LORNA D. MALONE v. BOARD OF TRUSTEES, KENTUCKY RETIREMENT SYSTEMS
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000254-MR
LORNA D. MALONE
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 99-CI-01243
v.
BOARD OF TRUSTEES,
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and DYCHE, Judges.
COMBS, JUDGE:
Lorna Malone brings this appeal from a January 25,
2001 opinion and order of the Franklin Circuit Court.
We affirm.
Malone worked at Western State Hospital from February
1991 to June 1998 as a registered nurse.
She filed an
application for disability retirement benefits with Kentucky
Retirement Systems on September 24, 1998.
In her application,
Malone alleged permanent and total disability as a result of pain
from a back sprain suffered in January 1998.
She also suggested
that she was suffering from depression.
After the Medical Review Board denied her claim for
disability benefits, Malone requested a hearing.
The hearing
officer issued a report and recommended order denying her
application for disability retirement benefits.
In accord with
Kentucky Revised Statutes (KRS) 13B.120, the Disability Appeals
Committee of the Retirement System's Board of Trustees next
reviewed the case.
Ultimately, the Board of Trustees adopted the
hearing officer's report and recommended order.
Malone sought judicial review of the Trustees’ opinion
in the Franklin Circuit Court.
Following its review, the
Franklin Circuit Court affirmed the decision denying Malone's
benefits.
This appeal followed.
Upon review, we step into the shoes of the circuit
court and review the Trustees’ decision for arbitrariness.
American Beauty Homes Corporation v. Louisville and Jefferson
County Planning and Zoning Commission, Ky., 379 S.W.2d 450
(1964).
We must determine whether the administrative decision to
deny Malone disability benefits is supported by substantial
evidence and whether the law was applied correctly.
KRS 61.600(2) requires that disability or physical
incapacity to perform a job be must proven by "objective medical
evidence."
The Trustees concluded that Malone had failed to
present objective medical evidence of an incapacity to perform
the duties of a registered nurse upon having been afforded
appropriate accommodations.
Following their meticulous review of
the allegations, Malone's testimony, each exhibit, and the
proffered medical evidence, the Trustees found as follows:
5) The medical evidence indicates that
Claimant did suffer an injury at work on
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January 13, 1998, that she has been seeking
treatment and the MRI of October, 1998
indicated bulges at various lumbar discs and
no disc herniation. She has been placed on
restrictions for lifting. There is a
question of whether or not these are
permanent restrictions even though one doctor
indicated that they would be as of January
1999. No accommodations were provided the
Claimant on her initial restriction. The
restrictions as of October 1998 do not appear
to have been presented to the employer.
These do not set forth any restrictions for
pushing or pulling.
6) It is further noted Dr. Fielder was more
concerned with the Claimant's depression and
it appears that the depression developed
after her last date of paid employment
because of her pain and inability to work.
Further, the depression, as argued by counsel
for the Retirement Systems, is amenable to
treatment, although there is some question as
to what the prognosis is at this time because
she continues to set forth that she has pain
in her back.
7) There is little if any objective evidence
to support the claim of incapacity based on
her back condition. It has been diagnosed
originally as a strain, further as
degenerative changes, and there are no
herniated discs. She also has a diagnosis of
mild lumbar spondylosis.
8) Claimant's depression was not set forth
with specificity on her . . . application
and it does appear to be directly related to
the fact that the Claimant is unable to
return to work after her last date of paid
employment of June 30, 1998. The medical
exhibits indicate diagnosis and treatment
after her last date of paid employment.
9) The Claimant's statements of pain are
certainly believable. However, the record
reflects that the Claimant did not attempt to
return to work in any capacity after the
incident and while there has been an
indication that she would be unable to
perform these duties, the restrictions have
been reduced somewhat from the original
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restrictions, and accordingly, the Claimant's
back pain and degenerative disc does [sic]
not support a claim for incapacity.
10) The Claimant's depression, besides being
treatable, was not present at the last date
of paid employment.
11) [T]he Claimant has not presented
objective medical evidence to support her
claim for disability retirement benefits.
On appeal, Malone contends that the evidence presented
requires a finding of permanent inability to perform her duties
as a registered nurse.
While she presented evidence tending to
establish her back sprain, a somatoform pain disorder, and
depression, Malone failed to offer compelling objective medical
evidence to establish a continued incapacity to work.
Medical evidence presented by Malone was carefully
reviewed by the physicians of the Medical Review Board.
These
physicians concluded unanimously that Malone's alleged
impairments were not so severe as to prevent her from performing
her work as a registered nurse nor were they expected to be
permanent as required by the disability statute.
The Trustees’
opinion is in harmony with the physicians' reports and
recommendations and is supported by substantial evidence.
As the Board of Trustees notes in its brief, the only
evidence tending to show the extent of Malone's pain and
inability to work consists of her subjective complaints of back
pain.
These reports are not uniform.
In September 1998, Malone
reported to Dr. Fielder, her family physician, that her back pain
had much improved.
However, by October 1998, Malone was again
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reporting disabling pain.
Dr. Hester, Malone's treating
neurosurgeon, was beginning to wonder in his notes why his
patient's pain had not diminished significantly.
Upon review of
the evidence as a whole, we are simply unable to conclude that
the evidence presented compels a finding in Malone's favor.
Malone also alleges that she suffers from disabling
depression stemming from or aggravated by her back injury.
She
contends that an award of benefits is justified on this basis.
After reviewing the evidence, the Hearing Officer
specifically rejected this contention.
He reported that Malone's
condition was treatable and, moreover, that it had not been
present on the last date of paid employment as required by
statute.
Again, having reviewed the record as a whole, we
conclude that the administrative decision to deny Malone
disability benefits is supported by substantial evidence.
The
relevant law was not misapplied.
For the foregoing reasons, the order of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Francis
Cadiz, KY
J. Eric Wampler
Frankfort, KY
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