WEST (ROGER) VS. KENTUCKY RETIREMENT SYSTEMS
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RENDERED: MAY 28, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001176-MR
ROGER WEST
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 07-CI-01892
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, CLAYTON, AND WINE, JUDGES.
WINE, JUDGE: Roger West appeals from an order of the Franklin Circuit Court
affirming the denial of his claim for disability retirement benefits by the Board of
Trustees (“the Board”) of the Kentucky Retirement Systems (“the Systems”).
Upon review, we reverse and remand.
History
West’s first employment with the Commonwealth began in September
of 1973; however such employment was not continuous. West became reemployed with the Commonwealth on January 18, 1991, and remained employed
by the Commonwealth as a plant operator in a waste/water sewage treatment plant
for the City of Middlesboro until May 1, 2005. West’s job duties were classified
as heavy work or labor. On May 1, 2005, West suffered a work-related injury to
his back. West was off work until December 18, 2005, at which point he returned
and promptly suffered a re-injury which prevented him from continuing in the
manual labor his job required. His last date of paid employment was December
31, 2005. Although West did not request reasonable accommodations be made for
him, a letter was submitted by his employer stating that West could not request
reasonable accommodations because there were no light duty jobs available to him.
At the time West left his employment with the Commonwealth, he suffered from
lower back injuries as well as breathing problems due to a diagnosis of Chronic
Obstructive Pulmonary Disease (“COPD”). At that time, he had approximately
one hundred eighty-five months of combined service with the Kentucky
Employees Retirement System and the County Employees Retirement System.
West timely filed for disability retirement benefits pursuant to
Kentucky Revised Statute (“KRS”) 61.600. However, the Kentucky Retirement
Systems Medical Review Board denied West’s application. West appealed the
denial of his request for benefits and an administrative hearing was held on the
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matter. The hearing officer affirmed the Medical Review Board’s denial, holding
that West had failed to prove that he suffered a permanent physical or mental
impairment that would prevent him from performing his former job or a job of like
duties and that he failed to prove that his incapacity did not result either directly or
indirectly from an injury or condition which pre-existed his membership in the
Kentucky Retirement Systems. West appealed and the Board affirmed the hearing
officer.
Thereafter, West appealed to the Franklin Circuit Court. The Franklin
Circuit Court affirmed the Board (albeit on other grounds). West then filed a
motion to alter, amend, or vacate the opinion and order. The motion was denied.
West now appeals.
Standard of Review
Upon review of the denial of disability retirement benefits, we accept
the agency’s findings of fact as true as long as they are supported by substantial
evidence. Bowling v. Natural Resources and Environmental Protection Cabinet,
891 S.W.2d 406 (Ky. App. 1995). Substantial evidence is such evidence as would
“induce conviction in the minds of reasonable [persons].” Owens-Corning
Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Where it is
determined that the agency’s findings are supported by substantial evidence, the
court must then ask whether the agency has correctly applied the law. Kentucky
Unemployment Insurance Commission v. Landmark Community Newspapers of
Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002). A reviewing court may also
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reverse a final order of an administrative agency, in whole or in part, where it is
found that the agency’s order violates statutory or constitutional provisions, is in
excess of the agency’s authority as granted by statute, or is deficient as otherwise
provided by law. KRS 13B.150(2).
Analysis
On review, we consider the hearing officer’s findings, as adopted by
the Board, that (1) West failed to prove he suffered a permanent physical or mental
impairment that would prevent him from performing his former job or a job of like
duties; and (2) his incapacity did not result either directly or indirectly from an
injury or condition which pre-existed his membership in the Kentucky Retirement
Systems.
To begin, we must look to KRS 61.600, which governs disability
retirement benefits. KRS 61.600 provides, in pertinent part, that
(1) Any person may qualify to retire on disability, subject
to the following conditions:
(a) The person shall have sixty (60) months of
service . . .
....
(c) The person’s application shall be on file in the
retirement office no later than twenty-four (24)
months after the person’s last day of paid
employment . . .
