GALEN M. THURMAN, III v. BOARD OF TRUSTEES, KENTUCKY RETIREMENT SYSTEM
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RENDERED:
September 3, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002267-MR
GALEN M. THURMAN, III
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM GRAHAM, JUDGE
ACTION NO. 97-CI-01261
BOARD OF TRUSTEES,
KENTUCKY RETIREMENT SYSTEM
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Galen M. Thurman, III (Thurman) appeals from
an opinion and order entered August 11, 1998, by the Franklin
Circuit Court which affirmed an earlier decision of the Board of
Trustees, Kentucky Retirement Systems, denying his application
for disability retirement benefits.
We affirm.
The record shows that despite being afflicted with
polio myelitis at the age of 18 months, Thurman was able to
obtain a college degree as well as maintain employment.
Thurman
began working for the City of Murray (the City) in January 1985.
His work with the City was continuous until his last day of paid
employment on July 28, 1996.
When Thurman began working for the City, he utilized
crutches to enable him to walk.
Due to increasing problems with
stooping and pain, Thurman was advised to have steel rods
inserted in his back to prevent excessive spinal curvature from
causing the collapse of his internal organs.
Thurman underwent
this procedure in 1988, and while it successfully halted the
spinal curvature, it did not relieve the pain.
Work became
increasingly difficult for Thurman due to the pain, and the
City’s efforts to try to provide additional accommodations to
alleviate the pain were unsuccessful.
It appears that Thurman
ultimately retired from his position with the City in December
1996, after an extended period of sick leave.
In August 1996, Thurman forwarded a notification of
retirement to Kentucky Retirement Systems (KRS).
Thurman
indicated that he was seeking disability retirement due to
“unbearable” back pain.
In medical evidence filed with KRS, Dr. John
Quertermous indicated that Thurman was “physically incapacitated
for life.”
Dr. Quertermous indicated a history of childhood
polio, 1988 back surgery, and a fall in 1992.
Dr. Quertermous
indicated the presence of severe osteoarthritis in Thurman’s
lumbosacral spine and also diagnosed depression.
Dr. Quertermous
did not give a cause of Thurman’s disability.
Medical records were also submitted from Dr. Terri Price, a
chiropractor.
Dr. Price indicated that she began treating
Thurman in April 1993.
In a letter to KRS dated September 17,
1996, Dr. Price stated:
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Due to severe scoliotic changes, insertion of
Harrington rods and polio, he is no longer
able to sit or stand for sustained periods of
time because advanced degenerative joint
changes and progressive muscle atrophy are
complicating his already compromised
musculoskeletal system.
Records from the University of Minnesota Hospital were
also submitted.
Although they detail Thurman’s 1988 back
surgery, no estimate of disability was provided.
However, the
records do indicate that Thurman had been experiencing increasing
pain over the last ten years.
On December 13, 1996, KRS informed Thurman that his claim
for disability retirement benefits had been denied by the Medical
Review Board.
All three reviewing physicians indicated that
Thurman’s application should be denied because his disability
stemmed from a condition which predated his employment with the
City.
Thurman duly filed an appeal from the initial denial of
benefits.
In his memorandum, Thurman alleged:
The contention in this case is that the
current disability law regarding pre-existing
conditions is a violation of the ex post
facto provision of the Kentucky Constitution.
When Mr. Thurman went to work for the State
of Kentucky the law was different. It is the
contention that there was a bilateral
contractual situation entered into between
Mr. Thurman and the Kentucky Retirement
Systems whereby if he performed his services
as mandated by law that the employer (a
participant in the Kentucky Retirement
Systems) would pay him a salary and afford
him fringe benefits, such as protection for
disability benefits. During the entire
period of time that Mr. Thurman worked for
the City of Murray, they withheld money from
his paycheck to contribute to the Kentucky
Retirement Systems. Therefore, the recent
changes in the law regarding pre-existing
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conditions violated his State and
constitutional rights, as well as the due
process rights afforded Mr. Thurman by the
Constitution of the United States of America.
Following a hearing, the hearing officer entered
findings of fact and conclusions of law upholding the denial of
benefits.
However, for reasons not evident of record, the
Disability Appeals Committee chose to reject the hearing
officer’s findings in favor of a Report and Order from the Board
of Trustees.
In a report and order entered July 24, 1997, the Board
upheld the denial of retirement benefits.
In refuting Thurman’s
argument regarding the constitutionality of KRS 61.600, the Board
held:
In 1985, when Thurman joined the System, the
pre-existing condition clause in KRS 61.600
read in part: “Upon the examination by
licensed physicians it must be determined
that the employee, since his last day of paid
employment, has been mentally or physically
incapacitated to engage in any occupation for
remuneration or profit and that such
disability did not pre-exist at the time of
initial employment or re-employment...”
Thurman interprets “disability” in the 1985
statute to mean a condition that disables one
from working. Thus, although Thurman may
have been limited in his activities when he
began work for the City, he did not have a
disability, according to his argument,
because he could still work.
A common sense reading of the 1985 statute,
however, does not support the Claimant’s
interpretation of “disability” in the context
of KRS 61.600 prior to 1992, because it would
essentially make the pre-existing condition
exception a logical absurdity. If one were
disabled from work before one is employed or
re-employed, one would not have been hired at
all. To accept a Claimant’s reading of
“disability” with regard to the pre-1992
version of KRS 61.600 would run counter to
-4-
the direction given by KRS 446.080 (1) the
“(a)ll statutes of this state shall be
liberally construed with a view to promote
their objects and carry out the intent of the
legislature.” The 1992 revision is an
explicit elaboration on the sense of the 1985
statute. It was enacted to clarify the
meaning of the statute and reflect the
Systems’ practical interpretation of it.
