author: LEE, C.J., for the Court:

text:
    Mary Carolyn WEBB, Appellant v. IMPERIAL PALACE OF MISSISSIPPI, LLC, Appellee.
    No. 2010-CA-00769-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2011.
    S. Christopher Farris, attorney for appellant.
    Ronald Giles Peresich Jr., Lauren Reed-er McCrory, Biloxi, attorneys for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   LEE, C.J., for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On August 6, 2006, Mary Carolyn Webb was standing facing a slot machine at Imperial Palace Casino in Biloxi, Mississippi, when James Taranto, an on-duty casino security officer, fell into her. Tar-anto and Webb fell to the floor. Webb and Taranto denied medical treatment, and Taranto finished his shift without incident.

¶ 2. Webb filed a complaint against Imperial Palace in the Harrison County Circuit Court seeking damages for injuries she sustained in the fall. Imperial Palace filed an answer and participated in discovery and depositions. Imperial Palace then moved for summary judgment, which the trial court granted. Webb now appeals, arguing that summary judgment was inappropriately granted.

STANDARD OF REVIEW

¶ 3. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if 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). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶4. Webb argues that summary judgment should not have been granted because it is disputed whether Taranto fainted or simply tripped and fell into her.

¶ 5. A plaintiff must submit proof of the four elements of tort, including duty, breach of the duty, causation, and damages, in order to support a negligence claim. Watson Quality Ford, Inc. v. Casanova, 999 So.2d 830, 835 (¶ 14) (Miss.2008). The Mississippi Supreme Court has held that “because negligence presupposes a voluntary act, the actor cannot be negligent for what he does or fails to do while he is unconscious.” Warren v. Pinnix, 241 So.2d 662, 663 (Miss.1970). “However, the actor will be negligent if he fails to heed a warning in the way that a reasonable man would.” Id.

¶ 6. Webb argues that Taranto negligently fell into her, causing her to sustain severe injuries. Webb asserts that a question of fact is presented because Taranto gave conflicting statements about the incident. Taranto’s initial statement on the day of the incident in 2006 was that he “suddenly felt hot,” and the next thing he knew, he “was getting up off of the floor.” In April 2009, Taranto testified in his deposition as follows: “I was just walking around my duties [sic], and I was standing there in a certain area, and then all of a sudden I just fell....” In an affidavit dated June 25, 2009, Taranto stated: “I fainted, became unconscious, and fell to the floor. When I awoke, I was informed that I had fallen into a patron as I was falling to the floor.” Bill Woodard was with Webb at the casino when Taranto fell into her. Woodard was playing a slot machine at the time. Woodard testified that he did not see the fall, but he felt Taranto hit his leg as Taranto fell. Woodard testified that he did not know if Taranto had fainted or simply fell, but when he went to help Taranto stand, Taranto was conscious.

¶ 7. Imperial Palace asserted as an affirmative defense that Taranto had lost consciousness; thus, he did not act negligently. Imperial Palace relied on Taranto’s testimony, Taranto’s lack of history of fainting, and a doctor’s statement that Taranto had no medical condition that would have caused him to faint. Dr. Mag-dy G. Mikhail submitted an affidavit in which he stated that Taranto had been his patient since April 2005. Regarding a history of fainting, Dr. Mikhail stated:

Mr. Taranto has never complained about fainting or passing out. To my knowledge, Mr. James A. Taranto does not have a medical condition that would cause him to faint or pass out. He sought no medical treatment from me on August 6, 2006. Mr. Taranto does have a condition called neurofibromatosis. There is nothing about this condition that would cause him problems in performing his job duties.

Taranto recalled fainting once before the incident with Webb. In the late 1980s, he had a coughing attack and passed out. He saw a doctor who told him he had a coughing syncope, or a loss of consciousness from shortness of breath while coughing.

¶8. In reviewing the evidence, we can find no genuine issue of material fact that precludes summary judgment. In order to prevail on her claim, Webb must show that Taranto was conscious when he fell into her. Webb has admitted that she does not know why Taranto fell. Webb argues that Woodard’s testimony creates a question of fact as to whether Taranto fainted. However, Woodard testified that he did not witness the fall, and he did not know why Taranto fell. The extent of Woodard’s testimony was that when he attempted to help Taranto off the floor, Taranto was conscious. This is consistent with Taran-to’s testimony that he regained consciousness after the fall. Webb next argues that Taranto’s testimony is contradictory. However, Taranto consistently maintained that he lost consciousness and did not remember the incident.

¶ 9. Webb asks this Court to consider the cases of Dickinson v. Koenig, 242 Miss. 17, 183 So.2d 721 (1961), Keener v. Trippe, 222 So.2d 685 (Miss.1969), and Hinton v. McKee, 829 So.2d 519 (Miss. 1976). All three cases involved car accidents and presented a question of fact as to whether the drivers had lost consciousness. We find these cases distinguishable from Webb’s case. In Dickinson, the driver’s testimony was undisputed that he lost consciousness and veered off the road. Dickinson, 242 Miss. at 26, 133 So.2d at 724. However, the Mississippi Supreme Court found that a fact question was presented as to whether the driver’s version of events was consistent with the resulting accident. Id. at 23-24, 133 So.2d at 723. In Hinton, the driver of the car died at the scene of the accident and, thus, could not testify as to whether or not he lost consciousness. Hinton, 329 So.2d at 520. The supreme court found the affirmative defense of loss of consciousness was “weak” because it was based on circumstantial evidence. Id. at 521. In Keener, the driver testified that he had suffered headaches for two months and had taken prescription medication for headaches within twelve or thirteen hours of the accident. Keener, 222 So.2d at 686. The supreme court found “an issue of fact was presented for the jury, both as to whether the defendant actually fainted, and as to whether he was, or should have been, forewarned of the probabilities thereof....” Id. at 687.

¶ 10. In the case at hand, Taranto was able to testify as to what he remembered of the incident. He testified that he did not have a history of fainting. This testimony was corroborated by the affidavit of Dr. Mikhail. We find that no genuine issue of material fact has been presented regarding Taranto’s negligence. Therefore, we find that summary judgment was properly granted. This issue is without merit.

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

GRIFFIS, P.J., MYERS, BARNES, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J„ NOT PARTICIPATING.


source: Caselaw Access Project

author: RUSSELL, J., for the Court. CARLTON, J.,

license: Public Domain

text:
    Gerald MANGUM, Appellant v. MISSISSIPPI PAROLE BOARD, Shannon Warnock, Bobbie Thomas, Clarence Brown and Betty Lou Jones, Appellees.
    No. 2010-CP-00822-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.

      Gerald Mangum, appellant, pro se.
    R. Stewart Smith Jr., attorney for appel-lees.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J., for the Court.

¶ 1. Gerald Mangum appeals the decision of the Hinds County Circuit Court denying his Petition for Writ of Habeas Corpus or for Order to Show Cause and Motion for Evidentiary Hearing as a petition for post conviction relief (PCR). Mangum alleged that he was discriminated against by the Mississippi Parole Board (“Board”) because of his race. Mangum asserts on appeal that the circuit court abused its discretion by denying his petition without an evidentiary hearing. Upon review, we find that the circuit court erred in treating Mangum’s Petition and Order to Show Cause as a PCR petition. Therefore, we reverse and remand.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Mangum was convicted of murder in 1981 and sentenced to life imprisonment with the possibility of parole in the custody of the Mississippi Department of Corrections. According to Mangum, he has been denied parole nine times.

¶ 3. Mangum filed a Petition for Writ of Habeas Corpus or for Order to Show Cause against the Board. In his petition, Mangum asked the circuit court to enter an order directing the Board “to show cause as to reasons why [Mangum] has been continuously and discriminatory [sic] denied [p]arole[.]” Subsequently, Man-gum filed a supplement to his petition arguing that “although [he] may not have a constitutionally recognized liberty interest in parole ..., [he] does have a constitutionally recognized right not to be denied parole based on his race.” To support his claim, Mangum alleged additional facts, which we rephrase for clarity:

White prisoners, with similar or worse records than Mangum, have been granted parole by the Board.
Mangum is being discriminated by the Board on the basis of his race.
The Board granted parole to a white male, Douglas Hodgkin, although Hodgkin was convicted of a more heinous crime (rape and murder of a University of Mississippi graduate student) and although there was a large community opposition to Hodgkin’s release on parole.
Hodgkin was paroled after serving only twenty-two years, where Mangum has served almost twenty-nine years. Mangum has a prison[-]conduct record which exhibits the role of a model prisoner, having had no disciplinary action in over seventeen years.
Mangum did not have the extensive community opposition to parole that Hodgkin had.
Having no disciplinary action in over seventeen years, Mangum has demonstrated his willingness and ability to be a law-abiding citizen.
Unlike Hodgkin, Mangum had numerous favorable recommendations for parole from high-ranking prison personnel.

