that Dr. Summers was liable for Mr. Holt’s injuries on the basis of negligence per se.

¶ 5. While the Holts’ complaint did not explicitly allege that Dr. Summers negligently performed the intercostal nerve block procedure, language contained in the complaint coupled with references to negligence made in the Holts’ responses to Dr. Summers’s interrogatories made it clear that the Holts intended to pursue claims based on negligence. In particular, the Holts’ interrogatory responses alleged that Dr. Summers negligently performed the intercostal nerve block in as much as Mr. Holt’s preexisting medical condition “dictated that the procedure should not have been performed.” The Holts cited Dr. Summers’s alleged failure to consider Mr. Holt’s preexisting medical condition as well as Dr. Summers’s alleged failure to “x-ray, examine or otherwise determine if [Mr Holt] was physically capable of having the procedure in question.” These assertions made by the Holts were in response to interrogatories designed to elicit (1) whether the Holts intended to pursue a negligence claim against Dr. Summers, and, if so, (2) the basis for same.

¶ 6. The circuit court entered an “Agreed Order Modifying Scheduling Order” on July 30, 1998, which required the Holts to designate their expert witnesses by August 15, 1998. The Holts failed to designate any experts by the scheduling order deadline, and the record does not reflect any effort on the part of the Holts to do so. Citing the Holts’ failure to designate expert witnesses, Dr. Summers moved for partial summary judgment on December 9, 1998, asserting that without expert testimony, there was no genuine issue of material fact as to all allegations of medical negligence. The Holts timely responded to Dr. Summers’s partial summary judgment motion, arguing that expert testimony was not required under the facts of this case. More precisely, the Holts insisted that the injuries suffered by Mr. Holt were “such that a reasonable lay person [could] find that the Defendant’s actions were negligent based upon common lay knowledge.”

¶ 7. The circuit court acknowledged that there was a “layman’s” exception to the general requirement that expert testimony is required to prove medical negligence; however, the court found the exception inapplicable to the circumstances at bar. Accordingly, the court held that, absent expert testimony in this case, there was no proof of the requisite standard of care applicable to Dr. Summers’s conduct during the intercostal nerve block procedure, no proof that Dr. Summers failed to conform to the requisite standard of care, and no proof that Mr. Holt’s injuries were caused by Dr. Summers’s failure to conform to the requisite standard of care. The court granted Dr. Summers’s partial summary judgment motion on April 14, 1999, leaving only the Holts’ claim based on lack of informed consent. The remainder of the Holts’ claim was dismissed with prejudice on April 21, 2005, for failure to prosecute. Aggrieved, the Holts appeal the circuit court’s grant of partial summary judgment asserting that the trial court improperly refused to allow the issue of Dr. Summers’s negligence to go to a jury. Finding no merit in the Holts’ assignment of error, we affirm.

STANDARD OF REVIEW

¶ 8. This Court employs a de novo standard when reviewing summary judgments. Stallworth v. Sanford, 921 So.2d 340, 341 (¶ 5) (Miss.2006) (citing Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004)). Summary judgment will be granted only where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 9. In a medical negligence action, “the plaintiff bears the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and injury.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) (citing Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1355 (Miss.1990)). To rebut the defendant’s claim in the context of a motion for summary judgment, the plaintiff must produce significant and probative evidence demonstrating that the defendant breached the applicable standard of care and that the breach was the proximate cause of his injuries. Id. Unless the alleged negligent conduct is so obvious that a layman could easily determine fault, “expert testimony is generally required to survive summary judgment and establish the negligence of a physician.” Sheffield v. Goodwin, 740 So.2d 854, 856 (¶ 6) (Miss.1999) (citing Coleman v. Rice, 706 So.2d 696, 698-99 (Miss.1997); Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996); Palmer, 656 So.2d at 795).

