TONI BRITTON V STATE EMPLOYEES RETIREMENT SYSTEM (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
TONI BRITTON,
UNPUBLISHED
June 28, 2011
Petitioner-Appellee,
v
STATE EMPLOYEES RETIREMENT SYSTEM,
No. 297274
Mason Circuit Court
LC No. 09-000321-CZ
Respondent-Appellant.
Before: WHITBECK, P.J., and MARKEY and K. F. KELLY, JJ.
PER CURIAM.
Respondent appeals by leave granted a circuit court order reversing a decision of the
State Employees’ Retirement Board denying petitioner’s application for non-duty disability
retirement benefits under MCL 38.24. We reverse.
This Court reviews a circuit court’s decision on review of an agency decision to
“determine whether the lower court applied correct legal principles and whether it
misapprehended or grossly misapplied the substantial evidence test to the agency’s factual
findings. This latter standard is indistinguishable from the clearly erroneous standard of
review . . . .” Boyd v Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). “[A]
finding is clearly erroneous when, on review of the whole record, this Court is left with the
definite and firm conviction that a mistake has been made.” Id. at 235.
“A final agency decision is subject to court review but it must generally be upheld if it is
not contrary to law, is not arbitrary, capricious, or a clear abuse of discretion, and is supported by
competent, material and substantial evidence on the whole record.” VanZandt v State
Employees’ Retirement Sys, 266 Mich App 579, 583; 701 NW2d 214 (2005). Substantial
evidence is that which a reasonable mind would accept as sufficient to support a conclusion. It is
something more than a scintilla of evidence, but may be substantially less than a preponderance
of the evidence. In re Payne, 444 Mich 679, 692; 514 NW2d 121 (1994). An agency’s findings
should be upheld if they are supported by substantial evidence even if alternative findings could
have been supported by substantial evidence on the record. Id. When the administrative
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decision is supported by sufficient evidence, the circuit court may not substitute its judgment for
that of the agency. VanZandt, 266 Mich App at 584.
In this case, the circuit court did not apply correct legal principles. Rather than decide
whether the board’s decision was supported by substantial evidence on the record, it concluded
that plaintiff was sufficiently disabled to qualify for non-duty disability retirement benefits
because her complaints of pain were supported by an objectively manifested injury. Whether a
person suffered an objectively manifested injury is relevant in determining whether the person
has suffered a serious impairment of body function within the meaning of MCL 500.3135.
McCormick v Carrier, 487 Mich 180, 194-195; 795 NW2d 517 (2010). A non-duty disability
retirement requires, however, that a medical advisor certify in writing that the person is totally
incapacitated for further performance of duty, that the incapacitation is likely to be permanent,
and that the person should be retired. MCL 38.24(1)(b).
According to the evidence that was presented below, petitioner had low back pain that
radiated into her left leg. Corrective surgery relieved pressure on the affected nerve, but
petitioner continued to experience pain that affected her leg and other areas of her body. The
record shows that the various medical experts involved in the case were not in agreement on
whether there was a physical basis for petitioner’s complaints of pain. Petitioner’s surgeon, Dr.
Bruce Dall, could not determine the basis for petitioner’s pain because an MRI did not
demonstrate any nerve impingement and an EMG was normal. Another doctor, however,
seemed to think that petitioner’s left leg pain was causally connected to an annular tear in the
L3/L4 disc even though that disc was not impinging on the nerve. Nevertheless, not one
physician certified in writing that petitioner was totally incapacitated for further performance of
duty, which incapacitation was likely to be permanent, and that petitioner should be retired.
Dr. David Carr, the neurologist who examined petitioner in connection with her disability
application, concluded in February and March 2008 that petitioner was not totally incapacitated
because he could find nothing physically wrong with her that would prevent her from working.
Dr. Robert Digby, the independent medical advisor, concluded in May 2008 that petitioner was
not “totally or permanently disabled” and was able to return to work. Dr. Dall stated that
petitioner was “indefinitely disabled” as of February 2008, Dr. Frances Madden, a physician at
the pain clinic, stated at some unspecified time that petitioner was not able to perform the
essential duties of her own or any other occupation, and Dr. Stephen Montes, who examined
petitioner at the request of her attorney in December 2008, concluded that petitioner was
“incapable of any gainful employment” on a full-time basis. Still, not one of the three stated that
petitioner’s incapacitation was likely to be permanent. Further, even if the statements of
petitioner’s physicians could be construed as statements of total and permanent incapacitation,
the board was entitled to find Dr. Carr’s and Dr. Digby’s reports more persuasive; it is not the
reviewing court’s function to determine the credibility of witnesses or resolve conflicts in the
evidence. VanZandt, 266 Mich App at 593.
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Because competent, material, and substantial evidence supported the board’s decision
that petitioner was not entitled to non-duty disability retirement benefits, the circuit court erred in
reversing that decision.
We reverse.
/s/ William C. Whitbeck
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
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