ELIZABETH SKAGGS v. BOARD OF TRUSTEES, KENTUCKY RETIREMENT SYSTEMS
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RENDERED: May 7, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002895-MR
ELIZABETH SKAGGS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 97-CI-0025
v.
BOARD OF TRUSTEES,
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND KNOX, JUDGES.
JOHNSON, JUDGE:
Elizabeth Skaggs (Skaggs) has appealed from an
opinion of the Franklin Circuit Court entered on October 21,
1997, which affirmed a decision of the Board of Trustees of the
Kentucky Retirement Systems (the Board), denying Skaggs’ claim
for disability benefits under Kentucky Revised Statutes (KRS)
61.600.
We reverse and remand.
Skaggs was employed by the Jefferson County Board of
Education (the school board) from April 1, 1986, until August 31,
1994.
On January 23, 1995, she filed for disability retirement
benefits.
In her application for benefits, Skaggs stated that
she could no longer work due to pain and numbness in her legs
which made standing and walking “almost impossible.”
Skaggs
described her duties in her application as sweeping, mopping,
vacuuming, buffing, stripping, and waxing floors, cleaning
windows, dusting furniture, washing sinks and cleaning toilets.
This work required that she move heavy furniture and lift up to
100 pounds with help and frequently lift items (furniture and
garbage) weighing 25 pounds or more without help.
There is no
dispute that her work was in the “medium” category and required
that she be on her feet for almost all of her work day.1
Skaggs
submitted the medical records from her treating physician, Dr.
Joseph Bowling, and those of a vascular surgeon, Dr. Leo Wine.
The medical examiners, employed by the Board in accordance with
1
Skaggs’ description of her job duties is nearly identical
to the “physical demands” of the position of custodian as
described by her employer as follows:
The work is performed while standing or
walking. It requires the ability to
communicate effectively using speech, vision
and hearing. The work requires the use of
hands for simple grasping, pushing and
pulling of arm controls and fine
manipulations. The work at times requires
bending, squatting, crawling, climbing,
reaching, with the ability to lift, carry,
push or pull heavy weights. The work
requires activities involving unprotected
heights, being around moving machinery,
exposure to marked changes in temperature and
humidity, and exposure to dust, fumes and
gases.
-2-
KRS 61.665, denied Skaggs’ application on April 26, 1995.
Skaggs
appealed and on July 18, 1995, an evidentiary hearing was
conducted before a hearing officer.
At the hearing, Skaggs testified that she was born in
1939, and had worked for the school board since 1986, first as a
cook and, beginning in 1987, as a custodian.
She described her
job duties much as she had in her original application for
benefits.
She stated that she began experiencing problems in
1993 when she was transferred to Atherton High School where there
were more stairs to climb and floor-to-ceiling windows to clean.
She testified that she experienced “throbbing” pain in her legs.
She testified that in August 1994, she was required to stand on a
ladder continuously for two days while cleaning windows, and
following this episode she was forced to quit her job due to the
pain she was experiencing.
Skaggs testified that she could walk
only about a block before she experienced pain, that she no
longer did her own grocery shopping, and that she could not even
wash dishes without taking a break because of her leg pain.
Although not mentioned in her application, she testified that she
also suffered from asthma and bronchitis.
She claimed that a
decreased oxygen supply from these conditions worsened her leg
pain.
In addition to her own testimony, Skaggs submitted, for
the hearing officer’s consideration, several medical records and
a favorable decision from the Social Security Administration
(SSA) that had been rendered on August 25, 1995.
-3-
The records of
Skaggs’ treating physician, Dr. Bowling, indicated that she had a
long history of progressive leg pain that was worse with walking.
His diagnosis for the leg pain and numbness was claudication2 due
to small vessel diabetic disease.
Dr. Bowling opined that Skaggs
could no longer perform the type of work required of a custodian
and should be limited to only sedentary work.
Dr. Wine, a
vascular specialist to whom Dr. Bowling referred Skaggs for a
determination of the cause of her leg pain, attributed Skaggs’
pain to diabetic neuropathy.
He recommended that she take
Trental, which his notes of February and June 1995, indicated was
helpful in reducing her leg pain.
Dr. Glen Lambert, also a
vascular specialist, agreed that Skaggs’ leg pain was the result
of diabetes and not arterial insufficiency.
