KENTUCKY RETIREMENT SYSTEMS v. RAYMOND ASHER, JR.
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December 30, 2004; 2:00 p.m.
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Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002329-MR
KENTUCKY RETIREMENT SYSTEMS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 03-CI-00156
RAYMOND ASHER, JR.
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
The Kentucky Retirement Systems has appealed
from an order and opinion of the Franklin Circuit Court entered
on October 3, 2003, which reversed the Systems’ decision denying
Raymond Asher, Jr’s. application for disability retirement
benefits under KRS1 61.600.
Having concluded that the Systems’
decision to deny benefits was supported by substantial evidence,
we reverse the Franklin Circuit Court.
1
Kentucky Revised Statutes
Asher was employed as an Environmental Inspector III
for more than 20 years with Kentucky’s Natural Resources and
Environmental Protection Cabinet, Department for Surface Mining
Reclamation and Enforcement.
On Asher’s last day of paid
employment at the Department on August 31, 2000, he was 53 years
old.
Asher’s duties as an inspector included frequent
inspections of existing surface mine sites and proposed permit
areas.
He also performed investigations of citizen complaints
and gave expert testimony at hearings.
The physical
requirements of Asher’s job required him to walk or stand
approximately three hours per day and to sit approximately four
and one-half hours a day.
He would either have to walk or drive
a vehicle across rough terrain.
He had to lift equipment
weighing up to 50 pounds for about one-third of the work day.
Asher alleged in his application for disability
retirement benefits filed on August 14, 2000, that he was no
longer physically capable of performing his job duties.
His
reasons were stated as follows:
Due to lower back pain, I am unable to stand
for more than about five minutes at a time.
Also, I am unable to drive/ride in a vehicle
or sit in an upright position for more than
about five minutes at a time. Because of the
pain, it is impossible for me to ride/drive
or walk over rough terrain.
A Hearing Officer recommended approval of Asher’s
application for disability retirement benefits, but the Systems’
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Disability Appeals Committee in a report and order dated January
28, 2003, rejected the Hearing Officer’s recommendation and
denied Asher’s application.
Pursuant to KRS 61.665(5) and KRS
13B.140, Asher sought judicial review of the Systems’ decision.
In an order and opinion entered on October 3, 2003, the Franklin
Circuit Court reversed the Systems’ denial of benefits.
This
appeal followed.
Judicial review of the Systems’ decision is limited by
KRS 13B.150.
The parties are in agreement that the particular
ground for judicial review applicable to this case is whether
the Systems’ decision was “[w]ithout support of substantial
evidence on the whole record[.]”2
Substantial evidence is
evidence of substance and relevant consequence sufficient to
induce conviction in the minds of reasonable people.3
Further,
“[t]he court shall not substitute its judgment for that of the
agency as to the weight of evidence on questions of fact.”4
The
role of the courts in judicial review of an administrative
determination “is one of review, not of reinterpretation.”5
In reversing the Systems’ denial of disability
benefits, the Franklin Circuit Court addressed the issues of the
2
KRS 13B.150(2)(c).
3
Owens-Corning Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d 409, 414 (1998).
4
KRS 13B.150(2).
5
Kentucky Unemployment Insurance Commission v. King, Ky.App., 657 S.W.2d 250,
251 (1983).
-3-
medical evidence in support of Asher’s physical disability and
the proper classification of his work activity and stated as
follows:
Overwhelming evidence supports a
finding that Asher was disabled at the time
of his last employment. During his
employment Dr. Karen Saylor, a treating
physician, recorded an office note on July
27, 2000, that stated Asher’s physical
ability was severely limited by his
condition, his state would not significantly
improve and he would never return to his
previous employment. An April 11, 2000, MRI
showed Asher had developed multiple level
degenerative disc disease with bulging, mild
to moderate right pericentral disk
protrusion and bilateral facet arthropathy.
Without evidence of severe stenosis or nerve
root compression the Board characterized
these degenerative changes identified by the
MRI as mild or “mild to moderate”. Yet, by
August 2000 three treating physicians, Drs.
Saylor, White and Shahzad concluded, Asher
was permanently disabled. A January 30,
2001, report composed by Dr. Saylor in
direct response to inquiries from the
Retirement Systems placed severe limitations
on Asher’s ability to sit, bend, stoop or
lift [citations to record omitted].
