text:
    Horace A. RYALS, Appellant, v. Phillip BERTUCCI and John Finch, D.O. et al., Appellees.
    No. 2007-CA-02190-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Rehearing Denied Nov. 10, 2009.
    Certiorari Denied Feb. 4, 2010.

      L. Christopher Breard, attorney for appellant.
    William E. Whitfield, Kimberly Dawn Saucier Rosetti, Biloxi, Brett K. Williams, Thomas L. Musselman, Pascagoula, Kelly Larann Cash Lee, attorneys for appellees.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   KING, C.J.,

for the Court.

¶ 1. On December 31, 2002, Horace A. Ryals (Horace) filed a complaint alleging negligence on the part of Dr. Phillip Ber-tucci and Dr. John Finch. The matter proceeded to trial. On May 30, 2007, the trial court granted the defendants’ motion for a directed verdict. Aggrieved, Horace appeals, raising one issue: whether the trial court erred by directing a verdict in favor of the defendants and by ruling that Horace failed to establish medical negligence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 28, 2002, Horace was attempting to use his pickup truck to drag a finger pier onto the riverbank. The rope snapped and hit the back windshield of Horace’s pickup truck, causing the back windshield to shatter. Glass sprayed into Horace’s face and eyes, causing multiple cuts and bleeding. Horace was transported to the emergency room at the Memorial Hospital in Gullport, Mississippi for treatment.

¶ 3. Dr. Finch examined Horace in the emergency room. Dr. Finch testified that Horace complained of being struck in the face with a rope. From his examination, Dr. Finch determined that Horace had multiple lacerations to the face, a frosted area to his left pupil, fuzzy vision, and blood in his right eye — also known as a hyphema. Dr. Finch used an ophthalmo-scope and fluorescein dye to exam Horace’s eyes. He also inverted Horace’s eyelids to check for glass. Dr. Finch did not record the results of either test in Horace’s medical chart. However, he testified that there was a hyphema in Horace’s right eye, but he could still see the pupil in the eye. Dr. Finch checked Horace’s visual acuity, and Horace stated that he could only see red with a bright light in his right eye. Dr. Finch ordered an x-ray of Horace’s eyes. Dr. Finch testified that looking at the x-rays, he did not see any foreign bodies in Horace’s eyes.

¶ 4. Dr. Finch called Dr. Bertucci, an ophthalmologist, and consulted with him as to a recommendation for Horace’s care. Based on them conversation, Dr. Finch prescribed Horace three different eye drop medications and a pain reliever. He put a patch over Horace’s right eye and instructed Horace not to lie down during the night and to apply the eye drops as instructed. A follow-up examination was scheduled with Dr. Bertucci for the following morning. Horace was instructed to return to the emergency room if he experienced any problems during the night.

¶ 5. Dr. Bertucci testified that Dr. Finch called him on May 28, 2002, at approximately 6:30 p.m. Dr. Bertucci testified that Dr. Finch told him that he had a patient with facial lacerations around his eyes and a hyphema in his right eye. Dr. Bertucci testified that he asked Dr. Finch questions about the size of the hyphema, Horace’s vision in his right eye, and the pressure of the eye. Dr. Finch told Dr. Bertucci that he could still see Horace’s pupil in Horace’s right eye and that Horace’s vision was blurry. Based on this information, Dr. Bertucci assumed that Horace had a forty percent hyphema. Dr. Bertucci testified that Dr. Finch was not able to obtain Horace’s pressure in his right eye. Dr. Bertucci testified that Dr. Finch did not tell him that glass sprayed in Horace’s face. Dr. Finch also did not tell him the results of the fluorescein exam. However, Dr. Bertucci testified that he did not inquire about the results of the exam because he had enough information. Based, on Dr. Finch’s evaluation, Dr. Bertucci recommended that Dr. Finch shield Horace’s right eye and prescribe medication in the form of eye drops.

¶ 6. The following morning, Horace went to Dr. Bertucci’s clinic for his follow-up examination. Dr. Bertucci testified that uveal tissue was leaking out of Horace’s eye. Dr. Bertucci used a slit lamp to examine Horace and found a wound on Horace’s right eye. Dr. Bertucci then pulled Horace’s lower eyelid down and was able to trace the leak back to the wound found on Horace’s right eye. Dr. Bertucci recalled that Dr. Finch did not see a foreign body in Horace’s eye when Dr. Finch looked at the x-ray. Dr. Bertucci testified that he was under the impression, after them conversation the night before, that Dr. Finch was going to order a CAT scan of Horace’s eyes. However, no CAT scan was ordered. Based on his examination, Dr. Bertucci was concerned that there was a foreign body in Horace’s eye and ordered Horace to receive emergent evaluation and treatment from Dr. Laurence Ar-end at Ochsner Health System (Ochsner) New Orleans, Louisiana.

¶ 7. Horace went to Ochsner immediately to receive surgery on both of his eyes. Dr. Arend found a piece of glass in Horace’s right eye and found scarring on the cornea in Horace’s left eye. During the surgery, Horace suffered a retinal detachment in his right eye. Today, Horace is practically blind in his right eye.

¶ 8. On December 31, 2002, Horace filed a lawsuit against Dr. Finch and Dr. Ber-tucci, alleging that the doctors’ negligent actions and omissions were the sole proximate cause or the proximate contributing cause of the loss of vision in his right eye. Specifically, Horace claimed that Dr. Finch failed to recognize the seriousness of his injuries and failed to accurately report the injury to Dr. Bertucci. He also claimed that Dr. Finch was negligent because he failed to order a CAT scan. Horace alleged that Dr. Bertucci was negligent in not coming to the emergency room to evaluate him on the evening of the incident.

¶ 9. The trial commenced in May 2007. Michelle Ryals (Michelle), Horace’s wife, testified that Dr. Bertucci called them after Horace’s surgery to check on his progress. Michelle testified that Dr. Bertucci said that “if we could have gotten him to Oehsner sooner, this might have been better.” Dr. Bertucci denied having that conversation with Michelle.

¶ 10. During the trial, Horace produced one expert witness — Dr. James Sutton, an ophthalmologist. Dr. Sutton testified that Dr. Finch breached the standard of care because he failed to record full and accurate results of his examination of Horace; he failed to conduct further examinations to rule out any foreign bodies in the eye; he failed to order a CAT scan; and he failed to supply Dr. Bertucci with information pertinent to Horace’s care. Dr. Sutton testified that Dr. Bertucci failed to ask Dr. Finch pertinent questions that would have allowed him to properly assess Horace’s condition. Dr. Sutton testified that Horace’s condition was misdiagnosed and that Horace received improper treatment. Based on Horace’s injury, Dr. Sutton testified that Horace’s eye should have been closed immediately with a rigid shield, and he should not have applied any pressure to his eye.

¶ 11. Several times during his testimony, Dr. Sutton was asked whether the failure of the doctors to timely diagnose Horace’s condition and the failure of the doctors to timely close Horace’s eye caused the loss of vision in Horace’s right eye. Ultimately, Dr. Sutton testified that the doctors’ misdiagnoses and Horace’s subsequent medical treatment probably caused additional damage to Horace’s eye. However, Dr. Sutton was not able to measure how much additional damage was caused. Dr. Sutton testified that he did not know what the result would have been if Horace had received proper medical treatment that night. Dr. Sutton testified that the injury should have been closed immediately to prevent infection and additional bleeding. However, there was no evidence that Horace’s eyes were infected.

