KENTUCKY RETIREMENT SYSTEMS V. JOHN R. DAVIES
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RENDERED: July 8, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001043-MR
KENTUCKY RETIREMENT SYSTEMS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
CIVIL ACTION NO. 03-CI-00637
V.
JOHN R. DAVIES
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
MINTON, JUDGE:
The Franklin Circuit Court reversed a decision
of the Disability Appeals Committee of the Board of Trustees
(Board) of the Kentucky Retirement Systems that John R. Davies
did not qualify for disability retirement benefits under
Kentucky Revised Statutes (KRS) 61.600.
Having determined that
the evidence of record does not compel a decision in Davies’s
favor, we reverse.
Davies joined the County Employees Retirement System,
which is administered by the Board,1 on February 1, 1991, as a
sanitation tipper for the City of Louisville, Department of
Solid Waste Management & Services.
A sanitation tipper is
required to perform extensive walking, stooping, bending,
pushing, lifting, and carrying.
According to the official job
description, a sanitation tipper must load around 3,500 pounds
of garbage per hour into a garbage truck and lift and carry
containers and discarded items weighing up to 100 pounds.
But
Davies’s immediate supervisor estimated that the heaviest weight
that Davies would normally lift is about 80 pounds.
Davies has not worked for the City of Louisville since
June 8, 2000, when he was thrown from the back of a garbage
truck that was traveling at approximately 30 miles per hour.
Since that time, Davies has complained of pain and tightness in
the neck and back and especially in the tailbone area.
The City
of Louisville has indicated that there is no light-duty work or
other accommodation available for Davies.
Davies filed for disability retirement benefits on
February 11, 2001, alleging disability on the basis of a broken
tailbone, pinched nerve in the neck, third and fourth lumbar
strain, slipped disc, stiffness in legs, and imbalance.
He
alleged that he could not walk without a cane, could stand only
1
See KRS 61.645.
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20-30 minutes at a time, and could sit only for short periods of
time and only on a pillow.
He also alleged difficulty sleeping
because of pain.
The Board denied this initial application for
disability benefits based on the recommendations of
Drs. Esten S. Kimbel and William P. McElwain of the Kentucky
Retirement Systems’ Medical Review Board.
Both doctors were of
the opinion that there was no objective medical evidence
supporting Davies’s claim that he had developed a condition
which would permanently disable him from performing his ordinary
work activity.
Davies did not request an administrative appeal
of this decision.
On March 26, 2002, Davies filed a second application
for disability retirement benefits under KRS 61.600 alleging the
following conditions:
constant pain; inability to walk, sit,
lay down, or stand for over 30 minutes at a time; inability to
lift over ten pounds; broken tailbone; pinched nerve in neck;
third and fourth lumbar sprain; and two angulated discs in the
back.
Drs. Kimbel and McElwain, again, recommended that Davies
be denied benefits because of a lack of objective findings to
support that he suffered from a permanent disability.
Based on
the Medical Review Board’s recommendation, the Board denied
Davies’s second application for disability benefits.
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Davies then requested a formal hearing, which was
conducted on November 7, 2002.
The hearing officer’s findings
of fact and recommended order were issued on January 27, 2003.
The hearing officer found that Davies was not entitled to
disability retirement benefits because “[t]he weight of the
objective medical evidence does not support a finding that
Claimant is totally and permanently disabled from the essential
functions of his job duties pursuant to KRS 61.600.”
Davies
filed timely exceptions to the hearing officer’s findings of
fact and recommended order.
In addition to disagreeing with the
hearing officer’s conclusion that his disability claim was not
supported by objective evidence, Davies took issue with the
hearing officer’s characterization of his job as medium work.2
On March 27, 2003, the Disability Appeals Committee of
the Board (committee) remanded the case to the hearing officer
to address two matters.
First, the hearing officer had written
that Davies’s claim for “hazardous duty disability” retirement
benefits should be denied.
And the committee noted that Davies
“is not” a hazardous duty employee.
