author: DANIEL L. DYSART, Judge.

text:
    Troy E. PEREZ and Jason C. Cutrer v. EVENSTAR, INC. and First Mercury Insurance Company.
    No. 2012-CA-0941.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2013.

      A. Scott Tillery, Tillery & Tillery, Me-tairie, LA, for Plaintiffs/Appellees.
    Michael L. Mullin, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, LA, for Appellant/Interve-nor, Plaquemines Parish Government.
    Mark E. Young, Scott H. Mason, Plauché Maselli Parkerson L.L.P., New Orleans, LA, for Defendant/Appellee, Ev-enstar, Inc.
    Michael D. Cangelosi, John E.W. Baay, II, Gieger, Laborde & Laperouse, L.L.C., New Orleans, LA, for Defendant/Appellee, Ceres Caribe, Inc.
    Arthur W. Landry, Arthur W. Landry and Jeanne Andry Landry, LLC, New Orleans, LA, James A. Pinderski, Pro Hac Vice, Rae W. Franklin, Pro Hac Vice, Tressler, LLP, Chicago, IL, for Defendant/Appellee, First Mercury Ins. Co.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

I,FACTUAL BACKGROUND

On November 15, 2007, plaintiffs-appel-lees, Troy E. Perez (“Perez”) and Jason Cutrer (“Cutrer”) (sometimes collectively referred to as “plaintiffs”) filed a Petition for Damages (“Petition”) against Evenstar, Inc. (“Evenstar”) and its insurer, First Mercury Insurance Company (“First Mercury”) for property damages to Perez’s and Cutrer’s properties. According to the Petition, Perez’s company, Millineum Trading, Inc. (“Millineum”), contracted with Evenstar for the latter to excavate a borrow pit on Perez’s property located in Braithwaite, Louisiana. Evenstar began its work on November 17, 2006 allegedly without obtaining proper permits or complying with parish ordinances, resulting in a demand from the Plaquemines Parish government by letter dated March 14, 2007 to Perez and Evenstar that Perez back-fill the pit and/or face legal action. According to Perez, Evenstar, aware that it failed to comply with local ordinances/permits, continued to excavate the pit until “some time after November 17, 2007.”

Perez maintains that, in performing its work, Evenstar allowed topsoil, “pushed ... to the sides of the pit” to remain, which adversely affected drainage and 12caused damage to his property. Cutrer, who owns the adjacent property, joined in the Petition, claiming extensive damage to his property caused by Evenstar’s “knocking down approximately one acre of trees, laying and drying mud on [his] property, and damaging and leaving [it] in a mess.”

Plaquemines Parish Government (“Plaquemines”) intervened in the action on December 4, 2007. Named as defendants in the Petition in Intervention and for Injunctive Relief, or in the Alternative Damages (“Intervention”) are Perez, Cut-rer, Ceres Caribe, Inc. (“CCI”) and fictitious insurance companies. Plaquemines adopted the allegations of plaintiffs and further alleged that that CCI acted “in concert” with Evenstar in “illegally” excavating the borrow pit. Through the Intervention, Plaquemines sought injunctive relief by way of an order that the parties refill the borrow pit, pursuant to parish Ordinance 18-1 (hereinafter sometimes referred to as the “Ordinance”). In the alternative, Plaquemines sought damages for the cost of refilling the borrow pit if it did so itself.

Perez and Cutrer then filed Cross-Claims against CCI and its fictitious insurers, alleging that CCI was the general contractor on the project which oversaw and supervised Evenstar’s work. They allege that CCI was negligent in failing to obtain the proper permits and to comply with other government requirements, in failing to properly supervise Evenstar and in failing to back-fill the property, subjecting plaintiffs to suit, claims, potential fines and damages.

|3In a Supplemental Petition and Cross-Claim, Plaintiffs added First Mercury Insurance Company (“First Mercury”) as a defendant, in its capacity as Evenstar’s public liability insurer. Plaintiffs sought defense and indemnity from First Mercury to the claims alleged in the Intervention. Plaintiffs also sought bad faith penalties and attorney’s fees pursuant to La. R.S. 22:658 and 22:1220 against First Mercury. In May, 2010, CCI filed a Cross Claim against Evenstar and First Mercury, seeking defense and indemnity for the claims of plaintiffs and PPG pursuant to a Release, Hold Harmless and Indemnity Agreement.

By way of an Amended Answer to the Intervention filed on October 14, 2010, plaintiffs raised the issue of the Ordinance’s constitutionality, alleging that it is unconstitutionally vague and indefinite in that it “gives the Plaquemines Parish Council the authority to grant or deny permits but fails to establish any guidelines or standards for the exercise of its discretion in doing so.” Plaintiffs further maintain that it is unconstitutional insofar as it was passed without complying with the notice requirements of the Plaque-mines Parish Charter. On these bases, plaintiffs maintain that the Ordinance cannot be enforced.

On November 2, 2011, Plaquemines amended its Intervention, re-urging that the Ordinance requires the parties to refill the borrow pit. It added the further allegation that the parties violated the permit requirements of parish ordinance 9-40 and the “borrow pit moratorium” of parish ordinance 92-100.

14First Mercury filed three motions for partial summary judgment on October 18, 2010. Thereafter, on June 17, 2011, Plaintiffs and Evenstar filed a Joint Motion for Summary Judgment (“Joint Motion”), alleging that the Ordinance is invalid as Plaquemines enacted it without complying with the notice requirements of the Plaquemines Parish Home Rule Charter. The Joint Motion further alleges that the Ordinance is unconstitutional for the reasons set forth in Amended Answer to the Intervention. CCI filed its own Motion for Summary Judgment, adopting the arguments set forth in the Joint Motion.

First Mercury’s Motions for Partial Summary Judgment and the Joint Motion were heard on February 9, 2012. By judgment dated February 29, 2012, the trial court granted all three of First Mercury’s motions. By separate judgment also dated February 29, 2012, the trial court granted the Joint Motion and dismissed Plaque-mines’ Intervention with • prejudice. Plaquemines requested written reasons for judgment, which the trial court issued on March 12, 2012. In its Reasons for Judgment, the trial court concluded that the Ordinance is unconstitutional vague as it did not “contain any standards or uniform rules for determining whether a permit for a borrow pit or other excavation should be granted or denied.”

|fiOn April 4, 2012, Plaquemines filed a Motion for Suspensive Appeal to the Louisiana Supreme Court pursuant to Article V, section 5(D) of the Louisiana Constitution. The Louisiana Supreme Court converted the Motion for Suspensive Appeal to a writ application and granted it. The per curiam decision found that the issue of the constitutionality the Ordinance was not properly before the court:

Although the district court’s reasons for judgment discuss the constitutionality of the ordinance, it is well-settled law that the trial court’s oral or written reasons form no part of the judgment ... Because there is no declaration of unconstitutionality in the district court’s judgment, there is no basis for the exercise of this court’s appellate jurisdiction. Accordingly, the appeal is transferred to the court of appeal for further proceedings.

Perez v. Evenstar, Inc., 2012-1003, pp. 1-2 (La.6/22/12), 91 So.3d 288, 288-289. (Citations omitted).

This appeal follows. We note that the Motion for Suspensive Appeal pertains to both judgments issued by the trial court on February 29, 2012; however, in its appellate brief, Plaquemines does not address the judgment granting First Mercury’s three Motions for Partial Summary Judgment. Accordingly, we consider Plaquemines to have abandoned any issue as to that judgment. See: Alden v. Lorning, 2004-0724, p. 10 (La.App. 4 Cir. 5/4/05), 904 So.2d 24, 30 (“pursuant to Rule 2-12.4 of the Uniform Rules-Courts of Appeal, ‘the court may consider as abandoned any specification of assignment of error which has not been briefed.’ Accordingly, because the issue was not briefed, we consider the issue to be ^abandoned”).

We now turn to the merits of this appeal, in which Plaquemines raises three issues: (1) the trial court’s finding that the Ordinance is unconstitutional; (2) the trial court’s granting of summary judgment as to the issue of the manner in which the Ordinance was enacted (and more specifically, Plaquemines’ failure to properly advertise the ordinance prior to its enactment); and (3) the trial court’s granting of summary judgment as to the permit requirements under ordinance 9-40. DISCUSSION

Constitutionality of the Ordinance

We pretermit a discussion of the trial court’s declaration that the Ordinance is unconstitutional as that issue is not properly before us. Under Article 5 Sec. 5(D) of the Louisiana Constitution of 1974, “[i]n addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional or (2) the defendant has been convicted of a capital offense and a penalty of death actually has been imposed.” (Emphasis added). As the Louisiana Supreme Court recently held, when a statute has been declared unconstitutional, the Louisiana Supreme Court has exclusive appellate jurisdiction. See: State v. Williams, 11-0958, p. 5 (La.7/2/12), 94 So.3d 770, 774, citing, State v. Williams, 10-1335 (La.App. 1 Cir. 2/11/11), 2011 WL 2178753 (unpub’d).

We note the distinction between the Supreme Court’s supervisory jurisdiction and appellate jurisdiction which was explained in Unwired Telecom Corp. v. Parish of Calcasieu, 200S-0732 (La.1/19/05), 903 So.2d 392, 400, fn. 8, citing Chief Justice Calogero’s concurrence in City of Baton Rouge v. Ross, 94-0695 (La.4/28/95), 654 So.2d 1311, 1327:

“The distinction between supervisory and appellate jurisdiction is a continuation of existing terminology, ‘supervisory’ referring to the court’s discretionary jurisdiction under which it has the power to select the cases it will hear, and ‘appellate’ contemplating cases in which a party as a matter of right can demand that the court hear a case.” (Emphasis in original).

This Court has considered the role of the appellate court when an appeal is taken to it over a trial court’s finding that a statute is unconstitutional. In Sherman v. Cabildo Construction Co., 483 So.2d 1210 (La.App. 4 Cir.1986), the Court transferred a case to the Supreme Court in which the sole issue was whether the trial court erred in declaring a statute unconstitutional. The Court held that it did “not have appellate jurisdiction of this case ... The Louisiana Supreme Court has exclusive appellate jurisdiction over cases in which a law of this state has been declared unconstitutional.” Id. at 1212, citing Derouen v. Kolb, 389 So.2d 761 (La.App. 3 Cir.1980).

