KENTUCKY RETIREMENT SYSTEM v. TIMOTHY DAVIS
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RENDERED:
AUGUST 30, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001735-MR
KENTUCKY RETIREMENT SYSTEM
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
CIVIL ACTION NO. 98-CI-01010
v.
TIMOTHY DAVIS
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and JOHNSON, Judges.
HUDDLESTON, Judge: Kentucky Retirement Systems (KRS) appeals from
a Franklin Circuit Court opinion and order reversing a decision of
the Board of Trustees denying disability benefits to Timothy Davis,
finding that the uncontradicted evidence establishes that he is
entitled to such benefits as he is incapable of performing his job
despite the offered accommodation.
Davis was formerly employed by the Woodford County Fiscal
Court Solid Waste Department as a solid waste coordinator at the
county’s Solid Waste and Recycling Center.
that capacity on January 9,
He began working in
1991, and his last day of paid
employment was June 4, 1996.
In total, he accrued 62 months or
5.16 years of service toward qualifying for retirement benefits
during his employment with WCFCSWD.
During a typical day as a solid waste coordinator at
WCSWRC, Davis was required to walk or stand for six hours and sit
for approximately two hours.
His job duties included driving a
semi-truck and trailer (as well as a pick-up truck and trailer or
gooseneck) on collection routes, maintaining the vehicles, hooking
and
unhooking
the
trailer,
inspecting
and
maintaining
baling
machines and other equipment, measuring loads of waste, loading and
unloading waste,1 overseeing the loading and unloading of materials
delivered to the waste facility, operating a forklift, baler and
metal
separator,
collecting
fees
from
customers
and
sweeping/shoveling the area in which he worked upon completion of
those duties.
bending,
Over two-thirds of the time, his duties entailed
reaching,
stooping,
stretching,
kneeling,
crouching,
crawling or handling, and the remainder of the time climbing was
involved.
In September 1992, Davis was seriously injured in an
automobile accident.
As a result of the accident, his chest area,
right humerus, right shoulder joint and blade were crushed or
broken and muscles in his right shoulder and back were severed.
Davis underwent surgery and a course of physical therapy at the
direction of his treating physician, Dr. Garnett Sweeney. Although
Davis experienced a gradual improvement in right shoulder strength
1
Davis was required to lift trash bags weighing up to
sixty pounds, lift/load recycle bags (part of his responsibility as
chief driver), and push/pull dollies of waste one hundred feet.
-2-
and
mobility
(90
degrees
of
abduction
and
flexion),
his
capabilities remain “markedly decreased with his arms,” with his
right
arm
in
particular
sustaining
a
significant,
permanent
decrease in its range of motion (about 50% with no overhead
extension). Davis retained about 80 degrees of flexion, 60 degrees
of scapulo-humeral abduction, 80 degrees of internal rotation and
0 degrees of external rotation with respect to his right arm.
He
suffers from significant muscle atrophy in the infraspinatus and
deltoid muscles associated with the injured shoulder area and xrays reveal a clear distortion of his shoulder joint.
He later
developed thoracic outlet syndrome and traumatic arthritis of the
right glenoid secondary to his injuries. Based on a combination of
the two, Dr. Sweeney ultimately assigned Davis a 29% total body
functional disability.
In early 1993, Davis returned to work in his former
capacity at the WCSWRC, although he continued to suffer from the
effects of his injuries.
He worked from approximately February of
1993 until June of 1996.
During that time, he often used his
allotted vacation and sick days to attend physical therapy sessions
and
doctor
appointments,
at
times
being
absent
consecutive days due to his physical condition.
for
several
Davis testified
that when he was unable to perform the functions of his position
such as lifting, he was instructed to go home and did so.
Between 1993 and 1996, Davis performed a variety of tasks
for the WCSWRC, including working as a solid waste attendant which
involved “manning the gate to the center to measure, unload and
charge for waste brought in by customers.” On average, Davis would
-3-
measure 60 loads of waste a day which entailed climbing onto the
trucks and trailers, measuring their loads of refuse with an
extension tape and calculating the disposal fee based upon cubic
feet of waste present.