2
Second, the committee
According to KRS 61.600(4)(c)3, “[m]edium work” is “work that
involves lifting no more than fifty (50) pounds at a time with
frequent lifting or carrying of objects weighing up to twenty-five
(25) pounds.” The relevant version of KRS 61.600 is the version
effective July 14, 2000, which was still in effect on March 26,
2002, when Davies filed his second application for disability
retirement benefits. KRS 61.600 has, subsequently, been amended
twice.
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pointed out a discrepancy between the hearing officer’s
assessment of Davies’s work as medium and the parties’ earlier
stipulation that his work is heavy work.3
The hearing officer’s March 31, 2003, order on remand
clarified that the designation of Davies’s job as medium work
was due to an oversight.
But the hearing officer noted “[t]he
finding . . . that the objective medical evidence does not
support a finding that Claimant is totally and permanently
incapacitated from his job does not change with the correct
classification of his work activity” as heavy.
The hearing
officer also stated that the reference to hazardous duty
disability retirement benefits was due to a typographical error,
the correction of which also has no effect on the remaining
findings of fact or recommended order.
Davies filed exceptions to the order on remand, again,
taking issue with the conclusion that his claim of permanent
disability is not supported by the objective medical evidence.
On May 2, 2003, the Board of Trustees issued its final order
adopting the hearing officer’s recommended order on remand and
denying Davies’s claim for disability retirement benefits.
3
This stipulation was made in a pre-hearing conference on
September 19, 2002. According to KRS 61.600(4)(c)4, “[h]eavy work”
is “work that involves lifting no more than one hundred (100) pounds
at a time with frequent lifting or carrying of objects weighing up
to fifty (50) pounds.”
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Having exhausted his administrative remedies, Davies
then sought judicial review in Franklin Circuit Court.
On
April 23, 2004, the circuit court reversed the Board’s decision.
The circuit court stated that “the Board erred by ignoring
substantial evidence in the record that supported the
application” and that substantial evidence in the record
compelled a finding in Davies’s favor.
Kentucky Retirement
Systems then filed this appeal.
Kentucky Retirement Systems argues that the denial of
Davies’s application was supported by substantial evidence in
the record and that the circuit court erred in substituting its
judgment for that of the factfinder.
Davies argues that the
Board’s decision was not supported by substantial evidence
because he proved his disability with objective medical evidence
in the record.
He asserts that the circuit court applied the
correct standard of review and properly determined that the
evidence compelled an award of benefits in his favor.
In a claim for disability retirement benefits under
KRS 61.600, the burden of proof is on the claimant.4
“Where the
[factfinder’s] decision is to deny relief to the party with the
burden of proof or persuasion, the issue on appeal is whether
the evidence in that party’s favor is so compelling that no
4
McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 457-458
(Ky.App. 2003).
-6-
reasonable person could have failed to be persuaded by it.”5
If
the record contains such compelling evidence in favor of the
claimant, the denial of relief is arbitrary.6
However, reversal
of the Board’s decision is not justified by a mere showing that
there is some evidence in the record supporting a contrary
conclusion to that of the Board.7
Because the Board is the trier
of fact, the Board’s evaluation of the evidence, including the
credibility of the witnesses, is given great latitude.8
The
factfinder can choose to believe parts of the evidence and
disbelieve other parts even where the parts come from the same
witness.9
A reviewing court may not substitute its own judgment
on a factual issue for that of the Board unless the Board’s
decision is arbitrary.10
Davies bore the burden of proving his entitlement to
disability retirement benefits under KRS 61.600, but he was
unsuccessful before the Board.
Ultimately, we must determine
5
Id. at 458.
6
Bourbon County Board of Adjustments v. Currans, 873 S.W.2d 836, 838
(Ky.App. 1994).
7
McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974).
8
See Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 309
(Ky. 1972); Bowling v. Natural Resources and Environmental
Protection Cabinet, 891 S.W.2d 406, 409-410 (Ky.App. 1994); McManus,
supra at 458.
9
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
10
McManus, supra at 458.
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whether the circuit court erred in reversing the Board’s
decision to deny disability retirement benefits to Davies.
In
order to answer that question, we must determine whether the
circuit court properly concluded that the evidence in the record
compelled a finding in Davies’s favor such that the denial of
his claim for disability benefits was arbitrary.
