KENTUCKY RETIREMENT SYSTEMS VS. TURNER (WILLIAM)
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001839-MR
KENTUCKY RETIREMENT SYSTEMS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 06-CI-01022
WILLIAM TURNER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, CLAYTON, AND DIXON, JUDGES.
DIXON, JUDGE: Kentucky Retirement Systems (“KERS”) appeals a decision of
the Franklin Circuit Court reversing KERS’s Board of Trustees’ (“the Board”)
final order denying William Turner’s application for disability retirement benefits.
We affirm.
Turner, who was employed as a sanitation truck driver for the city of
Jackson, Kentucky, applied for disability retirement benefits in November 2004,
when he was 55 years old. In his application, Turner stated he suffered a heart
attack in 1998, chest discomfort from a car accident in 2001, sleep apnea, and
chronic fatigue. Turner testified that his ailments left him too tired during the day
to drive the sanitation truck safely.
On April 27, 2005, KERS notified Turner that his application had
been denied based on the unanimous opinions of KERS’s medical review
physicians.1 A short time later, Turner requested a second review and submitted
additional medical records to support his claim. On July 18, 2005, KERS again
notified Turner that his application had been denied. Thereafter, Turner retained
counsel and requested a formal administrative hearing.
An evidentiary hearing was held November 29, 2005. Turner testified
that, after his heart attack in 1998, he began feeling tired all of the time. He
explained that driving the sanitation truck was dangerous, and he was so fatigued
during the day he did not feel alert while on the job. Turner testified that he was
diagnosed with sleep apnea in 2000, and had been prescribed a C-PAP machine
and oxygen. Turner acknowledged, however, he only used the C-PAP one or two
times per week because it was uncomfortable. Turner stated his injuries from a
1
Pursuant to Kentucky Revised Statutes (KRS) 61.665(2)(d), three licensed physicians evaluate
a claimant’s medical records and recommend whether to approve or deny disability benefits.
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2001 car accident had healed, and he had no on-going complaints. Turner also
testified that he was approved for social security disability in May 2005.2
The medical evidence submitted by Turner included: 1) A September
2002 radiology report finding degenerative disk disease in the lumbar spine and
degenerative changes in the right hip. 2) The office notes of Dr. Melecio Abordo,
Turner’s primary care physician, dated 2002-2004, documenting that Turner was
hypertensive and complained of chronic fatigue. Dr. Abordo also submitted a
letter prior to the administrative hearing stating Turner had been diagnosed with
hypertension, obstructive sleep apnea, coronary artery disease, and chronic fatigue.
3) The treatment notes from Dr. Barbara Phillips documenting three sleep studies
and a diagnosis of obstructive sleep apnea. 4) The office notes of Dr. David
Keedy, Turner’s cardiologist, reported a cardiac catheterization in January 2000.
A June 2001 stress test revealed a hypertensive response to exercise with no
diagnostic evidence of exercise induced myocardial ischemia or myocardial
scarring. An EKG revealed left atrial and left ventricular enlargement with
concentric left ventricular hypertrophy, normal left ventricular systolic function,
and diastolic dysfunction with a trace of tricuspid and mitral valve regurgitation.
An evaluation in July 2001, revealed no evidence of reversible ischemia with a
good stress test and known coronary insufficiency.
2
Pursuant to 105 Kentucky Administrative Regulations (KAR) 1:210 Section 8(1), a hearing
officer may allow a claimant to introduce evidence of a Social Security Administration disability
award. However, “[t]he hearing officer shall consider only objective medical records contained
within the determination and shall not consider vocational factors or be bound by factual or legal
findings of other state or federal agencies.” 105 KAR 1:210 Section 8(2).
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On April 10, 2006, the hearing officer rendered a report and
recommended order denying Turner’s application for disability benefits. The
hearing officer concluded that the objective medical evidence did not support
Turner’s claim for disability retirement. On June 26, 2006, the Board adopted the
recommended order and denied benefits. Turner then appealed the Board’s
decision to Franklin Circuit Court. On August 29, 2008, the circuit court reversed
the Board, concluding that the medical evidence compelled a finding in favor of
Turner. This appeal followed.
“In 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.” McManus v. Ky. Ret.
Sys., 124 S.W.3d 454, 458 (Ky. App. 2003), quoting Aubrey v. Office of Attorney
Gen., 994 S.W.2d 516, 519 (Ky. App. 1998). In light of the deference owed the
fact-finder, “[t]he position of the Circuit Court in administrative matters is one of
review, not of reinterpretation.” Kentucky Unemployment Ins. Com'n v. King, 657
S.W.2d 250, 251 (Ky. App. 1983). As Turner was unsuccessful before the Board,
he is entitled to prevail on appeal only if the evidence in his favor is “so
compelling that no reasonable person could have failed to be persuaded by it.”
McManus, 124 S.W.3d at 458.