(d) The person shall receive a satisfactory
determination pursuant to KRS 61.665 [from the
Board’s medical examiners].
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....
(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;
(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
(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. . . .
However, KRS 61.600(4) states that the requirement in subsection (3)(d) that the
condition must not pre-exist membership in the system, shall not apply if
(a) The incapacity is a result of bodily injury, mental
illness, disease, or condition which has been substantially
aggravated by an injury or accident arising out of or in
the course of employment; or
(b) The person has at least sixteen (16) years’ current or
prior service for employment with employers
participating in the retirement systems administered by
the Kentucky Retirement Systems.
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West clearly had over sixty months of service and he clearly filed his application
for disability retirement within twenty-four months of his last day of paid
employment. The only issues remaining are whether West was incapacitated from
performing his previous job or jobs of like duties under KRS 61.600(3)(a) and
whether West’s incapacity resulted from a condition or conditions which pre-dated
his membership in the Systems under KRS 61.600(3)(d). West is not exempted
from the requirement in KRS 61.600(3)(d), that the incapacity may not result from
a pre-existing condition or illness, as it was determined that he had apparently
fifteen-and-a-half years of service, just shy of the sixteen years required in KRS
61.600(4)(b), for exemption from the pre-existing condition requirement.
West argues on appeal that the hearing officer erred by failing to
consider the cumulative effect of his impairments when determining whether he
was incapacitated from performing his previous job or jobs of like duties. West
further argues that it was error for the hearing officer to find that his tobacco use
was a pre-existing condition to his ultimate diagnosis of COPD.
A. The “Cumulative Effect” Rule
First, we consider West’s argument that it was error for the hearing
officer to fail to consider the cumulative effect of his various injuries and
impairments. Although the Franklin Circuit Court found that the hearing officer’s
failure to consider the cumulative effects of his back and breathing injuries was not
error, we must disagree. Indeed, the Kentucky Supreme Court has recently held
that it is error to neglect to consider the cumulative effects of an individual’s
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impairments in Kentucky Retirement Systems cases. Kentucky Retirement Systems
v. Bowens, 281 S.W.3d 776, 783 (Ky. 2009).1 West was diagnosed by his doctors
as having (1) Advanced COPD; (2) Chronic lumbar sacral disc disease; (3) Seizure
disorder; (4) Hypertension; (5) Hypercholesterolemia; (6) Degenerative joint
disease; (7) Sleep apnea requiring a c-pap at night; and (8) Hypothroism. It seems
questionable, given all these factors, that he would have been able to carry on in a
position requiring heavy labor. “By failing to properly consider the cumulative
effect standard implicit in KRS 61.600, [the Systems] exceeded the constraints of
its statutory powers and arbitrarily denied Appellee’s disability claim.” Id. at 783.
See also, KRS 13B.150(2)(b). As such, we reverse and remand on this issue for a
determination of whether the combined effects of West’s impairments rendered
him unable to return to his former position or like positions.
B. Smoking is Not a “Condition”
Next, we address West’s argument that his prior smoking and tobacco
use may not be considered a “pre-existing condition” to his diagnosis of COPD.
As we find that tobacco use is a behavior rather than a “condition” as contemplated
under the statute, we agree with West that it was error for the hearing officer to
deny coverage on the ground that his smoking was a pre-existing condition.
KRS 61.600(3)(d) excludes disability retirement coverage for any
incapacity which is caused, directly or indirectly, by a “bodily injury, mental
illness, disease, or condition” which pre-existed the member’s employment. To
1
To be fair to the circuit court, this opinion was rendered only a month before the Franklin Circuit Court
issued its opinion and order.
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arrive at the meaning of the word “condition,” above, we must interpret the statute.
Statutory interpretation is a matter of law for the court. City of Worthington Hills
v. Worthington Fire Protection Dist., 140 S.W.3d 584, 591 (Ky. App. 2004).