On this basis, we find that the question of the Ordinance’s constitutionality is not properly before us. We now turn to the remaining issues in this appeal.

Summary Judgment as to the Enactment of the Ordinance

In addition to the issue of the Ordinance’s constitutionality, the Joint Motion sought summary judgment as its validity, on the basis that the Ordinance was enacted by Plaquemines without complying with the notice requirements of the | «Plaquemines Parish Home Rule Charter. More specifically, the Joint Motion contends that no notice was published prior to the Ordinance’s enactment. In support of this position, the Joint Motion relies on unpublished Reasons for Judgment issued in 1995 in the matter entitled “Plaquemines Parish Government v. B & A Materials and Frankie Adolph, Jr.,” case number 39-952, from the 25th Judicial District Court for Plaquemines Parish (the “B & A ” case), which recognized that the notice provisions of the Home Rule Charter were not met. The appellees note that the trial court took judicial notice of the ruling in the B & A case and suggest that no supporting documents are required for a summary judgment in this matter or a finding that Plaquemines did not properly enact the Ordinance. In that regard, ap-pellees contend that the trial court could rely on the factual findings of the B & A Reasons for Judgment. We disagree.

We first note that the unpublished and unreported Reasons for Judgment in the B & A case relate to that trial court’s grant of a new trial. While the Reasons for Judgment discuss the validity of the enactment of an ordinance, there is absolutely no mention of the specific ordinance to which this 1995 decision is directed, as it is never identified by the trial court. The lack of clarity in the B & A Reasons for Judgment, however, are inconsequential as we find that the Joint Motion was ^insufficiently supported and accordingly, the trial court erred in granting the Joint Motion on this issue.

La. C.C.Pr. art. 966(B) specifies that summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” The mover has the initial burden of producing evidence in support of its motion and can ordinarily meet this burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 10-0343, p. 6 (La.1/19/11), 57 So.3d 1002, 1006, citing Samaha v. Rau, 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883.

The Joint Motion attached no supporting documentation which pertains to this lawsuit, by way of affidavits, deposition testimony, discovery responses or responses to requests for admission. It relies solely on the unpublished 1995 Reasons for Judgment in the B & A case. The record contains no documents upon which the B & A case was decided, nor any documents which support any of the factual allegations upon which the Joint Motion’s argument that the Ordinance was improperly enacted is based. We do not find that the Reasons for Judgment in the B & A case are sufficient to establish any facts in this matter. We further decline to take judicial notice of the “facts” purportedly established by this ruling, as the unreported B & A case is not the type of record for which judicial notice is appropriate.

in.Judicial notice must be taken of certain legal matters: presidential and gubernatorial proclamations; rules of Louisiana state agencies, boards and commissions; ordinances of political subdivisions of this state; procedural rules of federal and state courts; rules of federal and state agencies, boards and commissions; and laws of foreign countries, international law and maritime law. La. C.E. art. 202(B). Notably, decisions of trial courts are not included in this enumeration and courts have consistently observed that there is no provision in the law for a court to take judicial notice of a suit record from another court. See, e.g., Union Planters Bank v. Commercial Capital Holding Corp., 2004-0871, pp. 3-4 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130; Louisiana Business College v. Crump, 474 So.2d 1366, 1369 (La.App. 2 Cir.1985). See also, United General Title Ins. Co. v. Casey Title, Ltd., 01-600 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065. (“Article 202 does not allow courts to take judicial notice of other courts’ proceedings”).

In United General, a Jefferson Parish court refused to take judicial notice of pleadings and a judgment filed in an Orleans Parish court, noting:

It has been held that Article 202(B)(e) allows courts to take judicial notice of court decisions that have the effect of law. Thomas v. Charles Schwab & Co., Inc., 95-1405 (La.App. 3 Cir. 9/25/96), 683 So.2d 734, 737. That would not apply here, however, because we are asked to notice proceedings of a district court, which have no effect except in the specific ease in which the rulings are made. Id.

Likewise, La. C.E. art. 201(B) provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) Generally known within the territorial jurisdiction of the trial court; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be ^questioned.” Pursuant to this article, courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Dufresne v. Dufresne, 10-963 p. 5 (La.App. 5 Cir. 5/10/11), 65 So.3d 749, 753, citing, State Block, Inc. v. Poche, 444 So.2d 680, 684 (La.App. 5 Cir.1984).

In the instant matter, the manner in which the Ordinance was enacted is not “common knowledge” and thus subject to judicial notice pursuant to La. C.E. art. 201(E). Nor can we take judicial notice of the factual findings of the B & A case on any other basis, as they have no effect except in the B & A case.

Accordingly, the Joint Motion contained no documentation which supports any facts in this case and more particularly, any competent facts to demonstrate that the Ordinance was improperly enacted. We therefore conclude that the trial court erred in relying on the B & A case’s Reasons for Judgment and in granting summary judgment as to the validity of the Ordinance’s enactment.

Summary judgment as to Ordinance 9-40

On November 2, 2011, Plaquemines filed an Amended Petition in Intervention (“Amended Intervention”) which added claims that the plaintiffs failed to comply with the permit requirements of parish ordinance 9-40 and violated the “borrow pit moratorium” set forth in parish ordinance 92-100. The Amended Intervention was filed well after the Joint Motion was filed. Clearly, the Joint Motion did not address the new claims raised by the Amended Intervention. Nonetheless, the trial court’s judgment dismissed Plaque-mines’ Intervention in its entirety, implicitly including the new claims of the Amended .^Intervention. Appellees maintain that, because the parties discussed the validity of ordinance 9-40 and the moratorium of ordinance 92-100 in the various briefs filed with the trial court, the issue was properly before the court.

Appellees further argue that the Amended Intervention was untimely pursuant to the trial court’s scheduling order and therefore, should not be considered. We note that, by order dated November 3, 2011, the trial court allowed the Amended Intervention to be filed. No party filed any pleadings to challenge the timeliness of the Amended Intervention. In fact, Ev-enstar filed an answer to the Amended Intervention without reservation. Because the trial court never addressed the issue of the Amended Intervention’s timeliness, that issue is not properly before us. (“It is well established that as a general matter, appellate courts will not consider issues raised for the first time, which were not pleaded in the trial court below and which the trial court has not addressed.”) Billieson v. City of New Orleans, 09-0410, p. 8 (La.App. 4 Cir. 11/12/09), 26 So.3d 796, 801-02, writ denied, 2010-0064 (La.6/4/10), 38 So.3d 301 (citing Johnson v. State, 02-2382, p. 4 (La.5/20/03), 851 So.2d 918, 921).

Turning to the dismissal of Plaque-mines’ claims in the Amended Intervention, we find that the trial court erred in dismissing those claims, as they were not raised by the Joint Motion. First, Plaque-mines was not the mover for summary judgment and there is no question that the Joint Motion did not seek summary judgment as to the new claims set forth in the Amended Intervention. We know of no statute or case law by which an argument raised in opposition to a | ^motion for summary judgment is transformed into its own motion for summary judgment. See. e.g., Robertson v. Doug Ashy Bldg. Materials, Inc., 2010-1552, p. 12 (La.App. 1 Cir. 10/4/11) 77 So.3d 339, 348, writ denied, 2011-2468 (La.1/13/12), 77 So.3d 972, (where defendant raised the issue of plaintiffs exposure to asbestos purchased from it in its motion for summary judgment and in its memorandum in support, also raised the issue of whether the exposure was a substantial factor in causing plaintiffs illness, the latter issue was not properly before the court: “a memorandum, opposition or brief is not a pleading, and therefore, raising the issue in a memorandum is not the equivalent of raising the issue in an actual pleading or motion.” (Citation omitted)); Allen v. Carollo, 95-1840 (La.App. 1 Cir. 4/4/96), 674 So.2d 283, 290 (“[Appellant] first raised the constitutionality of the retroactive application of the statute in a supplemental memorandum in opposition to the motion for summary judgment ... we find the issue of whether LSA-R.S. 9:5605 is unconstitutional on any basis is not properly before this court, nor was it properly presented to the trial court ... the issue was not specifically pled; it was brought before the court as an argument in [Appellant’s] supplemental memorandum opposing the motion for summary judgment.”); Melton v. Horton, 10-496 (La.App. 5 Cir. 12/14/10), 55 So.3d 897 (trial court erred in dismissing all of plaintiffs claims where partial summary judgment motion did not address every claim).

Second, La. C.C. Pr. art. 966(E) states that, while summary judgment “may be rendered dispositive of a particular issue ... [and] cause of action ... even though the granting of the summary judgment does not dispose of the entire case ...[,] a summary judgment shall be rendered ... only as to those issues set forth in the motion under consideration by the court at that time.” (Emphasis added). In the instant matter, the issues “set forth” in the Joint Motion did not concern any of the new claims raised by the Amended Intervention and therefore, should not have been dismissed by the trial court.

Finally, even under a de novo review of the record, we find the record to be devoid of any documents under La. C.C.Pr. art. 966(B), demonstrating that there are no factual issues with respect to the claims in the Amended Intervention. Nor is there a statement of uncontested material facts as to the Amended Intervention’s causes of action. Rather, in their reply brief to Plaquemines’ opposition to the Joint Motion, plaintiffs/Evenstar devote a two-paragraph argument as to the new claims in the Amended Intervention. Nothing was attached to support any facts raised by the arguments plaintiffs/Evens-tar advance in their reply brief. As this Court has recognized, “[ajrguments of counsel, whether oral or in writing in the form of briefs and memoranda, no matter how artful, are not evidence.” Alomang v. Freeport-McMoran, Inc., 97-1349 (La.App. 4 Cir. 3/4/98), 718 So.2d 971, 973. Thus, we reject plaintiffs/Evenstar’s contention that their argument on these issues constitutes a proper summary judgment motion and we find that appellees have failed to demonstrate that no factual issues remain in dispute as to the new causes of action set forth in the Amended Intervention.

