BILLIE JEAN BOLLING v. KENTUCKY RETIREMENT SYSTEMS; BOARD OF TRUSTEES OF THE KENTUCKY RETIREMENT SYSTEMS; AND KENTUCKY EMPLOYEES RETIREMENT SYSTEMS
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RENDERED: JUNE 24, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED:
JANUARY 20, 2006; 10:00 A.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001806-MR
BILLIE JEAN BOLLING
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 00-CI-00957
v.
KENTUCKY RETIREMENT SYSTEMS; BOARD OF
TRUSTEES OF THE KENTUCKY RETIREMENT SYSTEMS;
AND KENTUCKY EMPLOYEES RETIREMENT SYSTEMS
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Billie Jean Bolling has appealed from the July
29, 2003, order of the Franklin Circuit Court which affirmed a
decision of the Kentucky Retirement Systems denying Bolling’s
claim for disability retirement benefits. 1
1
Having concluded that
In an application for disability retirement, the disability determination
procedure is as follows:
the hearing officer, despite substantial evidence in the record,
failed to make specific findings supporting his denial of
benefits, we vacate the circuit court’s order affirming and
remand to the Retirement Systems for further specific findings
by a hearing officer.
Bolling was born on June 26, 1953, and was employed by
the Commonwealth on three separate occasions with Kentucky River
Community Care, Inc., in Perry County, Kentucky.
Bolling was
employed temporarily in 1973, but joined the Retirement Systems
full-time in 1974 and worked until August 1978 as a clinical
secretary.
From May 1979 until September 1984 Bolling was
reemployed at the same position.
In September 1990 Bolling was
reemployed as a clinical secretary, but was subsequently
promoted to administrative assistant, and was employed in that
capacity until her last day of work on June 25, 1997.
day of paid employment was June 30, 1997.
Her last
Bolling’s employer
1.
The claimant petitions a medical review board, whose decision
is final if favorable to a claimant. The “medical examiners”
review only written records and never examine an applicant.
See Kentucky Revised Statutes (KRS) 61.665(1) and (2).
2.
If the claimant is unsuccessful, upon request, a hearing
officer conducts a hearing according to KRS Chapter 13B and
makes findings of fact, conclusions of law, and a
recommendation. See KRS 61.665(3).
3.
The Board of Trustees of the administrator or a Disability
Appeals Committee of the board is appointed to make the final
administrative decision which can overturn the recommendation
of the hearing officer. See KRS 61.665(4).
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classified her job duties as sedentary. 2
At the time she stopped
working, Bolling’s job duties included working with medical
records, filing, answering the telephone, and relieving the
switchboard operator during lunch. 3
She traveled to one of the
various counties around Perry County at least once a week.
Bolling also supervised and trained other employees.
Bolling
testified that she was unable to sit or focus on her work and
did not return to work because she was in so much pain.
Bolling’s medical history and medical records in the
record date back to 1992.
Numerous office notes of Dr. George
Chaney, Bolling’s regular treating physician, dated from March
9, 1992, to November 25, 1995, were filed which related to
Bolling’s back pain, headaches, and vision problems. 4
In 1992
Dr. Chaney performed a lumbar tap and referred Bolling to Dr.
2
KRS 61.600(5)(c)(1) provides as follows:
Sedentary work shall be work that involves
lifting no more than ten (10) pounds at a time and
occasionally lifting or carrying articles such as
large files, ledgers, and small tools. Although a
sedentary job primarily involves sitting, occasional
walking and standing may also be required in the
performance of duties.
3
Bolling’s tasks as administrative assistant were mainly secretarial and
clerical. However, Michelle Patrick, one of Bolling’s co-workers, testified
that Bolling’s job duties included travel, filing, working on copiers, fax
machines, and postage machines, and taking minutes. Patrick testified that
she had the same job as Bolling and knew that Bolling’s job required Bolling
to work on the machines before calling for technical support.
