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Carver v. Public Employees' Retirement System of Mississippi

Court of Appeals of Mississippi

October 29, 2019

BRIAN CARVER APPELLANT
v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/03/2018

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL SR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: GEORGE S. LUTER

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SAMUEL MARTIN MILLETTE III

         EN BANC

          GREENLEE, J.

         ¶1. This disability-benefits appeal arises from a decision denying Carver duty-related disability benefits from the Public Employees' Retirement System of Mississippi (PERS). This Court, having fully considered the parties' briefs, the record, and the applicable law, affirms the Hinds County Circuit Court's judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶2. The facts in this case detail various incidents that Carver faced while on duty for the Jackson Police Department (JPD). The parties do not dispute these events.

         ¶3. In January 2004, Carver shot and killed an individual while on duty as a patrolman for JPD. After the shooting, JPD referred Carver to Dr. Jerry Alford as a matter of policy. Carver visited with Dr. Alford twice to determine whether he was fit to return to work. Carver was eventually cleared.

         ¶4. Several months after returning to work, Carver responded to a domestic-violence dispatch. At the scene, Carver explained that everyone was yelling and screaming at each other causing him to become "highly anxious." In distress, Carver drew his weapon and kicked in the door. As the door flew open, a screaming child standing behind it was hit. Carver "froze." He testified that he could not move or enter the house. As a result, Carver's accompanying officers took charge of the situation. After the event, Carver did not take time off from work or seek professional counseling. He feared counseling would end his career.

         ¶5. At a hearing to determine his disability benefits, Carver admitted these facts. He also stated that he struggled with other domestic-violence situations. He explained that there were some domestic-violence dispatches that he could not handle. During those instances, Carver waited until other officers arrived instead of immediately responding. He even detailed one specific instance where he set off his emergency button because he could not handle a group of people yelling.

         ¶6. In 2007, Carver transferred from his midnight shift on the radio-car dispatch patrol to the police-motor unit. Rather than responding to thefts, burglaries, and domestic-violence calls, the police-motor unit dealt with traffic-related matters, such as motorcycle patrol and tag violations. During this time, Carver was fighting insomnia by periodically taking prescription medication. And even though the transfer helped, Carver testified that there were times he would get anxious when people did not stop right away. He feared that he would be placed in a position that required him to use deadly force.

         ¶7. Carver also testified that he had failed to report these incidents to JPD. He did, however, speak with a supervisor asking whether officers were required to report these types of feelings. In November 2009, Carver started seeking assistance from a licensed professional counselor to help combat his anxiety. The next month, in December 2009, Carver testified that he was involved in an incident over a minor situation while on patrol during a Christmas parade. He stated that he was afraid he might use his weapon inappropriately. Carver expressed these feelings to his professional counselor, and with his permission, the counselor informed Carver's supervisors about the situation.

         ¶8. Carver stated that after this incident, JPD relieved him of his gun, and he took a medical leave of absence. The next week, Carver received two letters terminating his employment. After his termination, Carver's counselor wrote a letter opining that Carver suffered from post-traumatic stress disorder (PTSD). Carver was subsequently evaluated by Dr. Webb, a psychiatrist, who stated that all of the above-mentioned traumas and incidents caused his PTSD.

         ¶9. Carver applied for non-duty and duty-related disability benefits. The PERS Medical Board granted him non-duty related disability benefits but denied his request for duty-related disability benefits. Carver appealed the decision to the Disability Appeals Committee (DAC), which held a hearing and agreed with the Medical Board's decision. The DAC recommended that the Board of Trustees (PERS Board) deny Carver duty-related disability benefits. The PERS Board adopted the DAC's findings and recommendations. Carver appealed the PERS Board decision to the Hinds County Circuit, but the circuit court affirmed. It is from that decision that Carver now appeals to this Court.

         STANDARD OF REVIEW

         ¶10. Our review of an administrative agency's decision is limited in this Court. The conclusion of the agency withstands appellate review unless the decision is: "(1) not supported by substantial evidence; (2) is arbitrary and capricious; (3) is beyond the scope or power granted to the agency; or (4) violates one's constitutional rights." Pub. Emps.' Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶11) (Miss. 2000). A decision by the PERS Board has a rebuttable presumption in favor of its ruling. Pub. Emps.' Ret. Sys. v. Card, 994 So.2d 239, 242 (¶14) (Miss. Ct. App. 2008) (quoting Pub. Emps.' Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (¶9) (Miss. 2001)). If the agency's decision is supported by substantial evidence, then the agency's decision stands. Pub. Emps.' Ret. Sys. v. Walker, 126 So.3d 892, 895 (¶7) (Miss. 2013).

         ¶11. Substantial evidence has been defined by our supreme court as "such relevant evidence as reasonable minds might accept as adequate to support a conclusion." Id. (quoting Delta CMI v. Speck, 586 So.2d 768, 773 (Miss. 1991)). In short, the evidence must be more than a mere scintilla or suspicion. Miss. Real Estate Comm'n v. Anding, 732 So.2d 192, 196 (¶13) (Miss. 1999). "An administrative agency's decision is arbitrary when it is not done according to reason and judgment, but depending on will alone." Burks v. Amite Cty. Sch. Dist., 708 So.2d 1366, 1370 (¶14) (Miss. 1998). An act is capricious if it is done without reason, "in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts" and settled controlling principles. Id.

         DISCUSSION

         ¶12. A member can receive disability benefits from PERS in two ways. The first way is for members who are vested and become disabled for any reason. Miss. Code Ann. § 25-11-113 (Rev. 2010). The second way is duty-related disability benefits for any members, no matter how many years of creditable service, who are ...


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