DISCUSSION

¶ 10. The record before this Court does not reflect any effort by the Holts to designate an expert to testify as to the negligence of Dr. Summers. By way of justification, the Holts assert that an expert is not required in this case to allow the issue of medical negligence to be presented to a jury. Instead, the Holts contend that the facts of this case are such that the “layman’s” exception to the general rule requiring expert testimony to establish medical negligence is applicable. Furthermore, the Holts take the position that the doctrine of res ipsa loquitur raises a rebutta-ble presumption of Dr. Summers’s negligence. We disagree.

I. WHETHER THE LAYMAN’S EXCEPTION IS APPLICABLE TO THE CASE SUB JUDICE

¶ 11. As discussed above, the general rule is that expert testimony is required to establish the negligence of a physician. Sheffield, 740 So.2d at 856. Only in instances where the issues “are purely factual in nature or thought to be in the common knowledge of laymen” will we apply the “layman’s” exception. Palmer, 656 So.2d at 795. We do not agree with the Holts’ argument that the issue before this Court — -whether Mr. Holt’s injuries were a result of Dr. Summers’s negligence — is “purely factual in nature” or within “the common knowledge of laymen.” Id.

¶ 12. In their response to Dr. Summers’s first set of interrogatories, the Holts asserted that Dr. Summers was negligent inasmuch as Mr. Holt’s “preexisting medical condition dictated that the procedure should not have been performed” and that Dr. Summers failed to consider Mr. Holt’s condition and history before performing the intercostal nerve block. Further response by the Holts cited the serious and advanced nature of Mr. Holt’s emphysema and Dr. Summers’s failure to “x-ray, examine or otherwise determine if [Mr. Holt] was physically capable of having the procedure in question.” What we find lacking in the record, however, is any indication of: (1) how a lay person is to make the causal connection between Mr. Holt’s preexisting medical condition and his injuries; (2) whether a reasonable physician in Dr. Summers’s position would have performed the procedure in light of Mr. Holt’s preexisting medical condition; (3) whether a reasonable physician would have taken x-rays or taken other steps to determine Mr. Holt’s physical suitability for the procedure and (4) what role any of the preceding played in contributing to Mr. Holt’s injuries. Without an expert to explain how Dr. Summers breached the applicable standard of care in treating Mr. Holt and the causal connection between that breach and Mr. Holt’s injuries, we do not agree that these issues can be decided by a jury of laymen. Stated affirmatively, we conclude that the risks involved in an intercostal nerve block procedure, the impact that emphysema or other medical history may have on these procedures, and the proper precautions that a physician should take with respect to those risks and patient history, are not pure questions of fact within the common knowledge of laymen. Accordingly, the layman’s exception is not applicable to this case.

II. WHETHER THE DOCTRINE OF RES IPSA LOQUITUR OPERATES TO RAISE A REBUTTABLE PRESUMPTION OF NEGLIGENCE IN THIS CASE

¶ 13. Based on their characterization of the lung puncture and intercostal nerve block as “unrelated” and “remote,” the Holts assert that sufficient evidence exists to demonstrate Dr. Summers’s negligence through the doctrine of res ipsa loquitur. We disagree.

¶ 14. First, the Holts’ brief repeatedly characterizes the injuries suffered by Mr. Holt as occurring “during an unrelated medical procedure on another part of Mr. Holt’s body.” We are not convinced by this characterization as there is nothing in the record to establish that an intercostal nerve block is unrelated and remote from the area of the body in which the human lung is situated nor do we find that such knowledge is within the realm of conventional wisdom. Furthermore, the Holts’ original claim based on informed consent necessarily presupposes the exact opposite characterization: that the risk of lung puncture was a known and reasonable risk associated with an intercostal nerve block. If the risk of a punctured lung is a known and reasonable risk associated with an in-tercostal nerve block procedure, as the Holts asserted in their complaint, we fail to see how the intercostal nerve block was “an unrelated medical procedure on another part of Mr. Holt’s body” as insisted by the Holts on appeal.