The version of KRS 61.600 applicable when Davies filed
his second application for disability benefits on March 6, 2002,
states, in relevant part, 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 as provided in 42 U.S.C.
sec. 12111(9) and 29 C.F.R.
Part 1630 shall be considered;
(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
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(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 fulltime position.
2.
The determination of a
permanent incapacity shall be
based on the medical evidence
contained in the member's file
and the member's residual
functional capacity and
physical exertion requirements.
KRS 61.510(33)11 then provided the following definition
of "objective medical evidence":
[R]eports of examinations or treatments;
medical signs which are anatomical,
physiological, or psychological
abnormalities that can be observed;
psychiatric signs which are medically
demonstrable phenomena indicating specific
abnormalities of behavior, affect, thought,
memory, orientation, or contact with
11
The relevant version of KRS 61.510(33) is the one which went into
effect on June 21, 2001, and was still in effect when Davies filed
his second application for disability retirement benefits on
March 26, 2002. KRS 61.510 has been amended three times since then;
but the only changes to subsection (33) have been minor, grammatical
changes.
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reality; or laboratory findings which are
anatomical, physiological, or psychological
phenomena that can be shown by medically
acceptable laboratory diagnostic techniques,
including but not limited to chemical tests,
electrocardiograms, electroencephalograms,
[x]-rays, and psychological tests.
The Board denied Davies’s claim for disability
benefits because of a lack of objective medical evidence showing
that he is permanently disabled under KRS 61.600.
But the
circuit court found that the evidence in the record compelled a
finding that Davies is permanently disabled under the statute.
To resolve this issue, we turn to the medical evidence in the
record.
In the January 27, 2003, findings of fact and
recommended order, the hearing officer summarized the medical
evidence as follows:
Claimant first treated on June 8,
[2000,] from Occupational Physician Services
of Louisville, P.S.C.[,] complaining of pain
in his left knee, right middle back and arm.
His tailbone and back were reported to be
sore the next day. He saw Dr. Shea on
July 5, 2000, and was diagnosed with a
sprain of the left shoulder and lumbosacral
spine. No fractures were shown on x-rays.
On July 31, [2001], Dr. Shea noted that
Claimant had continued pain and stiffness in
his back, although he was improving with
physical therapy. He kept Claimant off work
through Labor Day.[12] Over the next several
12
Initially, Dr. Shea was optimistic about Davies’s progress stating
on July 31, 2000, that Davies “is gradually improving with the
physical therapy. He will remain off work for the next month and be
released for work after [L]abor [D]ay.” However, Davies never
returned to work. In subsequent notes after Labor Day, Dr. Shea
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months, Claimant had continued complaints of
pain to Dr. Shea.
An MRI of the lumbar spine on July 23,
2000[,] was equivocal for L3-4 inferior left
foraminal disk herniation with no nerve root
effacement, and developmental spinal
stenosis secondary to short pedicles.
A cervical MRI on August 7, 2000[,]
showed a small left[-]sided disk herniation
at C3-4 with extending nerve root
compression.
An MRI of the sacrum-coccyx on
August 25, 2000[,] showed the coccyx to be
angulated at 90 [degrees] but with no
fracture.[13] An MRI of the pelvis the same
day was unremarkable.
Claimant saw orthopaedist Gregory Gleis
on October 13, 2000[,] for an independent
medical examination, presumably for his
worker’s compensation case. His chief
complaint at that time was low back pain
going into his coccyx, with greater pain on
the left than the right. He also had neck
pain, right shoulder pain, thoracic pain,
left knee pain, and his bowels being “bound
up[.”] Dr. Gleis reviewed all of Claimant’s
medical records, and diagnosed him with
1. lumbosacral strain with coccyx and pelvic
floor pain (worst pain on rectal
examination); 2. cervical thoracic strain;
3. parasthesis left fourth and fifth nerve
consistent with ulnar nerve; 4. left knee
contusion, resolved; and 5. right heel pain
of undetermined etiology.[14] Dr. Gleis
writes that Davies continues to remain off work with no explanation
of why.
13
Dr. Shea also noted that the MRI showed no destructive bone lesion
or acute inflammatory process.