CONCLUSION

Based on the reasons set forth herein, we conclude that the trial court erred in granting summary judgment. The trial court’s judgment is reversed and the |L.¡matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED

      . Section 18-1, Art. I, Chapter 18 of the Code of Ordinances (now, Section 18-86) provides that a person seeking to excavate or operate a borrow pit within Plaquemines parish for personal or commercial purposes must apply to the parish council and obtain approval for the issuance of an administrative permit.

      . Plaintiffs later brought American International Specialty Lines Insurance Company into the suit by way of a First Amended Cross-Claim, as CCI’s liability insurer.

      . First Mercury filed an Amended Answer to the Intervention as well, also alleging that the ordinance is unconstitutional, on the same grounds set forth by plaintiffs.

      . First Mercury's motions raised the following issues: 1) that its policies do not provide coverage for the damages claims relating to the back-fill of the pit asserted in plaintiffs’ Petition and the Intervention; 2) that no coverage exists under its policies for the periods covering 2007-2008; and 3) that the claims asserted by CCI in its Cross-Claim are not covered by its policies.

      . For purposes of this appeal, CCI’s Motion for Summary Judgment is subsumed in this opinion's references to the "Joint Motion.”

      . The Reasons for Judgment address only the Joint Motion and do not address the partial summary judgments granted in First Mercury’s favor.

      . LSA-Const. Art. 5, § 5(D) provides, in pertinent part, that "a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional.”

      . While First Mercury’s summary judgments are not considered in this appeal, we note that First Mercury’s appellate brief addresses the issues raised in the Joint Motion. The record reflects that First Mercury joined in the plaintiffs/Evenstar's reply memorandum to Plaquemines' opposition memorandum: however, the record does not reflect that First Mercury ever joined in the Joint Motion itself.

      . Plaquemines’ Home Rule Charter provides, in pertinent part, that a proposed ordinance "requiring any permit," "shall be adopted only at a regular meeting of the Parish Council,” after being distributed to the members of the Council and “only after a notice of the introduction on such proposed Ordinance shall have been published in the official journal of the Parish not less than one (1) week nor more than two (2) weeks after the introduction thereof, which notice shall state the substance of the proposed Ordinance and the date of the meeting at which a public hearing shall be held and at which the Council shall begin its consideration thereof ...”

      . The Reasons for Judgment in the B & A case, attached as an exhibit to the Joint Motion, state that "[t]here does not appear to be an advertisement pertaining to the proposed ordinance.” In so finding, the trial court relied on the official minutes of the Plaque-mines Parish Council, an affidavit from the publisher of the official journal of the Parish and a copy of the only edition of the Parish newspaper published during that relevant time period.

      . Although the Reasons for Judgment do not specifically find that Plaquemines failed to adhere to the notice requirements of the Home Rule Charter, it appears that the trial court implicitly concluded that it had failed to do so, insofar as the trial court granted the Joint Motion in its entirety, and its Reasons for Judgment mention the B & A case.

      . As noted herein, the Joint Motion was filed on June 17, 2011.

      . Specifically, in its Opposition to the Joint Motion, Plaquemines discussed ordinance 9-40 and the borrow pit moratorium. It is clear that Plaquemines did so only to show that summary judgment was inappropriate on all claims of the Intervention, as the applicability of these ordinances was not raised in the Joint Motion. In their reply briefs, the plaintiffs and First Mercury, too, briefly discussed these ordinances

      . On appeal, a summary judgment is reviewed de novo, "using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is enti-tied to judgment as a matter of law.” Sam

        aha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-883.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Charlotte FRANKLIN v. CALCASIEU PARISH SCHOOL BOARD.
    No. 12-1032.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Christopher M. Trahan, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Defendant/Appellant, Calcasieu Parish School Board.
    Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Charlotte Franklin.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

|tThe defendant employer appeals the award of workers’ compensation indemnity and medical benefits to claimant whose credibility was challenged. For the following reasons, the awards are affirmed, and attorney fees are awarded for work performed on this appeal.

FACTS

Charlotte Franklin began working for the Calcasieu Parish School Board (CPSB) as a custodian at Sam Houston High School in 2005. She filed a Disputed Claim Form on September 19, 2011, alleging that she had injured her back on approximately June 2, 2011, while stripping floors at the school. Ms. Franklin stated she was injured when her legs slipped apart as she was operating a machine used to strip floors. She then explained that when her legs slipped, she held on to the stripping machine which caused her body to twist and that the twisting of her body caused pain in her lower back, buttocks, hips, underneath her ribs, and down the back of her legs.

CPSB denied Ms. Franklin’s claim because her coworkers did not corroborate that she told them she injured her back at work and because no accident report was prepared. At trial, CPSB pointed out numerous inconsistencies between Ms. Franklin’s deposition testimony and her trial testimony as to when and how she injured her back, who she told about her injury, and when and what she told them about her injury. Despite these inconsistencies, the workers’ compensation judge (WCJ) concluded that Ms. Franklin carried her burden of proof and awarded her indemnity and medical benefits. The WCJ also determined, however, that CPSB reasonably controverted Ms. Franklin’s claim and denied her |2claims for penalties and attorney fees. CPSB appealed; Ms. Franklin answered the appeal, seeking an award of attorney fees for work performed on appeal.

DISCUSSION

CPSB assigns one error: the WCJ erred in concluding that Ms. Franklin carried her burden of proof of entitlement to workers’ compensation benefits. In a workers’ compensation action, the employee has the burden of proving by a preponderance of the evidence that she suffered “personal injury by accident arising out of and in the course of his employment.” Marange v. Custom Metal Fabricators, Inc., 11-2678, p. 2 (La.7/2/12), 98 So.3d 1253, 1257; La.R.S. 23:1031(A). Accident is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

An employee can prove an unwit-nessed accident with her testimony alone if “(1) no other evidence discredits or casts serious doubt upon [her] version of the accident; and (2)[her] testimony is corroborated by the circumstances following the alleged incident.” Marange, 93 So.3d at 1257. The employee’s testimony may be corroborated by the testimony of coworkers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La.1/19/11), 56 So.3d 215 (citing Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992)). The WCJ’s determinations that an employee is credible and that she satisfied her burden of proof are factual determinations that should not be disturbed by a reviewing court unless the determinations are “clearly wrong ... absent a showing of manifest error.” Bruno, 593 So.2d at 361.

laCPSB contends the WCJ’s finding that Ms. Franklin carried her burden of proof was erroneous because (1) the WCJ did not make a specific finding as to Ms. Franklin’s credibility and (2) Ms. Franklin’s claim was contradicted by her coworkers’ testimony. In cases such as this one, where the fact finder concludes that a party carried her burden of proof, a credibility determination can be implied from that finding. Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03), 858 So.2d 830. Accordingly, CPSB’s first contention lacks merit.

An appellate court cannot reverse a WCJ’s factual findings that are based on a reasonable credibility evaluation if the record “furnishes [a] reasonable factual basis for the trial court’s finding.” Marange, 93 So.3d at 1258 (quoting Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)). When, as here, “there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id.

Contrary to CPSB’s claims, Ms. Franklin’s claim that she was injured in the course and scope of her employment in June 2011 is corroborated by circumstances following her alleged accident. Misty King, Ms. Franklin’s daughter, testified her mother related to her that “she got hurt working the big machine at work.” Ms. King further testified that after her mother injured herself, she observed Ms. Franklin had problems rising from a seated position and that she could not do housework or her normal daily activities.

Shayne Matte, one of Ms. Franklin’s coworkers, also corroborated her claim, though he initially seemed to contradict it. Counsel for CPSB asked Mr. Matte the following about whether she reported her accident to him:

She has told us that she suffered an accident at work early in June of 2011. She’s told us that she was working that day with you, |4Jacob, and Linda Ches-son. She’s told us that she was using a floor stripping type machine when she— when her legs split apart[,] and she said she pulled them back together. She’s told us that when this happened, you and Jacob and Linda had gone down the hall somewhere to get water. She says that when you all got back as a group, the three of you all, that she immediately told all three of you that she had hurt herself while using the floor stripper. My question to you is: Did she ever report an accident of that type to you last summer?

Mr. Matte answered: “No, sir, not that I remember.”

During examination by counsel for Ms. Franklin, Mr. Matte testified that Ms. Franklin “complain[ed] a lot” of her back hurting during the month of June. He further testified that all the employees were involved in stripping the floors and that the women used the stripping machine. This testimony contradicted the testimony of their coworker Linda Ches-son and their supervisor, Bonnie Guillory.

The WCJ questioned Mr. Matte to clarify his testimony as to whether Ms. Franklin reported that she injured her back at work, asking: “You said you don’t remember if Ms. Charlotte reported to you that she was hurt?” Mr. Matte responded: “I do remember her talking about her back being injured, but I don’t remember her telling me that [it] was because of the stripping of the floor.”

Ms. Franklin acknowledges that she has numerous health conditions, including diabetes mellitus II, fibromyalgia, and arthritis, and that she often complained of pain before injuring herself at CPSB, but she points to her medical treatment after her injury as additional corroboration of her claims. On June 2, 2011, she went to a nurse practitioner for a follow up of her diabetes. On that date, she complained “of severe low back pain, arthritis pain in hands and pain in general all over.” She related that she had “been using heavy equipment at work this week[,] and [it] has really caused some pain.” The Review of Systems portion of that office visit note states, in part: “Musco: Joint Pains — Leg Swelling-, ^Myalgia-, Pain in hand-, Pain in lower back- No Arthritis Pain, Edema, Muscle cramps, Other, Pain in ankle, Pain in hip, Pain in knee, Pain in mid back, Pain in neck, Pain in shoulder, Pain in wrist, Weakness.” After conducting a physical examination of Ms. Franklin’s back and extremities, the nurse practitioner noted “lumbar tenderness” and “Joints severe pain with palpation over bilateral SI joints. Multiple moderate to severe tenderpoints upper and lower extremities.”