Records from Audubon
Regional Medical Center confirmed claudication in both legs upon
treadmill testing.
The same records also contained documentation
of Skaggs’ history of asthma, bronchitis and chronic obstructive
pulmonary disease.
Finally, the findings of the SSA stated that
Skaggs suffered from “severe asthmatic bronchitis, chronic
obstructive pulmonary disease, diabetes mellitus, and
claudication of both legs.”
These findings also included that
Skaggs was “precluded from performing all but light work with a
sit/stand option in a controlled environment, ruling out past
2
“Claudication” is defined in Stedman’s Medical Dictionary,
(4 ed. 1976), as “a condition caused by ischemia [narrowing] of
the leg muscles due to sclerosis [hardening] with narrowing of
the arteries of the legs. It is characterized by attacks of
lameness and pain, brought on by walking, chiefly in the calf
muscles.”
th
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relevant work due to the excessive exertional and nonexertional
demands.”3
On November 6, 1995, the hearing officer recommended
that Skaggs’ application be denied for the reason that she had
“failed to establish by objective medical evidence the existence
of a permanent physical impairment which would prevent her from
performing her former job as a custodian. . . .”
officer stated in his report as follows:
The hearing
“The medical evidence
of record relates to [Skaggs’] asthmatic bronchitis, diabetes
mellitus, pain and numbness in the calf of the right leg,
referred to as claudication.
has not been diagnosed.”
It is clear that the basis for this
He further opined that in addition to
failing to prove the cause of her pain in her legs, Skaggs had
failed to “show that it would be expected to last more than
twelve months.”
Skaggs filed exceptions to the hearing officer’s
report.
The Board’s Disability Appeals Committee met on January
23, 1996, and remanded the matter to the hearing officer for
reconsideration of his recommendation based on information to be
obtained after Skaggs underwent an independent medical
examination.
Accordingly, Skaggs was seen by Dr. Jeffrey Hilb, a
doctor of the Board’s choosing, who was asked to provide an
opinion as to whether Skaggs was physically capable of performing
3
Skaggs was granted disability benefits by the SSA without
the necessity of a hearing “[d]ue to the severity of the clinical
findings and [Skaggs’] adverse vocational factors.”
-5-
her previous job duties.
Dr. Hilb confirmed that Skaggs suffered
from claudication in addition to chronic lung disease and
diabetes.
Dr. Hilb’s report stated that Skaggs’ condition
included “significant claudication with pain upon walking in both
legs.”
Although Dr. Hilb did not specifically state whether or
not Skaggs was capable of performing the work required of a
custodian, his “plan” for her provided as follows:
“The patient
is significantly impaired with both her breathing function and
her walking. . . .
Her medication does seem to compensate for
part of her problem and I have encouraged her to stay in regular
contact with her personal physician” (emphasis added).
After
receipt of this report and another letter from Dr. Bowling,4 the
4
Dr. Bowling’s letter reads in relevant part as follows:
Mrs. Skaggs has a long history of leg pain
which we have had evaluated on a number of
occasions. Certainly the patient is a
diabetic and suffers from diabetic
neuropathy. . . . It was our feeling that
the patient’s combination of impairments,
including her chronic obstructive pulmonary
disease, diabetes and peripheral vascular
disease, were, in combination, the cause of
her lower extremity discomfort.
The patient has been treated with Trental,
which has reduced some of her leg complaints,
but has not completely eliminated those
. . . . The patient’s diabetes has been
fairly well controlled of late with
medication, but the fact that she has had
this long-term and a continual history of leg
discomfort would be consistent with the
diagnosis of diabetic neuropathy.
In closing I would like to state that the
patient’s leg pain is real and causes her a
(continued...)
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hearing officer recommended that Skaggs’ application for benefits
be denied.
On July 9, 1996, the Disability Appeals Committee
remanded the matter and instructed its staff to contact Dr. Hilb
“in order to clarify his opinion as to whether or not Ms. Skaggs
is disabled pursuant to KRS 61.600.”
On August 29, 1996, the
Board sent Dr. Hilb a letter which read:
“Please note that the
Committee is seeking, and has sought from the beginning, your
opinion as to whether Ms. Skaggs is totally and permanently
disabled using the definition prescribed in KRS 61.600. . . .”
Dr. Hilb responded to this letter as follows:
“Since Elizabeth
Skaggs[’] exam took place in April, I have no objective way to
further clarify beyond what I have already stated.
how to be any more specific.”