To support their decision the Board
relies heavily on the medical diagnoses of
Dr. Kimbel and Dr. McElwain. Both medical
review physicians concurred that the
Petitioner failed to present competent
objective medical evidence to support a
finding of total and permanent incapacity.
Dr. Kimbel indicated that objective findings
in the medical records were not of such
severity to prevent Asher from performing a
wide range of light to medium work activity.
Neither physician treated or examined Asher.
Moreover, the overwhelming amount of
objective medical evidence in this case
-4-
contradicts the diagnoses of Drs. Kimbel and
McElwain. The Board also highlights Dr.
Peppiatt’s August 25, 2000, diagnosis. He
stated he felt Asher was not incapacitated
and could perform his job. There is no
indication that Dr. Peppiatt performed any
diagnostic tests or reviewed the
Petitioner’s medical records [citations to
record omitted].
“To put it simply the trier of facts in
an administrative agency may consider all
the evidence and choose the evidence that he
believes.” Bowling Green v. Natural
Resources, Ky.App., 891 S.W.2d 406, 410
(1995). But it was unreasonable for the
appeals committee to rely upon the findings
of two reviewing physicians and ignore the
overwhelming amount of objective evidence
that supports the Petitioner’s claim.
Although this Court must give the trier of
fact great latitude in his evaluation of the
evidence and the credibility of the
witnesses before him, Bowling, 891 S.W.2d at
410, based on the medical evidence presented
the committee unreasonably concluded Asher’s
incapacity at the time of his last
employment was not supported by objective
medical evidence on the record.
Consequently[,] Asher was unreasonably
disqualified for enhanced disability
retirement benefits under KRS 61.600
[emphasis added].
B.
Work Activity Classification
Asher’s essential employment duties
listed in the record involve conducting onground inspections of surface mine sites,
conducting on site investigations, and
investigating citizen complaints concerning
mining activities. Upon a request for
accommodation, Mark Thompson, Director of
Field Services, determined that Asher’s
employment duties were prohibited by Asher’s
alleged medical limitations. Chester L.
Edwards, the Environmental Control
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Supervisor, indicated that during permit
inspections Asher was responsible for
lifting or carrying field equipment
including water testing and camera equipment
distances approximating a quarter mile and
occasionally moving impassible objects
during inspections. Mr. Edwards indicated
the heaviest weight lifted ranged from 50-75
pounds. In a May 18, 2001 letter Jim
Bussell, Environmental Control Manager and
Asher’s supervisor, acknowledged the
physical requirements of employment as an
Environmental Inspector III demand physical
and strenuous activity on a daily basis.
Mr. Bussell notes that the Petitioner’s back
condition caused him to miss an unacceptable
amount of work [citation to record omitted].
The hearing officer correctly concluded
that Asher’s work activity level qualified
as “medium to heavy” under KRS 61.600.6
On appeal, the Systems argues that from the abovequoted language that it is obvious that the circuit court
improperly weighed the evidence and substituted its judgment for
the Systems’.
Thus, in order for this Court to determine
whether the circuit court improperly reversed the Systems, we
must review the record to determine whether the Systems’
contested findings of fact are supported by substantial
evidence.
The disputed findings of fact are as follows:
(3)
Claimant’s former position as an
Environmental Inspector III involved
inspecting existing surface mine sites
and proposed permit areas,
6
Under KRS 61.600 medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25 pounds.
KRS 61.600(2)(c)(3). Heavy work involves lifting no more than 100 pounds at
a time with frequent lifting or carrying of objects weighing up to 50 pounds.
KRS 61.600(2)(c)(4).
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investigating citizen complaints, and
testifying at hearings. Claimant
indicated that he would lift up to 50
pounds up to 1/3 of the work day and
that he would walk or stand up to 3.0
hours and sit up to 4.5 hours of a work
day. Claimant was required to drive or
walk over rough terrain in his job of
inspecting mine sites, and he would
routinely carry mining records and
surveying equipment. Claimant’s
position of mining inspector falls
within the category of light to medium
work pursuant to KRS 61.600(4)(c)
[citations to record omitted].
. . .
(5)
The MRI study dated April 11, 2000 and
MRI study dated November 9, 2001 showed
that Claimant had diffuse degenerative
changes and mild multi level disc
bulging of the lumbar spine. The MRI
studies revealed normal alignment and
stature of the vertebrae. The MRI
studies did not reveal significant
neuroforaminal stenosis, disc
herniation, or nerve root or cord
compression.