¶ 15. Second, the doctrine of res ipsa loquitur should be cautiously applied. Powell v. Methodist Health Care-Jackson Hosps., 876 So.2d 347, 349 (¶ 7) (Miss.2004) (citing Winters v. Wright, 869 So.2d 357, 363 (Miss.2003)). “A jury may not presume negligence because of the untoward results of surgery.” Latham v. Hayes, 495 So.2d 453, 459 (Miss.1986) (citing Ross v. Hodges, 234 So.2d 905, 909 (Miss.1970)). The elements of res ipsa loquitur require that:

1) the instrumentality causing the damage must be under the exclusive control of the defendant,
2) the occurrence must be such as in the ordinary course of things would not happen if those in control of the instrumentality used proper care, and
3)the occurrence must not be due to any voluntary act on the part of the plaintiff.

Coleman v. Rice, 706 So.2d 696, 698 (¶ 10) (Miss.1997) (citing Read v. Southern Pine Electric Power Ass’n, 515 So.2d 916, 920 (Miss.1987)). The Mississippi Supreme Court has outlined the proper role of res ipsa loquitur in the context of medical negligence:

The real question, generally, is whether or not in the process of the operation any extraordinary incident or unusual event, outside of the routine of the action of its performance, occurred, and beyond the regular scope of its customary professional activity in such operations, which, if unexplained, would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.

Powell, 876 So.2d at 349 (¶ 7) (emphasis added) (citing Winters v. Wright, 869 So.2d 357, 363 (¶ 12) (Miss.2003)). Applying the preceding standard to the case at bar, we must determine whether the lung puncture suffered by Mr. Holt during the intercostal nerve block procedure was an “extraordinary incident or unusual event, outside of the routine of the action of its performance ... which, if unexplained, would ... reasonably speak to the average man as the negligent cause or causes” of Mr. Holt’s injuries. Id.

¶ 16. The Holts rely upon Coleman v. Rice in support of their claim that res ipsa loquitur is applicable to the instant case. In Coleman, a laparotomy sponge was left inside a patient during a hysterectomy, causing the patient to experience complications after the surgery. Coleman, 706 So.2d at 697 (¶ 1). The court in Coleman explained that “[a] layman can understand, without expert testimony, that the unauthorized or unexplained leaving of an object inside a patient during surgery is negligence.” Id. at 698 (¶ 11); see also Long v. Sledge, 209 So.2d 814 (Miss.1968) (holding that where a foreign object was left inside a patient, the burden shifted to the defendant to exculpate himself from the presumption of negligence); Saucier v. Ross, 112 Miss. 306, 73 So. 49 (1916) (holding that directed verdict for the physician was inappropriate where physician left a drainage tube and packing gauze inside a patient). Consequently, the Coleman court held that the plaintiff “was not required to support her claim, based on res ipsa loquitur, with expert testimony.” Id. at 698-99 (¶ 11).

¶ 17. In contrast to the situation presented in Coleman, our supreme court reasoned in Latham v. Hayes that the injury at issue was not an “extraordinary incident or unusual event” in support of the conclusion that res ipsa loquitur was inapplicable to the facts of that case. Latham v. Hayes, 495 So.2d 453, 459 (Miss.1986). Important to the court’s finding that the injury was not an “extraordinary incident or unusual event” was the fact that the injured nerve “ran through the surgical field.” Id. (citing Palmer v. Clarksdale Hosp., 206 Miss. 680, 697, 40 So.2d 582, 585 (Miss.1949)) (stating that where an injury occurs to a healthy part of the body which is not within the area covered by the operation, an inference of negligence arises and requires the defendant to explain the unusual result). In the case sub judice, there is no evidence in the record suggesting that Mr. Holt’s injuries were not within “the surgical field” or which otherwise demonstrates the extraordinary or unusual nature of Mr. Holt’s injuries. Furthermore, as previously discussed, even the Holts’ claim based on informed consent, which characterizes the risk of lung puncture as “known” and “reasonable,” precludes the application of res ipsa loquitur. See id. (stating that the appellant’s attempt to prove that mention of the possibility of nerve injury was required in order to give informed consent demonstrated that the injury to the seventh cranial nerve was not an “extraordinary incident or unusual event”).