¶ 12. When asked whether the retinal detachment was caused by the doctors’ delay in closing Horace’s eye, Dr. Sutton testified that the retinal detachment did not occur at the spot where the glass penetrated Horace’s eye. Instead, Dr. Sutton testified that the retinal detachment occurred at the spot where the surgeons at Ocshner inserted a tube into Horace’s eye. Dr. Sutton stated that retinal detachment was a complication of surgery, and it occurs when the surgeons cannot see the tip of the tube. Ultimately, Dr. Sutton testified that he could not say whether the glass, the blunt force trauma, the alleged improper care, or the tube used during the surgery caused the retinal detachment.

¶ 13. At the conclusion of Dr. Sutton’s testimony, the trial court addressed a defense motion for a mistrial based upon the concern that the parties could not conclude their cases before the upcoming Memorial Day holiday. The trial court suggested that the case continue through Saturday of that week. The trial court would observe the holiday on Monday, and the case would reconvene on Tuesday. The parties, more specifically the defendants, opposed this suggestion, arguing that it would be prejudicial to their case. The trial court did not rule on the matter at that time. Ultimately, the parties did not have to continue the trial into the Memorial Day weekend.

¶ 14. On the same day, Dr. Bertucei and Dr. Finch moved for a directed verdict, arguing that Horace failed to establish proximate cause through Dr. Sutton’s testimony. The trial court found that Dr. Sutton’s testimony established that the doctors owed a duty to Horace, the standard of care, and how the doctors breached that standard of care. However, the trial court found that Dr. Sutton failed to establish with a reasonable degree of medical certainty that the doctors’ alleged acts of negligence caused or contributed to Horace’s loss of vision. Therefore, the trial court granted the doctors’ motion for a directed verdict.

¶ 15. Horace filed a motion for a new trial on June 4, 2007. On November 2, 2007, the trial court denied the motion. Aggrieved, Horace timely filed his notice of appeal.

ANALYSIS

¶ 16. This Court reviews the trial court’s grant or denial of a motion for a directed verdict under a de novo standard of review. Pierce v. Cook, 992 So.2d 612, 616 (¶ 8) (Miss.2008) (citing White v. Stewman, 932 So.2d 27, 32 (¶ 10) (Miss.2006)). “In conducting such a review, we ‘must decide whether the facts presented, together with any reasonable inferences, considered in the light most favorable to the nonmoving party, point so overwhelmingly in favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff.’ ” Troupe v. McAuley, 955 So.2d 848, 858 (¶ 28) (Miss.2007) (quoting Robley v. Blue Cross/Blue Shield, 935 So.2d 990, 996 (¶ 16) (Miss.2006)).

A. Directed Verdict

¶ 17. Horace argues that Dr. Sutton’s testimony more than suggested that the doctors’ misdiagnoses, their failure to shield Horace’s eye, and the subsequent improper medical treatment was a major contributing factor to his vision loss. Thus, he contends that the trial court erred by directing a verdict in favor of Dr. Finch and Dr. Bertucei. Conversely, Dr. Finch and Dr. Bertucei argue that Dr. Sutton never testified that any breach of the standard of care proximately caused Horace’s loss of vision. Therefore, they contend that the trial court did not err by granting their motion for a directed verdict.

¶ 18. To establish a prima facie case of medical negligence, the plaintiff must produce evidence of the following:

(1) The existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury;
(2) A failure to conform to the standard required of the defendant; [and]
(3) An injury to the plaintiff proximately caused by the breach of such duty by the defendant^]

Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). These factors must be established by expert testimony. See Troupe, 955 So.2d at 856 (¶ 22).

¶ 19. The trial court found that Dr. Sutton’s testimony was sufficient to establish the duty the doctors owed to Horace, the applicable standard of care, and how each doctor breached that standard of care. However, the trial court found that Horace did not provide adequate proof of proximate cause. Specifically, the trial court found that Dr. Sutton failed to express within a reasonable degree of medical certainty that the acts of negligence of Dr. Finch and Dr. Bertucci caused or contributed to Horace’s vision loss.

1. Horace’s Left Eye

¶ 20. For the purposes of our analysis, we will discuss those portions of Dr. Sutton’s testimony that deal with the proximate cause element of medical negligence. During direct examination, Dr. Sutton was asked the following in regard to Horace’s left eye:

Q. Now, did that failure to timely diagnose and timely close that full thickness corneal laceration on the left eye cause Mr. Ryals any permanent injury?
A. He has a scar on that cornea from where the injury occurred.
Q. Is that scar, in your opinion based on a reasonable degree of medical certainty, due to any delay?
A. I’ve had scars like this that we’ve closed immediately. The quicker you take care of these sort of injuries, typically the better the result. A laceration like that is going to leave a scar on the cornea. If you leave it open, it will get infected, those kinds of things.
Q. To your knowledge did it become infected?
A. I don’t believe so.
Q. To your knowledge does he have any significant vision loss as a result of that?
A. I think the vision — the vision, if you’re just measuring his visual acuity in the left eye is reasonable. I don’t remember what the number is. I think it was 20/25 or pretty good vision. But at night when his pupil in his only good remaining eye when his pupils dilates [sic] up when he’s driving, headlights and oncoming lights hit that scar, and most patients that would give you a glare or symptoms of glare, and sometimes those can be debilitating.

¶ 21. Dr. Sutton testified that the doctors failed to close Horace’s eye immediately and that closing the eye prevents infection. However, there was no evidence that Horace’s left eye was infected. When asked if the delay in Horace’s care caused the scar on his left eye, Dr. Sutton essentially testified that the delay did not cause the scar. His testimony reflects that the scar was caused by the injury. Dr. Sutton also testified that Horace has “pretty good vision” in his left eye.

2. Horace’s Right Eye

¶ 22. Dr. Sutton was also questioned regarding the damage sustained to Horace’s right eye. Dr. Sutton testified that Dr. Finch believed Horace had only a bruised right eye, which resulted in the recommended treatment. He testified that the treatment Horace received would have been reasonable treatment if Horace only had a bruised eye. During direct examination, Dr. Sutton was also asked the following:

Q. If you would, there’s been a lot of testimony and controversy over whether or not prompt closure of the globe, shielding of the eye, no manipulation, no pressure on the eye conducted on the evening of the 28th in the emergency room would have made a substantial difference and more likely than not prevented the vision loss that [Horace] has in his right eye. Do you have an opinion based on a reasonable degree of medical probability whether or not [that] ... would have in fact made a substantial difference in his outcome.

Dr. Sutton testified that the injury should have been closed immediately. He also discussed how the medical notes did not show that Horace’s eye was deformed, and he discussed the misdiagnoses. Then, Dr. Sutton testified that:

[A.] So the question is somewhat hypothetical. Had he had gotten it closed that night, that night in the hospital at Gulfport Memorial, they had taken him into the opei’ating room, closed the globe the next morning, called the retina specialist, whoever and said, I’ve got this guy, closed his open globe last night, the globe’s intact, I need you to evaluate him for the removal of this foreign body. That’s the way — I mean, what would the result of that have been? I mean, we don’t know.