Davis testified that he could obtain
assistance if necessary to help measure ton trucks and trailers
with loads that were more than six feet wide and that pickup truck
loads did not have to be measured as a standard rate is applied to
those deliveries.
Working as a gate attendant necessarily required Davis to
perform his job duties outside and/or in and around the unheated
shack that serves as an attendant’s building at all times of the
year.
Although Davis verbally requested a space heater for the
attendant’s building for use on the days when there were extreme
temperatures, he acknowledges that he never made a formal, written
request or pursued the matter.
According to his testimony, Davis
experienced significant pain and discomfort during the fall and
winter seasons due to the cold weather.
He also had similar
difficulties when engaged in the activity of hooking and unhooking
the trailer connected to the truck that he drove in the course of
his employment.
At the recycling center, there are various machines that
compact and bale the solid waste before it is disposed of in pits
in the ground.
There are no retention walls or guard rails
surrounding the pits.
In the course of his duties at the WCSWRC,
including those related to the attendant position, Davis was
required to work in proximity to both the machines and the pits.
-4-
According to Davis’s testimony, he has been in constant
pain since the time of his injury, and that pain is exacerbated by
lifting, sitting and weather changes, particularly when the weather
turns cold.
He copes with the pain which results from cold weather
by using a hot tub, heating pad and special clothing.
For several
years, Davis treated his disabilities with these methods, enabling
him
to
continue
working.
In
1997,
Dr.
Sweeney
prescribed
Hydrocodone for Davis to take as needed for pain.
Side effects of
this medication include drowsiness and dizziness.
Davis complains
of these symptoms, weakness and unsteadiness when he takes this
medication.
His other pain medications have the same or a similar
effect.
In addition to the pain, Davis has continued to suffer
from numbness and tingling in his arms and legs.
When he sits for
any significant period of time, his back hurts, his legs go to
sleep and he cannot move them.
He is also unsteady on his feet
and, as a consequence, has fallen at home while walking on a flat,
carpeted floor.
In October 1996, he fell when his legs collapsed
underneath him, fracturing his left shoulder.
Due to the numbness
in his hands, he has become clumsy and often drops things.
On June 4, 1996, Davis left work and has never returned.
Shortly thereafter, Dr. Sweeney restricted him to “light and
nonrepetitive
use
of
the
right
arm.”
Dr.
Sweeney
further
recommended that Davis not be exposed to cold for prolonged periods
of time and limited him from reaching, handling and pushing due to
the condition of his right arm.
He also confirmed that Davis has
problems lifting over five pounds with his right hand only and
-5-
documented the subsequent fracture to his left arm, noting that it
seems to be healing fairly well.
advised
against
Davis
returning
Significantly, Dr. Sweeney
to
his
“manual
laboring-type
occupation.” Davis refrains from lifting now and does virtually no
other physical work.
On August 29, 1996, Frank Watts, Judge-Executive of
Woodford County, and C. Murray Brown, Sr., Woodford County Solid
Waste Management Director, met with Davis and his wife to discuss
possible job accommodations for Davis.
Initially, Watts and Brown
informed Davis that there was no suitable job available for him at
the department.
However, on October 10, 1996, Watts and Brown
offered Davis the position of solid waste attendant, “a full-time
job that only requires load measurements, the collection of money,
and the issuance of receipts.”
Consistent with the terms of the
offer, Davis’s absence on the designated starting date was treated
as a rejection of the offer and his employment with the county was
terminated, effective October 23, 1996.
Davis declined the offer
because he did not believe that he could fulfill the requirements
of the position, namely, working in the unheated shack, moving
about safely among dangerous machinery, sitting for the requisite
amount
of
time
without
numbness
and
staying
alert
given
his
application
for
regiment of pain medication.
In
disability
2
October
1996,
retirement
In a decision
advisor for the Social
Davis is “entitled to a
1996, and to disability
Davis
benefits
filed
with
an
KRS.2
Based
on
the
rendered on July 24, 1997, an attorney
Security Administration determined that
period of disability commencing June 4,
insurance benefits under Sections 216(i)
(continued...)