¶ 18. We find that the facts presented in the instant case are more closely analogous to the facts of Latham than to the facts of Coleman. Unlike the situation in Coleman where it was quite obvious that leaving a sponge inside a patient’s body was unusual and extraordinary, there is no evidence before this Court which engenders a similar conclusion as to Mr. Holt’s injuries. Without a medical expert to explain why the injury suffered by Mr. Holt was unrelated to the intercostal nerve block and an expert’s explanation as to where the medical procedure was to be performed in relation to the location of the lung puncture, we cannot blindly accept the Holts’ contention that Mr. Holt’s injuries occurred “during an unrelated medical procedure on another part of Mr. Holt’s body.” It follows that the second element of res ipsa loquitur, requiring the injury to “be such as in the ordinary course of things would not happen if those in control of the instrumentality used proper care,” has not been satisfied in the case at bar.

¶ 19. For the foregoing reasons, we find the “layman’s” exception and the doctrine of res ipsa loquitur to be inapplicable to the case sub judice. Accordingly, without an expert to establish the applicable standard of care, breach, and causation elements of medical negligence in this case, the Holts produced insufficient evidence to withstand Dr. Summers’s motion for partial summary judgment. We therefore affirm the judgment of the circuit court.

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

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

      . In their notice of appeal, the Holts claimed that they were appealing both the partial summary judgment and the dismissal with prejudice for failure to prosecute. In their brief, however, the Holts failed to include any argument or authority relating to the dismissal with prejudice for failure to prosecute; therefore, we are not obligated to consider this assignment. See Smith v. Dorsey, 599 So.2d 529, 532 (Miss. 1992) (stating that since the appellant did not cite any authority or devote any discussion to the alleged errors, the court could not assess the issues on the merits and was not obligated to consider the assignments).

      . Clyde Douglas Holt sought damages for extreme pain and suffering, mental anguish and anxiety, discomfort, and past and future medical expenses; his wife, Mable Holt, sought damages for loss of consortium and mental anguish and anxiety she suffered as a result of her husband’s injuries.

      . We note that the Holts never asserted in their pleadings or interrogatory responses that the lung puncture, in and of itself, was negligent or that res ipsa loquitur was adequate to demonstrate such negligence. The record reflects that the Holts made these assertions for the first time in "Plaintiffs’ Memorandum of Authorities in Support of Denial of Defendant’s Motion for Partial Summary Judgment.” Nevertheless, we will address these arguments as they were before the circuit court when the partial summary judgment was granted, and Dr. Summers’s brief does not challenge the procedural viability of these arguments. In any event, as will be shown, we find no merit to these arguments, and thus our decision is not affected.

      . In his brief, Dr. Summers gives technical detail explaining that the intercostal nerve is located in the deep tissue between the ribs and immediately over the lungs. An intercos-tal nerve block involves an injection into the intercostal nerve and necessarily involves a risk of lung puncture, or pneumothorax. Dr. Summers provides these facts to demonstrate that Mr. Holt's injuries were not extraordinary or unusual, citing Latham for legal support. While the Holts have not questioned the accuracy of the information provided in appellee’s brief regarding the relationship between the intercostal nerve block and the lungs, there is no evidentiary basis in the record to support the information contained in Dr. Summers's brief nor does the record reflect that this information was before the circuit court on motion for partial summary judgment. Consequently, we cannot rely on this information as the basis for our opinion. We rely instead on the failure of the Holts, who had the burden of proof, to offer evidence to the contrary.