No summons was ever issued, and neither petition filed by Mangum contained a certificate of service to show that the State of Mississippi or the individual Board members were ever served with process.

¶4. On July 1, 2009, Mangum filed a motion for evidentiary hearing also without a certificate of service. The very next day, on July 2, 2009, the circuit court denied Mangum’s request for relief. The order reads, in pertinent part, as follows:

THIS COURT, having considered Petitioner, Gerald Mangum’s [p]ro [s]e, Petition for Writ of Habeas Corpus, is of the opinion that the motion should be and hereby is denied. The instant motion is in the nature of a motion for post-conviction relief and shall be treated as such. The Court finds that it plainly appears from the face of the motion, exhibits and prior proceedings in the case, that Petitioner’s [m]otion is without merit and that Petitioner is not entitled to any relief on his claim(s). Miss.Code Ann. § 99-39-11(2) (2000).
IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that Petitioner, Gerald Mangum’s, Motion for Post-Conviction Collateral Relief should be and hereby is DENIED.

¶ 5. Mangum appeals the circuit court’s order denying his petitions. We consider three issues on appeal: (1) whether the circuit court erred in treating Mangum’s petition as one for post-conviction relief; (2) whether the circuit court had jurisdiction over Mangum’s racial-discrimination claim; and (3) whether Mangum stated a claim upon which relief may be granted.

DISCUSSION

¶ 6. Whether the circuit court has jurisdiction is a question of law and is reviewed de novo. Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 9) (Miss.2001)). Likewise, “this Court reviews the trial court’s dismissal of a lawsuit based on a question of law under a de novo standard of review.” Rochell v. State, 36 So.3d 479, 481 (¶ 7) (Miss.Ct.App. 2010) (citing Horton v. Epps, 20 So.3d 24, 27 (¶ 5) (Miss.Ct.App.2009)).

I. Whether the Circuit Court Erred in Treating Mangum’s Petition As One for Post-Conviction Relief

¶ 7. Although not raised by either party, we must address whether the circuit court properly treated Mangum’s petition as one for post-conviction relief. Our PCR statute provides limited grounds upon which a person may seek relief from, among other things, convictions and sentences:

Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, ... may file a motion to vacate, set aside or correct the judgment or sentence, a motion to request forensic DNA testing of biological evidence, or a motion for an out-of-time appeal if the person claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That there exists biological evidence secured in relation to the investigation or prosecution attendant to the petitioner’s conviction not tested, or, if previously tested, that can be subjected to additional DNA testing, that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole[,] or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(i) That he is entitled to an out-of-time appeal; or
(j) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.

Miss.Code Ann. § 99 — 39—5(1)(a)—(j) (Supp. 2011). In the instant case, Mangum did not dispute his conviction, sentence, plea, or any of the other grounds under the PCR statute. Rather, Mangum asserted a racial-discrimination claim. Therefore, the circuit court erred in treating Mangum’s petition as one for post-conviction relief.

¶ 8. Under Mississippi Code Annotated section 99-39-9(4) (Supp.2011), “[i]f the motion received by the clerk does not substantially comply with the requirements of this section, it shall be returned to the petitioner if a judge of the court so directs, together with a statement of the reason for its return.” Mangum’s petition was not one seeking relief under the PCR statute, but an attempt to file a lawsuit against the Board and four of its members alleging constitutional violations based on his race. The circuit court could have returned Man-gum’s petition to him with an explanation of its reason for doing so pursuant to Mississippi Code Annotated section 99-39-9(4).

¶ 9. Further, Mangum never served process on any of the named defendants as required under Rule 4 of the Mississippi Rules of Civil Procedure. Indeed, no summons was ever issued. Rule 4(h) provides that if the defendants are not served with the summons and complaint “within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.” M.R.C.P. 4(h).

II. Whether Mangum Stated a Claim Upon Which Relief May Be Granted

¶ 10. Mangum argues he asserted “non-conclusory claims which were fact-based.” On the other hand, the Board argues Man-gum failed to state a claim for relief based on racial-discrimination because “his [supplemental pleading made the conclusory allegation that the Parole Board had denied him parole based on the fact that he is African American.”

¶ 11. To prevail on a racial-discrimination claim, Mangum must offer proof, “either in his petition or in the record[,] that establishes that he suffered [an] equal[-]protection violation by the application of the statute based on a suspect classification.” Hopson v. Miss. State Parole Bd., 976 So.2d 973, 976-77 (¶ 12) (Miss.Ct.App.2008). Further, proof of a racially discriminatory purpose is required in equal-protection-violation cases. Terrell v. State, 573 So.2d 732, 734 (Miss.1990) (citing Foster, 823 F.2d at 220). However, proof rarely consists of direct evidence. Terrell, 573 So.2d at 734 (citing Foster, 823 F.2d at 222). Instead, the evidence is usually circumstantial. Id.

¶ 12. Rule 8(a)(1) of the Mississippi Rules of Civil Procedure only requires “the plaintiff provide a short and plain statement of the claim showing that he is entitled to relief.” Singleton v. Ste-gall, 580 So.2d 1242, 1245 (Miss.1991) (citing M.R.C.P. 8(a)(1)). Under Rule 8(a), “a plaintiff must set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Scott v. City of Goodman, 997 So.2d 270, 276 (¶ 14) (Miss.Ct.App.2008) (quoting Penn Nat’l Gaming, Inc. v. Ratliff, 954 So.2d 427, 432 (¶ 11) (Miss.2007)). “However, the pleadings need only ‘provide sufficient notice to the defendant of the claims and grounds upon which relief which is sought.’ ” Id. (quoting Estate of Stevens v. Wetzel, 762 So.2d 293, 295 (¶ 11) (Miss. 2000)). “When a complaint is tested on its face, we must take its well-pleaded allegations as true.” Singleton, 580 So.2d at 1246 (citing Overstreet v. Merlos, 570 So.2d 1196,1197 (Miss.1990)).

¶ 13. Additionally, a pro se litigant is held “to less stringent standards than formal pleadings drafted by lawyers.” Terrell, 573 So.2d at 733 (quoting Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Further, a pro se “prisoner’s meritorious complaint may not be lost because [it is] inartfully drafted.” Id. (quoting Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990)). With these thoughts in mind, we note that had Man-gum properly served the appropriate parties, the circuit court would have been obligated to review Mangum’s petition and “ask whether it suggested a set of facts which might support relief.” Singleton, 580 So.2d at 1246. The circuit court had no authority to deny Mangum’s petition on the basis that it failed to state a claim “unless it may fairly and objectively be said that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Id. (citing Over-street, 570 So.2d at 1197).

¶ 14. Mangum raised the issue of discrimination in his first petition when he asked the circuit court to enter an order directing the Board “to show cause as to reasons why [Mangum] has been continuously and discriminatory [sic] denied [p]a-role[.]” Of course, in his supplemental petition, Mangum went into much more detail on his racial-discrimination claim, citing a specific example of another similarly situated white inmate who was granted parole. Specifically, Mangum stated: (1) the white inmate was convicted of a more serious crime, that being the rape and murder of a University of Mississippi graduate student, while Mangum was convicted of murder; (2) the white inmate had extensive community opposition to his release on parole, whereas Mangum did not have such extensive community opposition; (3) the white inmate had served only twenty-two years, whereas Mangum had served twenty-nine years; and (4) unlike the white inmate, Mangum had numerous favorable recommendations from high-ranking prison officials.

¶ 15. Upon review of Mangum’s petition, we cannot say that he could not prove any set of facts in support of his racial-discrimination claim. As such, we find Mangum stated a claim upon which relief may be granted.