-6-
recommendations of three medical reviewers, KRS notified Davis that
his
application
had
been
denied
on
July
28,
1997.
Davis
subsequently submitted additional information regarding his case,
namely the Social Security Administration decision awarding him
benefits.
Finding that the rationale for the SSA decision’s
allowance “is not supported by objective medical evidence in the
file,” the Board of Medical Examiners denied his application upon
reconsideration on September 2, 1997, unanimously concluding that
he is clinically capable of performing the type of sedentary work
required by the position made available to him. In response, Davis
requested a formal review of the determination by KRS before a
Hearing Officer pursuant to Kentucky Revises Statutes (KRS) 13B and
105 Kentucky Administrative Regulations (KAR) 1:210.
On January 22, 1998, the officer held a hearing at which
Davis offered two documentary exhibits along with his testimony and
the testimony of his wife in support of his claim.
KRS offered no
witnesses, relying on the cross-examination of Davis’s witnesses
and the thirteen exhibits presented in support of its position. In
a post-hearing order, the officer granted Davis additional time in
which to procure records from Dr. Sweeney with the Commonwealth
filing its response on March 10, 1998.
In a recommended order
entered on May 7, 1998, the officer made extensive findings of fact
which formed the basis for the following legal conclusions:
33.
KRS 61.600(4)(a)(2) requires that Davis’s permanent
incapacity be determined based upon “medical evidence
2
(...continued)
and 223, respectively, of the Social Security Act, as amended.”
-7-
contained in the member’s file.”
Davis has produced X-
rays, EMG nerve conduction test results, his medical
history, reports of examinations and treatments, and
observable anatomical or physiological abnormalities all
of which support a finding that Davis is permanently
incapacitated. The undersigned finds this evidence to be
“medical evidence” within the meaning of KRS 61.510(33).
In
considering
the
substance
of
that
evidence,
the
undersigned finds particularly significant the opinions,
medical history, and reports of examinations by Dr.
Garnett
Sweeney,
physician.
lengthy
Davis’s
examining
and
treating
Dr. Sweeney’s records give a detailed and
chronology
for
and
explanation
of
Davis’s
condition, diagnoses and impairments; these records,
opinions and diagnoses are based upon Dr. Sweeney’s
firsthand experience with Davis, and are supported by the
clinical
record.
and
laboratory
results
referred
to
in
the
Moreover, Dr. Sweeney’s conclusions as to Davis
are entirely consistent with other substantial evidence
in the record.
Dr.
The undersigned therefore concludes that
Sweeney’s
opinions
and
assessment
of
Davis’s
condition, restrictions and capacity are entitled to
controlling weight over the opinions of Drs. Kimbel,
Addams and McElwain, who have no examining or treating
relationship with Davis and who reviewed only some of his
medical records.
-8-
34.
The undersigned also finds and concludes that
Davis’s
testimony
in
this
matter
was
substantial evidence in and of itself.
credible
and
After observing
Davis’s testimony and a demonstration of his impairment,
the
undersigned
concludes
that
Davis
was
credible,
consistent, and entirely truthful as to his incapacity to
perform his job even with the accommodations offered him.
His testimony established impairment, incapacity and an
inability to perform his job or the job offered to him.
It alone was substantial evidence of great weight to the
undersigned.3
36. Upon all of the foregoing, the undersigned concludes
Davis has established by a preponderance of the evidence
in
the
record
that
he
“has
been
.
.
.
physically
incapacitated to perform the job, or jobs of like duties,
from which he received his last paid employment . . .
reasonable
considered.”
accommodation
KRS
by
61.600(2);
the
employer
.
KRS
13B.090(7).
.
.
The
undersigned therefore concludes that Davis is entitled to
retirement disability benefits under KRS 61.600.
KRS appealed the officer’s decision to the Disability
Appeals Committee of the Board of Trustees which reviewed the
matter at its meeting on July 13, 1998.
Based on the evidence of
record compiled at the hearing, the Board made extensive findings
of fact as summarized above, rejected the officer’s recommendation
3
Citations omitted.
-9-
and ordered that Davis be denied disability benefits.