4
Bolling also filed medical records from Dr. Chaney dated 1995 through April
1999. These records related to visits for headaches, bronchitis, urinary
tract infections, asthma, and anxiety. Apparently, the records prior to 1992
had been destroyed by water damage.
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Syamal H.K. Reddy for an evaluation of her vision.
Dr. Reddy
stated in a letter dated February 25, 1992, that Bolling
suffered from “disc edema in the right eye which seems to be the
cause for blurred vision” and that she had suffered from
migraines for over ten years.
Dr. Reddy stated that Bolling
could possibly have pseudotumor cerebri 5 and referred Bolling to
Dr. Avrom Epstien, a neuro-opthamologist with the University of
Kentucky, for a neuro-opthamalogical consultation relating to
her migraine headaches.
Dr. Epstein confirmed Bolling had
pseudotumor cerebri and letters and copies of visual-field tests
from Dr. Epstein were filed dating from 1992 to 1993.
Bolling was then seen by Dr. Phillip Tibbs, a
neurosurgeon at the University of Kentucky Spine Center from
1993 to 1997.
Her first visit was on May 25, 1993, following
her diagnosis of pseudotumor cerebri.
Dr. Tibbs performed a
thecoperitoneal shunt procedure 6 which he stated gave Bolling a
“prompt improvement with resolution of her headaches.”
Dr.
Tibbs’s letter dated August 30, 1993, stated that “[t]his
patient has minimal visual field depression in the setting of
pseudotumor cerebri, recently treated by thecoperitoneal shunt
surgery.”
Dr. Epstein was “pleased for the preservation of
5
This is a condition where the intracranial pressure is too high, causing
headaches and pressure on the optic nerve.
6
The purpose of this procedure was to drain spinal cord fluid and to relieve
pressure on the optic nerve.
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[Bolling’s] vision” and recommended “no additional treatment for
her psuedotumor[.]”
Bolling then returned to work and continued to improve
until August 1994, when she again presented to Dr. Tibbs with
blurred vision and an increase in headaches.
In September 1994
Bolling underwent a “shuntogram” which was negative for
obstruction.
Dr. Tibbs’s impression was that Bolling’s symptoms
stemmed from a sinus infection and he released her from his
care.
Dr. Tibbs saw Bolling again in April 1996 for a follow-up
to her shunt surgery.
Dr. Tibbs again stated that although
Bolling complained of continued headaches, 7 she was doing
“exceptionally well.”
In July 1996 Bolling presented to Dr. Tibbs
complaining of left hip, leg, and back pain. 8
Dr. Tibbs stated
that Bolling told him the pain started when she was hospitalized
for bronchitis, 9 and she had been unable to work since that time.
Dr. Tibbs ordered a lumbar MRI, which revealed a disc herniation
at L5-S1.
Dr. Tibbs stated in a letter dated August 13, 1996,
that there was no need for surgery at that time and that Bolling
had returned to work without any difficulty.
According to Dr.
7
Dr. Tibbs’s notes dated April 16, 1996, indicate that these headaches were
related to migraines, rather than the recurrent pseudotumor symptomatology.
8
In 1983 Bolling broke the base of her spine, but there was no indication in
the record as to how this occurred.
9
A discharge summary from Appalachian Regional Healthcare indicates that
Bolling had a recurrence of her bronchitis and was again hospitalized in
September 1996.
-5-
Tibbs’s letter dated January 14, 1997, Bolling underwent a
successful lumbar microdiscectomy in October 1996, which
resolved her leg pain, although she continued to have pain in
her hip from time to time.
Dr. Tibbs also indicated that
Bolling was doing well and was back at work.
On April 4, 1997,
Bolling underwent a cervical spine MRI which indicated
degenerative spurring posterior to C5, C6, and C7, but was
otherwise normal.
On June 10, 1997, Bolling presented to Dr. Tibbs
complaining that the pain in her left hip and leg was worse.
Dr. Tibbs noted that Bolling had what appeared “by exam and
history, to possibly be a recurrent herniated disc.”