Comparison of Ms. Franklin’s previous visit on May 2, 2011, to her June 2, 2011 visit shows her physical condition had clearly declined during that one month interval. The May 2, 2011 office visit note reflects that Ms. Franklin did not complain of back pain, hand pain, or joint pain on that date and that examination of her spine showed her spinal curvature was normal and her spine and musculature were “non tender.” Ms. Franklin’s condition continued to worsen after her June 2, 2011 visit. Her nurse practitioner prescribed physical therapy which initially progressed well. Approximately three months after beginning therapy, however, Ms. Franklin began complaining to her physical therapist of soreness and pain and “catching along the bilateral SI joint.” He suspected the increased pain and catching were related to her use of the treadmill which he believed caused sacral inflammation. The physical therapist recommended that Ms. Franklin not be allowed to return to work due to the heavy lifting requirements of her job.

Ms. Franklin was referred to an orthopedic surgeon who opined that she had a probable “HNP” (herniated nucleus pulpo-sus) at L4-5 and recommended that she undergo an MRI and attend physical therapy. CPSB refused to pay the cost of this recommended treatment.

Our review of the record reveals no basis for the reversal of the WCJ’s determination that Ms. Franklin carried her burden of proof. Evidence exists that | r,casts doubt upon Ms. Franklin’s testimony regarding her accident, but other testimony and medical evidence corroborate her claims. Accordingly, the WCJ’s judgment has not been shown to be clearly wrong or manifestly erroneous, and it must be affirmed.

Ms. Franklin answered the appeal, seeking an award of attorney fees for the work performed by her attorney on appeal. We award $2,500.00 for the work her attorney performed on appeal.

DISPOSITION

The workers’ compensation judge’s judgment is affirmed, and Ms. Franklin is awarded attorney fees in the amount of $2,500.00 for work performed on appeal. All costs are assessed to Calcasieu Parish School Board.

AFFIRMED AND RENDERED.


author: PIERCE, Justice, for the Court. CARLSON, Presiding Justice,

text:
    Dorothy KNIGHT v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM of Mississippi.
    No. 2010-CT-01586-SCT.
    Supreme Court of Mississippi.
    Dec. 18, 2012.
    Rehearing Denied March 21, 2013.

      George S. Luter, attorney for appellant.
    Jane L. Mapp, Jackson, attorney for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice, for the Court.

¶ 1. This appeal by Dorothy Knight arises from an order entered by the Circuit Court of the First Judicial District of Hinds County, Mississippi, on December 6, 2011. The circuit court affirmed an administrative decision by the Public Employees Retirement System (hereinafter “PERS”) denying disability benefits to Dorothy Knight, a Mississippi State Senate employee.

¶ 2. Knight’s claim for disability retirement was reviewed and denied by the PERS Medical Board, and she appealed to the PERS Disability Appeals Committee (hereinafter “Committee”). A hearing was held in which testimony and evidence were received. The Committee presented its recommendation to deny Knight’s claim to the PERS Board of Trustees (hereinafter “Board”). On August 28, 2007, the Board agreed with the recommendation and denied disability benefits to Knight. On appeal to the circuit court, Judge W. Swan Yerger ruled in favor of PERS, finding that its decision was supported by substantial evidence. Knight then appealed the circuit court’s ruling to the Mississippi Supreme Court, which referred it to the Court of Appeals, which affirmed the circuit court’s decision. Knight’s appeal is now before this Court on writ of certiorari. Having reviewed the record, this Court reverses the Court of Appeals’ and circuit court’s rulings.

STATEMENT OF THE FACTS

¶ 3. Knight worked as a committee assistant'for the Mississippi State Senate for more than twenty-five years. She was required to be on her feet most of the day, walk up and down stairs, stand at the copy machine, prepare for committee meetings, and perform administrative and clerical tasks. According to her supervisors and colleagues, she was a hard worker who almost never missed work.

¶ 4. On April 28, 2006, she filed an application for retirement benefits with PERS, seeking non-duty-related disability benefits. Within a few months, she had resigned from her job. Her medical information on her PERS application stated that her disability consisted of severe pain for seventeen years which came from the insides of her feet; numbness in her feet, which caused her to feel off-balance; and swollen and red feet, with broken capillaries on top of her feet.

¶ 5. The PERS Disability Appeals Committee conducted formal hearings and agreed with the finding of the Medical Board that Knight had failed to prove permanent disability. Several hearings were held before the Committee. Knight confirmed that she had many problems with her feet, including pain, numbness, and swelling. She acknowledged that she had resigned from the Mississippi State Senate because of the increasing severity of the pain attributed to her feet problems. She stated that she had agonizing pain with every step she took and that her feet and legs were numb all the way to her knees. She testified that the only issue that prevented her from working was her feet, and eventually, her restless-leg syndrome. Knight stated that she never asked her employer for assistance in moving around, such as a scooter or wheelchair. She believed this would inhibit her work, because she was required to move constantly and quickly. She had tried different types of shoes to alleviate the pain, but none helped. However, she admitted that she had never tried wearing orthopedic shoes or tennis shoes at work. Eventually, she stopped leaving the office for lunch, because it became too painful to walk. She did not apply for benefits with the Social Security Administration, but she has been receiving Special Service benefits.

¶ 6. Knight testified to seeing many physicians over the years. She testified that she was diagnosed with peripheral neuro-pathy in 1988 or 1989 by Dr. Yawn, who is now deceased, but no records have been obtained. Knight stated that these records had been transferred to Dr. Ann Meyers, but they had been destroyed after seven years. Dr. Richard Weddle performed a nerve-conduction study on Knight, which turned out to be normal. He told her that she did not have peripheral neuropathy and diagnosed her with vascular headaches, restless-leg syndrome, and some edema of the feet with discoloration of skin due to venous insufficiency, most likely. Dr. Alan Moore also conducted a nerve-conduction study on Knight, which also was normal. He believed that there was no evidence of neuropathy which caused her feet pain. The examination was consistent with an orthopedic process.

¶7. The Committee had Dr. Samuel Peeples evaluate Knight, and he found that, while her symptoms were “very suggestive of peripheral neuropathy,” which would indicate the possibility of disability, her nerve-conduction studies over the last two years did not support a conclusive diagnosis of peripheral neuropathy. He suggested that she may need repeat nerve-conduction studies, since her symptoms had worsened. He could not state definitively that she was disabled but agreed that her work conditions seemed to aggravate her symptoms.

¶ 8. The Committee also referred Knight to Dr. Phillip Blount. He reviewed three electrodiagnostic evaluations, each of which failed to demonstrate peripheral neuropathy. He found that it was possible that she did have peripheral neuropathy which was not detected on nerve-conduction studies or needle EMG because un-myelinated type C pain fibers, which cause painful neuropathy, are not detected on routine electrodiagnostic evaluations. He found that she was suitable for sedentary work but not for walking long distances. He referred her to an orthotist to modify her shoes to include a metatarsal bar to offload the metatarsal head and to provide cushion. Finally, he indicated that she had reached her maximum medical improvement with a seventeen percent whole-person impairment rating based on mobility and gait.

¶ 9. On November 10, 2006, Dr. B.T. Sullivan performed surgery to correct a broken bone on the top of her right foot, several broken toes and bunions on each foot. He told Knight that the numbness in her feet and other foot pain were not associated with the broken bones and bunions.

¶ 10. At the Committee hearings, many people testified on behalf of Knight. The Mississippi Senate Comptroller testified that Knight could not perform her job during session because of the increased time she had to spend on her feet. Further, all job positions for which Knight qualified would have similar job requirements. Although Knight had not previously complained of neck problems, three senators who personally had worked with Knight testified that her health had declined, and she was often slumped over, with her neck drawn to one side. Knight responded that she did have neck problems previously and had seen a chiropractor for an adjustment, which helped. Knight’s sister testified that Knight had fallen more than once due to her poor balance, and on one occasion, she had hit her head. While they had lived together, she would wake up to Knight screaming because of her feet pain. One of Knight’s friends stated that she had seen Knight fall in the kitchen multiple times and at the doctor’s office days before the hearing.

¶ 11. As stated earlier, following the PERS decision to deny benefits, Knight appealed to the circuit court. Judge W. Swan Yerger ruled in favor of PERS, finding that the decision was supported by substantial evidence. Knight appealed to this Court, which referred the case to the Court of Appeals, which affirmed the circuit court’s decision. The case is now before this Court on writ of certiorari.

STANDARD OF REVIEW

¶ 12. This Court’s standard of review of an administrative agency’s finding and decisions is well-established. Rule 5.03 of the Uniform Circuit and County Court Rules provides that an agency’s conclusions must remain undisturbed unless the agency’s order: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights. Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (Miss.2000) (citing Fulce v. Pub. Employees’ Ret. Sys., 759 So.2d 401, 404 (Miss.2000); Davis v. Pub. Employees’ Ret. Sys., 750 So.2d 1225, 1229 (Miss.1999); Brinston v. Pub. Employees’ Ret. Sys., 706 So.2d 258, 259 (Miss.Ct.App.1998)). A re-buttable presumption exists in favor of the action of an administrative agency, and the burden of proof is on the party challenging an agency’s action. Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993); Brinston, 706 So.2d at 260. This Court is not entitled to substitute its own judgement for that of PERS, and it is impermissible for a reviewing court to reweigh the facts of the case. Marquez, 774 So.2d at 425 (citing Miss. Pub. Serv. Comm’n v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992).

LEGAL ANALYSIS

I. Whether the Court of Appeals erred in ignoring that PERS erroneously based its decision on its reasoning that disability cannot be granted for pain “when no objective reason for that pain can be produced.”