Dr. Sutton testified that an injury of that nature should be closed immediately to prevent infection and bleeding and to reestablish the normal integrity of the eye. However, Dr. Sutton testified that there was no evidence that Horace’s right eye was infected.

¶ 23. When asked whether the doctors’ delay in closing Horace’s eye complicated his surgery, Dr. Sutton testified that it does complicate the surgery. However, the surgery is not impossible. It just becomes more tedious. Then, Dr. Sutton was asked the following:

Q. Do you have an opinion as to whether or not [the retinal detachment] was a result of the delay or partially caused by the delay?
A. It’s interesting that the retinal detachment which is accurately described in the operative note from Ochsner does not describe the retinal detachment being in the area of the injury. It’s not where the glass went it. It’s not where we closed the open globe. It’s around the inferior temporal edge ... where the infusion came in. Remember, we talked about when you take the jelly out of the eye, you have to run fluid in ... that infusion cannula, the little tube that brings the fresh saline into the eye that they weren’t able to see it. It’s interesting that the retinal detachment was down around that cannula according to the report and not around where the glass went in the eye.
Q. That doesn’t mean they did anything wrong in the surgery, does it? A. No they did absolute everything that they could to save the eye.
It’s a known potential complication of doing retinal surgery that when you place that infusion cannula, if you can’t see the tip, and [the doctors] clearly state we could not see the tip, the end of the cannula, when you turn that fluid on, if that tip happens to be under the retina, the retina’s going to come off.

¶ 24. During the cross-examination, Dr. Sutton was asked the following:

Q. Doctor [Sutton], you indicated that you don’t know what caused the retinal detachment of the patient in this particular case.
A. That’s correct.
A. I don’t know absolutely the exact etiology. It could have been from the foreign body penetrating the eye. It could have been from the infusion cannula possibly. Could have been during the surgery. So to say exactly what caused it, I could not.

¶ 25. Then, defense counsel asked Dr. Sutton why Horace could not see out of his right eye. At one point during his testimony, Dr. Sutton said that the injury Horace received and the subsequent care that he received left him blind in his right eye. Dr. Sutton then testified that Horace could not see out of his right eye due to the scarring in the macula, which is the center of the retina. He also testified that he could not say with a reasonable degree of medical probability that the scarring in the macula was caused by the blunt force trauma to Horace’s eye, the glass in the eye, the doctors’ alleged negligence, or Horace’s pre-existing eye condition.

3. Proximate Cause

¶ 26. As previously mentioned, we selected portions of Dr. Sutton’s testimony to demonstrate how he answered questions regarding proximate cause. However, we have considered the entirety of Dr. Sutton’s testimony; essentially, he failed to establish proximate cause. Dr. Sutton testified regarding Horace’s retinal detachment. However, he did not affirmatively state that the retinal detachment was caused by any negligent acts of Dr. Finch or Dr. Bertucci. Dr. Sutton testified that Horace could not see out of his right eye due to scarring in the macula. However, Dr. Sutton failed to state affirmatively whether the macular scarring was caused by any negligent acts of Dr. Finch or Dr. Bertucci. When asked whether Horace’s outcome would have been different if the doctors had properly diagnosed Horace’s condition and promptly closed his eye, Dr. Sutton stated that he did not know.

¶ 27. In Horace’s appellate brief, he points out various passages of testimony from Dr. Sutton, which he believes are sufficient to establish proximate cause. However, many of the passages simply describe the duty the doctors owed to Horace, the applicable standard of care, and how each doctor allegedly breached that duty. As Dr. Sutton testified, perhaps the doctors should have ordered a CAT scan, closed the eye immediately, placed a rigid shield over the eye, instructed Horace not to apply pressure to his eye, and so on. However, Dr. Sutton’s testimony failed to show that the alleged negligent acts of Dr. Finch and Dr. Bertucci proximately caused the blindness in Horace’s right eye. Thus, we find that the trial court did not err by directing a verdict in favor of Dr. Finch and Dr. Bertucci. This issue is without merit.

B. Michelle Ryals’s Testimony

¶ 28. As previously mentioned, Michelle testified that Dr. Bertucci expressed to her that Horace’s situation might have been better if they had gotten Horace to Ochs-ner sooner. Dr. Bertucci denied making the statement. Horace argues that this statement could be used to establish causation and whether or not the lack of treatment worsened his condition.

¶ 29. Generally, the alleged medical negligence of a physician must be established through expert testimony. Hubbard v. Wansley, 954 So.2d 951, 957 (¶ 12) (Miss.2007) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)). However, “ ‘where a layman can observe and understand the negligence as a matter of common sense and practical experience,’ expert testimony is not necessary.” Id. at 960-61 (¶ 29) (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 795 (Miss.1995)).

¶ 30. The issue in this case is whether the doctors’ misdiagnoses of Horace’s condition and the subsequent delayed treatment proximately caused the loss of vision in Horace’s right eye. The record before this Court does not contain any expert testimony, which connects the medical misdiagnoses and treatment delay to the cause of Horace’s blindness. The nature of Horace’s injury is such that it is beyond the common knowledge of laymen and, therefore, requires expert testimony. Notwithstanding the possible truthfulness of Michelle’s testimony regarding the statement that Dr. Bertucci allegedly made to her, such testimony is not admissible expert testimony. Therefore, we find that this argument is without merit.

C. Motion for a Mistrial

¶ 31. In a cursory manner, Horace alleges that the trial court pressured the parties to conclude their case before the Memorial Day weekend, causing prejudice to their case.

¶ 32. Horace failed to provide this Court with any authority in support of this contention. “A party’s failure to cite authority in support of an argument precludes consideration of the issue on appeal.” Griffith v. Griffith, 997 So.2d 218, 225 (¶ 26) (Miss.Ct.App.2008) (citing Boutwell v. Boutwell, 829 So.2d 1216, 1223 (¶ 29) (Miss.2002)). Therefore, this issue is procedurally barred from our review.

¶ 33. Despite this procedural bar, we find no error because the parties did not have to continue the case through the Memorial Day weekend. This issue is moot.

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

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


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Anthony TREVILLION, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01056-COA.
    Court of Appeals of Mississippi.
    Nov. 24, 2009.

      Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., IRVING and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Anthony Trevillion was convicted in the Circuit Court of Warren County of murder, two counts of aggravated assault, shooting into an occupied dwelling, and possession of a firearm by a convicted felon and sentenced to twenty years on each aggravated assault count, ten years for shooting into an occupied dwelling, and three years for possession of a firearm by a convicted felon, all in the custody of the Mississippi Department of Corrections (MDOC). These sentences are to run consecutively to a life sentence for murder. Trevillion appeals asserting that the trial court erred by dismissing two potential jurors because they had previously served on a jury in the last two years. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 2. On June 17, 2007, Justin Maurice Harris; his brother, Jarvis Bowman; and his friend, Garrod Bunch, were at the Biscuit Company, a local nightclub in Vicksburg, Mississippi, when Trevillion confronted Harris. At this point, security directed the group to leave. After leaving the club, Harris, Bowman, and Bunch went to the Smoke Break, a local convenience store. The men were standing outside when Trevillion and his brother, Armond Trevillion (Armond), drove up and stopped. Trevillion and Harris exchanged words and stared at each other. Harris and his group walked away, and Trevillion went into the store. Harris, Bunch, and Bowman then went to Harris and Bowman’s home, which Harris and Bowman shared. Shortly after arriving home, Matthew Nash, Trevillion’s friend, came to Harris’s home to talk with him. Nash apologized and explained that he did not have any hard feelings toward Harris. While Nash was talking to Harris, Trevillion, Armond, and an unidentified third person approached the house and began firing their weapons toward Harris and into the house. Bunch and Bowman, who were standing inside the front door of the house, managed to exit the front room of the house and hide behind furniture in other rooms of the house to avoid the gunfire. Harris, who was unable to escape the gunfire, sustained three fatal gunshot wounds.

¶3. In January 2008, Trevillion, Ar-mond, Nash, Rufus Armstrong, and Alonzo Trevillion were indicted by a Warren County grand jury for murder, aggravated assault, shooting into an occupied dwelling, and possession of a firearm by a convicted felon. On April 16, 2008, Trevillion was convicted and sentenced on Count I, murder, to life; on Count II, shooting into an occupied dwelling, he was sentenced to ten years; on Count III, aggravated assault, he was sentenced to twenty years; on Count IV, aggravated assault, he was sentenced to twenty years; and on Count V, possession of a firearm by a convicted felon, he was sentenced to three years, with all the sentences to be served in the custody of the MDOC and to run consecutively to the sentence in Count I.

¶ 4. Trevillion filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The trial court denied Trevillion’s motion. Aggrieved, Trevillion appeals and argues that the trial court erred in excusing two jurors because the potential jurors had previously served on a jury within the last two years. Finding no error, we affirm the judgment of the trial court.

ANALYSIS

¶ 5. Trevillion claims that the trial court erred by excusing two potential jurors because they had previously served on a jury within the past two years.

¶6. During voir dire, the trial judge began by explaining to the venirepersons the qualifications required to serve on a jury and the statutory excuses available. As a part of that process, the trial judge stated:

I mentioned if you’ve served within the last two years as a juror, you must be excused. If you have an illness or some member of your immediate family has an illness that would make it impractical or impossible for you to serve, you’re ■entitled to be excused. If you would serve — if you would suffer — excuse me — serious financial loss for service on this jury here the next three days, you’re entitled to be excused, or if you have some sort of other emergency that I have not touched upon, you can be excused.

¶ 7. After outlining the qualifications and available statutory excuses, the trial judge then requested that those individuals who wanted to make the trial court aware of either a disqualification or a statutory excuse to take a seat on the first few rows on the other side of the courtroom, and each would be given the opportunity to address the court.

¶ 8. There were two potential jurors, James Jefferson and a Ms. Thomas, that Trevillion claims should not have been excused because of their prior jury service. The following exchange occurred between the trial court and those potential jurors during the qualifying process:

FIRST POTENTIAL JUROR (JAMES JEFFERSON)
MR. JEFFERSON: How are you doing?
THE COURT: Hey. How are you doing?
MR. JEFFERSON: All right.
THE COURT: Okay. What’s your reason, Mr. Jefferson?
MR. JEFFERSON: I sat on a jury on the Ronald Vaughn case the other year. THE COURT: Okay.
THE COURT: That’s been within two years?
MR. JEFFERSON: I believe so. Ronald Vaughn, was that more than two years ago?
ASSISTANT PROSECUTOR: I think it has been within the last two years, hasn’t it?
THE COURT: Huh?
MR. JEFFERSON: I believe it has been.
ASSISTANT PROSECUTOR: I believe it has because the opinion was just handed down a couple of weeks ago.
THE COURT: So it’s been more than two years, huh?
ASSISTANT PROSECUTOR: I don’t think it has. I think it was tried late 2006, early 2006. Like I said, the opinion came down about a month ago from the Court of Appeals.
PROSECUTOR: Your Honor, the jury list does have a last jury date on it of November 28th, 2005, but I’m not sure how accurate that is.
MR. JEFFERSON: That’s fine. I don’t mind serving.
THE COURT: Okay. Okay. I’m going to go ahead and excuse you then.
MR. JEFFERSON: Thank you.
SECOND POTENTIAL JUROR (MS. THOMAS)
THE COURT: Ms. Thomas.
MS. THOMAS: Yes, I served as a juror two years ago.
THE COURT: You remember what ease it was?
MS. THOMAS: Dr. [Halinski’s] and Ms. Brown’s case.
THE COURT: Which one was that now?
MS. THOMAS: Dr. [Halinski]
THE COURT: [Halinski], Brown
MS. THOMAS: Uh-huh. (Affirmative Response)
THE COURT: Okay. That has been within the last two years, I think. Okay. You’re free to go.
MS. THOMAS: Thank you.

¶ 9. According to Mississippi Code Annotated section 13-5-25 (Supp.2009), a qualified individual may be exempted from jury service as a personal privilege. The statute provides:

Every citizen over sixty-five (65) years of age, and everyone who has served as a grand juror or as a petit juror in the trial of a litigated case within two (2) years, shall be exempt from service if the juror claims the privilege. No qualified juror shall be excluded because of any such reasons, but the same shall be a personal privilege to be claimed by any person selected for jury duty. Any citizen over sixty-five (65) years of age may claim this personal privilege outside of open court by providing the clerk of court with information that allows the clerk to determine the validity of the claim.
Provided, however, that no person who has served as a grand juror or as a petit juror in a trial of a litigated case in one (1) court may claim the exemption in any other court where the juror may be called to serve.

¶ 10. The exemptions under Mississippi Code Annotated section 13-5-25 “are not mandatory and must be asserted by the individual.” Spires v. State, 10 So.3d 477, 482(¶ 22) (Miss.2009). Jurors who have served on a jury during the past two years may still be called upon to serve if there is a deficiency of jurors. Miss. Code Ann. § 13-5-25. Mississippi Code Annotated section 13-5-23 (Supp.2009) permits discretionary dismissal of jurors under certain conditions. Dismissals pursuant to these two statutes are discretionary and not automatic.

¶ 11. The trial judge incorrectly informed prospective jurors that he was required to excuse them if they had served on a jury in the last two years. Jefferson and Thomas each informed the trial judge of their prior jury service. Both Thomas and Jefferson accepted the judge’s representation that their release from jury service was mandatory. As a result, neither of them affirmatively claimed the prior jury service excuse. Thomas thanked the judge when he excused him; thus, it may be argued that she claimed the excuse by her departure. However, Jefferson not only did not claim the excuse, but he affirmatively expressed a willingness to serve. It thus appears that the trial court committed error in excusing Jefferson, but not Thomas.

¶ 12. Although the trial court erred in excusing Jefferson, the record does not reflect a contemporaneous objection to this error, and the exclusion of Jefferson was harmless error; therefore, Trevillion is not entitled to any relief. If a defendant fails to raise a contemporaneous objection to the composition of the jury before it is impaneled, he waives the right to raise this issue for the first time on appeal. Myers v. State, 565 So.2d 554, 557 (Miss.1990). Having failed to raise a contemporaneous objection, Trevillion is procedurally barred from raising this issue on appeal.