(6)
Dr. Kimbel and Dr. McElwain, medical
review physicians who reviewed
Claimant’s medical records in
consideration of his claim for
disability benefits, both concurred
that Claimant failed to present
competent objective medical evidence to
support a finding of total and
permanent incapacity. Dr. Kimbel
indicated that Dr. Saylor put severe
functional limitations on Claimant but
with no positive physical findings on
which to base the limitations. Dr.
Kimbel indicated that Claimant on MRI
[sic] did show some disc bulging at
multiple levels, but with no
significant neural foraminal stenosis,
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no nerve root or cord compression, and
no evidence of any significant
neurological problems. Dr. Kimbel
indicated the objective findings in the
medical records were not of such
severity to prevent Claimant from
performing a wide range of light to
medium work activity. Dr. McElwain
indicated Claimant had severe
subjective complaints without
significant objective findings.
(7)
Dr. El-Naggar, neurosurgeon, performed
a physical and neurological examination
of Claimant on February 11, 2002 at the
request of Dr. Saylor. Dr. El-Naggar
found on examination that Claimant had
normal reflexes and muscle strength,
and no dysfunction of gait or
coordination. Claimant had negative
straight leg raising and was found to
be neurologically intact. Dr. ElNaggar reviewed the lumbar MRI and
found Claimant had diffuse degenerative
disc changes and multi level disc
bulging. Dr. El-Naggar found no
evidence of disc herniation or nerve
root compression. Dr. El-Naggar
recommended a conservative six-week
course of physical therapy and
encouraged Claimant to perform home
strengthening exercises and to walk.
Claimant was to continue with antiinflammatory medication. Dr. El-Naggar
could not recommend surgery. Claimant
testified that he initiated physical
therapy but discontinued therapy
because of the inconvenience of the
distance he had to travel to attend the
sessions and because of the cost.
(8)
Dr. Saylor and Dr. Shahzad, Claimant’s
treating internists, have treated
Claimant medicinally for multi level
disc bulging and degenerative disc
disease with anti-inflammatory, muscle
relaxants, and narcotic pain
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medication. Dr. Saylor indicated
Claimant presented symptoms of
sciatica, but acknowledged he did not
have evidence of nerve root compression
by MRI. Dr. Saylor noted limitation in
motion with muscle spasms in the mid
and lower back. Dr. Saylor and Dr.
Shahzad both placed severe postural and
lifting restrictions on Claimant. The
postural and lifting restrictions
imposed on Claimant by Dr. Saylor and
Dr. Shahzad are incongruous with the
objective medical evidence of record.
(9)
Dr. Muffly, orthopedic, performed a
consultative examination of Claimant at
the request of Social Security. Dr.
Muffly reviewed the MRI report dated
April 11, 2000 and the MRI report dated
November 6, 2001. Dr. Muffly gave an
Assessment: “Multiple level
degenerative disc disease with bulging
and multiple level osteoarthritis.
Mild and central canal stenosis at L3-4
and L2-3. No frank sign of nerve root
impingement” [citation to record
omitted].
. . .
(11) Claimant’s subjective complaints of
pain are not credible.
(12) Claimant’s application for disability
retirement benefits based upon his
subjective complaints of low back pain
is not supported by the objective
medical evidence of record. Claimant
presented no evidence of any mechanical
instability or neurological involvement
of the lumbar spine. The MRI study
dated April 11, 2000 and MRI study
dated November 9, 2001 showed Claimant
has mild multi level disc bulging of
the lumbar spine. However, the MRI’s
also show Claimant has normal alignment
of the vertebrae, with no evidence of
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significant stenosis, disc herniation,
or nerve root or cord compression. Dr.
El-Naggar, neurosurgeon, conducted a
relatively normal examination of
Claimant’s low back, and offered
conservative modalities of treatment.
Surgery is not recommended. Dr. Kimbel
and Dr. McElwain, medical review
physicians who reviewed Claimant’s
medical records, both concurred that
Claimant failed to present competent
objective medical evidence to support a
finding of disability. Claimant is not
totally and permanently incapacitated
from performing his light to medium
duties of Environmental Inspector III.
