MELANIE A. ALLEN v. BOARD OF TRUSTEES, KENTUCKY RETIREMENT SYSTEMS
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RENDERED:
SEPTEMBER 21, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002704-MR
MELANIE A. ALLEN
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 99-CI-01157
v.
BOARD OF TRUSTEES,
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, AND MILLER, JUDGES.
MILLER, JUDGE: Melanie A. Allen brings this appeal from a
November 3, 2000, opinion and order of the Franklin Circuit
Court.
We reverse and remand.
Allen worked at Western State Hospital from September
1985 to July 1998 as a licensed practical nurse (LPN).
Allen
filed an application for disability retirement benefits with the
Kentucky Retirement Systems on July 7, 1998.
Therein, she
alleged permanent and total disability as a result of mental
illness.
The Medical Review Board Physicians denied Allen's
claim for disability benefits.
Allen requested a hearing.
The
hearing officer issued a report and recommended order approving
Allen's application for disability retirement benefits.
Reviewing the record de novo, the Board of Trustees (Board)
rejected the hearing officer's recommendation and entered an
order denying Allen disability benefits.
Allen sought judicial
review of the Board's opinion in the Franklin Circuit Court.
The
Franklin Circuit Court affirmed the Board's decision denying
Allen benefits, thus precipitating this appeal.
Upon review, we step into the shoes of the circuit
court and review the Board's decision for arbitrariness.
American Beauty Homes Corporation v. Louisville and Jefferson
County Planning and Zoning Commission, Ky., 379 S.W.2d 450
(1964).
Arbitrariness has many facets, but relevant to this
appeal is whether the Board's decision denying Allen disability
benefits is supported by substantial evidence, and whether the
Board misapplied the law.
In denying Allen's application for disability benefits,
the Board concluded, in relevant part, as follows:
4) Exhibit 21 establishes that, on August 13,
1998, about six weeks after Claimant's last
day of paid employment, she was voluntarily
admitted to Western State Hospital. During
the period from August 13, 1998 through
August 18, 1998, Claimant was diagnosed, in
part, as suffering from: alcohol abuse; major
depressive disorder, recurrent, severe with
psychotic features; and mood congruent
psychotic features. The justification for
the diagnosis reads in pertinent part:
“...Has long history of depression. Has been
suicidal since she was 17 years old....” The
medical evaluation notes that Claimant's main
problem is “episodes of drinking” and
secondary problems include, in part,
“depression” and “thoughts of self harm.”
Exhibit 20 confirms that Claimant has
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suffered “a notable traumatic history of
physical, psychological and sexual abuse
beginning at age five and lasting to
approximately age 16 when she left home.”
Claimant's testimony and Exhibits 8 and 21
establish that she was treated for drug
detoxification in the early 1980s prior to
her membership in the retirement system on
September 1, 1985. Exhibits 8 and 21 also
confirm that Claimant was hospitalized for
alcohol abuse in 1996. As noted above, the
Claimant was admitted to the hospital again
for alcohol abuse in 1998.
The Board finds that Claimant's
psychiatric problems, detailed by Exhibits 6,
8, 12, 20, and 21, relate directly, or at the
very least indirectly, to a long history of
alcohol and drug abuse and childhood abuse
which pre-existed membership in the
retirement system. Although Claimant's
alcohol and drug usage remits from time to
time, the recurrent condition is the central
theme of the medical evidence of record. The
evidence of record also details Claimant's
suicidal thoughts going back to age 17 and
long history of depression. The Board finds
that the record is otherwise devoid of any
evidence establishing that Claimant's
psychiatric problems are separate, distinct,
and completely unrelated to her long history
of alcohol and drug abuse and childhood abuse
problems.
5) In Exhibit 20, Dr. Wagner indicates that
the Claimant's mental condition would improve
with appropriate counseling. The Claimant
testified that she has not received formal
counseling except for evaluations by Dr. De
La Rocha for continued prescription
medication. The Board finds that Claimant's
condition is expected to improve with
appropriate counseling; therefore, she failed
[sic] prove that her psychiatric problems are
permanent as required by KRS 61.600.
Based upon the above, it appears the Board denied Allen
disability benefits upon two bases: (1) Allen's alcohol abuse,
drug abuse, and childhood abuse are directly or indirectly
related to her present mental incapacity or disability; and
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(2) Allen's mental incapacity is not permanent.
We address these
determinations seriatim.
Under Kentucky Revised Statutes (KRS) 61.600(2), there
must be objective medical evidence that the claimant is unable to
perform her job because of mental incapacity, and that such
“incapacity does not result directly or indirectly from . . .
mental illness, disease, or condition which pre-existed
membership in the system. . . .”
In the case at hand, the
objective medical evidence indicated that in 1996 Allen was
diagnosed as suffering major depressive disorder recurrent with
severe psychotic features, alcohol abuse, relationship problemmarital.
In 1998, Allen was diagnosed, by Dr. Manuel De La Rocha
as suffering major depressive disorder, recurrent, moderate to
severe, panic disorder with agoraphobia, post-traumatic stress
disorder, and polysubstance abuse, by history.
In 1999, Allen
was diagnosed by Tom L. Wagner, Ph.D. as suffering from bipolar
disorder, “Alcohol Abuse (By History; In Remission). . . .”