During
this time, Bolling went to Dr. James D. Adams, her childhood
doctor, in April, May, and June 1997, for a second opinion.
In
a letter to Dr. Adams dated June 10, 1997, Dr. Tibbs stated that
Bolling had been pain free until approximately two or three
weeks prior when she stepped backward, with a twisting movement,
while undressing and had an acute onset of left hip pain
radiating down into her leg toward the foot.
He also stated in
the letter that Bolling had “very minimum-to-no-back pain.”
Dr.
Tibbs’s July 15, 1997, letter to Dr. Adams reported that a
subsequent MRI was performed which showed a small focal
herniation, but no evidence of root compression, and recommended
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that Bolling continue her conservative therapy and attempt
eventually to get back to work.
In September 1997 Dr. Chaney referred Bolling to Dr.
John W. Gilbert at the Spine and Brain Neurological Center.
In
a chart note dated December 18, 1997, Dr. Gilbert stated that
Bolling was unable to tolerate physical therapy and he advised
her that her pain would be decreased if she could attempt to
lose some weight, which she had not done.
anxiety and depression.
He also diagnosed her
On September 24, 1997, Dr. Gilbert
reviewed an MRI film showing some degeneration of L4-L5, but
more marked at L5-S1, and a small re-rupture at L5-S1.
He
diagnosed Bolling with failed back syndrome, L5-S1 HNP, lumbar
degenerative disc disease, muscle spasms, pseudotumor and
recommended that Bolling have no fine manipulation while on
narcotic drugs.
On March 18, 1998, Dr. Gilbert diagnosed
Bolling with lubargo in addition to his prior diagnosis.
His
January 27, 1999, record reports that an MRI showed significant
disc degeneration at L4-L5 and L5-S1, post laminectomy syndrome
on the left, perineal fibrosis, nerve root injury syndrome, and
numbness and he also noted that Bolling was still having anxiety
and nervousness.
This letter also indicated that Dr. Gilbert
relied on objective medical evidence to make these findings,
including an MRI.
Subsequent chart notes revealed that there
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were no changes to Bolling’s conditions, related to her back and
leg pain. 10
As early as January 7, 1996, Dr. Chaney reported in
his notes that he performed a mental status exam on Bolling and
found that she suffered from depression.
In his April 15, 1996,
note, he states that Bolling had anxiety related to her job.
He
found her anxious, but not depressed, based on the mental status
exam he performed.
On June 25, 1997, Dr. Chaney conducted
another mental status exam and found that Bolling was both
anxious and depressed.
Bolling saw Dr. Barbara L. Belew, a
psychologist, from October 2, 1997, through October 23, 1997.
Dr. Belew only saw Bolling on three occasions, and Dr. Belew’s
diagnosis of Bolling was that she suffered from depression as a
result of her medical conditions, inability to work, and
divorce.
Dr. Belew’s final notation indicated that Bolling’s
symptoms continued.
Bolling then saw Darlene Collins-Bernard, M.A., from
January 9, 1998, to April 30, 1999.
According to Ms. Collins-
Bernard’s notes, when she first saw Bolling on January 9, 1998,
her depression was better.
However, by July 17, 1998, Bolling
had severe to extreme depression.
Bolling seemed to be doing
better at her November 19, 1998, visit.
10
Ms. Collins-Bernard’s
A chart note dated January 27, 1999, revealed that Bolling “does not like”
Dr. Tibbs and felt she had not been treated appropriately by him since her
pain continued to worsen following her disc surgery in 1996.
-8-
notes on February 25 1999, indicated that Bolling had not
accepted that she was disabled.
On March 13, 1999, Bolling was
reported depressed and despondent.
The last notation in the
record indicated that Bolling seemed to be doing better, but
recommended continued cognitive therapy.
In October 1998 Dr.
Gilbert referred Bolling to Dr. Catherine E. Yen of the
Associates in Neurology in Lexington, Kentucky.