III. Whether the Circuit Court had Jurisdiction over Mangum’s Racial-Discrimination Claim

¶ 16. We recognize that “[prisoners have no constitutionally recognized liberty interest in parole.” Hopson, 976 So.2d at 975 (¶ 6) (citing Mack v. State, 943 So.2d 73, 75 (¶ 6) (Miss.Ct.App.2006)). In Mississippi, the “Board is given ‘absolute discretion’ to determine who is entitled to parole” by statute, d. (citing Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 11) (Miss.2003)). Specifically, Mississippi Code Annotated section 47-7-5(3) (Rev. 2011) provides “the [parole] board shall have exclusive responsibility for the granting of parole as provided by Sections 47-7-3 and 47-7-17 and shall have the exclusive responsibility for revocation of the same.” Further, “there is no statutory right of appeal from the denial of parole.” Roc-hell, 36 So.3d at 482 (¶ 9) (citing Mack, 943 So.2d at 76 (¶ 8)). However, where constitutional issues are raised, a trial court asserts jurisdiction over those claims, d. In fact, the Mississippi Supreme Court has stated:

State courts are not free to refuse or ignore jurisdiction over rights of action which arise under the constitution and laws of the United States. If the ordinary jurisdiction of the state court as prescribed by local law is adequate to the case, the court must accept jurisdiction of such federally created rights[.]

Lewis v. Delta Loans, Inc., 300 So.2d 142, 144-45 (Miss.1974) (citing Testa v. Katt, 330 U.S. 386, 394, 67 S.Ct. 810, 91 L.Ed. 967 (1947)) (emphasis added); see also Cotton, 863 So.2d at 921 (¶ 11) (recognizing that “Mississippi courts have a duty to hear and adjudge cases concerning constitutional issues despite a statutory mandate”). Indeed, we enforce such rights even when convinced that their federal source has erred greatly. See Sanders v. State, 429 So.2d 245, 248, 251 (Miss.1983); Bolton v. City of Greenville, 253 Miss. 656, 666, 178 So.2d 667, 672 (1965).

¶ 17. Further, because Man-gum “has no liberty interest in obtaining parole in Mississippi, he cannot complain of the denial of parole based on [an] allegation of a denial of due process, abuse of discretion, or consideration of false or improper factors.” Cotton v. Booker, 166 F.3d 841, 1998 WL 912201 *1 (5th Cir. 1998). But, Mangum’s allegations that he was denied parole based on race is a different issue. Id. “Such an allegation, if prove[n], would constitute denial of a cognizable federal right[.]” Irving v. Thigpen, 782 F.2d 1215, 1218 (5th Cir.1984). To make out an [e]qual[-]protection claim, Mangum “must prove the existence of purposeful discrimination, which implies that the decisionmaker [sic] selected a particular course of action at least in part because of the adverse impact it would have on an identifiable group.” Cotton, 1998 WL 912201 at *1 (citing Johnson v. Rodriguez, 110 F.3d 299, 308-09 (5th Cir.1997)). Additionally, Mangum “must allege that he was denied parole based upon discriminatory treatment due to his race or other improper motive, and not just due to an inconsistent application or result.” Id. “To the extent that [Mangum’s] claim is based on a mere claim of inconsistent outcomes in particular, individual instances, his equal[-]protection claim fails.” Id. But “to the extent that his claim is based on an allegation of improper motive, race, he has asserted a [cognizable] constitutional claim.” Id. Thus, although the circuit court had no jurisdiction to review whether the Board properly denied parole, the court did have jurisdiction to determine Mangum’s racial-discrimination claim if service of process had been accomplished.

¶ 18. We note that it is not the intention of this Court to burden the trial courts by requiring them to spend valuable time and resources on meritless allegations of constitutional violations filed by inmates. However, where a trial court treats a claim raising a constitutional issue as a PCR claim without considering any of the allegations in the petition and denies the claim, inmates are left without a forum for adjudicating those constitutional claims. Inmates must be able to seek the protection of constitutionally protected rights from the courts, and the courts must accept jurisdiction to enforce federally created rights if the ordinary jurisdiction of the state court is adequate to the case. Lewis, 300 So.2d at 144-45.

¶ 19. In a 2006 decision, an inmate alleged that the board discriminated against him based on his race in denying him parole. Mack, 943 So.2d at 77 (¶ 12). This Court noted that the inmate provided “no specific examples to show that his treatment [was] not equal to the parole treatment received by other inmates.” Id. Further, the inmate failed to “point out even one incident of a similarly situated inmate receiving the parole that ha[d] been denied to [Jerry Lee] Mack.” Id. This Court acknowledged that “[w]hile there are certainly factual scenarios in which we might find that the Parole Board improperly considered race in making its determination, there is no evidence that any such impropriety occurred in the present case.” Id. at (¶ 13). Therefore, we held: “In the absence of any evidence showing that the Parole Board improperly took into account [the inmate’s] race or his victim’s status, we find that no error occurred.” Id.

¶ 20. In a similar case, an inmate appealed the denial of his parole alleging a violation of his equal-protection rights. Hopson, 976 So.2d at 977 (¶ 11). This Court held: “While race is a suspect class entitled to strict scrutiny, [the inmate] [had] failed to show evidence either in his petition or in the record that established] that he suffered any equal[-]protection violation by the application of the [parole] statute based on a suspect classification.” Id. at 976-77 (¶ 12).

¶ 21. Mangum cites Terrell, 578 So.2d at 784 to support his contention that he was entitled to a hearing on his racial-discrimination claim. In that case, a black inmate was hired as a clerk in the correctional institution, and he trained a white inmate to be his assistant clerk. Id. at 733. Approximately two weeks into the training, the black inmate was notified that the white inmate had been assigned to his job. Id. As a result, the black inmate alleged that the prison officials racially discriminated against him because the white inmate did not have the qualifications that the black inmate had for the clerk position. Id. The record only contained the inmate’s allegations, as the prison officials never filed a response. Id. at 733, 734. Our supreme court noted that while inmates do not have a constitutional right to a job while incarcerated, “inmates are protected against racial[-]discrimination by the Equal Protection Clause of the Fourteenth Amendment.” Id. at 733-34. Further, the core purpose of the Equal Protection Clause “is the prevention of official conduct discriminating on the basis of race.” Id. at 734 (quoting Foster v. Wyrick, 823 F.2d 218, 220 (8th Cir.1987)). Therefore, “[p]rison officials are prohibited from racial[-]discrimination in all areas of prison administration.” Id. (citing Battle v. Anderson, 376 F.Supp. 402, 421 (E.D.Okla.1974) (overruled on other grounds)). The supreme court held that because the inmate alleged a racial-discrimination claim, and because the record only contained the inmate’s allegations and no response from prison officials, it was not beyond doubt that the inmate could not prove his allegations. Id. Therefore, our supreme court reversed the judgment and remanded the case for a hearing on the inmate’s motion. Id.

¶ 22. In the instant case, Mangum raised the issue of discrimination in his first petition. Mangum provided much more detail on his racial-discrimination claim in his supplemental petition, citing a specific example of another similarly situated white inmate who was granted parole. The record only contains Mangum’s allegations of racial-discrimination, but unlike the inmates in Mack and Hopson, Man-gum provided specific examples of unequal treatment. Looking at Mangum’s petition, we find, as in Terrell, that it is not beyond doubt that Mangum could not prove his allegations of racial-discrimination.

CONCLUSION

¶ 23. The circuit court erred in treating Mangum’s petition, which properly stated a claim for racial-discrimination, as a PCR petition. Further, the circuit court clearly would have jurisdiction to hear Mangum’s racial-discrimination claim provided he had properly served the defendants.

¶ 24. Therefore, for the above reasons, we reverse the judgment of the circuit court and remand this case for further proceedings consistent with this opinion. On remand, the circuit court shall either return the petition to Mangum, with a statement of the reason for its return, or dismiss the petition without prejudice so that Mangum, at his option, can refile his petition and serve each of the defendants with process.

¶ 25. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶26. I respectfully dissent from the majority’s decision. I would dismiss Man-gum’s habeas corpus petition for lack of jurisdiction due to his failure to state a claim upon which relief could be granted. Mangum failed to raise a constitutional claim of discrimination sufficiently, and Mangum possessed no right of appeal of a decision of the Mississippi Parole Board (Board) to the circuit court.

¶ 27. With respect to the sufficiency of the constitutional claim, the record reflects Mangum failed to state a sufficient claim for relief based upon racial discrimination. I respectfully submit that the cases of Rochell v. State, 36 So.3d 479 (Miss.Ct. App.2010), Hopson v. Mississippi State Parole Board, 976 So.2d 973 (Miss.Ct.App. 2008), and Mack v. State, 943 So.2d 73 (Miss.Ct.App.2006) provide controlling guidance to the resolution of the case before us.