Thus, the Systems found Asher’s position of mining
inspector to fall “within the category of light to medium work,”
while the circuit court concluded that the evidence only
supported the Hearing Officer’s more demanding determination of
“medium to heavy” work.
KRS 61.600(4)(c) provides in part that
a “person’s physical exertion requirements shall be determined
based on the following standards:”
2.
Light work shall be work that involves
lifting no more than twenty (20) pounds
at a time with frequent lifting or
carrying of objects weighing up to ten
(10) pounds. A job shall be in this
category if lifting is infrequently
required but walking and standing are
frequently required, or if the job
primarily requires sitting with pushing
and pulling of arm or leg controls. If
the person has the ability to perform
substantially all of these activities,
the person shall be deemed capable of
light work. A person deemed capable of
light work shall be deemed capable of
sedentary work unless the person has
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additional limitations such as the loss
of fine dexterity or inability to sit
for long periods.
3.
Medium work shall be work that involves
lifting no more than fifty (50) pounds
at a time with frequent lifting or
carrying of objects weighing up to
twenty-five (25) pounds. If the person
is deemed capable of medium work, the
person shall be deemed capable of light
and sedentary work.
4.
Heavy work shall be work that involves
lifting no more than one hundred (100)
pounds at a time with frequent lifting
or carrying of objects weighing up to
fifty (50) pounds. If the person is
deemed capable of heavy work, the
person shall also be deemed capable of
medium, light, and sedentary work.
In determining that Asher’s position qualified as
“medium to heavy” work, the circuit court failed to acknowledge
the Systems’ acceptance of Asher’s own testimony that he would
lift up to 50 pounds for one-third of the work day, as opposed
to Edwards’s testimony that Asher would be responsible for
lifting from 50-75 pounds.
The Systems, as the fact finder, was
within its authority to give more weight to Asher’s testimony
that he was required to lift up to 50 pounds, thus, placing his
work classification at its highest as “medium work.”
Accordingly, we conclude that the circuit court erred by
substituting its finding as to Asher’s work activity
classification for the Systems’ finding.
The Systems’ finding
that Asher’s work as a mining inspector fell within the category
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of light to medium work pursuant to KRS 61.600(4)(c) was
supported by substantial evidence of record which included
Asher’s own testimony.
Having determined that the Systems properly classified
Asher’s work as a mining inspector as light to medium work, we
must now determine whether the Systems’ denial of benefits to
Asher was supported by substantial evidence of record.
We
conclude that the circuit court also improperly weighed the
evidence concerning whether Asher met the statute’s disability
requirements.
This improper weighing of the evidence can best
be demonstrated by the circuit court’s statement that “it was
unreasonable for the appeals committee to rely upon the findings
of two reviewing physicians and [to] ignore the overwhelming
amount of objective evidence that supports [Asher’s] claim.”
To
the contrary, the Systems “is afforded great latitude in its
evaluation of the evidence heard and the credibility of
witnesses appearing before it.”7
“[T]he trier of facts in an
administrative agency may consider all the evidence and choose
the evidence that he believes.”8
Evidence of substance that supports the Systems’
denial of disability includes the two MRI studies which showed
no evidence of significant stenosis, disc herniation, or nerve
7
Bowling v. Natural Resources & Environmental Protection Cabinet, Ky.App.,
891 S.W.2d 406, 409-10 (1994).
8
Bowling, 891 S.W.2d at 410.
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root or cord compression; Dr. El-Naggar’s findings that Asher
had negative straight leg raising and was neurologically intact;
Dr. Muffly’s assessment that the MRI studies showed no frank
sign of nerve room impingement; Dr. Kimbel’s indication that the
objective findings in the medical records were not of such
severity to prevent Asher from performing a wide range of light
to medium work activity; and Dr. McElwain’s indication that
Asher had severe subjective complaints without significant
objective findings.
It was the Systems’ role to evaluate the
evidence, judge its credibility, and choose which evidence to
rely upon.
The evidence relied upon by the Systems was evidence
of substance and relevant consequence sufficient to induce
conviction in the minds of reasonable people.
Thus, the circuit
court erred by substituting its judgment for the judgment of the
Systems.
Based on the foregoing reasons, the order and opinion
of the Franklin Circuit Court is reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jennifer A. Jones
Frankfort, Kentucky
Stephen C. Sanders
Frankfort, Kentucky
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