Yen three times from October 1998 to March 1999.
Bolling saw Dr.
Dr. Yen
recommended that Bolling consider seeing someone for further
treatment of her anxiety as needed.
In April 1999 Dr. Gilbert referred Bolling to Dr.
Craig Cartia, who treated her at the Pain Care Center at
Samaritan Hospital in Lexington, Kentucky.
Dr. Cartia noted
that Bolling “would benefit from some type of therapy and
conditioning[,]” and due to the arthritis in her knees and
ankles, he recommended aqua therapy.
He also continued to treat
Bolling’s pain with the same medication Dr. Chaney had
originally prescribed.
On May 25, 1999, 11 Dr. Chaney was deposed by Bolling’s
attorney and testified as follows:
11
Dr. Chaney testified that he relied on objective medical evidence,
including abnormal examinations, abnormal x-rays, abnormal MRI scans of her
back, abnormal mental status exams, and objective findings at the time of
Bolling’s surgery.
-9-
A.
Well, yeah, she also is fairly obese
and her last weight was 280 – or 290
pounds[.]
Q.
Does that aggravate any of these
conditions?
A.
Sure. It would aggravate her back
condition, and in a roundabout way it
would aggravate the headaches, because
the obesity contributes in a roundabout
way to blood pressure elevation and to
the increase in spinal fluid pressure.
Q.
Have you ever considered any type of
diet or weight reduction program?
A.
Yeah, but this has not been – she’s
been instructed many times of dietary
modifications, but her mother is obese,
her father is obese, one of her
brothers is obese. . . . And, of
course, depression plays a role in
contributing to the obesity, too, and a
lot of people who are depressed often
have eating disturbances.
. . .
Q.
[W]e’ve kind of gone through the
diagnosis, what type of prognosis do
you have for this patient?
A.
I think her prognosis is poor, overall
poor, and she will always have pain.
She going to have – always have
problems with blood pressure and asthma
and she’s always going to have these
headaches. She’s had, you know, quite
aggressive therapy for the pain.
Q.
And let me get you to describe what
type of limitations, occupational type
limitations . . . she’ll have as a
result of this[.]
-10-
A.
Well, I know that she worked in a
secretarial type job. I do know that
was what she was doing. At one time
she was doing some transcription in
medical records and things like that.
Her limitations would be – I would say
that she should lift no more than 10
pounds on an occasional basis. She
should avoid prolonged sitting,
prolonged standing, and prolonged
walking. She should avoid repetitive
bending, kneeling, crouching, crawling
and stooping. She should avoid
temperature extremes. She should avoid
heights. She should avoid moving
objects. She should avoid work
stresses. She should avoid – did I say
dusts and humidity and things like
that. 12
Q.
What about her ability to return to
work?
A.
No.
. . .
Q.
[C]ould you continue and describe
whether Billie could go back to the job
which she had?
A.
I still don’t think she can go back to
her job. That job description is
essentially that of a sedentary job,
but I don’t think that she’s going to
be able to not do any bending, twisting
and turning for pulling of the charts
and records and things like that.
Furthermore, if you take all of her
physical complaints aside and she has
to go to supervise other people, then
her anxiety and depression is going to
12
The Retirement Systems argues that this is the only evidence of current
physical limitations from Dr. Chaney and is well within the job duties
required in the sedentary position of administrative assistant held by
Bolling.
-11-
limit that, because she has marked
overwhelming work stresses, and her
stresses were precipitated by some of
the things that’s happened to her at
work and I believe that in and of
itself contributed somewhat to her
anxiety and depression, so I don’t
think she could be in a supervisory
role or even be supervised when things
like that precipitate crying, feelings
of hopelessness and worthlessness and
make her want to just go in a room and
lock herself up. You can’t supervise
people doing that. 13
On July 14, 1997, Bolling filed an application
for disability retirement benefits. 14
Her claim for disability
stated as follows:
13
Dr. Chaney also testified that Bolling’s back pain will cause her to be
tired and not able to work a full day. He also testified that her pain
medication would interfere with her “cognizant functioning.”