14
Dr. Gleis assessed Davies’s impairment as of October 13, 2000, as
“DRE cervical-thoracic category II – 5 percent whole person and DRE
lumbosacral category II – 5 percent” based on the presence of muscle
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strongly recommended a continued active
exercise program, evaluation by a colorectal
surgeon, epidural block for his back and
coccyx pain, and EMG/NCV for his finger
numbness, and medication.
On November 6, 2000, Claimant underwent
an epidural steroid injection.[15]
On November 27, 2000, Claimant
underwent a flexible sigmoidoscopy, which
was normal.
Claimant sought mental health treatment
in 2001 for what was diagnosed as PostTraumatic Stress Disorder related to the
June 8, 2000[,] injury.[16] As of October 10,
2001, Claimant was felt to be psychologically functional.
In August 2001, Claimant was examined
by Dr. Warren Bilkey. He found no specific
abnormalities, but noted through his report
that Claimant’s pain behaviors were markedly
increased. He found no evidence of a
significant contusion injury. . . [or] soft
tissue [injury or musculoskelatal injury]
affecting the functions of the hip, the
back, the shoulder, or the neck. He felt
that Claimant would not benefit from any
other treatment, either physical,
spasms; but he anticipated that Davies would not reach maximum
medical improvement (MMI) for “at least two to three months.”
15
Actually, Davies underwent a series of caudal epidural steroid
injections administered by Dr. Ricky S. Collis. Dr. Collis
diagnosed Davies as suffering from coccygodynia, also called
coccyodynia or coccydynia. This is merely a descriptive diagnosis,
however, used to describe pain in the region of the coccyx. See THE
AMERICAN HERITAGE STEDMAN’S MEDICAL DICTIONARY (2D ED. 2004),
http://medical-dictionary.thefreedictionary.com/coccygodynia (last
visited June 16, 2005).
16
Mary Ellen Zuverink, Ph.D., gave Davies this diagnosis. She treated
him between June 14, 2001, and October 10, 2001, when his visits,
apparently, ceased due to lack of insurance. She stated that
Davies’s post-traumatic stress disorder (PTSD) symptoms were
somewhat improved as of October 10, 2001.
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psychological, or medicationally [sic].
recommended no work restrictions.
He
On August 10, 2001, Claimant was
evaluated by Chris Catt, Psy.D. He was
diagnosed with a pain disorder related to
herniated disc and orthopedic difficulties,
and adjustment disorder with mixed anxiety
and depressed mood. Dr. Catt offered the
opinion that Claimant’s ability to tolerate
regular ongoing job related stress was
limited, and his ability to sustain ongoing
attention and concentration toward tasks was
likely to be variable and fluctuate with
varying levels of pain.
An MRI of the left hip on August 28,
2001[,] was normal.
On January 21, 2002, Dr. Shea completed
a functional capacity form in which he
stated that Claimant is able to sit, stand,
and walk for one hour (each activity) in an
8-hour work day, could occasionally lift and
carry up to 10 pounds, never lift or carry
over 11 pounds, . . . was not able to bend,
squat, crawl, climb, or reach above shoulder
level. Dr. Shea totally restricted Claimant
from unprotected heights and driving
automotive equipment, but placed no
restrictions on exposure to changes in
temperature and humidity or exposure to
dust, fumes, and gases.
On August 1, 2002, Claimant saw
Dr. Keisler, who took a full history and
conducted a complete examination. He
concluded that Claimant likely has a chronic
pain syndrome, with no orthopaedic
explanation for his symptoms and findings,
and further opined that the majority of
Claimant’s impairments in functioning are
probably psychological. [Handwritten notes]
following Dr. Keisler’s report state “there
are no valid objective findings but
significant pain with all back and hip
movements. Significant signs of
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magnification, suggestive of an atypical
chronic pain syndrome. None of the
subjective findings explainable on an
organic basis and no records available with
objective findings[.”] Dr. Keisler
completed functional capacity form,
restricting Claimant to occasional lifting
of 20 pounds, frequent lifting of 10 pounds,
standing for at least two hours in an 8-hour
work day, and unlimited reaching, handling,
fingering, and feeling.