¶ 13. This Court will reverse an agency’s decision only when it is “unsupported by substantial evidence, was arbitrary and capricious, was beyond the power of the agency to make, or violated some constitutional or statutory right of the complaining party.” Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1240 (Miss.2002). “Substantial evidence” has been defined by this Court as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Pub. Employees’ Ret. Sys. v. Dishmon, 17 So.3d 87 (Miss.2009) (citing Marquez, 774 So.2d at 425 (Miss.2000)). “To be substantial, the evidence must be something more than a mere scintilla or suspicion.” Marquez, 774 So.2d at 429. The question before PERS was whether Knight’s claim met the statutory requirements for permanent disability. PERS, as the fact-finder, is responsible for determining which party’s evidence carries more weight. Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1287 (Miss.2005). Accordingly, “[if] an agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Stevison v. Pub. Employees’ Ret. Sys., 966 So.2d 874, 878 (Miss.Ct.App.2007).

¶ 14. This Court is obligated to give substantial deference to an administrative agency when reviewing its decision on appeal, and this Court would exceed its authority if it were to re-evaluate the evidence and “make its own determination of the trustworthiness of some particular testimony.” Pub. Employee’s Ret. Sys. v. Cobb, 839 So.2d 605, 609 (Miss.Ct.App.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1123-24 (Miss.1992)). The primary question before this Court is whether the record contains substantial evidence to support PERS’ finding that Knight is not disabled. Doyle v. Pub. Employees’ Ret. Sys., 808 So.2d 902, 905 (Miss.2002); Pub. Employees’ Ret. Sys. v. Henderson, 867 So.2d 262, 264 (Miss.Ct.App.2003).

¶ 15. Knight contends that the circuit court erred in affirming the decision of PERS, because its decision is not supported by substantial evidence and is legally incorrect since PERS stated that “there is no statutory provision wherein an award of disability can be granted for pain when no objective reason for that pain can be produced. We have no proof of a medical illness that is causing Knight’s pain.” Based on this, Knight asserts that PERS’ decision is arbitrary and capricious due to its factual inaccuracies and erroneous legal analysis. Further, Knight argues that PERS was incorrect in stating that it cannot award disability based upon complaints of pain in which there is no specific diagnosis to prove its cause objectively. Finally, Knight contends that PERS’ decision is arbitrary and capricious in failing to consider the lay testimony that was presented.

¶ 16. PERS argues that its decision denying Knight’s claim for disability benefits is supported by substantial evidence, is legally correct, and is neither arbitrary nor capricious. The circuit court affirmed PERS’ decision, which found:

The employer’s certification of job description states that Ms. Knight does her job but with pain. Pain is subjective and there is no way to measure it. There is no statutory provision wherein an award of disability can be granted for pain when no objective reason for that pain can be produced. We have no proof of a medical illness that is causing Ms. Knight’s pain. We have noted that she has some arthritis of the feet but that does not explain the complaints of sock like numbness and fever. We cannot recommend disability without persuasive and credible objective medical evidence of a disability. Thus, in this case, we cannot recommend Ms. Knight’s request for disability be approved.

¶ 17. Knight’s medical history is extensive. She has tested positive for hypertension, has migraine headaches, peptic ulcer disease, restless-leg syndrome, edema of the feet, venous insufficiency which has caused skin discoloration in her feet, arthritis, broken bones, osteoporosis, anemia, blood transfusions, high cholesterol, gallstones, stomach ulcers, has had two breast biopsies, a bilateral mastectomy, silicone implants, removal of implants, a hysterectomy, a cholecystectomy, and foot surgery to remedy her hallux abductovalgus. The foot surgery also included a bunionectomy and an asteotomy.

¶ 18. This Court previously has overturned a prior ruling based on PERS’ lack of substantial evidence to deny an applicant disability benefits. Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (Miss.2003). Dearman was a teacher for the Jackson County School District. Id. at 1015. She developed many debilitating medical conditions. Id. She sought treatment and was told to seek medical retirement. Id. She ultimately had to retire because she was unable to perform the duties and responsibilities of her job. Id. PERS denied her claim for disability, finding that she was not permanently disabled. Id. at 1016. The circuit court reversed the PERS decision, and PERS appealed. Id. PERS alleged that the circuit court had erred in substituting its judgment for that of PERS and that it had erred in reweighing the facts. Id. Dearman contended that the record contained no evidence which suggested she was not disabled or that she was able to perform her duties as a teacher. Id. This Court noted that it was clear from the record that Dearman was unable to perform her usual duties of employment and no accommodation could remedy the situation. This Court in Dearman acknowledged that the record was devoid of any evidence that Dearman was not disabled, and PERS had failed to offer any medical evidence which disputed the opinions of the doctors who testified. Id. at 1018.

¶ 19. Comparing Dearman with the case at hand, the facts are similar. Employers and coworkers testified and acknowledged the physical debilitation and excruciating pain experienced by Knight. Knight’s coworkers and employer testified that she could not find medication that would relieve her pain, that she had fallen many times because of her lack of balance, and that she was in constant pain. Knight’s sister testified that when she had lived with Knight, she would awake to Knight’s screams. She would check on her, and Knight would be screaming in pain and holding her feet. Knight did not apply previously for disability, because she believed she should keep working. Her sister further testified that the surgery she had on her feet helped only with getting her foot in a shoe. It did not take any of the pain away. She had missed church because of the pain in her feet just one day prior to the PERS hearing. She had stopped going to lunch during work, because it hurt too much to leave the office. One of the senators stated that Knight once had been a very vibrant and energetic employee who never had refused to do anything but that she had become constantly in pain.

¶ 20. In Public Employees’ Retirement System v. Marquez, 774 So.2d 421, 427 (Miss.2000), PERS argued that “[if] the Board of Trustees were to accept subjective complaints with the same weight of determination as objective complaints, then anyone who wishes to be classified as disabled would need only complain that they cannot perform their regular work duties.” PERS argued that the possible evidence of disability was subjective in nature, rather than objective. Id. This Court recognized that, while some of Marquez’s medical problems had been treated, she still had medical problems which made her incapable of performing her job as a teacher. Id. The Court further stated, “if medical diagnoses by licensed physicians are to be labeled ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.” Id. This Court found that there was medical evidence in the record which suggested that Marquez was incapable of performing her duties as a schoolteacher. Id. The Court noted that Marquez’s fibromyalgia had manifested itself as chronic pain. Id.

¶21. In the case at hand, Knight worked as a committee assistant for the Mississippi Senate. Her job required constant movement. Because Knight was always on her feet, the pain worsened and had manifested itself as chronic pain. Regardless of the cause of the pain, it had not subsided. Knight’s supervisor stated that she was a very good employee and did the best she could in spite of her chronic pain, which was worsening and making it difficult to work. Therefore, it is myopic for PERS to state that pain in and of itself is not disabling and rather, there must be a direct cause of the pain for it to be considered a disability.

¶ 22. While the dissent argues that the Court of Appeals was correct in finding that Knight did not present objective medical evidence of the cause of her pain, we disagree. Dr. Philip Blount, after being recommended by PERS, evaluated Knight. He found that her impairment was at a maximum medical improvement, that she should not have to walk long distances (which was required for her job), and that she was suitable only for sedentary work. Further, he found that she could have peripheral neuropathy, but he could not diagnose her with it since unmyelinated type C pain fibers are not detected on routine electrodiagnostic evaluations. He diagnosed her with bilateral metatarsalgia, an outside diagnosis of peripheral neuropa-thy without electrodiagnostic support; gait instability; and outside diagnosis of osteoporosis. Dr. Samuel Peeples, another doctor to whom PERS referred Knight, stated that Knight’s symptoms were “very suggestive of peripheral neuropathy.”

¶23. Mississippi Code Section 25-11-113(l)(a) contains two parts. First, the Medical Board, after medical examinations, must first certify that the applicant 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[J” Miss.Code Ann. § 25-11-113(l)(a) (Supp. 2012). Second, the Medical Board must then apply the statutory definition of disability, which states:

the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by [PERS] that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Miss.Code Ann. § 25-ll-113(l)(a).

¶24. The dissent is correct in setting out that the “applicant must provide the Medical Board with sufficient ‘medical evidence’ to show that he or she is ‘mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired’ (Miss.Code Ann. § 25-11-113(a)) followed by the Medical Board then applying the definition of disability from that Section.” The dissent further addresses PERS Board Regulation 45A, Section 105, to support its argument that Knight must have objective medical evidence to support the disability claim. However, the dissent’s application of this statute to the facts at hand is simply incorrect. Dr. Blount stated in his medical report that Knight should have only a sedentary job, that she should not have to walk long distances (which was required for her job) and that she potentially had peripheral neuropathy. With Dr. Blount’s statements that Knight could not continue the tasks required of her job (walking long distances) and that she was at a maximum medical improvement, Knight presented enough medical evidence to show that she was physically incapacitated for the job she was employed to do, that it was likely permanent, and that she should be retired. A sedentary job was not within the guidelines of her employment.

¶ 25. Additionally, the dissent incorrectly mentions that we failed to addressed the PERS Board Regulation 45A, Section 105, which references Section 25-11-113. That regulation further discussed Section 25-11-113, which we thoroughly analyzed in this opinion.

¶ 26. Accordingly, Knight falls within this statutory definition of disability. Her job as a committee assistant required her to be constantly on her feet. Because of her chronic pain, Knight is unable to perform the usual duties of her employment. PERS suggested at the hearings that Knight’s failure to ask for a scooter or wheelchair was a failure to exhaust her options. Knight disagreed, testifying that the use of such device would not be possible for her specific job duties, because she was required to be on the move constantly. Such accommodations would inhibit her ability to work accurately because of the job requirements. Using a scooter or wheelchair would not be conducive to on-the-run job duties, nor would she be able te adequately complete tasks during the busy legislative sessions.

¶27. PERS’ suggestion that Knight should have asked for a scooter or wheelchair or should have been moved to a sedentary job is farfetched. In reiterating Mississippi Code Section § 25-11-113(l)(a), the statutory definition does not require a person with a potential disability move to a different field of work, nor does it require a person to lose compensation. A sedentary job would not be in the same line of work as what Knight was engaged in as a committee assistant — she worked nine- to fourteen-hour days during session, had to be on her feet most of the day, go up and down stairs, stand at a copy machine, and prepare for committee meetings.