Thus, the change in the statute was merely a
clarification; not a substantive change which
would alter the terms of the contract. Had
Claimant applied for disability benefits
prior to the statutory change, the
application of the law would have been the
same as it is now. The Board concludes that
the terms of the contract were not violated
by change in the statutory language and
believes that the Claimant’s contract
argument is not valid in the case at hand.
Thurman next appealed to the Franklin Circuit Court.
In an opinion entered August 10, 1998, the trial court upheld the
denial of benefits.
This appeal followed.
Thurman argues that the various decisions basing
denial of benefits in this case on the fact that his disability
stems from polio are not supported by substantial evidence.
In
support of his argument, Thurman maintains that his disability is
instead caused by osteoarthritis and degenerative disc disease,
and that because neither of these conditions predated his
employment with the City his application for benefits should have
been approved.
Our scope of review concerning the factual
determinations of an administrative body is limited to a
determination of whether the decision is supported by substantial
evidence.
Kentucky Commission on Human Rights v. Fraser, Ky.,
625 S.W.2d 852, 856 (1981).
Substantial evidence is that which
“has sufficient probative value to induce conviction in the minds
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of reasonable men.”
Kentucky State Racing Commission v. Fuller,
Ky., 481 S.W.2d 298, 308 (1972).
As long as the decision is
supported by substantial evidence we are required to affirm it
even though conflicting evidence is contained in the record.
Fraser, 625 S.W.2d at 856.
The fact that we may reach a
different conclusion than that of the administrative body does
not mean that the decision is not supported by substantial
evidence.
Bowling v. Natural Resources and Environmental
Protection Cabinet, Ky. App., 891 S.W.2d 406 410 (1995).
We find that the decision to deny benefits on the
ground that Thurman is disabled due to complications from polio
is supported by substantial evidence.
Although Dr. Quertermous
indicated that Thurman has severe osteoarthritis, he offered no
opinion as to what caused Thurman’s disability.
Furthermore, Dr.
Price appears to believe that the degenerative changes in
Thurman’s spine are attributable to scoliosis, polio and
insertion of the Harrington rods.
Although there does appear to
be conflicting evidence, the decision is supported by substantial
evidence and must be affirmed.
Appellant next contends that the 1992 amendments to KRS
61.600 are violative of Section 19 of the Kentucky Constitution.
Prior to the 1992 amendments, KRS 61.600 provided entitlement to
disability retirement benefits as long as the “disability did not
pre-exist at the time of membership in the system or upon reemployment.”
Following the amendment, that particular provision
now requires that “[t]he incapacity does not result directly or
indirectly from bodily injury, mental illness, disease or
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condition which pre-existed membership in the system or reemployment, whichever is most recent.”
Thurman maintains that
because he would have been entitled to retirement benefits under
pre-amendment version of KRS 61.600, the amended version of KRS
61.600 is an ex post facto law violative of the Kentucky
Constitution.
The crux of Thurman’s argument is that because he
was not disabled at the start of his employment in 1985, he was
not suffering from a pre-existing disability within the meaning
of the pre-amendment version of KRS 61.600.
Before we address the merits of Thurman’s argument, we must
first determine whether he would have been eligible for benefits
under the pre-1992 version of KRS 61.600.
Based on our review of
the statute, we find that Thurman would not have been eligible
for benefits under the pre-amendment version.
Prior to its amendment, KRS 61.600 provided:
(1)
An employee with sixty(60) months of
service, twelve(12) months of which
shall be current service, may retire at
any time before his normal retirement
date on account of disability upon
written notification to the board.
Application for disability benefits
shall be made within twelve(12) months
of his last paid day of employment.
Upon examination by licensed physicians,
it shall be determined that the
employee, since his last day of paid
employment, has been mentally or
physically incapacitated to perform his
job or jobs of like duties from which he
received his last paid employment and
the disability did not pre-exist at the
time of membership in the system or upon
re-employment, except in case where a
disabled recipient has returned to work
on a trial basis and is a result of
bodily injury, mental illness or disease
and that the incapacity is deemed to be
permanent.
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The trial court found that to accept Thurman’s
definition of “disability” would “render the pre-existing
condition exception of nullity.”
We agree.
Under Thurman’s
analysis, any person who had a handicap at the time of their
employment but was still able to work would be eligible for
retirement benefits at the time his handicap progresses to the
point that is no longer physically able to work.
Thus, the only
people who would be precluded from receiving benefits under
Thurman’s construction of KRS 61.600 would be those who were too
disabled to work at the time they were hired.
We agree with the
trial court that “common sense dictates that the Legislature
could not have intended that disabled people, i.e., people who
are incapable of working, become employed by the State.”
Hence,
because Thurman would not have been eligible for benefits under
the pre-amendment version of KRS 61.600, the 1992 amendments had
no ex post facto effect.
Although we respect all that Thurman has accomplished
and believe he is an exceptional individual and was a valuable
employee, we do not believe that KRS or the trial court
misconstrued or failed to properly and adequately interpret KRS
61.600.
The opinion and order of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Francis
Cadiz, KY
James Dodrill
Frankfort, KY
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