¶ 13. Additionally, as previously mentioned, the exclusion of Jefferson must be considered harmless error. A defendant has a right to have his case heard by a fair and impartial jury. Coverson v. State, 617 So.2d 642, 646 (Miss.1993). A defendant does not have the right to have any specific individual serve as a member of the jury. Id. However, in the selection of a jury, a defendant does have the right to be sure that potential jurors are not excluded from service for improper reasons, such as race or gender. See Simmons v. State, 746 So.2d 302, 308 (¶ 23) (Miss.1999). There is nothing in the record to even suggest that the jury, which heard his case was not fair and impartial. Accordingly, this issue lacks merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE; COUNT II, SHOOTING INTO AN OCCUPIED DWELLING, AND SENTENCE OF TEN YEARS; COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT IV, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; AND COUNT V, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF THREE YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO THE SENTENCES IN COUNTS II, III, IV, AND V TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . The record does not contain the first name of Ms. Thomas.


author: CARLTON, J.,

text:
    A.T.K., Appellant v. R.M.K.W., Appellee.
    No. 2008-CA-01419-COA.
    Court of Appeals of Mississippi.
    Nov. 24, 2009.
    William B. Jacob, Meridian, Attorney for appellant.
    Thomas Goodwin Bittick, Attorney for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Mike appeals the judgment of the Clarke County Chancery Court, which dismissed his action to modify the child custody arrangement between Mike and his ex-wife, Diana. We find that the chancellor failed to consider the totality of the circumstances in determining whether a material change in circumstances existed, which posed a danger to Mike and Diana’s minor child. Therefore, we reverse and remand this case for a new trial with directions for the chancellor to reconsider the issue of modification of child custody.

FACTS

¶2. Diana and Mike divorced in April 2005. Diana received primary physical custody of the couple’s daughter, Claire, who was born in 2002. Soon after the divorce, Diana married Billy, an offshore oil driller. In January 2005, Billy was arrested on two counts of sexual offenses involving a minor. After marrying Diana in August 2005, Billy was indicted on two counts of statutory rape in February 2006. Billy then pled guilty to one count of statutory rape in September 2006, and he was sentenced to five years in prison, with four years and nine months of his sentence suspended. Diana testified that she was aware before she married him that Billy had been arrested and charged with statutory rape. Diana spoke on Billy’s behalf at his sentencing, placing fault upon the minor for the offense.

¶ 3. Meanwhile, after Billy’s arrest, Mike learned from the statutory rape victim’s mother that Diana and Billy were living together. According to the guardian ad litem’s report, Mike stated that he learned at some point before their marriage that Billy and Diana were living together, but Mike testified at trial that Diana never told him that she was planning to marry Billy. As noted, Billy was arrested in January 2005 and later indicted in February 2006; thus, Diana married him while the charges set forth in the indictment were pending. Mike filed a motion for modification of child custody in January 2006, stating that he feared for the safety of his daughter because of her exposure to Billy. A trial was held on April 9, 2007, where the chancellor determined that a guardian ad litem should be appointed to represent Claire’s interest. At the conclusion of the trial, the court ordered a temporary joint physical custody arrangement, stipulating that Claire was to live with Mike during the two weeks that Billy was home from his offshore job, and with Diana for the two weeks that Billy was offshore working. The court continued the trial to allow a full investigation by the guardian ad litem.

¶4. The guardian ad litem interviewed Mike, Diana, Billy, and Diana’s mother, as well as Mike’s current wife, Diana’s mother, and other family members and friends. On June 7, 2007, the guardian ad litem filed her first report with the court, concluding that Claire’s best interest would not be served by remaining in the custody of Diana while she was married to a registered sex offender convicted of a sexual offense against a minor. The report noted that Diana chose to marry Billy without thinking about Claire, and she put her marriage to Billy before her child’s best interest. On February 10, 2008, the guardian ad litem filed her final report, which reiterated that custody should be changed from Diana to Mike.

¶ 5. At a trial held on February 12 and 13, 2008, and on April 16, 2008, Diana testified that she had filed for a divorce from Billy, based on the ground of irreconcilable differences. Diana also testified that during an interview with the guardian ad litem, the guardian ad litem told her that if she and Billy were no longer married, the guardian ad litem would change her recommendation that custody should be changed from Diana to Mike. However, Diana testified that the divorce was never finalized. The chancellor found that the presence of a sex offender in the child’s home constituted a material change in circumstances adverse to Claire. The chancellor continued the trial, leaving the case open for the sole purpose of receiving evidence of Diana’s marital status.

¶ 6. On June 4, 2008, the court held the second part of the hearing. Diana provided evidence that her divorce from Billy was finalized on May 22, 2008. Upon this finding, the chancellor held that:

[the] circumstances relied upon by the court for its finding of adverse effect, specifically Diana’s poor judgment and misleading statements, placing Claire in an unsafe situation, subjecting Claire (sic) to rejection in the community, depriving Claire (sic) of an involved stepfather, and providing Claire with a poor example all have presumptively been alleviated and eliminated by the divorce.

The chancellor dismissed Mike’s motion for modification of child custody, finding that without Billy’s presence in the home, the material change in circumstances adverse to the child’s best interest, no longer existed. However, the chancellor determined that since Diana had previously cohabited with Billy despite the pending divorce, Claire’s best interest would be served by entering an injunction to prevent the child from being unsupervised in the presence of a convicted sex offender. The court entered an opinion and judgment to that effect on the same day. Under the decree as written, nothing prohibits Billy and Diana from cohabiting or continuing their relationship in Claire’s presence as long as done under Diana’s supervision.

¶ 7. On appeal, Mike argues that the chancellor erred in (1) failing to properly safeguard a female minor child from a sexual predator by failing to modify custody, (2) failing to conduct an Albright analysis after a finding of material change in circumstances adverse to the minor child, and (3) failing to properly consider a mandatory guardian ad litem’s reports and recommendation.

DISCUSSION

¶ 8. This Court has a limited scope of review on challenges to a chancellor’s decision to deny a request for modification of custody. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 14) (Miss.Ct.App.2002). “We can reverse only when a chancellor’s decision is either manifestly wrong or clearly erroneous, or when the chancellor has applied an erroneous legal standard.” Id.

¶ 9. Mike argues that the chancellor committed manifest error by failing to properly safeguard Claire, a female minor child, from a sexual predator when the chancellor failed to modify custody. In child custody cases, the paramount concern is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In order for a chancellor to modify a child custody decree, the noncustodial parent must prove the following: “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So.2d 358, 361 (¶ 11) (Miss.Ct.App.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467-68 (¶ 10) (Miss.2007)). If the chancellor finds that there has been a material change in circumstances, the court must then apply the Albright factors to determine which parent should have primary custody. Pearson v. Pearson, 11 So.3d 178, 183 (¶ 14) (Miss.Ct.App.2009).