Claimant testified that he currently
takes Darvocet, Vioxx, stool softeners, an
anti-anxiety/[depression] medication, and
Percocet on bad days. He testified to
significant limitations in his daily
activities.17
There are also additional medical records which were
included in the administrative record and considered by the
hearing officer but not specifically addressed in her summary.
In February 2001, Dr. Shea referred Davies to Dr. Rolando Puno
of the Spine Institute to rule out the possibility of a surgical
lesion on Davies’s spine.
Dr. Puno reviewed Davies’s MRIs,
finding them to be “essentially unremarkable,” except for the
angulation of the sacrococcygeal junction.
fracture.
He observed no
Determining that the etiology of Davies’s pain
probably was not due to his spine,18 he referred Davies to
17
Citations to record omitted.
18
Dr. Puno wrote that Davies’s back pain “is probably of mild facial
nature.” We speculate that he may have intended to say that the
pain is of a “mild fascial nature” or even “myofascial nature” since
Davies never complained of pain in his face.
-14-
Dr. David Weston, a physician practicing physical medicine and
rehabilitation.
When Dr. Weston first examined Davies in March 2001,
he observed pelvic obliquity, an increase in lumbar lordosis,
and tightness in the hamstrings, quadriceps, and lumbar
paravertabrals; but he had difficulty assessing the level of
injury because Davies appeared to be experiencing severe anxiety
and projecting a great deal.
In later examinations, Dr. Weston
observed some trigger points and tightness of muscles but
attributed some of this to significant voluntary tightening of
the muscles by Davies.
Dr. Weston treated Davies with
myofascial release; strain/counterstrain techniques; and
medication for pain, muscle spasms, and anxiety.
Despite the
anti-anxiety drugs, Dr. Weston noted on June 5, 2001, that
Davies’s recovery was complicated significantly by anxiety and
depression.
The last medical records by Dr. Weston are dated
approximately a week later.
On May 27, 2002, Dr. Weston
indicated on a Kentucky Retirement Systems’ form that Davies
suffered from a sacroiliac sprain, lumbosacral sprain, and
coccydynia and that his prognosis was very poor.
However, he
also wrote that the date of diagnosis was March 8, 2001, and
that he was not currently treating Davies.
Dr. Kimbel of the Medical Review Board reviewed
Davies’s available medical records in June 2002 after Davies
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filed his second application for disability benefits.
He
concluded that Davies might have spinal stenosis in the cervical
and lumbar areas but noted that this is a congenital condition.
He also noted that Davies had an angulated coccyx and had been
diagnosed with coccyodynia (coccygodynia) and PTSD.
However,
Dr. Kimbel stated that there was no evidence in the record to
indicate that any of these conditions would prevent Davies from
performing his ordinary work activity.
Dr. William P. McElwain of the Medical Review Board
also evaluated Davies’s condition in October 2001 and, again, in
July 2002, based on the available medical records.
In 2001, he
noted that the orthopedist had characterized Davies’s complaints
of pain as “getting out of hand” and had described his
subjective complaints of pain “all over” even in the absence of
muscle spasm or other objective findings.
Dr. McElwain also
noted one of the independent medical examiner’s diagnosis
lumbosacral strain and cervical-thoracic strainand his
recommendation that Davies engage in an active exercise program
do not suggest a permanent disability.
Dr. McElwain stated that
Davies’s multiple medical reports submitted “document the
presence of extensive and severe objective symptoms without
objective findings.”
Finding no evidence of a total and
permanent disability, Dr. McElwain recommended that Davies’s
application for disability retirement benefits be denied.
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The circuit court’s evaluation of this medical
evidence and reasoning behind its decision to reverse the
Board’s denial of Davies’s disability benefits claim are
revealed as follows:
A sanitation tipper must have physical
strength and mobility. Sanitation tippers
lift weights of 80 pounds on average and at
times are required to lift objects that
weigh 100 pounds or more. The job demands
long hours of walking, standing and climbing
off of and back onto a sanitation truck.
The opinions of Drs. Shea and Keisler
demonstrate that the Appellant is physically
incapacitated to perform as a sanitation
tipper and is unable to perform any similar
duties. The record indicates the City of
Louisville could not accommodate by
reassignment or any other means. The Board
argues the Petition still fails because the
Appellant has not provided substantial
evidence that his impairment is permanent in
nature.
