TERRY MONTGOMERY v. BOARD OF TRUSTEES OF THE KENTUCKY RETIREMENT SYSTEMS
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RENDERED: AUGUST 17, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001843-MR
TERRY MONTGOMERY
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 05-CI-01687
BOARD OF TRUSTEES OF THE
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES.
DIXON, JUDGE: Terry Montgomery appeals from a Franklin Circuit Court order
affirming the decision of the Board of Trustees of the Kentucky Retirement Systems
(“Board”) which denied Montgomery a statutory enhancement of his retirement benefits.
After reviewing the record, we affirm.
Montgomery, who was born in 1954, is a former Jefferson County Sheriff's
Deputy. He was employed as a deputy sheriff from 1993 through 2003, which qualified
as a hazardous duty position. During the majority of his employment with the
department, Montgomery worked as a vehicle inspector. As an inspector, he drove to
automobile dealerships in Louisville to check the vehicle identification numbers on
vehicles transferred to Kentucky from out-of-state. On August 8, 1997, Montgomery was
inspecting vehicles at Budget Car Sales. While he was checking a vehicle identification
number, the elderly owner of the car tripped and fell onto Montgomery, knocking him to
the ground. Montgomery was subsequently diagnosed with a herniated disc and had a
successful lumbar discectomy in September 1997. He received full workers'
compensation benefits for his injury and returned to work full-time in January 1998.
Montgomery continued as a vehicle inspector until 2001, when he transferred to a
position in courthouse security.
In February 2003, Montgomery underwent a second back surgery to resolve
recurring back and leg pain. He never returned to work and filed for hazardous disability
retirement benefits in October 2003. In January 2004, Montgomery underwent two
additional surgical procedures.
Montgomery was approved for hazardous disability retirement benefits
pursuant to Kentucky Revised Statutes (KRS) 61.592. However, his request for “act in
line of duty” benefit enhancement pursuant to KRS 16.505(19) and KRS 16.582(6) was
denied. Montgomery appealed the denial of “act in line of duty” enhancement, and a
hearing was held on January 26, 2005. The hearing officer issued a lengthy opinion
detailing his factual findings and ultimately recommended that “act in line of duty”
enhancement should be denied. The officer found:
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8) This record does reflect that [Montgomery]'s injury
in 1997 and subsequent surgeries are the basis for this
hazardous disability. However, he did not receive hazardous
disability payments until after his last date of paid
employment of June 30, 2003. He stopped working after the
surgery in February of 2003. Therefore, he worked basically
from 1998 until February of 2003. [Montgomery] therefore
worked for approximately five years after the accident and
had a second surgery prior to his last date of paid
employment.
9) Counsel for the [Retirement] Systems has pointed
out that the definition of act-in-line-of-duty also requires the
disability to be a direct result of the act-in-line-of-duty. The
status does not contemplate an individual being able to
continue to work for five plus years and then being able to
receive act-in-line-of-duty. After this injury, [Montgomery]
was able to return to work. During his work, as he testified
and as the record reflects, he exacerbated his condition by
getting in and out of the vehicle, which, as argued by the
[Retirement] Systems, are separate and intervening causes.
The fact that he worked for five years and also aggravated his
back condition in the performance of his duties such as
getting in and out of the car, as well as other possible events,
supports the finding that his disability is not a direct result of
an act-in-line-of-duty as contemplated by the statute.
10) The record further reflects that [Montgomery] had
degenerative disc disease, which is a progressive condition
and, as argued by counsel for [Montgomery], progressed from
1997 to the need for a second operation in 2003 and
operations thereafter.
11) It is found that there are intervening causes that
have resulted in [Montgomery] becoming disabled and, while
his initial injury and surgeries are the basis for the hazardous
disability finding, this record reflects that he had a herniated
disc in 1995, and he had subsequent aggravation to his back
condition, which caused [Montgomery]'s disability five years
after the original injury.
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12) [Montgomery] has failed to show that he meets
the definition of an act-in-line-of-duty as set forth in KRS
16.505(19).
13) [Montgomery] has failed to set forth objective
medical evidence to show that his hazardous disability is a
direct result of an act in line of duty.
Although Montgomery filed exceptions to the hearing officer's recommendations, the
Board adopted the officer's opinion as its final order on November 9, 2005.
Montgomery appealed the Board's decision to Franklin Circuit Court. The
court issued an opinion and order on August 2, 2006, affirming the Board. This appeal
followed.