¶ 10. In such matters concerning the protection of a child from • danger, the judgment of the parent — and parenting skills — are extremely important. Albright, 437 So.2d at 1005. This court has stated that “[w]hile numerous factors may go into the initial consideration of a custody award, see, e.g., IAlbright ], only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Lambert v. Lambert, 872 So.2d 679, 684 (¶ 22) (Miss.Ct.App.2003) (quoting Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)). In Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996), the Mississippi Supreme Court similarly held that “when the environment provided by the custodial parent is found to be adverse to the child’s best interest, and ... the non-custodial parent ... is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.” The court further noted that:

where a child [is] living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. Evidence that the home of the custodial parent is the site of dangerous and illegal behavior ... may be sufficient to justify a modification of custody, even without a specific finding that such environment has adversely affected the child’s welfare. A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

Id.

¶ 11. When considering whether a material change in circumstances has occurred, the court must examine the totality of the circumstances. See In re E.C.P., 918 So.2d 809, 823 (¶ 58) (Miss.Ct.App.2005). A reflection of the factual history in the present case shows that, first, the chancellor, upon learning that Diana was in a relationship with a convicted sex offender, appointed a guardian ad litem to represent Claire’s interests. The chancellor then continued the trial to allow the guardian ad litem to conduct an investigation and report her findings to the court. During this time, the chancellor ordered a temporary change in custody, granting joint physical custody to both parties.

¶ 12. When the trial resumed, the chancellor found that Diana’s marriage to Billy constituted a material change in circumstances. The chancellor cited his concern regarding Claire’s exposure to a convicted sex offender and Claire’s mother’s poor judgment with respect to ensuring Claire’s safety and well-being. The chancellor concluded, based on the report of the guardian ad litem, that Claire’s best interest was not served by remaining in her mother’s custody while Diana was married to a convicted sex offender. During the trial, however, Diana testified that she had filed for a divorce from Billy in July 2007, ten months prior to the hearing, but the divorce was never finalized. Upon learning that Diana had filed for divorce, the chancellor continued the hearing for the purposes of reviewing Diana’s marital status before adjudicating the case.

¶ 13. The record reveals that when Diana discovered that her marriage to the sex offender was resulting in a recommendation of a change in custody from the guardian ad litem, Diana obtained an irreconcilable differences divorce. In addition, Diana and Billy both testified that they did not want to get a divorce, but they proceeded with dissolving the marriage solely so Diana would not lose custody of Clame. The record reflects that Claire was adopted by Mike and Diana because Diana was not able to have childi'en, and that she would be devastated by a loss of custody. However, such emotional claims notwithstanding, evidence showed that Diana continued her relationship with Billy even throughout the divorce proceedings — a private investigator retained by Mike documented that the two spent the night together on numerous occasions after their initial divorce filing. Further inspection of the guardian ad litem’s report also reflected the stigma that was affecting Claire socially due to the presence of a convicted sex offender in the home.

¶ 14. When the final trial was conducted in June 2008, Diana provided evidence to the court that she had obtained a final decree of divorce from Billy on May 22, 2008. Due to the existence of the divorce decree, the chancellor presumed that Billy was no longer in the home, and he held that no material adverse change had occurred. However, we find that such a conclusion and presumption are not supported by the facts in the record. Nothing in the irreconcilable differences divorce decree prevented Diana and Billy from continuing their relationship or even cohabiting, as evidenced by the private investigator’s videotape. Nevertheless, the chancellor held that neither the parties nor the guardian ad litem provided evidence that the divorce decree was void.

¶ 15. Although the divorce decree itself may be perfectly valid and binding, thereby dissolving the marital status, a divorce decree and the lack of marital status do not prevent the parties from continuing their relationship, emotionally or physically, or from cohabiting without marital status. Moreover, evidence reported to the guardian ad litem reflects that the divorce decree was obtained only for the subterfuge purposes of appeasing the court so that Diana could retain custody of Claire, and that Diana was continuing her relationship with Billy throughout the separation period. Due to their lack of veracity to the court, there should be no logical assumption or presumption that Diana and Billy’s lack of marital status would be an impediment to their cohabiting. The fact that Diana and Billy have not been entirely truthful to the court or guardian ad litem especially concerns us because their deceit pertains to the safety of the young child.

¶ 16. Regardless of whether Diana remarries Billy or not, or whether they merely cohabitate without benefit of marital status, we find that the chancellor should evaluate: (1) whether a material change adversely affecting Clame has occurred by her exposure to a sex offender in her mother’s home, and (2) whether any continuing threat of danger or exposure to danger exists. The record is replete with evidence that both Diana and Billy will be untruthful to cover their true actions if it serves their own purposes. If Diana has indeed continued the relationship, posing a potential threat to Claire, the chancellor should evaluate what steps Diana has taken, if any, to protect Claire. Evidence that a child is exposed to dangerous situations may justify modifications without a finding that the child has suffered any negative effects. Riley, 677 So.2d at 744. Therefore, we reverse the chancellor’s judgment and remand this case for the chancellor to determine whether a material change in circumstances adverse to Claire has occurred, and if so, to conduct an Albright analysis.

¶ 17. THE JUDGMENT OF THE CLARKE COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . We use aliases as necessary to protect the minor child’s identity.

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . Billy’s criminal report from his statutory rape conviction shows that he was untruthful to the minor and her parents as to his true activities and relationship with the young girl. Billy utilized his close relationship and friendship with the minor’s parents and family, thereby gaining exposure to the minor and secretly seizing such opportunity to his sexual advantage. He also misrepresented the events to the police during his initial interrogation.


author: GRIFFIS, J.,

text:
    Emma HENLEY, Appellant v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, Appellee.
    No. 2008-SA-01230-COA.
    Court of Appeals of Mississippi.
    Feb. 2, 2010.
    Matthew Yarbrough Harris, attorney for appellant.
    Mary Margaret Bowers, attorney for ap-pellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Emma Henley applied for hurt-on-the-job disability benefits through the Public Employees’ Retirement System of Mississippi (“PERS”), pursuant to Mississippi Code Annotated sections 25-11-113 and 25-11-114 (Supp.2009). The Disability Appeals Committee (“Committee”) recommended that her application be denied. The PERS Board of Trustees (“Board”) adopted the Committee’s recommendation and denied Henley’s claim for benefits. Henley appealed the decision of the Board to the Hinds County Circuit Court. The circuit court affirmed the Board’s decision.

¶ 2. Henley now argues that: (1) PERS failed to appropriately apply the definition of disability, and (2) the circuit court erred in affirming the Board’s denial of PERS disability benefits to her because the record lacked substantial evidence to support a denial of benefits and because the analysis was filled with contradictory and false statements. We find no error and affirm.

FACTS

¶ 3. Henley worked for the Mississippi Department of Corrections (“MDOC”) as a Corrections Officer for more than eleven years. Prior to December 30, 2001, Henley had pre-existing medical problems. On December 30, 2001, Henley reported that she experienced major back pains after attempting to open a Sally-Port gate while at work. Henley worked the rest of her shift that day, and her pain worsened after she left work.

¶ 4. On January 5, 2002, Henley went to the emergency room. She complained of sharp pains in her lower back and left leg. Her doctor recommended that she take off from work until April 2002. She worked for six weeks and never returned to work after May. For two-and-a-half years, Henley went to several doctors for her back and leg pain.