The Board heavily relied upon
Dr. Keisler’s opinion that no orthopedic
evidence supports the Appellant’s claim.
While the Board attempts to characterize the
Appellant’s impairments as psychological,
they also ignore the fact Drs. Keisler and
Shea imposed severe restrictions on the
Appellant’s physical ability. For instance,
the physicians determined that Appellant
could lift at best 20 pounds frequently
12 months after the accident. The Board
either disregarded or failed to apply
KRS 61.600(4)(a)1.
CONCLUSION
The record unequivocally demonstrates
that Davies’[s] condition lasted twelve
months past the date of his accident.
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Substantial evidence supports a finding that
his disability is permanent under
KRS 61.600. The Board was in error to find
otherwise. While “the possibility of
drawing two inconsistent conclusions from
the evidence does not prevent an agency’s
findings from being supported by substantial
evidence[,]” this [c]ourt finds “the record
compels a contrary decision in light of
substantial evidence which it contains.”
[Kentucky State Racing Commission, supra at
307; Bourbon County Bd. of Adjustments,
supra at 838.]
For these reasons, the Board’s decision
is REVERSED.19
The circuit court stated that “the Board erred by
ignoring substantial evidence in the record that supported
[Davies’s] application” for disability benefits.
In particular,
the circuit court concluded that the Board ignored the
restrictions on physical activity Drs. Shea and Keisler
prescribed for Davies.
It is true that Davies cannot perform
his job or a similar job while complying with these
restrictions.
But this does not render the physical
restrictions substantial evidence that Davies suffers from a
disability within the meaning of KRS 61.600.
Under KRS 61.600, a claimant’s disability must be
established by objective medical evidence, as defined by
KRS 61.665.
These restrictions imposed by Drs. Shea and Keisler
are not objective medical evidence because they are inconsistent
19
Some citations omitted.
Emphasis in original.
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with the doctors’ objective findings or, more precisely, the
absence of objective findings.
Dr. Keisler concluded that
Davies exhibited significant signs of pain magnification, there
were no valid objective findings to support Davies’s claims of
pain, and none of Davies’s subjective claims of pain had an
organic explanation.
Similarly, Dr. Shea never diagnosed Davies
with anything more severe or permanent than a sprained left
shoulder and sprained lumbosacral spine.
Two years after his
first diagnosis, when Davies continued to complain of pain,
Dr. Shea stated, “[Davies’s] objective findings are minimal” and
“physical findings are unchanged.”
Dr. Shea’s notes reveal that
Davies’s subjective complaints of pain, which the doctor once
described as “getting out of hand,” are not supported by
objective evidence.
The only explanation for the severe
physical restrictions imposed by Drs. Shea and Keisler is that
these restrictions are based solely on Davies’s self-assessment
of the severity of pain and its limitations on his activity.
The Kentucky Supreme Court has held in the context of
a workers’ compensation case that a claimant’s complaints of
symptoms are not “objective medical findings” as defined by
KRS 342.0011(33).20
20
The Court explained as follows:
Gibbs v. Premier Scale Company/Indiana Scale Company, 50 S.W.3d 754,
761-762 (Ky. 2001).
-19-
We recognize that a diagnosis of a harmful
change which is based solely on complaints
of symptoms may constitute a valid diagnosis
for the purposes of medical treatment and
that symptoms which are reported by a
patient may be viewed by the medical
profession as evidence of a harmful change.
However, KRS 342.0011(1) and (33) clearly
require more, and the courts are bound by
those requirements even in instances where
they exclude what might seem to some to be a
class of worthy claims. A patient’s
complaints of symptoms clearly are not
objective medical findings as the term is
defined by KRS 342.0011(33).21
While the statutory definition for objective medical
evidence for a claim for disability retirement benefits before
the Kentucky Retirement Systems differs from the definition of
objective medical findings for a workers’ compensation claim,22
the Supreme Court’s analysis of the significance of a claimant’s
subjective symptoms is equally applicable to a claim for
disability benefits under KRS 61.600.
Under KRS 61.600 and
KRS 61.510(33), a claimant’s mere subjective complaints are not
objective medical evidence and cannot establish a disability.