¶ 28. In Rochell, 36 So.3d at 480 (¶ 1), Arvin Dale Rochell appealed the trial court’s dismissal of his complaint in which he sought the trial court’s interpretation of the statutes concerning parole, alleged that the parole statutes were unconstitutional, and claimed that the Board arbitrarily denied him parole. The court reviewed the case and found that Rochell’s complaint failed to raise a constitutional justiciable issue sufficient for the trial court to assert jurisdiction. Id. at 483 (¶ 12) (citing Mack, 943 So.2d at 76 (¶ 8)). See Vice v. State, 679 So.2d 205, 208 (Miss. 1996). In making its findings, the Rochell court explained:

The law is clear that “parole eligibility is a matter of legislative grace, and the grant or denial of parole is entirely at the discretion of the Parole Board.” Garlotte v. State, 915 So.2d 460, 466 (¶ 19) (Miss.Ct.App.2005) (citing Shanks v. State, 672 So.2d 1207, 1208 (Miss. 1996)); see Miss.Code Ann. § 47-7-5(3) (Supp.2009). Thus, an inmate has no absolute entitlement to parole. See Edmond v. Hancock, 830 So.2d 658, 660 (¶ 5) (Miss.Ct.App.2002) (finding that inmates do not have a constitutionally recognized liberty interest in parole). Additionally, there is no statutory right of appeal from the denial of parole. Mack v. State, 943 So.2d 73, 76 (¶8) (Miss.Ct. App.2006) (citing Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 10) (Miss. 2003)). However, the trial court may assert jurisdiction over those claims which raise constitutional issues. Id.

Rochell, 36 So.3d at 482 (¶ 9).

¶29. The trial court in the present case, much like the court in Rochell, lacks jurisdiction due to Mangum’s failure to plead a constitutional issue sufficiently. We should, therefore, remand this case to the trial court to dismiss Mangum’s petition for lack of jurisdiction. The trial court treated Mangum’s petition as a petition for post-conviction relief (PCR), and the court consequently denied Mangum’s petition as a PCR petition. However, Mangum filed a pleading entitled, “Petition for Writ of Habeas Corpus or for Order to Show Cause.” In his writ of habeas corpus, Mangum argued that since the Board granted parole to one Caucasian that Man-gum alleged committed a similar violent offense, then the Board engaged in discrimination in the denial of his parole. Mangum cites no discriminatory criteria, comment, or act as a basis of his allegation of discrimination.

¶ 30. Significantly Mangum does not complain of any illegality pertaining to the conviction or the sentence that he is currently serving. Thus, the trial court improperly treated Mangum’s request for relief as falling under the purview of the PCR statutes. The trial court should have dismissed Mangum’s petition for lack of jurisdiction due to his failure to state a claim.

¶ 31. Furthermore, in Hopson, 976 So.2d at 975-77 (¶¶ 8-12), this Court held the Board was not required to provide tangible evidence supporting its denial of parole to an inmate, and Edward James Hopson failed to show evidence either in his petition or in the record that established he suffered any equal-protection violation. The Hopson Court provided: “Prisoners have no constitutionally recognized liberty interest in parole.” Id. at 975 (¶ 6) (citing Mack, 943 So.2d at 75 (¶ 6)). See Scales v. Miss. State Parole Bd., 831 F.2d 565, 566 (5th Cir.1987). Further, this Court, upon review of the statutes setting forth the Board’s review criteria, found the statute neutral on its face with no separation of individuals based upon suspect classifications. Hopson, 976 So.2d at 976 (¶ 12).

¶ 32. I submit this Court should take judicial notice of our prior decision in Hop-son, 976 So.2d at 976-77 (¶¶ 11-12), and its determination that a presumption of validity applies to government actions taken based upon such neutral statutes predicated upon rational purposes; and like the case before us, Hopson failed to provide evidence sufficient to raise an equal-protection violation.

¶38. Additionally, in Mack, 948 So.2d at 75 (¶ 7), this Court held the trial court should have dismissed Mack’s case because of his failure to name the proper parties in interest in the petition, which was in the nature of a civil suit and not a PCR petition. Id. We provided:

In McClurg, this Court found that the complaint of an inmate who filed an action regarding the calculation of his sentenced time to serve and parole eligibility was a civil action and not a petition for post-conviction relief, and therefore should have been “dismissed for failure to properly name and serve the actual parties in interest, namely the Parole Board and Department of Corrections.” McClurg [v. State], 870 So.2d [681,] 682 (¶ 6) [ (Miss.Ct.App.2004) ]. As in McClurg, the petition in the present case was filed only against the State of Mississippi, and not against the Department of Corrections or the Parole Board. Therefore, the circuit court should have dismissed the petition for Mack’s failure to file against the proper parties. As stated in Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993), we will affirm a trial courtfs judgment] where it reaches the correct result (here dismissal) even if the court’s reasoning was incorrect: “On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.” Id. (citing Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988)).

Id. at 75-76 (¶ 7). The Mack Court further found, even if the petitioner had filed against the proper parties, the circuit court would still be correct in its finding it lacked jurisdiction over this ease, stating:

“A circuit court has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefore.” Since Title 47, Chapter 7 does not contain a statutory mandate granting circuit courts jurisdiction over appeals concerning the denial of parole, the circuit court was correct in dismissing the petition due, in part, to lack of jurisdiction.
Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 10) (Miss.2003) (citations omitted). The Mississippi Supreme Court went on in Cotton to recognize that “a constitutional challenge can justify the assertion of jurisdiction.” Id. at 921 (¶ 11). However, here, as in Cotton, the complaint fails to allege a constitutional violation sufficient to create jurisdiction in the circuit court. As explained in Vice v. State, 679 So.2d 205, 208 (Miss.1996) (citations omitted):
The United States Supreme Court held that while maintenance of a parole system does not, in and of itself, create a protected interest in parole, one exists only where mandatory language creates a presumption of entitlement to parole once certain objective criteria are met. However, because the Mississippi parole statutes contain no such mandatory language, employing the permissive “may” rather than “shall,” prisoners have “no constitutionally recognized liberty interest” in parole.
Therefore, the Parole Board’s determination did not violate one of [Jerry Lee] Mack’s vested constitutional interests. As noted in Cotton, “the Parole Board is given ‘absolute discretion’ to determine who is entitled to parole within the boundaries of factors set forth in Mississippi Code Annotated section 47-7-3.” Cotton, 863 So.2d at 921 (¶ 11). As in Cotton, the complaint here basically “called for the circuit court to review the board’s determinations.” Id. Nothing in the present case’s complaint rose to the level of a judicable constitutional issue. Therefore, regardless of the fact that the complaint should have been dismissed for failure to file against the proper parties, the circuit court would not have had jurisdiction even had the complaint been properly filed and served.
(¾) The Boundaries of the Board’s Discretion
In this point of error, Mack contends that the Parole Board went beyond its discretionary boundaries when it denied his application for parole. However, as noted above, the Parole Board’s discretion is “absolute.” Additionally, the Parole Board in this case based its decision on factors that are in “areas which [the Parole Board has] been given the authority to consider pursuant to Mississippi Code Annotated section 47-7-17.” Justus [v. State], 750 So.2d [1277,] 1279 (¶ 6) [Miss. Ct.App.1999].

Id. at 76-77 (¶¶ 7-9).

¶ 34. In conclusion, I respectfully dissent based upon the foregoing precedent and facts. The record shows that even if Mangum had joined the proper parties, the trial court still lacked jurisdiction for failure to state a claim upon which relief could be granted since Mangum failed to plead a constitutional issue sufficiently, and since the trial court possessed no authority to create a right of appeal from a decision of the Board.

      . As discussed more fully herein, we note that the circuit court erred in treating Mangum’s petition as a motion for post-conviction relief because the relief requested by Mangum did not fall under Mississippi Code Annotated section 99-39-5 (Supp.2011), which includes, among other things, disputes over criminal convictions and sentences.

      . The Mississippi Supreme Court has recognized that our state courts exercise concurrent jurisdiction with federal courts in the enforcement of federally created rights. Koehring Co. v. Hyde Constr. Co., 254 Miss. 214, 229-30, 178 So.2d 838, 842-43 (1965). The only exceptions to this rule are those cases in which the federal statutes expressly provide for exclusive jurisdiction in the federal courts. The circuit court had jurisdiction to decide the present case.