14
KRS 61.600 provides in pertinent part:
(1)
Any person may qualify to retire on disability,
subject to the following conditions:
. . .
(3)
Upon the examination of the objective medical
evidence by licensed physicians pursuant to KRS
61.665, it shall determine 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
-12-
organism other than disease or mental
illness;
(c)
(d)
(4)
The incapacity is deemed to be permanent;
and
The incapacity does not result directly
or indirectly from bodily injury, mental
illness, disease, or condition which preexisted membership in the system or
reemployment, whichever is most recent.
For purposes of this subsection,
reemployment shall not mean a change of
employment between employers
participating in the retirement systems
administered by the Kentucky Retirement
Systems with no loss of service credit.
Paragraph (d) of subsection (3) of this
section 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
(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.
(5)
(a)1.
2.
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.
The determination of a permanent
incapacity shall be based on the
medical evidence contained in the
member’s file and the member’s
residual functional capacity and
physical exertion requirements.
(b) The person’s residual functional
capacity shall be the person’s capacity
for work activity on a regular or
continuing basis. The person’s
physical ability shall be assessed in
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I have terrible pain in my left hip and down
my leg. Last October [1996] I had surgery
to remove a bulging disc. It got better for
a while, then in late May or early June it
started again. The pain is so great when I
sit in a chair that I can’t focus. I also
have severe migraines which have increase[d]
in intensity and frequency. This pain keeps
me from focusing [and] my vision becomes
blurred. I also become nauseated and vomit
when I have them. I also have arthritis in
my C-spine, hands, knees [and] ankles [and]
chronic bronchitis [and] asthma.
On July 28, 1997, Dr. Chaney signed a form regarding
Bolling’s claim for disability benefits and indicated that
Bolling suffered from lumbar disc disease, pseudotumor cerebri,
anxiety, depression, migraine headaches and osteoarthritis.
On
December 12, 1997, Dr. Belew signed a form regarding Bolling’s
claim for disability benefits and indicated that Bolling
experienced “severe pain from several medical problems and has
light of the severity of the person’s
physical, mental, and other
impairments. The person’s ability to
walk, stand, carry, push, pull, reach,
handle, and other physical functions
shall be considered with regard to
physical impairments. The person’s
ability to understand, remember, and
carry out instructions and respond
appropriately to supervision,
coworkers, and work pressures in a work
setting shall be considered with regard
to mental impairments. Other
impairments, including skin
impairments, epilepsy, visual sensory
impairments, postural and manipulative
limitations, and environmental
restrictions, shall be considered in
conjunction with the person’s physical
and mental impairments to determine
residual functional capacity.
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become unable to work.”
She stated that “the combination of
pain, financial stress/dependency, and loss of satisfaction that
she had gained from work had produced severe depression.”
Both
physicians certified that Bolling was “[m]entally or physically
incapacitated to engage in the job which [she] held as of [her]
last day of paid employment, or a job of like duties, and such
incapacity is expected to continue for not less than 12 months
from [her] last day of paid employment, or is expected to result
in death.”
On February 2, 1999, the Retirement Systems’s medical
review board 15 denied Bolling’s claim for disability retirement
benefits on the grounds that she presented no objective medical
evidence 16 of an impairment that would prevent her from
performing her usual work activity.
Upon Bolling’s request, an
administrative hearing was held on May 28, 1999, before a
15
The medical review board included Dr. William P. McElawain, Esten S.
Kimbel, and Horace Adams.
16
KRS 61.510(33) provides:
“Objective medical evidence” means reports of
examinations or treatments; medical signs which are
anatomical, physiological, or psychological
abnormalities that can be observed; psychiatric signs
which are medically demonstrable phenomena indicating
specific abnormalities of behavior, affect, thought,
memory, orientation, or contact with reality; or
laboratory findings which are anatomical,
physiological, or psychological phenomena that can be
shown by medically acceptable laboratory diagnostic
techniques, including but not limited to chemical
tests, electrocardiograms, electroencephalograms, Xrays, and psychological tests[.]