I don’t know
The hearing officer informed the
Disability Appeals Committee of Dr. Hilb’s correspondence and
stated that in his opinion there was nothing in Dr. Hilb’s report
that would cause him to change his original recommendation.
Skaggs again took exceptions to the hearing officer’s
recommendation and pointed out to the Committee that Dr. Hilb’s
opinion was consistent with her treating physician’s opinion that
her ability to be on her feet, much less work on her feet, was
severely limited.
4
On December 10, 1996, the Board, in a split
(...continued)
significant loss of function. . . .
-7-
decision, voted to adopted the hearing officer’s report and
denied Skaggs’ application for disability retirement benefits.
Skaggs appealed to the Franklin Circuit Court.
The
circuit court agreed with Skaggs that the Board clearly erred in
its determination that she had not demonstrated the cause of her
leg pain.
It held that the record conclusively established that
Skaggs suffered from “claudication in the lower legs which causes
numbness and severe pain.”
Nevertheless, the circuit court
agreed with the Board that Skaggs had not proven that she was
“permanently incapacitated” within the meaning of KRS 61.600.
The circuit court stated as follows:
The question remains, however, whether
this pain renders [Skaggs] “permanently
incapacitated” under the meaning of KRS
61.600, such that disability retirement
benefits are appropriate. An incapacity
shall be deemed to be permanent if it “is
expected to result in death or can be
expected to last for a continuous period of
not less than twelve (12) months from the
person’s last day of paid employment in a
regular full-time position.” KRS
61.600(4)(a)1.
The simple fact of the matter is that
[Skaggs] presented no objective proof that
her condition(s) either rendered her totally
incapable of performing her duties or were
expected to last continuously for one year.
In fact, the evidence showed that [Skaggs’]
leg pain improved with time and medication,
although she made no attempt to return to
work. There thus exists substantial evidence
in the record to deny the application for
disability retirement benefits, and there is
no compelling reason in the evidence to
overturn that decision.
This appeal followed.
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In reviewing a decision of an administrative agency, a
circuit court is “bound by the administrative decision if it is
supported by substantial evidence.”
Commonwealth Transportation
Cabinet, Department of Vehicle Regulations v. Cornell, Ky.App.,
796 S.W.2d 591, 594 (1990).
See also Kentucky Unemployment
Insurance Commission v. King, Ky.App., 657 S.W.2d 250 (1983).
“Substantial evidence has been conclusively defined by Kentucky
courts as that which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in
the mind of a reasonable person.”
Bowling v. Natural Resources &
Environmental Protection Cabinet, Ky.App., 891 S.W.2d 406, 409
(1994).
When determining whether the administrative agency’s
decision is supported by substantial evidence, the reviewing
court must adhere to the principle that the trier of fact “is
afforded great latitude in its evaluation of the evidence heard
and the credibility of witnesses appearing before it.”
409-410.
Id. at
Furthermore, an agency’s decision may be supported by
substantial evidence though a reviewing court may have arrived at
a different conclusion.
Kentucky State Racing Commission v.
Fuller, Ky., 481 S.W.2d 298, 308 (1972).
Overall, the primary
concern of a reviewing court is whether the agency’s decision is
arbitrary.
Cornell, 796 S.W.2d at 594.
A decision not supported
by substantial evidence is deemed arbitrary as a matter of law.
Id.
The issue before this Court is whether the circuit
court erred in affirming the Board’s determination that Skaggs
-9-
failed to prove that she is disabled as contemplated by KRS
61.600.
Portions of that statute pertinent to our review read as
follows:
(2) Upon the examination of the objective
medical evidence by licensed physicians
pursuant to KRS 61.665, it shall be
determined that:
(a) The person, since his last day of paid
employment, has been mentally or physically
incapacitated to perform the job, or jobs of
like duties, from which he received his last
paid employment. In determining whether the
person may return to a job of like duties,
any reasonable accommodation by the employer
shall be considered;[5]
(b) The incapacity is a result of bodily
injury, mental illness, or disease. For
purposes of this section, “injury” means any
physical harm or damage to the human organism
other than disease or mental illness;
(c) The incapacity is deemed to be
permanent; and
(d) The incapacity does not result
directly or indirectly from bodily injury,
mental illness, disease, or condition which
pre-existed membership in the system or
reemployment, whichever is most recent.