      . Mangum also failed to include the proper parties. However, even if he had included the proper parties, the trial court still lacked jurisdiction in this case.

      . I pause to note that with respect to the summary denial by the trial court in this case, Mangum failed to set forth sufficient facts to state a claim for relief. However, even if the matter had fallen under the purview of the PCR statute, the trial court could properly dismiss the petition for Mangum’s failure to allege sufficient facts in support of a claim for relief. See Hamilton v. State, 44 So.3d 1060 (Miss.Ct.App.2010). In Hamilton, the court explained that a trial court may summarily dismiss a PCR motion "if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Id. at 1063 (¶ 3) (quoting Miss.Code Ann. § 99-39-11(2) (Supp.2009)). "On appeal, this Court will affirm the summary dismissal of a PCR petition if the petitioner has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Id. (quoting Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009)). Furthermore, "[t]his Court reviews the dismissal of a PCR motion for an abuse of discretion[;][b]ut we will reverse and remand for a hearing if the movant has 'alleged facts which require further inquiry in the expanded setting of an evidentiary hearing.' ” Id. (internal citations omitted). The Hamilton court provided that a trial court need not hold an evidentiary hearing where a petitioner fails to demonstrate, by affidavit or otherwise, that unresolved issues of fact existed that, if concluded favorably to the petitioner, would warrant relief. Id. at 1067 (¶ 21) (quoting McCuiston v. State, 758 So.2d 1082, 1085 (¶ 9) (Miss.Ct.App.2000)). This Court then provided that "[t]his may not be accomplished through Hamilton's own unsupported allegations!,]” and proceeded to find no abuse of discretion in the trial court's dismissal of Hamilton's PCR motion without an evidentia-ry hearing. Id.

      . The record reflects Mangum also failed to join proper parties. See M.R.C.P. 4(d)(5).

      . See Heafner v. State, 947 So.2d 354, 357 (¶ 11) (recognizing parole eligibility constitutes an executive decision rather than a judicial decision). See also Miss.Code Ann. § 47-7-5(3) (Rev.2011) (stating exclusive power over granting and rendering parole rests with the Board).


author: ROBERTS, J., for the Court.

text:
    Angela Westbrooks SMITH, Appellant v. TRONOX LLC f/k/a Kerr-McGee Chemical LLC and Ace American Insurance Company, Appellees.
    No. 2010-WC-01875-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Lawrence J. Hakim, Batesville, Charlie Baglan, attorneys for appellant.
    H. Byron Carter III, attorney for appel-lees.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. Angela Smith appeals the Monroe County Circuit Court’s judgment to affirm the full Mississippi Worker’s Compensation Commission’s decision that due to her bilateral carpal tunnel syndrome, she had a 5% industrial loss of use to both of her upper extremities. Smith also appeals the circuit court’s judgment to reverse the Commission’s decision that she was entitled to a period of total temporary disability benefits. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1989, Smith began working for Tronox LLC, a chemical manufacturing facility in Hamilton, Mississippi, that produces pigments for paint. Although she worked in various capacities during her employment at Tronox, Smith’s duties primarily involved monitoring gauges and machinery, emptying fifty-pound bags of sand into a machine approximately once every two hours, and turning various valve handles when necessary.

¶ 3. According to Smith, her hands began to hurt sometime during 1999 or 2000. Smith claimed she reported her pain to Tronox, but Tronox’s records do not indicate Smith ever informed any of her employers she had trouble with her hands. As best we can tell, Smith’s treatment for carpal tunnel syndrome originated from Dr. Walter Eckman’s treatment of her back during 2000. Smith’s medical records from Dr. Eekman were not entered into evidence. Be that as it may, the record reflects Dr. Eekman referred Smith to Dr. Laura Gray, a physiatrist in Tupe-lo, Mississippi, for further treatment of Smith’s back problems. Dr. Gray first saw Smith on December 7, 2000.

¶ 4. Dr. Gray’s medical records note that Smith had not been working because of Dr. Eckman’s restrictions, which were related to Smith’s back problems. Dr. Gray’s records indicate Smith initially complained of neck and back pain, problems with her left leg, and problems with her hands. Dr. Gray ordered a nerve-conduction study and eventually diagnosed Smith with bilateral carpal tunnel syndrome. Dr. Gray attempted to treat Smith’s carpal tunnel syndrome conservatively with medication and wrist splints. However, Dr. Gray released Smith to return to work with restrictions of “no repetitive flexion or extension of wrists.” Dr. Gray continued to release Smith to return to work after follow-up appointments in January, March, and April 2001.

¶5. Dr. Gray’s treatments were interrupted when Smith had surgery to repair an unruptured brain aneurysm in May 2001. In August 2001, Smith returned to Dr. Gray for further treatment. Approximately one month later, Smith filed her petition to controvert. Smith claimed she was entitled to workers’ compensation benefits for her bilateral carpal tunnel syndrome. Within her petition to controvert, Smith stated her bilateral carpal tunnel syndrome was caused by “repetitive motion of opening large valves and pulling rusty ... levers” that were hard to move.

¶ 6. Despite Dr. Gray’s treatments, Smith said she did not receive significant relief. As a result, Dr. Gray referred Smith to Dr. Robert Buckley, an orthopedic surgeon. Dr. Buckley never testified, and his medical records were not entered into evidence. Smith testified Dr. Buckley performed carpal tunnel release surgery on Smith’s right arm during April 2002. According to Smith, the surgery did not significantly relieve her symptoms. Consequently, Smith declined to have carpal tunnel release surgery on her left arm. Smith returned to Dr. Gray for further treatment.

¶ 7. In January 2004, Dr. Johnny Mitias of New Albany Orthopaedics performed an independent evaluation of Smith. Tronox later deposed Dr. Mitias, who testified that, in his opinion, Smith’s carpal tunnel syndrome was not related to her duties at Tronox. In fact, Dr. Mitias testified Smith’s problems were more likely related to other problems she was having. Dr. Mitias noted that if Smith’s symptoms were work related, Smith would have experienced some relief because she had not been working for approximately three years, but Smith reported she was still in pain. Dr. Mitias also testified: “[I]f it was just purely a mechanical carpal tunnel syndrome ... it would have been relieved. Once you remove the mechanical problem, which is pressure on the nerve, it should go away.”

¶8. Dr. Mitias further testified that opening and closing valves is “generally not a carpal tunnel producer. That’s a rotational problem more than high-speed assembly.” Furthermore, Dr. Mitias found it “striking” that Smith declined to have a carpal tunnel release on her left arm. Dr. Mitias also noted, during his independent examination, Smith failed the “five-position grip-strength test,” which was “an indication of submaximal effort,” meaning Smith did not try as hard as she could. Dr. Mitias testified that the five-position grip-strength test “is a pretty accurate measure of how much effort somebody’s putting into something.” Dr. Miti-as further testified Smith’s failure of the grip-strength test was “really a lot of concern to [him].” Dr. Mitias summarized his opinion by reiterating that it was based on (1) Smith’s explanation of her work duties; (2) the fact Smith did not experience relief after she stopped working; (3) the fact Smith did not experience relief after the carpal tunnel release; and (4) Smith’s other medical issues with her neck, back, and her brain aneurysm “which can lead to all sorts of sensations.”

¶ 9. On August 16, 2004, Tronox deposed Dr. Rhea, who had initially treated Smith for numbness and occasional pain in her hands during 1995. Dr. Rhea noted that Smith’s duties at work did not require any forcible or repetitive hand-intensive activities. Dr. Rhea testified that, in his opinion, it was possible Smith’s symptoms originated from her neck problems. Additionally, Dr. Rhea explained that patients generally have more than a 95% chance of improving after carpal tunnel release surgery “if truly the disease is median nerve compression neuropathy at the wrist and there are no other factors.”

¶ 10. On June 7, 2007, the parties went before the administrative judge (AJ). The depositions of Dr. Gray, Dr. Mitias, and Dr. Rhea were submitted into evidence. Smith testified and then rested. Tronox then called Patsy Shannon, Tronox’s occupational health nurse. Additionally, Tro-nox called Michael Goldman, Tronox’s staff-safety specialist.