KERS contends the circuit court impermissibly reweighed the
evidence and substituted its judgment for that of the fact-finder. Turner, on the
other hand, argues the court extensively reviewed the record and properly
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concluded that the evidence in his favor was so compelling it required reversal of
the Board’s decision. After consideration of the parties’ arguments and the record
before us, we agree with Turner that the evidence compels a decision in his favor.
Kentucky Revised Statutes (KRS) 61.600 sets forth the criteria for
disability retirement. The statute requires a determination, based on objective
medical evidence, as to whether “[t]he person, since his last day of paid
employment, has been permanently mentally or physically incapacitated to
perform the job, or jobs of like duties, from which he received his last paid
employment.” KRS 61.600(3)(a)-(c). An incapacity is permanent if is expected to
continue for at least one year following the claimant’s last day of employment.
KRS 61.600(5)(a)(1). A determination of permanency must be based on the
medical evidence and the claimant’s “capacity for work activity on a regular and
continuing basis.” KRS 61.600(5)(a)(2) and KRS 61.600(5)(b).
In the order denying benefits, the hearing officer concluded:
The preponderance of the objective medical
evidence contained of record indicates that [Turner’s]
conditions would not prevent him from performing his
usual work activity. [Turner] was performing sedentary
to light work activity, with the occasional requirement of
heavy lifting, which more than likely could have been
accommodated had he made such a request. [Turner]
complains of ongoing and worsening chronic fatigue and
although he must be able to stay alert to safely operate a
large sanitation truck, the medical records contained in
the record do not demonstrate continued heart problems
or problems associated with the alleged automobile
accident to an extent that must be considered disabling
from a sedentary to light work job with accommodations.
The record does demonstrate that [Turner] suffers from
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obstructive sleep apnea. However, it is also clear that he
is non-compliant with his treatment and that he fails to
use his C-PAP machine as directed. Although, it is
understood that [Turner] has problems associated with
the use of the C-PAP machine, it is impossible to
determine whether any disability resulting from his
obstructive sleep apnea is permanent because unless he is
treatment compliant, there is no way to determine with
any accuracy if the treatment is or would be helpful.
We believe the hearing officer overlooked the incapacitating aspect of
Turner’s disability and his actual job duties. Turner testified that he was
responsible for driving the truck on a designated route, and he had to ensure the
safety of his coworkers who rode on the back of the sanitation truck. Turner
explained that, following his heart attack in 1998, his fatigue gradually increased.
When Turner applied for disability retirement benefits, he felt his chronic fatigue
rendered him unable to safely perform his job because he could not stay alert to
drive, maneuver in traffic, and ensure the safety of his coworkers.
KERS opines that Turner’s claim is supported only by his subjective
complaints. We disagree. The medical evidence clearly shows that Dr. Abordo
diagnosed Turner with chronic fatigue, and Dr. Phillips diagnosed “severe”
obstructive sleep apnea. Further, the records of Dr. Keedy reflect Turner’s
treatment for his cardiac symptoms, including increased shortness of breath. These
diagnoses, coupled with Turner’s explanation of the effect his condition had on his
ability to perform his job, compel a finding that he is permanently incapacitated
from his former employment as a sanitation truck driver.
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Furthermore, it appears the hearing officer penalized Turner for
failing to ask his employer for accommodations. Pursuant to KRS 61.600(3)(a),
“[i]n 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[.]” A “reasonable
accommodation” is defined as, “[m]odifications or adjustments to the work
environment, or to the manner or circumstances under which the position held or
desired is customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position[.]” 29 C.F.R. §
1630.2(o)(ii). In the case at bar, the hearing officer focused on occasional lifting
required by Turner’s position if he assisted coworkers in dumping garbage.
However, we believe it is irrelevant that Turner did not ask for accommodations, as
his disability is not related to lifting. Indeed, it is unclear how Turner’s disability
of chronic fatigue and shortness of breath could have been accommodated, as his
principal job duty required him to safely drive the sanitation truck and ensure the
safety of his coworkers. Accordingly, we believe the hearing officer’s conclusion
regarding accommodations was arbitrary.
Finally, we disagree with the hearing officer’s conclusion regarding
permanency. The hearing officer inferred that Turner’s condition could not be
deemed permanent because he failed to use his C-PAP machine daily. While the
testimony showed that Turner used his C-PAP machine as tolerated, approximately
two times per week, the medical evidence documented Turner’s consistent
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complaints of fatigue and shortness of breath over the course of a few years. After
thorough review, we are simply not persuaded by the hearing officer’s rationale,
and we conclude that the evidence compels a finding that Turner’s incapacity is
permanent pursuant to KRS 61.600(5).
For the reasons stated herein, we affirm the decision of the Franklin
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Leigh A. Jordan
Frankfort, Kentucky
James Dean Liebman
Frankfort, Kentucky
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