¶ 5. On June 27, 2003, the MDOC terminated Henley’s employment. The letter of termination stated that Henley’s termination was based upon the MDOC’s findings, after the May 21, 2003, Administrative Review Hearing, that:

It has been determined that you have a disability, which prohibits you from performing the job[-]related requirements and essential functions of your position. It has also been determined that there is not a reasonable accommodation which [the] MDOC could make without causing undue hardship to MDOC operations, that would allow you to perform the job-related functions of your position.

¶ 6. On July 21, 2003, Henley filed for hurt-on-the-job disability benefits with PERS. On March 29, 2004, the Board denied Henley benefits after a determination that there was insufficient evidence to support the claim that her medical condition prevented her from performing her duties as described for the position of a correctional officer.

¶ 7. Henley appealed to the Committee. A hearing was held on May 14, 2004. At the time of the hearing, Henley had settled her workers’ compensation case, and her social security case was on appeal. After reviewing the evidence, including Henley’s testimony, the Committee affirmed the Board’s decision. The Committee found that Henley had no disc herniation but only degenerative changes with a minimal disc bulge. The Committee noted that “a disc bulge is not the same thing as a ruptured disc,” but a disc bulge is caused by degeneration and not by trauma; and disc bulges cause some back pain but not radicular pain. The Committee determined that there was no persuasive evidence that Henley was disabled and that the records contained overwhelming inconsistencies in testing and symptomatology.

STANDARD OF REVIEW

¶ 8. “Well-settled law in Mississippi holds that judicial review of a Board ruling is limited.” Shannon Eng’g & Const., Inc. v. Miss. Employment Sec. Comm’n, 549 So.2d 446, 449 (Miss.1989). “As long as the reviewing court finds that the Board’s decision was supported by evidence and absent of fraud, it shall render the Board’s decision conclusive.” Pub. Employees’ Ret. Sys. v. Card, 994 So.2d 239, 242 (¶ 14) (Miss.Ct.App.2008).

¶ 9. “An agency’s conclusions must remain undisturbed unless the agency’s order: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (8) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional or statutory rights.” Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (¶ 13) (Miss.2003). “There is a rebut-table presumption in favor of a PEES ruling. Neither the appellate court nor the circuit court is entitled to substitute its own judgment for that of PERS, and it is impermissible for a reviewing court to reweigh the facts of the case.” Card, 994 So.2d at 242 (¶ 15).

ANALYSIS

1. Whether the Board applied the correct definition of “disability. ”

¶ 10. Henley contends that since the MDOC terminated her employment based upon its determination that she had a disability, which prohibited her from performing the job-related requirements and essential functions of her position, then the Board must also find that she is disabled.

¶ 11. Pursuant to Mississippi Code Annotated section 25-11-113, the decision of whether a person is “disabled” is for the Board to determine. The statute does not grant authority to a potential recipient’s previous employer to make a determination of whether a claimant meets the deff-nition of disability. Accordingly, the decision of whether Henley is “disabled” was for the Board to determine and not the MDOC. Furthermore, when Henley appealed the decision to the Committee, the Committee also applied the statutory definition for “disability” as required by Mississippi Code Annotated section 25-11-113. We find that this issue is without merit.

2. Whether substantial evidence exists to support the Board’s denial of disability benefits and whether the Board relied on the correct facts.

¶ 12. Next, we consider whether the record contains sufficient evidence to support the Board’s finding that Henley is not disabled. Henley argues that the Board discounted evidence.

¶ 13. Substantial evidence has been defined by the supreme court as “something more than a ‘mere scintilla’ or suspicion.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000) (citing Miss. Real Estate Comm’n v. Anding, 732 So.2d 192, 196 (¶ 13) (Miss.1999)). Substantial evidence is “that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 892 (¶ 13) (Miss.2001). “[T]he concept of ‘substantial evidence’ supporting an agency decision has the potential to be somewhat confusing since it is, in fact, the absence of credible evidence presented on behalf of the party having the burden of proof on the issue that compels the denial of relief.” Pub. Employees’ Ret. Sys. v. Cobb, 839 So.2d 605, 609 (¶ 15) (Miss.Ct.App.2003).

¶ 14. In Cobb, 839 So.2d at 609 (¶ 12), this Court held:

In administrative matters, the agency, and not the reviewing court, sits as finder of fact. Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296 (Miss.1990). That fact-finding duty includes assessing the credibility of witnesses and determining the proper weight to give to a particular witness’s testimony. Walker Mfg. Co. v. Butler, 740 So.2d 315 (¶ 46) (Miss.Ct.App.1998). A reviewing court is obligated to afford such determinations of credibility in the fact-finding process substantial deference when reviewing an administrative determination on appeal and the court exceeds its authority when it proceeds to re-evaluate the evidence and makes its own determination of the trustworthiness of some particular testimony. Smith v. Jackson Const. Co., 607 So.2d 1119, 1123-24 (Miss.1992).

¶ 15. Hei’e, the Committee found that “there is no persuasive medical evidence that Ms. Henley is disabled and that the record contains overwhelming inconsistencies in testing and symptomatology.” We now consider the medical evidence before the Committee.

¶ 16. Prior to December 30, 2001, Henley suffered from pre-existing conditions which prohibited her from climbing, driving, and working more than eight hours per shift. Henley testified, and reported to the MDOC, that she injured her lower back at work while attempting to open a Sally-Port gate. After the reported incident on December 30, 2001, Henley worked the rest of her shift. On January 2, 2002, Henley went to the emergency room where Dr. Walter Moses, Jr., diagnosed Henley with lumbar radiculopathy and suspected a herniated disc.

¶ 17. On January 11, 2002, Dr. William Anderson III diagnosed Henley as having a minimal left lateral disc bulge and minimal loss of disc hydration. In his notes dated January 16, 2002, Dr. Anderson stated: “She had an MRI scan done a report of which I have received that reveals no acute changes or acute disc rupture. She does have some mild preexisting degenerative disk disease.”

¶ 18. Henley did not return to work until March 11, 2002. She was restricted to a four-hour work day and was instructed not to carry anything weighing more than ten pounds. She was also instructed not to bend, push, twist, or climb. On May 15, 2002, Dr. Anderson diagnosed Henley with a lumbar strain and began treatment with a TENS unit. Later on July 21, 2002, Dr. Anderson diagnosed her with degenerative disc disease.

¶ 19. Pursuant Dr. Anderson’s referral, Dr. Winston Capel, a neurosurgeon, evaluated Henley on June 25, 2002, and ordered an MRI. Dr. Capel interpreted the January 11, 2002, MRI as showing degeneration without collapse at the L4-5 and L5-S1 discs. Henley’s medical records show that Dr. Capel found no radicular pain upon a physical exam, but then the doctor found that Henley had a ruptured disc and radicular pain. Dr. Capel recommended anterior/posterior L4-5/L5-S1 fusion with exploration of the left nerve root.

¶ 20. On August 21, 2002, Henley then underwent an electromyography and nerve conduction study by Dr. Michael Graeber. This test was interpreted as normal with no clear nerve lesion detected.