Montgomery argues KRS 16.505(19) does not impose a time limit as to
when a disability resulting from an “act in line of duty” can manifest, and that the Board
erred by failing to recognize his progressive disability. He contends his disability is a
direct result of the August 1997 work injury and that the injury occurred in the line of
duty because checking vehicle identification numbers was his principal duty.
The statutory language at issue states:
For employees in hazardous positions under KRS 61.592, an
'act in line of duty' shall mean an act occurring which was
required in the performance of the principal duties of the
position as defined by the job description.
KRS 16.505(19).
If the member receives a satisfactory determination of total
and permanent disability or hazardous disability pursuant to
KRS 61.665 and the disability is the direct result of an act in
line of duty, the member's retirement allowance shall be
calculated as follows . . . .
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KRS 16.582(6).
At the administrative hearing, Montgomery, as the claimant, had the burden
of persuading the hearing officer he was entitled to an “act in line of duty” benefit
enhancement. See McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 457-58
(Ky.App. 2003) quoting KRS 13B.090. However, since the hearing officer denied
Montgomery's claim, our review must focus on “whether the evidence in [Montgomery's]
favor is so compelling that no reasonable person could have failed to be persuaded by it.”
Id. at 458. Furthermore, we are mindful that, “'[i]n its role as a finder of fact, an
administrative agency is afforded great latitude in its evaluation of the evidence heard
and the credibility of witnesses, including its findings and conclusions of fact.'” Id.
quoting Aubrey v. Office of Attorney General, 994 S.W.2d 516, 519 (Ky.App. 1998).
After reviewing the record, we find the evidence in Montgomery's favor is
not so compelling that no reasonable person could reach the same conclusion as the
Board. There is ample evidence regarding Montgomery's degenerative disc disease,
which was exacerbated by his obesity and daily activities over time. Consequently, we
are unpersuaded by Montgomery's various evidentiary challenges. Evaluating the weight
and credibility of the evidence is within the province of the hearing officer, and we find
no proof the officer or the Board acted arbitrarily. McManus, 124 S.W.3d at 458.
Finally, contrary to Montgomery's argument, the Board's order does not
improperly impose a time limit which precludes benefits unless immediate total disability
results from the “act in line of duty.” The plain language of KRS 16.582(6) requires the
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disability to be “the direct result of an act in line of duty.” Here, more than five years
elapsed before Montgomery sought disability benefits. Under the circumstances, it is not
unreasonable, when considering all of the medical evidence and the plain language of the
statute, to find that Montgomery's ultimate disability was not a “direct result” of the 1997
accident. Accordingly, we find the Board properly denied “act in line of duty” benefit
enhancement.
For the reasons stated herein, the order of Franklin Circuit Court is
affirmed.
TAYLOR, JUDGE, CONCURS.
MOORE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
MOORE, JUDGE, DISSENTING: Respectfully, I disagree with the
conclusion reached by the majority and would reverse for a finding that Montgomery is
entitled to hazardous duty disability retirement benefits.
There is no dispute that the genesis of Montgomery's condition is the
August 8, 1997 incident, which occurred in the line of duty. While Montgomery may
have had related problems that made the condition caused by the 1997 incident to
worsen, I believe the Board erred in its findings. From my view of the evidence, it is
indisputable that the severe deterioration of Montgomery's health leading to disability
status over the past years was a direct result of the 1997 accident.
The fact that he worked for several years does not change my opinion.
During this time, he suffered pain resulting from the 1997 incident but remained
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dedicated to his profession in attempting to work. I do not believe that a person who
attempts to work, in spite of the pain he suffers, should be penalized when later in life,
the original trauma produces results that make it impossible for him to continue to work.
To find otherwise encourages malingering.
A police officer should not be placed in a position of deciding to continue
to work for a period of time, while exhibiting symptoms from the original injury, and
facing the foreclosure of hazardous duty disability retirement benefits if he does work.
The record is void of evidence that in the absence of the 1997 incident that Montgomery
would be seeking hazardous disability retirement benefits at this stage in his life.
I do not read the relevant statutes to require that an injury occurring in the
line of duty must immediately impair a police officer to the point of seeking hazardous
duty disability retirement benefits as soon as the injury occurs. Rather, the disability only
need be the direct result of an act in the line of duty.
I do not believe that substantial evidence supports the Board's conclusion
and would reverse for a finding that Montgomery's present condition is a direct result of
an injury taking place in the line of the duty. Accordingly, I would find that he is entitled
to hazardous duty disability retirement benefits.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
Tamara Todd Cotton
Louisville, Kentucky
Brown Sharp II
Frankfort, Kentucky
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