By extension, the restrictions on Davies’s physical activity
imposed by Drs. Shea and Keisler are not objective medical
evidence supporting Davies’s disability claim since these
21
Id.
22
Compare KRS 61.510(33), supra (defining “objective medical
evidence”), with KRS 342.0011(33) (defining “objective medical
findings” as “information gained through direct observation and
testing of the patient applying objective or standardized methods.”)
-20-
restrictions are based solely on Davies’s subjective selfassessment of his condition.
Even if these physical restrictions imposed by
Drs. Shea and Keisler are objective medical evidence in support
of Davies’s claim, it is within the authority of the Board, as
factfinder, to pick and choose among the available evidence,
even where it comes from the same witness.23
Thus, the Board
could choose to accept Dr. Keisler’s opinion that no orthopedic
evidence supports Davies’s claim while rejecting the apparent
contrary assessment of Davies’s condition implicit in the
physical restrictions placed on him.
Moreover, the mere existence of some substantial
evidence in the record supporting Davies’s disability claim is
not grounds for the circuit court to overturn the Board’s denial
of Davies’s disability claim.
As the circuit court itself
stated, “[a]s long as there is substantial evidence in the
record supporting the agency’s decision, the [c]ourt must defer
to the agency, even if there is conflicting evidence.”
Reversal
of the Board’s decision denying Davies’s claim is only
appropriate if the evidence in the claimant’s favor “is so
23
Caudill, supra at 16.
-21-
compelling that no reasonable person could have failed to be
persuaded by it.”24
This appears to be a case involving conflicting
objective medical evidence, some of which could be interpreted
to support a finding of a permanent disability.
Yet, it cannot
be said that the evidence compels a finding of disability.
Several doctors noted their inability to find any objective
evidence demonstrating a permanent disability.
Multiple doctors
diagnosed Davies as suffering from a sprain or strain in his
cervical back area and lower back/coccyx area, but these are
temporary conditions.
He was also diagnosed as potentially
having spinal stenosis that might interfere with his ability to
perform his job, but all of the doctors agreed that this
condition is developmental or congenital and would pre-exist
Davies’s hiring by the City of Louisville.
Therefore, this
condition may not be the basis for disability benefits for
Davies under KRS 61.600.25
He was diagnosed as having a probable
24
McManus, supra at 458.
25
See KRS 61.600(2)(b). The exceptions for pre-existing conditions
which may be disabilities under KRS 61.600conditions which have
been substantially aggravated by an injury arising out of employment
in the Kentucky Retirement Systems or pre-existing conditions in
persons who have been employed by the Kentucky Retirement Systems
for at least sixteen yearsare not applicable in the instant case.
See KRS 61.600(3)(a)-(b).
-22-
pain disorder,26 a condition which can be psychological in
nature.
But no doctor or psychologist ever stated that this
would permanently disable Davies from performing his normal job
duties.
The same is true of his diagnosis of PTSD.
Rather than deferring to the Board’s decision to deny
Davies’s claim for disability benefits, the circuit court
indulged in assaying the weight and credibility of the evidence,
which is the prerogative of the Board as factfinder.
But the
reviewing court is not free to substitute its own judgment for
that of the Board so long as the Board has not acted
arbitrarily.
Even though the circuit court stated that the
evidence compelled a finding in Davies’s position, the language
of the opinion reveals that the circuit court reached this
conclusion by usurping the Board’s role as factfinder and by
mistakenly equating the existence of any substantial evidence in
support of Davies’s position with the existence of evidence
compelling a finding in Davies’s favor.
The circuit court erred by substituting its judgment
for that of the Board on matters of fact and by mistakenly
concluding that the evidence compelled a finding in Davies’s
favor.
26
For these reasons, the circuit court’s decision
In one instance, this probable diagnosis was made not because of any
affirmative findings but, rather, because all of the tests were
negative; yet, Davies continued to complain of pain.
-23-
overturning the Board’s denial of Davies’s claim for disability
retirement benefits is reversed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jennifer A. Jones
Frankfort, Kentucky
Scott M. Miller
Louisville, Kentucky
-24-
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