-15-
hearing officer for the Retirement Systems, almost two years
after Bolling’s last day of paid employment.
The hearing
officer heard testimony from Bolling, Cecilia Stewart, Medical
Records Director for Kentucky River Community Care, Inc., and
Bolling’s co-workers Michelle Patrick, Vonda Watts, and Jim
Short.
The hearing officer also reviewed Bolling’s medical
records.
Bolling testified that she was unable to perform her
job now because of the pain in her low back and her legs,
chronic obstructive pulmonary disease, bronchitis 17 and her
asthma.
She further testified that her low back, numbness in
her legs, breathing, migraines, depression, anxiety, as well as
the pain associated with these problems, and her weight of 290
pounds, caused her the most problems. 18
Bolling’s co-workers
testified as to Bolling’s daily routine and the fact that
Bolling was not allowed to take work home to make up for sick
days.
All three co-workers testified that they observed Bolling
at work in great pain and were aware of her job duties and did
not believe she could perform them.
17
The Retirement Systems argues that while Bolling had been hospitalized for
bronchitis, asthma, and sinus infections, there was no lung function tests in
the record to show her ability to breath was permanently damaged due to these
problems. It further argues that Bolling did not allege disability due to
breathing problems.
18
Bolling testified that she can do very little and rests most of the time,
although she occasionally washes dishes, she experiences pain when both
sitting and standing and is on numerous medications.
-16-
Bolling and Short testified that Bolling had requested
accommodations in her work including a lumbar support.
A letter
from Phillis Smith, Benefits Manager at Kentucky River Community
Care, Inc., dated August 8, 1997, stated that up until the day
of her resignation, Bolling had not requested accommodations.
However, the purchase orders of record indicate otherwise.
Bolling filled out two purchase orders dated March 31, 1997, and
April 16, 1997, requesting a lumbar support.
Stewart testified
that Bolling needed a doctor’s request for these purchases, but
never told Bolling of this requirement.
were simply denied.
The purchase orders
Short did try to help Bolling find an
appropriate chair, but none helped her lower back.
Dr. Chaney
testified that Bolling would not be able to work, even with
accommodations.
In his report and recommended order dated June 16,
2000, the Retirement Systems’s hearing officer, pursuant to KRS
61.500, denied Bolling’s claim for disability benefits finding
that she “failed to establish by objective medical evidence the
existence of a permanent mental or physical impairment which
would prevent her from performing her job as Administrative
Assistant, or a similar job from which she received her last
paid employment.”
Bolling timely filed exceptions to the report
which were denied on July 19, 2000, when the Disability Appeals
Committee of the Retirement Systems adopted its hearing
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officer’s findings of fact, conclusions of law, and recommended
order.
On August 18, 2000, Bolling filed a petition for
judicial review in the Franklin Circuit Court requesting that
the final order of the Retirement Systems be reversed and that
it be ordered to pay her disability and associated retirement
benefits, including but not limited to, periodic payments,
health insurance, regular retirement, back pay, and all
previously accrued payments which should have been paid.
The
Retirement Systems filed its answer on September 6, 2000, 19
stating that the denial of Bolling’s application for disability
retirement benefits was based upon substantial evidence of
record pursuant to KRS 61.600. 20
On July 29, 2003, the circuit court entered its
opinion and order denying Bolling’s petition and affirmed the
Retirement Systems’s denial of benefits.
The circuit court
stated:
Although both parties can point to
evidence in the record to support their
position, the Court finds that the
[Retirement Systems] based [its] decision on
substantial evidence in the record and
correctly applied the law to this case. The
19
The Retirement Systems also denied that Bolling was a member of the County
Employees Retirement System, but rather stated she was a member of the
Kentucky Employees Retirement Systems.
