STEVEN W. KEISTER V. BOARD OF TRUSTEES, KENTUCKY RETIREMENT SYSTEMS
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RENDERED: AUGUST 5, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CI-001281-MR
STEVEN W. KEISTER
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
CIVIL ACTION NO. 03-CI-00423
V.
BOARD OF TRUSTEES,
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
MINTON, JUDGE:
Steven W. Keister was injured on the job while
employed by the Kentucky Department of Transportation (DOT).
He
applied for disability retirement benefits through the Kentucky
Retirement Systems (the “System”); a hearing officer recommended
that Keister’s claim be denied.
The Board of Trustees for the
System adopted the officer’s recommendation, as did the Franklin
Circuit Court.
Keister then appealed to this Court.
question we are asked to resolve is whether there was
The
substantial evidence to support the decision to deny Keister’s
claims for disability.
We conclude that there was so we affirm.
Keister was employed by the DOT as an auto/truck
technician II.
His job duties included maintenance and repair
of automobiles, trucks, and diesel equipment.
Keister was
injured at work in February 2000; he has remained unemployed
since that time.
Both parties stipulated that Keister had a preexisting back condition, but that his current injury was related
to his employment with the DOT.
His complaints ranged from
“pain in his left lower extremity” to “numbness and tingling at
the bottom part of his left foot.”
Upon his doctors’
recommendations, Keister underwent three different surgeries in
an attempt to correct his back pain.
Eventually, Keister was deemed to have reached maximum
medical improvement and was released to return to work.
On
June 20, 2001, Dr. Mohammed Majd indicated that Keister could
return to work “with restrictions.”
Those restrictions were
noted in a “Work Status Statement” issued by Dr. Majd on
June 21, 2001, and included:
no heavy lifting greater than 20-
-2-
25 pounds; no prolonged standing; and no repetitive bending or
twisting.1
In accordance with Dr. Majd’s recommendations, a
memorandum was sent to Keister regarding the recommencement of
his job duties.
The letter stated:
Effective Friday, June 22, 2001, you are to
resume your duties as a Tr Auto/Truck
Tech II based on the restrictions outlined
in your doctor’s statement dated June 20,
2001. You are to avoid prolonged standing.
You are to avoid repetitive bending or
twisting. You may lift up to twenty (20)
pounds, but you are to avoid heavy lifting
over twenty-five (25) pounds. If lifting
weight over twenty-five (25) pounds is
necessary, we will provide you assistance
from other employees. You are not to
violate any of the restrictions stated in
this memorandum. Anyone who advises you to
do job duties contrary to these requirements
should be reported to your supervisor.
These job restrictions will be subject to
review by management on or before August 22,
2001. If your medical condition changes
before August 22, 2001, it is your
responsibility to provide this office any
and all medical statements from your doctor.
The memorandum was acknowledged and signed by Keister.
But he
never returned to work.
On August 18, 2001, Keister applied for retirement
disability benefits from the System.
In his application,
Keister described his injury as follows:
1
Although the faxed copy of Dr. Majd’s recommendations included in
the record is illegible, a notation on the bottom of the copy
clarifies Keister’s restrictions.
-3-
I have pain (cronic) [sic] in my lower back
that radiates down my left leg to my foot.
I have numbness, tingling, and burning
sensations.
I cannot bend, stoop, crawl, or sit for very
long. My pain level every day on a scale of
1 to 10, 10 being extreme[,] is 3-4.
Several weeks after Keister filed his application,
Dr. Majd issued an additional recommendation restricting Keister
to lifting no more than fifteen pounds.
A hearing officer reviewed Keister’s application for
disability.
In the officer’s report and recommended order, he
found that “[t]he preponderance of the objective medical
evidence contained of record indicates that Claimant’s back
condition would not prevent him from performing his duties as
accommodated.”
The officer further found that Keister had
“failed to present any evidence that he would not be allowed to
return to work in his job or a job of like duties with the
restrictions set by his physicians.”
Therefore, the officer
recommended that Keister’s application for disability retirement
benefits be denied.
Shortly thereafter, the Board of Trustees of the
System reviewed the administrative record and the hearing
officer’s recommendations.
The Board adopted the officer’s
report as its final order and denied Keister’s claim.
-4-
Keister appealed the Board’s decision to the Franklin
Circuit Court.
The crux of Keister’s appeal was that the Board
and the hearing officer had failed to take into account
Dr. Majd’s additional restrictions.
He claimed that the
memorandum from the DOT stated he would be restricted to lifting
no more than twenty pounds; but because Dr. Majd later
recommended he lift no more than fifteen pounds, Keister claimed
the DOT could not make reasonable accommodations for his
disability.