Davis
petitioned the circuit court for judicial review of the Board’s
decision.
After reviewing the evidence and acknowledging its
limited standard of review, the court reversed the Board’s decision
based on the following analysis:
While
Davis
requirements
strenuous.
was
of
offered
the
an
proposed
accommodation,
job
were
still
the
too
There is no dispute that Davis suffers from
a disability, nor is there a dispute that his physician
has stated Davis is incapable of engaging in manual
labor, that he cannot be exposed to cold weather, and
that he is unsteady on his feet.
In light of this
uncontradicted evidence, it is unreasonable to conclude
that Davis can work in a position which would require him
to be very physically active, where he would be exposed
to all extremes of weather, and where he would be in
danger of falling into open pits containing dangerous
machinery.
It is from this order that KRS appeals, arguing that the court
improperly substituted its judgment for that of the Board.
“The position of the circuit court in administrative
matters
is
one
of
review,
not
reinterpretation.”4
If
4
Kentucky Bd. of Nursing v. Ward, Ky. App., 890 S.W.2d
641, 642 (1994). Under KRS 13B.150(2), Conduct of judicial review:
The court shall not substitute its judgment for that of
the agency as to the weight of the evidence on questions
of fact. The court may affirm the final order or it may
reverse the final order, in whole or part, and remand the
(continued...)
-10-
administrative
findings
of
fact
are
based
upon
substantial
evidence, those findings are binding upon the appellate court and
the only question remaining for the appellate court to address is
whether the agency applied the law to those facts correctly.5
A
reviewing court may substitute its judgment for that of the agency
only if the agency bases its ruling on an incorrect view of the
law.6
When reviewing an agency’s action, the court is concerned
with arbitrariness which is defined as clearly erroneous.
erroneous means unsupported by substantial evidence.7
Clearly
Substantial
evidence is defined as evidence which, when taken alone or in light
of all the evidence, has sufficient probative value to induce
conviction in the minds of reasonable persons.8
4
In weighing
(...continued)
case for further proceedings if it finds the agency’s
final order is:
(a) In violation of constitutional or statutory
provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the
whole record;
(d) Arbitrary, capricious or characterized by abuse of
discretion;
(e) Based
on
an
ex
parte
communication
which
substantially prejudiced the rights of any party
and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a
proceeding to be disqualified pursuant to KRS
13B.040(2); or
(g) Deficient as otherwise provided by law.
5
Id.
6
Id.
7
Id.
8
Bowling v. Natural Resources, Ky. App., 891 S.W.2d 406,
409 (1994).
-11-
whether an agency’s decision is supported by substantial evidence,
a reviewing court must adhere to the principle that the fact-finder
is afforded great latitude in its evaluation of the evidence heard
and the credibility of the witnesses appearing before it.9
There
may be substantial evidence to support an agency’s decision even
though
a
reviewing
conclusion.10
court
may
have
arrived
at
a
different
If an agency’s findings are supported by substantial
evidence, “the findings will be upheld, even though there may be
conflicting evidence in the record.”11
According to (2) of KRS 61.600 (Disability retirement),
upon examination of the objective medical evidence by licensed
physicians pursuant to KRS 61.665, it shall be determined that: (a)
the applicant, 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 making that determination, “any reasonable accommodation by the
employer” shall be considered; (b) The incapacity resulted from a
bodily injury (as defined by the statute), mental illness or
disease; (c) The incapacity is considered permanent; and (d) “The
incapacity did not result directly or indirectly from bodily
injury, mental illness, disease, or condition which pre-existed
membership in the system or re-employment [as defined by the
statute], whichever is most recent.”
9
Kentucky State Racing Comm’n v. Fuller, Ky., 481 S.W.2d
298, 308 (1972).
10
Id.
11
Kentucky Comm’n on Human Rights v. Fraser, Ky., 625
S.W.2d 852, 856 (1981).
-12-
Here, the Board explicitly stated that its order is based
upon “the evidence admitted in the record compiled at the hearing.
KRS 61.665(3), KRS 13B.090(1).”