¶ 21. On April 15, 2003, at the request of her workers’ compensation carrier, Dr. Howard Holaday performed an independent medical evaluation on Henley. He recommended against a diskectomy and fusion. Furthermore, he stated that Henley had reached maximum medical improvement and assigned her a 5% to 7% permanent impairment rating for the purposes of Henley’s workers’ compensation case. Dr. Holaday reported that Henley’s MRI showed minor degenerative changes including mild bulging of the interverte-bral disc, “no evidence of significant herniated intervertebral disc,” and no objective evidence of radiculopathy by the EMG nerve-conduction study. He recommended that Henley could return to work with no lifting greater than 20-25 pounds and no frequent stooping or bending.

¶ 22. On May 21, 2003, the MDOC held an administrative review hearing for the purpose of evaluating whether Henley had a disability, whether a disability prohibited her from performing job-related functions, and whether there was a reasonable accommodation for Henley if she did have a disability. Henley’s attorney attended the hearing and stated that “it was made pretty clear off record that she, you know, her job would not be held open for her, and she would be dismissed, and based on that I advised her to file for disability.” On the same day as the MDOC hearing, Henley submitted a request for a limited-duty assignment, which was disapproved.

¶ 23. On July 21, 2003, Henley filed an application for PERS disability benefits. Henley underwent two functional-capacity evaluations, and both evaluations were unable to be completed because of Henley’s pain. One therapist stated that Henley’s pain was genuine, but noted that “she may tend to overreact to her symptoms.” Thereafter, a vocational-rehabilitation evaluation was performed on August 15, 2003, by David E. Stewart. He concluded that her range of access to occupations was severely constricted and that she “has a significant loss of wage-earning capacity.” The Committee noted that neither the functional-capacity evaluations nor the vocational-rehabilitation evaluation addressed whether objective proof existed to support a finding of disability.

¶ 24. On September 3, 2003, Dr. Anderson submitted a Statement of Examining Physician and diagnosed Henley as having a ruptured lumbar disc (severe), that her prognosis was “poor,” and that Henley had reached maximum medical improvement. On September 11, 2003, Dr. Capel submitted a Statement of Examining Physician in which he described Henley’s diagnosis as severe and said that Henley had not reached maximum medical improvement at that time.

¶25. At the Board’s request, Henley underwent an independent medical evaluation with Dr. David Collipp, who found that there were overwhelming inconsistencies with Henley’s complaints and that her participation in the examination was poor. He believed that she was attempting to deceive him, and stated that she was able to return to work without restriction. Further, Dr. Collipp noted that Henley had normal reflexes and that her ability to walk or to move was not associated with her behavior.

1126. Henley had the burden of persuading PERS that she suffered a duty-related disability, and she had to show that she has an objective medical disability that resulted in an occupational disability. Cobb, 839 So.2d at 609 (¶ 15). Further, she had to show that the medical condition was the result of an accident or trauma that occurred while Henley was working as a correctional officer. Miss.Code Ann. § 25-11-114(6) (Supp.2009).

¶27. Henley claims that Dr. Collipp’s “findings are contradictory to every other medical practitioner who has examined [her].” The weight of all of the medical records and testimony is a matter for the fact-finder. Pub. Employees Ret. Sys. v. Warner, 983 So.2d 342, 348 (¶ 22) (Miss.Ct. App.2008). In the Committee’s analysis, it stated: “After looking at all of the evidence, it appears to this Committee that the most persuasive evidence is supported by Dr. Anderson, Dr. Holaday, and Dr. Collipp, all who refer to the MRI of January 2002, and the nerve-conductions study, conducted about the same time which did not document anything objectively wrong with Ms. Henley that would be the result of an accident on the job. The only physician that found otherwise was Dr. Capel, and even he contradicted himself when his notes are carefully read.” Also, the independent medical evaluations and other functional-capacity tests were not the only evidence on which the Committee relied. Henley testified that sitting at work for an extended period of time was very painful for her. Yet, before beginning the disability analysis, the Committee noted that “[t]his Committee certainly enjoyed meeting Ms. Henley but would like it to be reflected that Ms. Henley sat for a one-hour hearing without the least bit of observable problem, yet she complains that she is not able to work, sit or stand for long periods of time.”

¶ 28. Henley asks this Court to reverse the Board’s decision and cites Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014 (Miss.2003), as authority. In Dearman, the supreme court affirmed the circuit court’s finding that the Board’s decision was not supported by substantial evidence and was, therefore, arbitrary and capricious because the record was absent any evidence that the claimant was not disabled. Id. at 1019 (¶ 15). Among the uncontradicted evidence supporting a finding for disability was Elsie Dearman’s physician who had treated her for several years and determined that Dearman was permanently disabled and unable to do her job. Id. at 1016 (¶ 13). Further support offered of her disability was the certification of her superintendent and principal that Dearman was disabled and that her illness prohibited her from carrying out her job duties. Id. at (¶ 8).

¶ 29. Here, unlike in Dearman, there was evidence that contradicted a finding of disability. First, not all of the medical evidence and testimony support a finding of disability, for example: (1) Dr. Anderson’s finding in January 2002 of “mild preexisting degenerative disk disease”; (2) Dr. Graeber’s nerve-conduction study which found nothing abnormal and detected no clear nerve lesion; and (3) Dr. Holaday’s finding of minor degenerative changes. Also, Henley’s supervisor never certified that Henley was unable to perform her duties unlike in Dearman where the teacher’s principal specifically stated that Dearman’s disability rendered her incapable of performing the necessary job duties. Here, the supervisor believed that Henley was able to perform her duties, but Henley did not desire to work anymore. Accordingly, the facts in the present case differ from the facts in Dearman.

¶ 30. Henley, as the applicant, had the burden of proof to show affirmatively the existence of her disability and, thus, her right to compensation. Cobb, 839 So.2d at 609 (¶ 15). Also, it was not PERS’s burden to prove that Henley could carry out her duties as a correctional officer. Accordingly, this Court finds that substantial evidence exists to support a denial of disability benefits for Henley.

¶ 31. Henley also argued that the Committee incorrectly stated that: (1) she terminated her employment on June 27, 2003; (2) her employer’s belief that she did not appear interested in her job when the employer filled out the Employer’s Certification of Job Requirements; and (3) the date she had a bulging lumbar disc.

¶ 32. The Committee stated that Henley terminated her employment when in actuality the MDOC terminated Henley’s employment on June 27, 2003. This factual error made by the Committee does not affect our decision. Whether or not Henley terminated her employment, or vice versa, substantial evidence supported a denial of disability benefits.

¶ 33. Also, Henley claims that the supervisor’s statement — that Henley was able to perform her job but did not want to work — was unfounded because the supervisor filled out the form after the MDOC terminated her employment. We find that although the supervisor filled out the form, which was sent by PERS to the employer after the fact, this is the agency’s protocol after a person applies for disability benefits. Henley did not apply for disability benefits until after her termination; thus, PERS did not have a reason to send the form prior to Henley’s termination. Henley’s allegations concerning the circumstances under which her employer filled out the Employer’s Certification of Job Requirements and the exact date that Henley had a bulging disc were presented to the Board and the Committee. As such, they, as the fact-finders, had the job of weighing the information presented to them. We find that this issue has no merit.

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

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