WEST (ROGER) VS. KENTUCKY RETIREMENT SYSTEMS

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RENDERED: JULY 15, 2011; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2009-CA-001176-MR ROGER WEST v. APPELLANT ON REMAND FROM SUPREME COURT OF KENTUCKY NO. 2010-SC-000433-D 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 reinjury 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 185 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(s) (“KRS”) 61.600. However, the Kentucky Retirement -2- 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 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 -3- Unemployment Insurance Commission v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002). A reviewing court may also 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 . . . . -4- (d) The person shall receive a satisfactory determination pursuant to KRS 61.655 [from the Board’s medical examiners]. .... (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 -5- (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. 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 predated 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 since 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 -6- 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 impairments in Kentucky Retirement Systems cases where a claimant produces evidence of disability due to multiple ailments. 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 CPAP at night; and (8) hypothyroidism. 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. Because 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 1 To be fair to the circuit court, the Bowens opinion was rendered only a month before the Franklin Circuit Court issued its opinion and order. -7- officer to deny coverage on the ground that his smoking was a pre-existing condition. See Kentucky Retirement Systems v. Brown, 336 S.W.3d 8 (Ky. 2011). 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-exists the member’s employment (emphasis added). The Supreme Court has recently held that “smoking is not a condition as it is used under [KRS 61.600(3)(d)], but rather a behavior.” Kentucky Retirement Systems v. Brown, 336 S.W.3d at 16. Rather, relying on the doctrine of ejusdem generis, the principle that words in a statute are generally assumed to refer to the same class of things, the Brown Court found that a “condition” must refer to something of the same kind or nature as “bodily injury,” “mental illness,” or “disease.” Accordingly, the Court noted that a behavior, such as smoking, could not be construed by the Systems as a condition. Accordingly, based upon this recent precedent, we find that the Kentucky Retirement Systems impermissibly construed the word “condition” in the statute to encompass the “behavior” of smoking. It should be noted that the Franklin Circuit Court acknowledged the hearing officer’s error in deeming smoking a pre-existing condition. Instead of reversing the Board, however, it 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 System. -8- As recently noted by the Supreme Court, “it was [not] the intent of the legislature to define as ‘pre-existing’ those diseases and illnesses which lie dormant and are asymptomatic such that no reasonable person would have realized or known of their existence.” Id. at 15. Therefore, West cannot be held to some impossible standard of proving that, at the time of re-employment, he did not have some faint trace or suggestion of damage to his lungs that would eventually culminate in a diagnosis of COPD. Rather, West need only have proved that he had not been diagnosed with COPD or lung disease and that he was not symptomatic for COPD or lung disease before his membership in the System. Id. We now turn to the Franklin Circuit Court’s opinion affirming the Board on other grounds and ask whether West met this burden. This case presents a unique circumstance in that West’s primary care physician prior to 1998 retired, and all of West’s medical records predating that time were destroyed. The only evidence in the record concerning whether West’s COPD pre-existed his membership in the System 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 System), 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 -9- 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; McManus v. Kentucky Retirement Systems, 124 S.W.3d 454 (Ky. App. 2004). Nonetheless, although McManus 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(s) 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) (because 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 -10- 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. 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, since 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 re-employed -11- with the Commonwealth in 1991. As previously stated, the Supreme Court has definitively held that smoking is a behavior and cannot be considered a preexisting condition. Brown, supra. 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 the order of the Franklin Circuit Court and remand for further proceedings consistent with this Opinion. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEES: Thomas W. Moak Prestonsburg, Kentucky Leigh A. Jordan Frankfort, Kentucky -12-

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