¶ 11. Ultimately, the AJ found Smith had sustained a work-related injury. The AJ then concluded Smith had a 5% industrial loss of use regarding both of her arms. Accordingly, the AJ ordered Tro-nox to pay Smith permanent partial disability benefits of $303.35 per week for ten weeks for one arm and ten additional weeks for her other arm. Furthermore, the AJ found Smith was not entitled to temporary benefits because she would only be entitled to temporary benefits “for the time she had surgery,” and Smith failed to enter Dr. Buckley’s medical records into evidence. Smith appealed the AJ’s decision to the full Commission.

¶ 12. The Commission agreed with the AJ’s decision regarding permanent partial disability benefits. However, the Commission’s order indicates Smith should receive permanent partial disability benefits for ten weeks instead of twenty weeks. Additionally, the Commission disagreed with the AJ’s conclusion regarding temporary benefits. The Commission ordered Tro-nox to pay Smith temporary disability benefits from April 5, 2002, until October 27, 2003 — which was the date that the parties stipulated as the date Smith had reached maximum medical improvement. Tronox appealed the Commission’s decision to the circuit court, and Smith cross-appealed.

¶ 13. The circuit court affirmed the Commission’s decision regarding permanent partial disability benefits. As for temporary disability benefits, the circuit court found the Commission’s decision was not supported by substantial evidence. Consequently, the circuit court reversed that portion of the Commission’s decision. Aggrieved, Smith appeals.

STANDARD OF REVIEW

¶ 14. The standard of review regarding an appeal of a workers’ compensations case is well settled:

The Mississippi Workers’ Compensation Commission is the ultimate fact-finder. Accordingly, the Commission may accept or reject an [AJ’s] findings. This Court will affirm the Commission’s findings of fact if they are supported by substantial evidence. In other words, this Court will reverse an order of the Workers’ Compensation Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence. Doubtful claims should be resolved in favor of compensation, so as to fulfill the beneficial purposes of statutory law. Unless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to the employment. As with any fact-finder, the Commission is entitled to rely upon the evidence and reasonable inferences.

Smith v. Masonite Corp., 48 So.3d 565, 570 (¶ 19) (Miss.Ct.App.2010) (quoting Frito-Lay, Inc. v. Leatherwood, 908 So.2d 175, 179-80 (¶¶ 20-21) (Miss.Ct.App.2005)).

ANALYSIS

I. PERMANENT PARTIAL DISABILITY

¶ 15. Smith claims the Commission erred when it concluded she had a five percent disability to both arms. According to Smith, because her carpal tunnel syndrome prevented her from returning to her previous position, the Commission should have awarded her benefits for the total loss of use of both of her arms. We disagree.

¶ 16. “In a workers’ compensation case, the claimant bears the burden of proving by a fair preponderance of the evidence each element of the claim. These elements are: (1) an accidental injury, (2) arising out of and in the course of employment, and (3) a causal connection between the injury and the death or claimed disability.” Smith, 48 So.3d at 671(¶21) (quoting Hardin’s Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss. 1990)). Disability means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71-3-3(0 (Rev.2011).

¶ 17. Smith’s argument appears to be based on the principle that an employee who suffers an injury to a scheduled member resulting in permanent partial disability is entitled to “the greater amount of compensation determined under two alternate theories of computation.” Hollingsworth v. I.C. Isaacs and Co., 725 So.2d 251, 254 (¶ 10) (Miss.Ct.App.1998). The first theory of computation involves determining the functional disability of a scheduled member. Id. Once the functional disability of a scheduled member has been determined, compensation is calculated by multiplying the percentage of functional disability by the maximum number of weeks for the scheduled member. Id. Finally, the result of that calculation is then multiplied by 66 2/3% of the employee’s average weekly wage. Id. (citation omitted). That is how the Commission calculated Smith’s compensation.

¶ 18. The second alternate theory of computation involves determining the employee’s industrial disability. Id. An employee’s industrial disability is based not only on the medical evidence, but also upon the evidence demonstrating how the employee’s limited functioning member affects the employee’s ability to perform the duties normally associated with his or her job. Id. As previously mentioned, Smith argues that her carpal tunnel syndrome requires she receive benefits for the total loss of use of both of her arms.

¶ 19. To support her position, Smith draws our attention to her testimony that she could not return to work. Smith claims Shannon corroborated her testimony that she could not return to work. However, that is not an entirely accurate characterization of Shannon’s testimony. Shannon testified that, in her opinion, Tro-nox would attempt to accommodate any restrictions Smith had. Shannon also testified that “more than likely they would have been able to [accommodate Smith] on a short-term basis.” According to Shannon, Smith’s circumstances were complicated by the fact that Tronox had been accommodating Smith’s back problems. Shannon also testified that Smith’s position at Tronox did not involve repetitive hand movements.

¶ 20. Smith notes the Commission limited her industrial loss of use to 5% because: (1) Smith had been off work for unrelated medical conditions; (2) Smith had worked some as a substitute bus driver after she stopped working at Tronox; and (3) Smith had not sought permanent employment after she had stopped working at Tronox. According to Smith, none of these things— alone or in conjunction with one another— operate to limit her to a 5% industrial loss of use of her arms.

¶21. The Mississippi Supreme Court has held:

If the injury prevents the employee from resuming his former trade, work[,] or employment, this alone is not the test of disability to earn wages or the test of the degree of such disability, but the definition relates to loss of capacity in “the same or other employment,” and the meaning is that the employee, after his period of temporary total incapacity, must seek employment in another or different trade to earn his wages.

Sardis Luggage Co. v. Wilson, 374 So.2d 826, 828 (Miss.1979) (quoting V. Dunn, Mississippi Workmen’s Compensation § 72 (2d ed. 1967)). “To demonstrate total disability, the claimant must show that [she] has made a diligent effort, but without success, to obtain other gainful employment.” Adolphe Lafont USA v. Ayers, 958 So.2d 883, 839 (¶18) (Miss.Ct.App.2007) (citation omitted). Smith never attempted to return to work at Tronox. As a result, Tronox never had an opportunity to accommodate Smith.

¶22. Smith also argues there is no evidence that her minor cognitive difficulties associated with a repaired unruptured brain aneurysm prevent her from returning to work. Smith does not discuss her back and neck problems, nor does she discuss how they factor into whether she can return to work. In any event, Smith contends that her acceptance of part-time work as a school bus driver demonstrates she is willing to work. According to Smith, it also demonstrates that her other medical problems were not disabling. Even so, if her work as a school bus driver demonstrates her other medical problems were not disabling, it also demonstrates her carpal tunnel syndrome was not completely disabling. Additionally, Smith argues that her part-time work demonstrates the difficulty that she had finding work. But Smith specifically stated she did not look for other work.

¶ 23. The Commission “serves as the ultimate fact finder in addressing conflicts in medical testimony and opinion.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss. 2003). “Where medical expert testimony is concerned, [the supreme court] has held that whenever the expert evidence is conflicting, the Court will affirm the Commission's decision] whether the award is for or against the claimant.” Id. (quoting Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 268 (Miss.1966)). Even if this Court would not have reached the same decision as the Commission, we must affirm when the Commission’s findings are supported by substantial evidence and are neither arbitrary nor capricious. Id. at 338 (¶ 25).

¶ 24. It is well settled that workers’ compensation claimants have “the burden of proving disability and the extent thereof.” Lifestyle Furnishings v. Tollison, 985 So.2d 352, 359 (¶ 21) (Miss.Ct. App.2008) (citation omitted). “The issue of whether a claimant’s permanent disability is partial or total is a fact question to be determined from the evidence as a whole, including both medical and lay testimony.” Smith, 909 So.2d at 1222 (¶ 47) (citing McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991)). Smith presented evidence that according to Dr. Gray, Smith had a 3% impairment rating to each arm. Dr. Gray never testified Smith could not return to work because of her carpal tunnel syndrome. Dr. Gray also declined to testify that Smith’s restrictions of limited repetitive hand movement and lifting of no more than ten pounds were permanent. Dr. Mitias testified that, in his opinion, Smith’s symptoms were not related to carpal tunnel syndrome. Dr. Rhea agreed. Goldman testified that Smith’s former position at Tronox did not require rapidly repetitive hand movement. Smith declined Dr. Gray’s offer to refer her to vocational rehabilitation. In light of our standard of review, we do not find the Commission erred when it assigned Smith a 5% impairment to each arm and awarded permanent partial disability benefits. Accordingly, we affirm the circuit court’s judgment, which affirmed the Commission’s decision.