Keister argued that it would be impossible for him
to return to his previous job with the fifteen-pound
restriction.
Therefore, he claimed he was unable to resume his
position with the DOT and that he should be awarded permanent
retirement disability benefits.
But the circuit court disagreed with Keister and
affirmed the decision of the Board.
Specifically, the court
adopted the hearing officer’s finding that Keister “failed to
prove that he could not return to his job or a job of like
duties pursuant to KRS 61.600(2)(a) and KRS 13B.090(7).”
court noted that:
Substantial evidence supports this finding
because 1) nothing in the record suggests
that the employer could not accommodate the
new restrictions, 2) the employers stated
that it could accommodate the June 2001
restriction, and 3) despite the June 2001
accommodation, the Petitioner never returned
to work. Since substantial evidence
-5-
The
supports the Respondent’s finding, this
Court is bound to affirm it.
This appeal follows.
Keister argues there is not substantial evidence to
support the finding that the DOT could accommodate his
limitations.
He also claims there is insufficient evidence to
prove he could perform the job duties of auto/truck tech II, and
that the DOT failed to provide a complete description of his job
duties.
Upon review of the entire record, we must disagree.
Our review of appeals from administrative hearings is
limited; we may only reverse if the agency’s findings are not
supported by substantial evidence.2
“Substantial evidence” is
defined as such “evidence as a reasonable mind might accept as
adequate to support a conclusion; it is something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by
substantial evidence.”3
KRS4 61.600 controls the requirements for persons
seeking disability retirement.
Subsection (3)(a) of the statute
reads:
2
Kentucky Board of Nursing v. Ward, 890 S.W.2d 641 (Ky.App. 1994).
3
Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 307 (Ky.
1972).
4
Kentucky Revised Statutes.
-6-
(3) 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[.]
42 U.S.C. § 12111 is contained within the Americans
with Disability Act (ADA).
The statute notes that the term
“reasonable accommodation” may include:
(A) making existing facilities used by
employees readily accessible to and
usable by individuals with disabilities;
and
(B) job restructuring, part-time or modified
work schedules, reassignment to a vacant
position, acquisition or modification of
equipment or devices, appropriate
adjustment or modifications of
examinations, training materials or
policies, the provision of qualified
readers or interpreters, and other
similar accommodations for individuals
with disabilities.5
5
42 U.S.C.A. § 12111(9).
-7-
29 C.F.R.6 § 1630.9 further states that it is unlawful
for an employer to fail to make “reasonable accommodations” for
persons with “known physical or mental limitations” or to “deny
employment opportunities to an otherwise qualified job applicant
or employee with a disability based on the need of such
[employer] to make reasonable accommodation to such individual’s
physical or mental impairments.”7
The record indicates that the DOT knew of Keister’s
physical limitations.
And, upon his release from Dr. Majd’s
care, the DOT quickly responded by assuring Keister that
reasonable accommodations would be made so that he could return
to his job as an auto/truck technician within the physical
limitations recommended by his physician.
The DOT went so far
as to promise Keister that other employees would provide
assistance should the job require him to lift an object beyond
his weight restrictions and that any violation of his
restrictions should be immediately reported.
These attempts to
accommodate Keister’s disability were in compliance with
KRS 61.600(3), 42 U.S.C. § 12111(9), and 29 C.F.R. § 1630.
Although Dr. Majd later limited Keister’s restrictions
to lifting no more than fifteen pounds, Keister has not proved
that the DOT could not, or would not, reasonably accommodate
6
Code of Federal Regulations.
7
29 C.F.R. § 1630.9(a), (b).
-8-
this constraint.
Keister repeatedly argues in his brief that it
would be impossible for him to return to his previous position
with the fifteen-pound weight limitation; but he does not
indicate why it would be impossible, nor does he establish that
the DOT would be incapable of accommodating his restrictions.
Rather, we believe it is apparent from the record that the DOT
was more than willing to make necessary changes to accommodate
Keister’s disability; Keister was simply unwilling to return to
work.
KRS 13B.090 states that the burden of proof is on the
claimant in all administrative hearings.
Keister has not met
that burden; so we affirm the denial of his retirement
disability benefits.
Keister also argues that the DOT’s description of his
job duties was incomplete.
But, as the Franklin Circuit Court
stated, “[e]ven if this assertion is true, it is not reversible
error because [Keister’s] employer stated that it could
accommodate [his] condition.”
We agree with the court’s
assessment; therefore, the June 3, 2004, decision of the
Franklin Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Francis
Cadiz, Kentucky
Katherine Rupinen
Frankfort, Kentucky
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