“When interpreting a statute, a word is to be afforded its ordinary meaning unless it
has acquired a technical meaning.” Garcia v. Commonwealth, 185 S.W.3d 658,
664 (Ky. App. 2006). As we interpret the word “condition,” in KRS 61.600(3)(d),
we are also guided by the canon of statutory construction called ejusdem generis.
Id. The doctrine of ejusdem generis provides that, in statutory interpretation,
[W]here, in a statute, general words follow or precede a
designation of particular subjects or classes of persons,
the meaning of the general words ordinarily will be
presumed to be restricted by the particular designation,
and to include only things or persons of the same kind,
class, or nature as those specifically enumerated, unless
there is a clear manifestation of a contrary purpose.
Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320
(1950). Here, when applying the rule of ejusdem generis, we note that the term
“condition” is preceded by the terms “bodily injury,” “mental illness,” and
“disease.” As such, we find that the word condition is restricted to an
interpretation which is of the same kind or nature as the terms “bodily injury,”
“mental illness,” or “disease.” Accordingly, we cannot interpret “condition” in a
way that would incorporate behavior or lifestyle choices into its meaning, nor can
we interpret it to mean anything other than a medically diagnosable ailment. There
is no clear manifestation of a contrary purpose.
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Moreover, we note the impropriety, for public policy reasons, of
dubbing smoking and tobacco use a “condition” which may pre-exist smokingrelated illnesses later in life. This logic would necessitate the corresponding
rationale that individuals who fail to exercise, eat healthily, or manage their weight
have laid the groundwork for, and indeed have a pre-existing condition for,
eventual heart disease, diabetes or other like illnesses. To interpret KRS
61.600(3)(d) so broadly as to encompass nearly any human behavior that could
adversely affect a person’s future health would be to effectively render it
impossible for a state employee with less than sixteen years’ service to qualify for
disability retirement benefits. Moreover, we cannot conceive that the Legislature
had any such intention when it penned the phrase “bodily injury, mental illness,
disease, or condition[.]” KRS 61.600(3)(d). Rather, it seems clear that the statute
refers to medically and psychiatrically diagnosable maladies only.
Although the Franklin Circuit Court aptly acknowledged the hearing
officer’s error in deeming smoking a pre-existing condition, it still affirmed the
Board on other grounds. Specifically, the Franklin Circuit Court found that West
failed to meet his burden to show that his COPD did not pre-exist his membership
in the Systems. However, the Franklin Circuit Court misunderstands West’s
burden in showing whether his COPD was pre-existing, and understandably so, as
the case law to date has been less than clear on the matter.2
2
We note, as an aside, that the Supreme Court has recently taken up this issue on discretionary review in
the case of Kentucky Retirement Systems v. Brown, 2008-SC-000326-D, however no opinion has yet been
rendered. This Court held in Brown that placing the burden upon the claimant to show absence of a preexisting condition requires the difficult task of “proving a negative.” Consequently, this Court found that
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As such, we turn to the Franklin Circuit Court’s opinion affirming the
Board on other grounds.
This case presents a unique circumstance, in that West’s primary care
physician prior to 1998 retired and all of West’s medical records pre-dating that
time were destroyed. The only evidence in the record concerning whether West’s
COPD pre-existed his membership in the Systems was contained in the deposition
testimony of Dr. Westerfield. When asked whether West had COPD in 1991 (his
first year of re-employment with the Systems), Dr. Westerfield stated it was his
medical opinion that it was highly unlikely that West experienced that level of
pulmonary impairment in 1991. The Franklin Circuit Court found that this
evidence did not meet West’s burden to show his COPD did not predate his
membership, stating as follows: “Given Petitioner’s burden to demonstrate his
condition was not pre-existing, the Board’s decision was based upon substantial
evidence.” However, we find that this misinterprets West’s burden.