Next, it set forth the proper
standard for reviewing that evidence, specifically citing KRS
61.600(2)(a) for the proposition that Davis would be entitled to
receive disability retirement benefits if he established by a
preponderance of the evidence that he satisfied the criteria
contained in that provision.
As reiterated by the Board, an
incapacity “shall be deemed to be permanent if it is expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months from the person’s last day of
paid employment in a regular full-time position.”12
Regarding
the
burden
of
proof
in
administrative
proceedings, the Board correctly cited KRS 13B.090(7), which is the
codification
of
the
case
holdings
cited
by
KRS.
Under
KRS
13B.090(7), “the party proposing the agency take action or grant a
benefit has the burden to show the propriety of the agency action
or entitlement to the benefit sought.”
The burden of proof
encompasses both the burden of going forward and the ultimate
burden of persuasion as to the contested issue.
“Failure to meet
the burden of proof is grounds for a recommended order from the
12
KRS 61.600(4)(a). Although this statute has been amended
since the Board’s decision, substantively this aspect is unchanged.
However, there were no subsections in the former version. Also,
for the purposes of determining permanence under this section, the
Board’s examiners were formerly instructed to use the medical
criteria under the Social Security disability program whereas, the
current requirement is that it be based on the medical evidence
contained in the member’s file and his residual functional capacity
and physical exertion requirements. KRS 61.600(4)(a)2.
-13-
hearing officer.13
In the instant case, such an order was issued
by the officer following the hearing conducted pursuant to an
appeal by Davis.14
Agreeing with KRS’s assertion, the Board
determined that the agency had no obligation to present evidence on
the
issue
of
whether
Davis
was
physically
incapacitated
in
accordance with the statute unless Davis first established a prima
facie case on that point.
“The party having the burden of proof
before an administrative agency must sustain that burden, and it is
not necessary for an agency to show the negative of an issue when
a prima facie case as to the positive has not been established.”15
With respect to the requirement that any reasonable
accommodation made by the employer be considered, the Board made
the following determination:
. . . [T]he Board has taken into consideration the
accommodation
offered
by
the
Woodford
County
Fiscal
Court, and concludes that Davis was offered a position
which required only load measuring, collecting money, and
issuing receipts.
These duties are well within the
restrictions placed on Davis by his physicians. Frank S.
Watts, the County Judge-Executive, specifically indicated
in his October 10, 1996 letter that no driving or lifting
would be required.
13
KRS 13B.090(7).
14
With the exception of the more detailed factual summary
included in the officer’s factual summary, the findings of the
Board parallel those of the officer. In summarizing the relevant
facts, this Court deferred to the findings of the Board.
15
Personnel Bd. v. Heck, Ky. App., 725 S.W.2d 13, 17
(1986).
-14-
In light of that conclusion, the Board found that Davis had failed
to establish by a preponderance of the evidence in the record that
he
is
physically
incapacitated
to
perform
his
last
job
or
comparable duties given the “reasonable accommodation” offered by
his employer.
Although the current case presents a close question as to
this dispositive issue, the Board’s decision can only be reversed
if there is no substantial evidence to support it, i.e., it is
clearly erroneous/arbitrary.
As reflected by the Board’s thorough
factual summary, such evidence exists.
That being the case, the
circuit court erred in substituting its judgment for that of the
Board as to the inferences to be drawn from that evidence, i.e.,
that the accommodation would require Davis to “be very physically
active,” “exposed to all extremes of weather,” and subjected to the
“danger of falling into open pits containing dangerous machinery.”
The circuit court’s sole function was to answer the question of
whether, under the evidence of record as a whole, it was an abuse
of discretion for the Board to deny the claim.16
In the absence of
evidence that is “so overwhelming as to compel a finding in Davis’s
favor,”17 we are left with no choice but to reverse the circuit
court’s decision and reinstate that of the Board.
ALL CONCUR.
16
Dawson v. Driver, Ky., 420 S.W.2d 553, 555 (1967).
17
Howard D. Sturgill & Sons v. Fairchild, Ky., 647 S.W.2d
796, 798 (1983).
-15-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James Dodrill
Frankfort, Kentucky
Lucinda Masterton
Lexington, Kentucky
-16-
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