II. TEMPORARY TOTAL DISABILITY

¶25. As previously mentioned, the Commission awarded Smith temporary total disability benefits from the date of Smith’s carpal tunnel release surgery to the stipulated date of Smith’s maximum medical improvement. Smith appeals the circuit court’s reversal of the Commission’s decision. According to Smith, because the Commission:

has seen hundreds, if not thousands of bi-lateral carpal tunnel claims ... [and it is common in such claims] that the [c]laimant usually sustains a period of temporary total disability after he or she has had surgery for this condition ... the Commission could easily base its finding on common knowledge, common experience, and common sense.

Smith, therefore, contends she was entitled to temporary total disability benefits.

¶26. As Tronox notes, there was no evidence presented that Smith was taken off work by any physician. Smith failed to submit Dr. Buckley’s medical records or testimony into evidence. As Tronox notes, without Dr. Buckley’s medical records or testimony “we [do not] know whether he would have taken [Smith] off work for one day or one week, much less almost [nineteen] months.” Smith cites no authority that a claimant is entitled to temporary disability benefits for the entire period between the date of surgery and the date of maximum medical improvement. Additionally, Smith cites no authority that the date of maximum medical improvement is the equivalent of the first date one may return to work after sustaining an injury. Because Smith failed to sustain her burden of proof, we find no error with the circuit court’s judgment to reverse the Commission’s decision. Accordingly, we find no merit to this issue.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.

      . The company was known as Kerr-McGee Chemical, LLC when Smith was working there. Since that time, Kerr-McGee has been acquired by Tronox.

      . However, the record contains evidence that Dr. Charles Rhea diagnosed Smith with bilateral carpal tunnel syndrome in 1995. Because Smith's work did not involve any hand-intensive activities, Dr. Rhea ordered conservative treatment of Smith. Smith stopped going to her appointments with Dr. Rhea after two office visits.

      . A physiatrist is a physician who specializes in physical medicine and rehabilitation.

      . Dr. Gray later testified during her deposition that she was unaware of Dr. Rhea’s previous diagnosis.


author: GRIFFIS, P.J., for the Court:

text:
    Willie C. JOHNSON, Appellant v. Hazel Gwendolyn JOHNSON, Appellee.
    No. 2010-CA-01193-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Felecia Perkins, attorney for appellant.
    Sharon Patterson Thibodeaux, Brandon, attorney for appellee.
   GRIFFIS, P.J., for the Court:

¶ 1. Hazel Gwendolyn Johnson was granted a divorce from Willie C. Johnson on the ground of habitual cruel and inhuman treatment. The chancellor divided the marital property and awarded Hazel $900 per month in permanent alimony and $3,000 in attorney’s fees. Willie argues: (1) Hazel failed to prove habitual cruel and inhuman treatment, and (2) the chancellor’s finding that alimony was appropriate was manifestly wrong. We find no reversible error and affirm the chancellor’s judgment.

FACTS

¶ 2. Hazel and Willie were married in 1982. Their daughter, Deirdre Johnson, was born in 1987. They finally separated in 2003, and the chancellor’s judgment of divorce was entered on January 28, 2010.

¶ 3. Willie, who is sixty-three years old, has a Ph.D. He was a professor at Utica Junior College from the time he and Hazel married until 1992. He then took a job as an administrator with the Jackson Public Schools, where he remains employed. He also occasionally serves as an adjunct professor at Jackson State University. The chancellor found that Willie’s net monthly income is $5,589.30; he has $62,260 in a 403(b) retirement account; and his PERS account would pay him $3,299 per month should he retire.

¶ 4. Hazel, who is fifty-eight years old, has a masters degree. She has worked in some capacity at Hinds Community College from the time she and Willie were married until 1996, when she retired. She came out of retirement in 2003 and took a position at Jackson State University, where her net monthly pay was $1,921.30. Her position was contingent on the school receiving grant funds, and the latest grant ended in September 2009, which left her unemployed at the time the chancellor entered her judgment. The chancellor found that Hazel has $9,871.59 in a 408(b) retirement account, and her PERS account would pay her $2,033.90 per month should she retire again.

¶ 5. Hazel suffers from many health problems, including diabetes, COPD, and a heart murmur. She also has problems with her eyes. She wears a prosthetic eye in her right socket.

¶ 6. The evidence established that Willie had affairs with two of his students at Utica Junior College — Carrie Jones and Mary Payne — in the early 1990s. There was some evidence that Jones and Willie conceived a daughter, Amber Crawford, who was born in 1992. Hazel testified that Willie had told her that to the best of his knowledge, Crawford is his child, but it was unclear when he allegedly made that statement. Also, an e-mail that Jones had sent to Willie was admitted into evidence. In the e-mail, dated in 2001, Jones claims that Crawford is Willie’s child, which Willie denied.

¶ 7. It was undisputed that Willie and Payne conceived a daughter, Olivia Johnson, who was also born in 1992. The record contains the results of a DNA test, dated April 2004, that shows Willie could not be excluded as the father. In addition, the evidence included documents from Claiborne County Chancery Court which indicate that in June 2004, Willie was ordered to pay child support to Payne for the care of Olivia.

¶ 8. Hazel testified that while Willie was still teaching at Utica Junior College, she had some knowledge of Willie’s affairs, but she did not know about the illegitimate children. She also testified that she thought the affairs had ended by the time the family moved to Jackson in approximately 1992. She stated that she trusted her husband, in spite of his indiscretions, so she decided to continue in the marriage.

¶ 9. The evidence was not clear exactly when Hazel learned that Willie had fathered the two illegitimate children. Hazel testified that she might have first learned about Olivia in 2004 when the results of the DNA test arrived in the mail at her home. In contrast, Willie testified that Hazel knew about Olivia as early as 2001 when she found a letter from Payne to Willie on Willie’s desk. There was no testimony about when Hazel had learned that Crawford might be Willie’s child.

¶ 10. According to Hazel, Willie informed her in 2001 that he had resumed his affair with Jones. Around that time, Jones began a campaign of bizarre and threatening behavior directed toward Hazel. Jones made repeated, harassing phone calls to Hazel. Hazel testified that she logged ninety-six calls in one day.

¶ 11. Hazel testified that in one incident, Jones went into Hazel and Willie’s garage late at night. Using an orange security cone she had retrieved from the street, she hammered on Hazel’s car. Photographs of Hazel’s car were admitted into evidence, which show what appears to be minor, superficial damage to the car’s trunk and rear windshield. The record also contains an estimate that estimated the cost of repair to be $1,745.58.

¶ 12. In another incident, according to Hazel, Jones obtained photographs of Hazel and Willie’s wedding from Willie’s office. She wrote “broken promises” on them and threw them on the street in front of Hazel and Willie’s house. The record contains what appears to be a printout from a computer that shows a copy of a wedding photograph with “Broken Promises” typewritten above it.

¶ 13. Hazel testified that as a result of Jones’s behavior, she felt terrified, and she would often stay inside her home with the garage door down.

¶ 14. Hazel testified that Willie promised to end his relationship with Jones, so she decided to continue in the marriage. Willie did not keep his promise. Hazel testified that sometime in 2002, when Willie did not arrive at home on time, she drove by Jones’s residence and saw Willie’s car there. It is undisputed that Willie and Jones were romantically involved at that time.

¶ 15. In spite of this discovery, Hazel continued in the marriage. She wanted to work things out. Instead, it was Willie who decided to leave. Willie moved out of the marital home in October 2003. Willie testified that he then moved in with his sister, but documents were introduced into evidence that show he had his mail sent to Jones’s address.

¶ 16. Hazel testified that in May 2004, Willie physically assaulted her in her home — the former marital home. He pushed her up against the washing machine, dryer, and the walls. She went to the hospital. Hospital records were admitted into evidence. They show that she presented to the hospital with minor bruises above her right eye and along the bridge of her nose and minor lacerations on the inside of her mouth. The severity of her wounds was described as “mild.” She was released with instructions to use a warm compress and rest. Willie denied that he had ever assaulted Hazel.

¶ 17. In 2008, Jones had a son named Austin Johnson. Willie is listed as the father on Austin’s birth certificate. Willie testified that Austin might be his child.

¶ 18. Hazel filed a complaint for divorce. By order dated January 28, 2010, the chancellor granted Hazel a divorce on the ground of habitual cruel and inhuman treatment, divided the marital property, awarded her $900 per month in permanent alimony, and awarded her $3,000 in attorney’s fees.