. . .
(4) (a) 1. An incapacity shall be deemed to
be permanent if it is expected to result in
death or can be expected to last for a
continuous period of not less than twelve
(12) months from the person’s last day of
paid employment in a regular full-time
position.
5
There was no dispute as the hearing officer found that the
school board could make no reasonable accommodations for Skaggs
because of the physical demands of the work.
-10-
The basis for the Board’s denial which the circuit
court affirmed was Skaggs’ failure to establish the “permanent”
nature of her incapacity.
KRS 61.600(2)(c).
Having reviewed the
entire record, it is our conclusion that the circuit court erred
in affirming this determination and that the record compels a
finding that Skaggs’ disabling condition is permanent.
Every
physician who examined Skaggs, including the independent medical
examiner, Dr. Hilb, determined that she suffers from claudication
in both legs.
The only vascular specialists who examined Skaggs
determined the cause of Skaggs’ claudication was attributable to
complications of diabetes, a known progressive and debilitating
disease.
A determination that this condition is one “expected to
last for a continuous period of not less than twelve (12) months”
as set out in KRS 61.600(4)(a)(1)., is further compelled from the
fact that by the time the Board remanded the matter for an
independent medical examination—an event which occurred in April
1996, and resulted in a diagnosis of “significant claudication
. . . in both legs”—more than twelve months had already passed
since Skaggs’ last day of work on August 30, 1994.
While the
records of Dr. Bowling and Dr. Wine indicated that Skaggs’
diabetes is being “controlled” with medication, and that the
claudication-related pain is “reduced” by yet other medication,
there was no evidence from which the Board could infer that
Skaggs’ condition was curable, that the damage to her blood
vessels already caused by her diabetes was reversible, or that
the prescribed medication altered her ability to work at a job
-11-
that required that she be on her feet for a significant part of
the work day.
Simply stated, the evidence in the record that Skaggs
can no longer perform the type of work from which she received
her last paid employment, the standard required by the statute,
is overwhelming.
Indeed, Dr. Hilb, the independent physician,
did not know how he could be “more specific” on the issue of her
ability to work as a custodian after reporting that both her
“breathing” and “walking” functions were “significantly
impaired.”
Accordingly, the judgment of the Franklin Circuit Court
is reversed and this matter is remanded for entry of an award
consistent with this Opinion.
BUCKINGHAM, JUDGE, CONCURS.
KNOX, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
KNOX, JUDGE, DISSENTING. I respectfully dissent.
Given
the burdensome standard of review that an unsuccessful claimant
before an administrative agency must meet, I believe the trial
court was correct in affirming the Board.
The “compelling
evidence” standard of review has not been without controversy.
See Tucker v. Tri-State Lawn & Garden, Inc., Ky. App., 708 S.W.2d
116 (1986).
It has its basis in the idea that a claimant in an
administrative hearing bears the risk of nonpersuasion, and
having failed to persuade the agency notwithstanding substantial
evidence in his favor, bears a heavy burden in overturning the
-12-
decision of the agency.
Lee v. International Harvester Co., Ky.,
373 S.W.2d 418, 420 (1963).
In this case, the majority has recited evidence of a
substantial nature which would justify a determination in Mrs.
Skaggs’ favor.
The majority opines that the evidence in Skaggs’
favor is compelling and overwhelming.
However, the trial court’s
opinion recited evidence relied upon by the Board from which
other less favorable inferences could be drawn, particularly
evidence that Mrs. Skaggs’ condition was improving with
medication.
Further, the hearing officer noted inconsistencies
in the medical record relating to Mrs. Skaggs’ statements as to
whether walking caused her leg pain.
As noted by our highest Court:
Even though the reviewing court may not
agree with the inferences drawn by the Board,
it did not have the authority to overrule
that finding because it was supported by the
evidence. In order to reverse the finding of
the Board, the claimant, who has the burden
of proof, must present evidence that is so
overwhelming as to compel a finding in his
favor.
Howard D. Sturgill & Sons v. Fairchild, Ky., 647 S.W.2d 796, 798
(1983) (citation omitted).
Although I believe that the majority has reached the
more equitable result in this case, I believe the trial court’s
judgment is the legally correct result, given the stringent
standard of review which it must apply.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Alvin D. Wax
Hon. James P. Dodrill
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Louisville, KY
Frankfort, KY
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