A claimant seeking disability retirement benefits under KRS 61.600,
and who has less than sixteen years of service with the Commonwealth, bears the
burden of showing that his condition does not predate his service with the
Commonwealth. KRS 13B.090. See also, McManus v. Kentucky Retirement
Systems, 124 S.W.3d 454 (Ky. App. 2004).
the proof necessary to meet the burden was minimal, and that once met, would effectually create a
rebuttable presumption in favor of the claimant, shifting the burden of going forward to the Systems to
come forward with some evidence in rebuttal. Kentucky Retirement Systems v. Brown, 2006-CA-000296MR.
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Although McManus, supra, established that a claimant bears the
burden to show his condition is not pre-existing, it did not address the quantum of
evidence necessary for a claimant to meet this burden. Courts of justice have often
recognized that proving a negative is an exceedingly difficult thing to do. Indeed,
we reject the concept by rule. Kentucky Rule of Civil Procedure (“CR”) 43.01(1).
Thus, in those infrequent circumstances where we impose such a burden upon a
party, it is usually found that the evidence required to meet such burden is
minimal. See, e.g., Motorists Mut. Ins. Co. v. Hunt, 549 S.W.2d 845, 847 (Ky.
App. 1977) (As proving a negative is always difficult, if not impossible, the
quantum of proof required to prove a motorist is uninsured is merely such as will
convince the trier that all reasonable efforts have been made to ascertain the
existence of an applicable insurance policy).
Thus, we find the proper interpretation of the statute to be that a
claimant bears the burden to come forward with some evidence that his condition
did not pre-exist his service with the Commonwealth. Upon such a threshold
showing, the burden of going forward shifts back to the Systems. While the
ultimate burden of persuasion is not moved from the party upon which it was
originally cast (the claimant), the Systems must come forward with some evidence
in rebuttal where a claimant makes a threshold showing that his or her condition
was not pre-existing. While we agree with the Systems that the fact-finder is free
to accept or reject any evidence it chooses, it is not free to reject uncontested
evidence.
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Here, the only evidence concerning whether West’s COPD preexisted his membership was the unrebutted deposition testimony of Dr.
Westerfield. As our Courts have often stated, medical testimony need not be
couched in terms of absolute certainty. Rather, medical testimony need only be
stated in terms of reasonable medical probability. See, Lexington Cartage Co. v.
Williams, 407 S.W.2d 395 (Ky. 1966); Turner v. Commonwealth, 5 S.W.3d 119
(Ky. 1999). Westerfield’s testimony certainly seems to do so. As such, the onus
was upon the Systems to rebut that evidence. Here, if the Systems had indicated
any particular reasons to disbelieve Dr. Westerfield, or had referred to any contrary
medical evidence, then the hearing officer may have been justified in rejecting
West’s evidence to the contrary. However, as the Systems offered no contrary
medical evidence, the hearing officer was not free to reject the uncontested
evidence in Dr. Westerfield’s deposition testimony. Indeed, the Systems’
arguments that West’s COPD was pre-existing seem to be based solely upon the
fact that West’s early medical records were unavailable and the fact that he smoked
long before he ever became reemployed with the Commonwealth in 1991. As
previously stated, smoking cannot be considered a pre-existing condition. Further,
mere speculation unsupported by medical opinion is not a valid basis upon which a
hearing officer may choose to accept or reject given evidence. Accordingly, we
reverse and remand this issue for reconsideration given that smoking may not be
considered a pre-existing condition for the purposes of disability retirement in
Kentucky and given that we find KRS 61.600(3) requires only that a claimant
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come forward with some evidence that his condition did not predate his
employment with the Commonwealth before the Systems must then come forward
with any other evidence it may have in rebuttal.
For the foregoing reasons, we hereby reverse the opinion and order of
the Franklin Circuit Court and remand this matter to the Kentucky Retirement
Systems for further review of the evidence in light of the cumulative effect rule,
the fact that smoking may not be considered as a pre-existing condition, and in
consideration of the standard espoused herein that the Systems bears the burden of
going forward after a claimant comes forward with threshold evidence that his
condition is not pre-existing.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas W. Moak
Prestonsburg, Kentucky
Leigh A. Jordan
Frankfort, Kentucky
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