II. Whether the Court of Appeals erred in relying on Laughlin v. Public Employees’ Retirement System.

¶28. We disagree with the Court of Appeals and the dissent here that the reliance on Laughlin was proper. In fact, the cases are very different. Laughlin was examined by Dr. David Collipp, a PERS recommendation. Laughlin v. Pub. Employees’ Ret. Sys., 11 So.3d 154, 155 (Miss.Ct.App.2009). Dr. Collipp’s physical examination showed that Laughlin had no abnormal pain behaviors or pain magnification. Id. at 155-156. He concluded that she had normal tone and motor power for her limbs, and normal range of motion (which included her shoulders, elbows, wrists, digits, hips, knees, and ankles). Id. He found that she had normal gross mental status with some passive-aggression and narcissistic personality traits. Id. He further found that she was capable of performing the work in her job description. Id. Dr. Adams, a rheumatologist, did not indicate that she suffered any permanent partial impairments, nor did he indicate whether she had reached maximum medical improvement. Id. at 156.

¶ 29. Those facts differ from the situation at hand. Dr. Blount stated that Knight should not return to the work she was doing, because she could not walk long distances and was able to do only sedentary work. Because this is outside of the requirements of her employment as required by statute, Knight would not be capable of returning to work as Laughlin could. In fact, Laughlin’s doctor specifically stated that she was well enough to go back to work. Laughlin, 11 So.3d at 156. Further, Knight was diagnosed with bilateral metatarsalgia, which contributed in part to her pain. In contrast, Laughlin’s doctor concluded that she had no abnormal pain behaviors or pain magnification. Id.

¶ 30. The Court of Appeals stated:

Like the Laughlin case, each of Knight’s doctors either offered no opinion regarding Knight’s disability or determined Knight was not disabled. Not a single doctor concluded Knight was permanently incapacitated or incapable of returning to her employment as required under the statute. Although one doctor stated her symptoms were suggestive of peripheral neuropathy, which could suggest the possibility of disability, he ultimately concluded she was not disabled.

108 So.3d at 947 (emphasis in original).

The dissent relies on this in its argument but clears up the Court of Appeals’ language by stating that the “physicians did not make a finding in regard to disability.” We, however, disagree. As previously stated, this Court is to determine whether there is substantial evidence in the record to support PERS’ decision to deny Knight disability benefits. “Substantial evidence” has been defined by this Court as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Pub. Employees’ Ret. Sys. v. Dishmon, 17 So.3d 87, 91 (Miss.2009) (citing Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (Miss.2000)). Dr. Blount, in a PERS recommendation, stated that Knight would be capable of only sedentary work (which is a conclusion that she could not return to her employment under the statute) and should not be required to walk long distances. Moving Knight from a position of committee assistant to a sedentary job would not be within the duties of her employment. Second, no doctor concluded that Knight was not disabled. In fact, Dr. Peeples, in a PERS recommendation, stated that Knight’s symptoms were suggestive of disability. Although no doctor expressly stated that Knight is disabled, both doctors suggested it with the language they used. Both indicated that Knight likely had peripheral neuropathy, and Dr. Blount stated that she was at a medical maximum improvement. This Court, in Dearman, 846 So.2d at 1016 (quoting Davis v. Pub. Employees’ Ret. Sys., 750 So.2d 1225, 1233 (Miss.1999)), noted that “substantial evidence has been defined as evidence which affords a substantial basis of fact from which the fact in issue can be reasonably inferred.”

CONCLUSION

¶ 31. After a review of the record, this Court finds that Knight has met her burden, and that PERS’ decision to deny her disability claim was not supported by substantial evidence.

¶ 32. The judgment of the Court of Appeals is reversed. The judgment of the Hinds County Circuit Court is reversed and rendered.

¶ 33. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED.

WALLER, C.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P. J., RANDOLPH AND LAMAR, JJ.

CARLSON, Presiding Justice,

dissenting:

¶ 34. Because I disagree with the majority as to whether Dorothy Knight met her burden of proof for disability retirement benefits, I respectfully dissent.

¶ 35. Knight retired from the State in 2006 and sought non-duty-related disability benefits for pain in her feet, which she claimed made it impossible to do her job. PERS denied her request for disability, stating that it could not award disability for pain if Knight could not produce an objective reason or medical illness causing the pain. Knight did not produce sufficient medical evidence and, although she saw many doctors, none said that she was disabled. Both the circuit court and Court of Appeals affirmed PERS’ decision.

¶ 36. Knight presents two arguments to this Court: (1) PERS’ denial of disability retirement benefits was arbitrary and capricious, because PERS incorrectly reasoned that there was “no statutory provision” under which disability could be awarded “for pain when no objective reason for that pain can be produced” and (2) the Court of Appeals erred in relying on Laughlin v. Public Employees’ Retirement System, 11 So.3d 154 (Miss.Ct.App.2009).

¶ 37. Like all administrative-agency decisions, review of a PERS decision is limited. Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1240 (Miss.2002). “There is a rebuttable presumption in favor of a PERS ruling.” Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (Miss.2001). A decision or order from PERS will remain undisturbed unless it “(1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights.” Fulce v. Pub. Employees’ Ret. Sys., 759 So.2d 401, 404 (Miss.2000) (internal citations omitted). PERS is the finder of fact, and a reviewing court must not reweigh the facts of the ease or substitute its own judgment for that of PERS. Dishmon, 797 So.2d at 891. The reviewing court must determine only “whether substantial evidence existed to support the agency decision.” Id. Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion” and the evidence must be “more than a mere scintilla or suspicion.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (Miss.2000) (internal citations omitted).

I. Whether PERS’ denial of disability benefits was arbitrary and capricious.

¶ 38. Knight claims that PERS’ denial of disability retirement benefits was arbitrary and capricious, because PERS incorrectly reasoned that there was “no statutory provision” under which disability could be awarded “for pain when no objective reason for that pain can be produced.” From this statement, one could conclude that PERS found Knight’s testimony and claims of pain to be believable. However, without sufficient objective medical evidence, PERS found no basis on which to award benefits. Mississippi law and PERS’ own regulations require “objective medical evidence” in order to award disability benefits.

¶ 39. Mississippi Code Section 25-11-113(1) sets forth the requirements for an award of disability benefits:

(a) ... any active member ... may be retired by the board of trustees ... provided that the medical board, after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, certifies that the member is mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired;.... For the purposes of disability determination, the medical board shall apply the following definition of disability: the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation ....

Miss.Code Ann. § 25-11 — 113(l)(a) (Supp. 2012). According to this section, two requirements must be met for PERS to award disability benefits. See Marquez, 774 So.2d at 425-26. First, the applicant must provide the Medical Board with sufficient “medical evidence” to show that he or she is “mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired[.]” Miss.Code Ann. § 25 — 11—113(l)(a) (Supp. 2012). Second, the Medical Board must apply the definition of “disability” from Section 25 — 11—113(l)(a), which is:

[T]he inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity 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. at 426 (quoting Miss.Code Ann. § 25-11 — 113(l)(a)). Knight, as the applicant for disability benefits, has the burden of proving that “she is in fact disabled.” Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284 (Miss.2005) (quoting Dishmon, 797 So.2d at 888).

¶ 40. PERS expounded on Section 25-11-113 and eligibility for disability benefits in its Board Regulations. PERS Board Regulation 45A, Section 105, provides in part:

2. The member shall submit medical evidence of the disability to the Medical Board for review. The Medical Board may require an independent medical evaluation or such other examination or report as is necessary to determine the member’s eligibility for benefits....
To be considered eligible for disability benefits, the Medical Board must certify to the Board of Trustees (i) that the member is mentally or physically incapacitated for the further performance of duty, (ii) that such incapacity is likely to be permanent, and (in) that the member should be retired.
3. For purposes of § 25-11-113, medical evidence shall be defined as “objective medical evidence,” which means: reports of examinations or treatments; medical signs which are anatomical, physiological, or psychological abnormalities that are observed and documented by medical professionals; psychiatric signs which are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings which are anatomical, physiological, or psychological phenomena that are shown by medically acceptable laboratory diagnostic techniques, including, but not limited to, chemical tests, electrocardiograms, electroencephalograms, X-rays, and psychological tests. Non-medical information not documented by test results, such as an applicant’s description of pain, is not considered objective medical evidence.
4. The applicant is responsible for providing sufficient objective medical documentation to the Medical Board in support of his or her claim for disability. PERS does not have the burden of proving that an applicant is not disabled. The Medical Board shall certify to the Board of Trustees whether, based on the objective medical evidence, the member is mentally or physically incapacitated for further performance of duty and that such incapacity is likely to be permanent and whether, based on all other facts, the member should be retired on a disability allowance.

PERS Board Regulation 45A, Section 105 (emphasis added). PERS requires “objective medical evidence” to support a disability claim, and the regulation specifically provides that “an applicant’s description of pain” is not objective medical evidence. In the absence of such medical evidence, the board does not have discretion to award disability benefits. The Disability Appeals Committee informed Knight of the “objective medical evidence” standard several times in the hearings, but Knight failed to provide sufficient medical evidence. Although several witnesses testified on Knight’s behalf, the Committee explained that lay testimony cannot overcome the lack of medical evidence. Knight failed to provide sufficient medical evidence, and PERS properly applied Mississippi law and its own regulations in denying disability benefits.

¶ 41. I am troubled by the majority’s failure to address PERS Board Regulation 45A, Section 105, which expressly references Section 25-11-113, and which forbids an award under the facts of this case. There is no challenge before us to the validity or constitutionality of the regulation. If it is a valid regulation, the majority should either apply it or explain why it does not. If the majority finds that the regulation is invalid or unconstitutional, then the parties and the Attorney General should be invited to brief the issue. And equally troubling is the fact that, in deciding this case, the majority ignores the regulation but leaves it on the books without any guidance as to whether it applies to future cases.