STANDARD OF REVIEW

¶ 19. This Court will not disturb the findings of a chancellor when supported by substantial, credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

1. Habitual Cruel and Inhuman Treatment

¶ 20. Willie argues that the chancellor’s finding of habitual cruel and inhuman treatment was manifestly wrong. He contends that the only support for the chancellor’s finding was his adultery. He argues adultery is a separate and distinct ground for divorce and is not, by itself, enough to support a finding of habitual cruel and inhuman treatment. He also argues that Hazel had condoned his adultery.

¶ 21. Before we address those arguments, we must first dispose of a minor issue. In the chancellor’s judgment, when she discusses the facts that support a finding of habitual cruel and inhuman treatment, she states that Willie had transmitted a venereal disease to Hazel. On appeal, Willie complains that there was no evidence to support such a finding. After a thorough review of the record, we conclude that Willie is correct. The first time any mention is made of a sexually transmitted disease is in the chancellor’s judgment. There is no testimony or other evidence in the record to support the chancellor’s finding that Willie transmitted a venereal disease to Hazel.

¶ 22. Nevertheless, this Court may affirm a chancellor’s judgment for reasons different than those cited by the chancellor. Mason v. S. Mortg. Co., 828 So.2d 735, 738 (¶ 15) (Miss.2002) (citation omitted). Because we find there is substantial evidence in the record to support a finding of habitual cruel and inhuman treatment, the chancellor’s mistake is harmless error.

¶ 23. We now turn to the arguments outlined above. To establish habitual cruel and inhuman treatment, the petitioner must show, by a preponderance of the evidence that: (1) the other spouse’s conduct was cruel and inhuman, and (2) the petitioner’s physical or mental health was negatively impacted by that conduct. Fisher v. Fisher, 771 So.2d 364, 367 (¶ 10) (Miss.2000); see also Bias v. Bias, 493 So.2d 342, 345 (Miss.1986). Conduct is cruel and inhuman if it “either endangers life, limb[,] or health, or creates a reasonable apprehension of such danger ... or ... [is] so unnatural and infamous as to make the marriage revolting to the [other] spouse[.]” Fisher, 771 So.2d at 367 (¶ 9).

¶ 24. While Willie might be correct that adultery alone cannot support a finding of habitual cruel and inhuman treatment, a pattern of adultery, when combined with other cruel and inhuman conduct, can support such a finding. Id. at 368 (¶¶ 12-13). In Fisher, the Mississippi Supreme Court held that the husband’s several acts of adultery and few acts of physical violence supported a finding of habitual cruel and inhuman treatment. Id.

¶ 25. Likewise, in this case, there was substantial evidence that Willie had committed several acts of adultery and that he had, on at least one occasion, committed an act of physical violence. Willie fathered at least two — possibly three — children out of wedlock with two different women during his marriage to Hazel. His affair with Jones spanned almost two decades — beginning in approximately 1991 at Utica Junior College and continuing up until the entry of divorce in 2010. Also, Hazel’s testimony and the hospital records indicate Willie physically assaulted her in their former marital home in May 2004. We find these facts are sufficient to establish that Willie’s conduct was cruel and inhuman.

¶ 26. We also find Hazel has shown the requisite impact on her physical or mental health. The hospital records indicate that she suffered bruises and lacerations following the incident in May 2004. Also, Willie’s affair with Jones caused significant stress for Hazel. Jones became possessive, jealous, and threatening. She made harassing phone calls to Hazel, damaged property in Hazel’s garage, and scattered Hazel’s wedding photographs on the street in front of Hazel’s house. Hazel testified that as a result of that behavior, she felt terrified and would often barricade herself inside her home.

¶ 27. Lastly, we do not find Hazel had condoned Willie’s adultery. Hazel did continue in the marriage after she learned about Willie’s affairs, but the evidence indicates she expected him to end the affairs and recommit to the marriage. She forgave him for his past indiscretions, but she did not consent to live in a marriage with a habitually unfaithful husband. This is not a case where isolated acts of adultery were forgiven by the other spouse. Rather, Willie’s adultery was habitual and continuous.

¶ 28. In Smith v. Smith, 40 So.2d 156, 157 (Miss.1949), the supreme court rejected the husband’s argument that his wife had condoned his habitual cruel and inhuman treatment by continuing in the marriage. The court distinguished a “single act” from “courses of conduct,” suggesting that it is more difficult to establish condo-nation of the latter. Id. The supreme court stated: “The effort to endure unkind treatment as long as possible is commendable and the patient endurance by the wife of her husband’s ill-treatment should not be allowed to weaken her right to a divorce.” Id. Likewise, in Lindsey v. Lindsey, 818 So.2d 1191, 1195 (¶¶ 17-18) (Miss. 2002), the supreme court found the doctrine of condonation inapplicable under the facts of the case. The husband had forgiven his wife for her past acts of adultery, but the wife proceeded to commit adultery again. “Condonation can be avoided if ... the marital offense is repeated.” Id. Based on these authorities, we find Hazel had not condoned Willie’s habitual adultery.

¶ 29. For these reasons, we find no reversible error in the chancellor’s determination that Hazel was entitled to a divorce on the ground of habitual cruel and inhuman treatment. This issue has no merit.

2. Alimony

¶ 30. Next, Willie argues that the chancellor was manifestly wrong when she decided that alimony was appropriate. We note Willie does not argue that the actual amount of alimony awarded was excessive or oppressive.

¶ 31. When deciding whether alimony should be awarded, chancellors must consider the Armstrong factors. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). If the chancellor applies the correct legal standard, this Court cannot reverse the chancellor’s judgment unless it is manifestly wrong. Id. (citation omitted).

¶ 32. Here, after dividing the marital property, the chancellor conducted the proper analysis to determine whether alimony was appropriate. Her judgment listed each Armstrong factor and made thorough findings of fact under each factor.

¶33. On appeal, Willie contests some of those findings. He restates his objections about marital fault and the venereal disease. Because we addressed those issues above, we will not address them again here. He also takes issue with the chancellor’s finding that he had dissipated marital assets by spending money on his girlfriends and his children born out of wedlock with two different women. He seems to argue that there was no substantial evidence to support that finding.

¶ 34. Even if we subtract dissipation of marital assets from the chancellor’s analysis, substantial support remains for the award of alimony. The chancellor highlighted four facts: (a) Willie has a substantial income and significant retirement savings, while Hazel is unemployed and has little saved for retirement; (b) Willie is in good health, while Hazel is plagued by numerous health problems; (c) Willie and Hazel were married for twenty-seven years; and (d) Willie’s fault caused the dissolution of the marriage.

¶ 35. We have little trouble in concluding that the chancellor’s determination and award of alimony was not erroneous. This issue is without merit.

3. Attorney’s Fees

¶ 36. Lastly, in her brief, Hazel asks this Court to award her attorney’s fees on appeal in the amount of one-half the attorney’s fees that she was awarded by the chancellor. The chancellor awarded her $3,000. She asks this Court to award her an additional $1,500 in attor-ne/s fees.

¶ 37. The chancellor determined that because Hazel was unemployed and lacked substantial liquid assets, she would be unable to pay her attorne/s fees. The chancellor then conducted an analysis under Mississippi Rule of Professional Conduct 1.5(a) and McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) in order to determine a reasonable fee for Hazel’s attorney. The chancellor decided that $3,000 was a reasonable fee. The chancellor then ordered Willie to pay that amount to Hazel.

¶ 38. “This Court has generally awarded attorne/s fees on appeal in the amount of one-half of what was awarded in the lower court.” Stewart v. Stewart, 2 So.3d 770, 776 (¶ 20) (Miss.Ct.App.2009) (citation omitted). Because we agree with the chancellor’s finding that Hazel’s financial condition made her unable to compensate her attorney, we award Hazel an additional $1,500 in attorney’s fees on appeal.

¶ 39. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. THE APPELLANT IS ORDERED TO PAY $1,500 IN ATTORNEY’S FEES ON APPEAL TO THE APPELLEE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. MYERS, J., NOT PARTICIPATING.

      . In the alternative, Hazel asks this Court to award her damages under Mississippi Code Annotated section 11-3-23 (Rev.2002). That statute has been repealed, effective January 1, 2003. Miss.Code Ann. § 11-3-23 (Supp. 2011).