(emphasis added).
Dr. Wagner concluded that “Ms. Allen would
have notable psychological limitations in her ability to engage
in full-time, competitive work activity.”
Although she no longer abused alcohol or drugs in 1999,
Dr. Wagner concluded that Allen still suffered a mental illness
resulting in work incapacity.
His medical conclusion is
uncontroverted; we find no other medical evidence assessing
Allen's mental incapacity after her cessation of alcohol and drug
abuse in 1999.
Indeed, the hearing officer observed that the
“alcohol is in remission”, but Allen was nevertheless mentally
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incapable of work.
We believe such evidence pivotal.
Allen's
mental incapacity continued even though the alcohol and drug
abuse has been discontinued.
As such, it can hardly be said that
Allen's mental incapacity is directly or indirectly related to
her alcohol or drug abuse under KRS 61.600(2)(d).
The Board also concluded that child abuse is a preexisting “disease” or “condition” under KRS 61.600(2)(d).
disagree with the Board's interpretation.
We
We simply do not think
child abuse constitutes a disease or condition within the meaning
of KRS 61.600(2)(d).
We view the Board's inclusion of childhood
abuse as a disease or condition under that statute as untenable.
As a matter of law, we are of the opinion that childhood abuse is
not a disease or condition pursuant to KRS 61.600(2)(d).
The objective medical evidence indicated that Allen
suffers from mental illness.
She was diagnosed with major
depressive disorder recurrent with severe psychotic features or
bipolar disorder.
In Allen's last hospitalization at Western
State, the discharge summary noted:
Patient was initially feeling very depressed
and lonely, helpless, hopeless, and
worthless. She told us that she has been
drinking heavily, and she has a long history
of alcohol abuse. She also told us that she
has been hearing voices which bother her all
the time. Sometimes it gets louder, and she
cannot even follow the conversation. She
admits that she feels paranoid at times.
Patient told us that whenever she drinks the
voices will go away . . . .
The record fully evidences Allen's erratic behavior and supports
the diagnosis of major depressive disorder recurrent with severe
psychotic features or bipolar disorder.
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Indeed, the objective
medical evidence, coupled with the uncontroverted facts, compels
a conclusion that Allen's mental incapacity is caused by the
above diagnosed mental illness.
Furthermore, Allen's mental
incapacity could not be related to alcohol or drug abuse.
As
hereinbefore concluded, the uncontroverted medical evidence
demonstrated that Allen's mental incapacity continued after
cessation of alcohol and drug abuse.
As such, we are of the
opinion that Allen is not precluded from disability retirement
benefits by operation of KRS 61.600(2)(d).
We shall now consider
whether Allen's mental incapacity was permanent as required by
KRS 61.600.
In determining that Allen's mental incapacity was not
permanent, the Board relied upon the opinion of Dr. Wagner.
From
Dr. Wagner's medical opinion, the Board found Allen's mental
condition “would improve with appropriate counseling. . . .[and
that Allen's mental condition] is expected to improve with
appropriate counseling. . . .”
Dr. Wagner diagnosed Allen as
suffering from bipolar disorder and alcohol abuse by history in
remission.
Dr. Wagner offered a Medical Assessment of Ability to
Do Work-Related Activities for Allen.
On the bottom of page 1 of
that assessment, Dr. Wagner, in his own handwriting, states as
follows:
Ms A lle isn t ree in c u slin /pyc o e p & isn t ep c dto
.
n o c iv g o ne g s h th ra y
o x ete
s bta tia imroew o t . . . in rv n n On wu ep c a
u s n lly p v ith u
te e tio . e o ld x et
m immo 6 m. - 1 yr. fo n ta leimroe e t.
in u f o
r o b p v mn
From the above, Dr. Wagner indicated that Allen was not receiving
appropriate counseling or psychotherapy, and without same was not
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expected to substantially improve.
He further stated that “one”
would expect a minimum of six months to a year for notable
improvement.
It is important to point out that Dr. Wagner did
not state that Allen would, in fact, improve in six months to a
year, but only that one would “expect” improvement.
The Board infers from Dr. Wagner's handwritten note:
(1) Allen will, in fact, improve with therapy; and (2) such
improvement will render her mentally capable to perform her
duties as LPN.
It is well established that an inference upon an
inference is impermissible as a matter of law.
See Briner v.
General Motors Corporation, Ky., 461 S.W.2d 99 (1970).
An
inference upon an inference is merely too speculative and remote
to support a finding of fact.
223 S.W.2d 347 (1949).
See Le Sage v. Pitts, 311 Ky 155,
From Dr. Wagner's note, the Board
impermissibly draws an inference upon an inference to support its
finding.
As such, we view the Board's finding that Allen's
mental incapacity was not permanent under KRS 61.600 to be
arbitrary.
We perceive Allen's remaining arguments moot.
In sum, we are of the opinion that the Board erred in
denying Allen retirement disability benefits.
For the foregoing reasons, the opinion of the Franklin
Circuit Court is reversed and this cause remanded for proceedings
consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Francis
Cadiz, Kentucky
J. Eric Wampler
Frankfort, Kentucky
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