¶ 42. Knight asserts that “appellate courts in Mississippi have noted in numerous PERS disability cases the existence of pain leading to a finding of disability.” Knight is correct that pain is often a symptom in disability cases. See Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1017 (Miss.2003) (applicant had multiple “debilitating medical conditions,” including fibromyalgia, chronic migraines, chronic fatigue syndrome, cervical myofascial pain, and semi-paralysis on the entire left side of her body, among other things); Pub. Employees’ Ret. Sys. v. Shurden, 822 So.2d 258, 264 (Miss.2002) (applicant diagnosed with major depression, somatoform pain disorder, and fibromyalgia, among other things). See also Howard v. Pub. Employees’ Ret. Sys. of Miss., 971 So.2d 622, 624 (Miss.Ct.App.2007) (applicant had chronic pain, weakness, fatigue, and severe fibromyalgia); Pub. Employees’ Ret. Sys. v. Waid, 823 So.2d 595, 598 (Miss.Ct.App.2002) (applicant had severe fibromyalgia, chronic pain, HH & GERD, and anxiety-depression). I agree that pain as a component of disability, supported by objective medical evidence, could be sufficient for a finding of disability. However, in each of the cases cited here, at least one doctor concluded that the applicant was permanently disabled. In Knight’s case, not one of the many physicians who examined Knight was able to say that she was disabled. The documentation of pain in the record is based solely on Knight’s complaints, and no objective medical evidence was provided to support her claim. PERS did not say that pain cannot be disabling, but medical evidence was needed to support the claim.

¶ 43. In support of its conclusion that PERS should have found Knight to be disabled, the majority refers to a statement made by Dr. Blount that Knight could have a type of peripheral neuropathy that may not have been detected on the electrodiagnostic evaluations that he reviewed. The majority also notes that Dr. Peeples found Knight’s symptoms to be suggestive of peripheral neuropathy. Neither physician conclusively determined that Knight had peripheral neuropathy, and neither physician made a finding of disability. Of all the physicians who examined Knight, not one made a conclusive diagnosis or found Knight to be disabled. The applicant for disability has the burden of proof, and Knight was responsible for providing sufficient objective medical evidence to support her claim. See Howard, 905 So.2d at 1284; Dishmon, 797 So.2d at 888.

¶ 44. It is not the function of this Court to determine whether Knight presented sufficient evidence to prove disability. We are charged only with determining whether PERS’ decision was supported by substantial evidence. Doyle v. Pub. Employees’ Ret. Sys., 808 So.2d 902, 905 (Miss.2002) (quoting Dishmon, 797 So.2d at 891). The record contains substantial evidence to support PERS’ decision, and the decision was not arbitrary and capricious. At the time of her hearing, Knight had suffered from this foot pain for nearly two decades. Although she had seen doctors for a myriad of problems, in all that time, she mentioned the foot pain to doctors on only six occasions. Those complaints were made to her family care doctor and her neurologist. In fact, she saw her family care doctor one month before she applied for disability benefits and again two months after applying for benefits, and she failed to mention any foot pain on either occasion.

¶ 45. When Knight did mention her foot pain to doctors, she was noncompliant with their orders. After she broke several toes, she refused to wear a east. She was prescribed pain medicine, but she claimed that it did not work, so she quit taking it and did not request a different medication. Her family care doctor suggested she see an orthopedist about a bunion, but she refused. She was referred to an orthotist to be fitted for more supportive shoes, but she did not go. At the December 2006 hearing, she stated that she had been wearing Keds shoes on a daily basis, which arguably provide absolutely no support. Knight did not attempt to use any device to aid in walking, and she sought minimal help at work with the duties that caused her increased pain.

¶46. In November 2006, while Knight was in the process of appealing the Medical Board’s denial of benefits, a podiatrist performed surgery on her right foot to correct several broken toes and a broken bone in the top of her foot, to remove bunions, and to remove a lesion from the bottom of her foot. At the initial hearing before the Disability Appeals Committee one month after that surgery, she mentioned that she needed to have a similar surgery on her left foot, but that she was planning to wait until the next year. At the second hearing in August 2007, Knight still had not had surgery on the left foot.

¶ 47. Again, the burden is not on PERS to prove that a claimant is not disabled; the burden is on the claimant to prove that she is disabled. Howard, 905 So.2d at 1284; Dishmon, 797 So.2d at 888. PERS gave Knight multiple opportunities to provide additional medical evidence. Since Knight had not seen a doctor specifically for her feet, PERS sent her to two doctors for two separate independent medical evaluations and to a third doctor for a new nerve-conduction study. None of these doctors made a finding of disability. Knight failed to present sufficient objective medical evidence to support her claim of disability; therefore, she failed to satisfy her burden of proof.

¶ 48. While I do not doubt that Knight is a trustworthy person or that she experiences pain, an applicant’s complaint of pain alone is not sufficient evidence to support an award of disability benefits. After eighteen years of this pain, Knight was unable to obtain a diagnosis, much less a finding of disability, from a physician. Knight argues that a doctor has never said that she is not disabled. Unfortunately for Knight, that is not the standard. To receive disability benefits, Knight must prove that she is disabled. The fact that no doctor has said she is not disabled is not equivalent to a finding of disability. The Court of Appeals was correct that “[n]ot a single doctor concluded Knight was permanently incapacitated or incapable of returning to her employment as required under the statute.” Knight v. Pub. Employees’ Ret. Sys. of Miss., 108 So.3d 941, 947 (¶26) (Miss.Ct.App.2011), reh’g denied (May 15, 2012). Knight failed to prove her disability according to the statutory requirements for doing so; PERS’ denial was supported by substantial evidence and should be affirmed.

II. Whether the Court of Appeals erred in relying on Laughlin v. Public Employees’ Retirement System.

¶49. Knight claims that the Court of Appeals erred in relying on the Laughlin case and misapplied the facts of Laughlin to her case. The Court of Appeals stated:

Like the Laughlin case, each of Knight’s doctors either offered no opinion regarding Knight’s disability or determined Knight was not disabled. Not a single doctor concluded Knight was permanently incapacitated or incapable of returning to her employment as required under the statute. Although one doctor stated her symptoms were suggestive of peripheral neuropathy, which could suggest the possibility of disability, he ultimately concluded she was not disabled.

Knight, 108 So.3d 947 (¶ 26) (emphasis in original). Knight claims that the Court of Appeals’ “reliance on Laughlin [wa]s clearly wrong” because no doctor found that Knight was “not disabled.”

¶ 50. Actually, the Court of Appeals’ reliance on Laughlin could not be more appropriate. Knight is correct that no doctor has said that she is “not disabled,” but the same was true of Laughlin. Laughlin produced medical records from four physicians. Laughlin, 11 So.3d at 156. One doctor “declined to make a determination as to whether Laughlin was disabled,” stating that she was not qualified to do so. Id. The other three physicians made diagnoses, opined as to prognosis for recovery, and/or indicated whether Laughlin had reached maximum medical improvement. Id. at 156-57. None of the doctors said that Laughlin was or was not disabled. The Court of Appeals distinguished Laughlin’s case from two factually similar cases: Stevison v. Public Employees’ Retirement System, 966 So.2d 874 (Miss.Ct.App.2007) and Public Employees’ Retirement System v. Waid, 823 So.2d 595 (Miss.Ct.App.2002).

In each of these cases, on facts very similar to the facts in today’s case, we either reversed or approved the circuit court’s reversal of PERS’s decision denying disability benefits to the claimants. However, these cases are distinguishable from the case before us, as in each of them a physician stated emphatically that the claimant was disabled. See Stevison, 966 So.2d at 880 (¶ 19); Waid, 823 So.2d at 598 (¶ 10). Unlike the physicians in Stevison and Waid, all of the physicians in our case either offered no opinion regarding Laughlin’s disability or concluded that she was not disabled.

Laughlin, 11 So.3d at 160. Perhaps the Court of Appeals’ language in Laughlin, which was repeated in Knight, that the physicians “concluded that she was not disabled” is ambiguous. The more accurate statement would be that the physicians “did not make a finding in regard to disability.” Although the Court of Appeals’ language may be somewhat ambiguous, I find Knight’s argument that her case is distinguishable from Laughlin to be without merit.

¶ 51. In conclusion, it is my opinion that Knight failed to meet her burden of proving disability according to the statutory requirements for doing so, and PERS’ decision to deny disability benefits was supported by substantial evidence and was not arbitrary or capricious. Therefore, I would affirm. Because the majority holds otherwise, I respectfully dissent.

DICKINSON, P.J., RANDOLPH AND LAMAR, JJ„ JOIN THIS OPINION.

      . The inclusion of her medical history is important, because all of these factors together have created her disability. They have prohibited her from performing her usual and customary employment duties.

      . PERS Board Regulation 45A, Section 105, provides:
      3. For purpose of 25-11-113, medical evidence shall be defined as “objective medical evidence’ which means: reports of examinations or treatments; medical signs which are anatomical, physiological, or psychological abnormalities that are observed and documented by medical professionals

        4. The applicant is responsible for providing sufficient objective medical documéntation to the Medical Board in support of his or her claim for disability.

      . Knight was a committee assistant for the Mississippi State Senate. As the majority notes, during the legislative session, Knight was required to be on her feet most of the day, walk up and down stairs, stand at a copy machine, prepare for committee meetings, and perform administrative and clerical tasks. The legislative session lasts approximately three months each year. Miss. Const, art. 4, § 36. There was no testimony regarding Knight’s duties as a committee assistant during the remainder of the year when the Legislature was not in session.

      . Knight selected this one sentence from the Disability Appeals Committee’s well-reasoned, fifteen-page recommendation.

      . These are a few of the cases cited by Knight in support of her argument that the "existence of pain [can] lead[] to a finding of disability.”

      . I note that the majority lists Knight’s extensive medical history, seemingly as evidence to support her claim for disability. (Maj.Op-¶ 17.) However, most of the items listed — such as hypertension, migraine headaches, gallstones, removal of breast implants, hysterectomy, among others — are entirely unrelated to Knight's foot pain, which was the sole basis for her application for disability benefits.


author: WALLER, Chief Justice, for the Court:

text:
    CITY OF JACKSON, Mississippi v. Alexander GARDNER.
    No. 2012-IA-00517-SCT.
    Supreme Court of Mississippi.
    March 7, 2013.

      J. Richard Davis, Jr., Jackson, Pieter J. Teeuwissen, attorneys for appellant.
    Mark W. Prewitt, Vicksburg, attorney for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   WALLER, Chief Justice, for the Court:

¶ 1. Alexander Gardner sued the City of Jackson, alleging that he had suffered a broken leg when one of the City’s police officers forced him to sit down while in handcuffs. The City filed for summary judgment, which was denied by the trial court. On review of the City’s interlocutory appeal, we now reverse the trial court’s denial of summary judgment and render judgment in favor of the City.

FACTS

¶ 2. On November 21, 2009, Alexander Gardner and his brother drove to Mississippi Veterans Memorial Stadium for the annual football game between Jackson State University and Alcorn State University. Gardner got into an argument over parking fees with a parking lot attendant outside the stadium. Jackson Police Department Officer Terrance Tiller, who was directing traffic nearby, intervened and warned Gardner multiple times to either pay the fee or move along. When Gardner became loud and belligerent, Officer Tiller arrested him for disorderly conduct. Gardner initially refused to exit his vehicle and resisted being handcuffed. Some time after being placed in handcuffs, Gardner allegedly suffered a broken leg. Gardner was later found guilty of resisting arrest, disorderly conduct for failing to obey a police officer, and disorderly conduct for excessive noise.

¶ 3. Nearly one year after the arrest, Gardner sued the City of Jackson. Gardner initially asserted that Officer Tiller’s “negligence” had proximately caused his broken leg but amended his complaint to include that Officer Tiller had acted with reckless disregard. The City filed a motion for summary judgment, arguing that it was immune from suit under Mississippi Code Section 11 — 46—9(l)(c). Following a hearing, the trial court denied the City’s motion for summary judgment. This Court granted the City’s Petition for Interlocutory Appeal.

STANDARD OF REVIEW

¶ 4. “[I]mmunity is a question of law and is a proper matter for summary judgment[.]” Mitchell v. City of Greenville, 846 So.2d 1028, 1029 (Miss.2003). Summary judgment is proper if no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c). A denial of summary judgment is reviewed de novo. Flye v. Spotts, 94 So.3d 240, 244 (Miss.2012) (citing Mozingo v. Scharf, 828 So.2d 1246, 1249-50 (Miss.2002)). All evidence is viewed in the light most favorable to the nonmovant. E.g., Mitchell, 846 So.2d at 1030 (citing Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990)).

DISCUSSION

¶ 5. The City is immune from claims rising out of acts by its employees engaged in the performance of duties relating to police protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. Miss.Code Ann. § ll^á6-9(l)(c) (Rev.2002) (emphasis added). Finding the issue of reckless disregard to be dispositive, we reverse the trial court’s denial of summary judgment and render judgment in favor of the City.

Officer Tiller’s actions did not rise to the level of reckless disregard.

¶ 6. “Reckless disregard” exceeds gross negligence and embraces willful and wanton conduct. Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990, 994-95 (Miss.2003) (quoting City of Jackson v. Lipsey, 834 So.2d 687, 691-92 (Miss.2003)). The terms “reckless,” “willful,” and “wanton” refer to conduct that “is so far from a proper state of mind that it is treated in many respects as if harm was intended.” Maldonado v. Kelly, 768 So.2d 906, 910 (Miss.2000) (emphasis removed) (quoting Maye v. Pearl River County, 758 So.2d 391, 394 (Miss.1999)). “The usual meaning assigned to ... [these] terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Maldonado, 768 So.2d at 910 (emphasis removed) (quoting Maye, 758 So.2d at 394). Such conduct “usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Maldonado, 768 So.2d at 910 (quoting Maye, 758 So.2d at 394).

¶ 7. In determining whether someone’s conduct constituted reckless disregard, this Court considers the totality of the circumstances. Davis v. City of Clarksdale, 18 So.3d 246, 249 (Miss.2009) (citing Phillips v. Miss. Dep’t of Pub. Safety, 978 So.2d 656, 661 (Miss.2008)). “The nature of the officers’ actions is judged on an objective standard with all the factors that they were confronted with, ... taking into account the fact that the officers must make split-second decisions.” City of Jackson v. Powell, 917 So.2d 59, 72 (Miss.2005) (citing Graham v. Connor, 490 U.S. 386, 396-397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal citations omitted).

¶ 8. Since this case is at the summary-judgment stage, the Court must consider the evidence in the light most favorable to Gardner. E.g., Mitchell, 846 So.2d at 1030 (citing Palmer, 564 So.2d at 1354). According to Gardner, Officer Tiller told Gardner to “[g]et down” after Gardner’s brother exited the vehicle. Gardner responded that he could not get down because he was handcuffed. Gardner said that his left foot got caught between his vehicle and the curb as Officer Tiller forced him down, causing his broken leg.

¶ 9. Even considering the evidence in the light most favorable to Gardner, Officer Tiller’s actions did not rise to the level of reckless disregard. Officer Tiller forced Gardner to sit so he could deal with Gardner’s brother, who had exited the vehicle and was “very irate.” Officer Tiller also was concerned with the growing crowd of spectators approaching the scene, as well as the traffic jam caused by Gardner’s vehicle. Officer Tiller’s conduct was a reasonable precautionary measure in response to the surrounding circumstances.

¶ 10. When Gardner deliberately disobeyed Officer Tiller’s directive, Officer Tiller was forced to act for his safety and the safety of Gardner. Nothing in the record remotely suggests that Officer Tiller acted with reckless disregard for Gardner’s safety and well-being.

CONCLUSION

¶ 11. We find that Officer Tiller’s conduct did not rise to the level of reckless disregard for Gardner’s safety and well-being. Accordingly, we reverse the trial court’s denial of summary judgment and render judgment in favor of the City.

¶ 12. REVERSED AND RENDERED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR.


text:
    Freddie WEBBER, Jr. a/k/a Freddie Lee Webber, Jr. a/k/a “Head” a/k/a “FNU LNU” v. STATE of Mississippi.
    No. 2012-KA-00115-SCT.
    Supreme Court of Mississippi.
    March 7, 2013.
    Office of Indigent Appeals by George T. Holmes, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   WALLER, Chief Justice, for the Court:

¶ 1. Freddie Webber, Jr., was convicted of the sale or transfer of cocaine in the Circuit Court of Lowndes County and was sentenced as a habitual offender to a term of thirty years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. Finding no error, we affirm Webber’s conviction and sentence.

FACTS

¶ 2. On April 28, 2009, Lloyd McWil-liams, a Lowndes County narcotics agent, enlisted James Jones, a confidential informant, to purchase drugs from individuals in Columbus, Mississippi. Jones completed two transactions that day, which were captured on video. One of those transactions was a buy from Webber.

¶ 8. Jones testified for the State and explained his pay arrangement with the county. He told the jury that he purchased twenty dollars’ worth of cocaine from Webber, which he then placed in a bag and delivered to Agent McWilliams. At trial, Jones identified both the bag and Webber. During Jones’s testimony, the State submitted a DVD that contained audio and video footage of the transaction, which the jury then viewed. During its ease-in-chief, the State also called Agent McWilliams and Bill Smith, Director of Forensic Chemistry at the Columbus Forensic Lab. Smith testified that the substance in question was, in fact, cocaine. Agent McWilliams confirmed that Jones was paid for the Webber transaction and explained that the video of the transaction was used to identify Webber.

¶ 4. The defense presented no evidence and called no witnesses. The jury subsequently found Webber guilty as charged.

ISSUES

¶ 5. Webber raises three issues on appeal: (1) the video should have been excluded because it contained evidence of prior bad acts; (2) he was entitled to a cautionary instruction based on the State’s reliance on a paid confidential informant; and (3) the weight of the evidence did not support the verdict.

DISCUSSION

¶ 6. Although Webber initially objected to the video because it contained a discussion between Webber and Jones about prior drug transactions, the objection was waived at trial. The waiver is reflected in the record:

[Webber’s Counsel]: ... [A]fter discussing the issue with my client, the possibility of waiving other issues, we have made the informed decision to withdraw the objection to the video and play it in its entirety.
[Court]: That is from the start of this particular witness’s involvement that day up until the conclusion, from the pre-buy to the post-buy.
[Webber’s Counsel]: From the pre-buy to the post-buy, yes, Your Honor.
[Court]: There’s no objection to the entire video then?
[Webber’s Counsel]: No objection to the entire video.

Because the entire video was admitted without objection, this issue was not preserved for appeal. See, e.g., Ross v. State, 954 So.2d 968, 987 (Miss.2007) (failure to raise a contemporaneous objection waives the issue on appeal).

¶ 7. As for Webber’s second issue, we find that the trial court did not abuse its discretion by denying Webber’s proposed cautionary jury instructions regarding Jones’s testimony. The details of Jones’s pay arrangement with the county were disclosed to the jury, and Jones was subject to cross-examination. Thus, the failure to give a cautionary instruction regarding Jones’s testimony was not an abuse of discretion. White v. State, 722 So.2d 1242, 1247-48 (Miss.1998) (finding that where details of the confidential-informant arrangement were disclosed to the jury and the confidential informant was subject to cross-examination, failure to give a cautionary instruction regarding his testimony was not an abuse of discretion) (citing Williams v. State, 463 So.2d 1064, 1069 (Miss.1985)).

¶ 8. Finally, we find that, based on the evidence presented, reasonable jurors could have found Webber guilty and that the verdict should not be disturbed. Taylor v. State, 672 So.2d 1246, 1255 (Miss.1996).

CONCLUSION

¶ 9. We find that Webber’s arguments either are procedurally barred or are without merit. Therefore, we affirm his conviction and sentence.

1110. CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER, AFFIRMED. SENTENCE SHALL NOT BE REDUCED NOR SUSPENDED NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. APPELLANT SHALL PAY A FINE OF $5,000.00.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.