20
While there is no indication in the record as to the delay in the circuit
court, a briefing schedule was not set in this case until October 16, 2002.
-18-
Court finds that the [Retirement Systems]
did not act arbitrarily and that the record
does not compel a contrary decision. The
Hearing Officer found that [Bolling] failed
to meet her burden of proof in showing that
she met the criteria contained in KRS
61.600, because she failed to show [by]
objective medical evidence that she was
unable to perform her work in a sedentary,
accommodated position. The Court finds
[Bolling’s] remaining arguments
unpersuasive.
This appeal followed.
KRS 61.600(3)(c) requires that the person seeking
benefits must have been, since his or her last day of paid
employment, mentally or physically incapacitated to perform the
job from which he or she received his or her last paid
employment, and such proof must be based on objective medical
evidence.
Furthermore, the incapacity must be deemed
permanent. 21
A claimant for disability retirement benefits has
the burden of proving she satisfies the statutory criteria which
entitles her to those benefits. 22
When a claimant is
unsuccessful in obtaining administrative relief, the question on
appeal is “whether the evidence was so overwhelming, upon
consideration of the entire record, as to have compelled a
21
KRS 61.600(3)(c).
22
See Energy Regulatory Commission v. Kentucky Power Co., 605 S.W.2d 46, 50
(Ky.App. 1980).
-19-
finding in [appellant’s] favor,” 23 and, whether the denial of the
relief sought was arbitrary. 24
It is fundamental law “that administrative agencies
are creatures of statute and must find within the statute
warrant for the exercise of any authority which they claim.” 25
“[F]indings of fact are essential to support the orders of
administrative agencies, at least where the order issued by the
agency rests upon a factual determination.” 26
“Other
administrative agencies are required to make specific findings
as to basic facts which support an ultimate finding.” 27
There is
no reason for an exception to this rule, in the case of
disability retirement benefits. 28
23
The goal of the administrative
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
24
Bourbon County Bd. of Adjustments v. Currans, 873 S.W.2d 836, 838 (Ky.App.
1994); Bowling v. Natural Resources & Environmental Protection Cabinet, 891
S.W.2d 406, 409 (Ky.App. 1995)(quoting Commonwealth, Transportation Cabinet
v. Cornell, 796 S.W.2d 591, 594 (Ky.App. 1990)) (stating that “[i]n
determining whether an agency’s action was arbitrary, the reviewing court
should look at three primary factors. The court should first determine
whether the agency acted within the constraints of its statutory powers or
whether it exceeded them. . . . Second, the court should examine the
agency’s procedures to see if a party to be affected by an administrative
order was afforded his procedural due process. The individual must have been
given an opportunity to be heard. Finally, the reviewing court must
determine whether the agency’s action is supported by substantial evidence. .
. . If any of these three tests are failed, the reviewing court may find
that the agency’s action was arbitrary”); Dawson v. Driver, 420 S.W.2d 553,
555 (Ky. 1967).
25
Department for Natural Resources & Environmental Protection v. Stearns Coal
& Lumber Co., 563 S.W.2d 471, 473 (1978).
26
Pearl v. Marshall, 491 S.W.2d 837, 839 (Ky. 1973).
27
Chemetron Corp. v. McKinley, 574 S.W.2d 332, 333 (Ky.App. 1978).
28
Chemetron Corporation, 574 S.W.2d at 334, states:
-20-
process must be to insure uniformity of treatment by
administrative agencies to all persons who are similarly
situated.
Without specific findings of fact, it is difficult
upon review, if not impossible, to determine whether the
administrative agency has acted arbitrarily or within its
powers. 29
Our standard of review 30 of a circuit court’s
affirmance of an administrative action is to determine whether
We think it would be infinitely better if the
[administrative agency] in each case would make a
specific finding of the basic facts necessary to
support the ultimate finding rather than expect
reviewing courts to hold that the necessary basic
findings are implicit in the ultimate finding. We
have not been cited to any authority which holds that
we must always indulge the assumption that necessary
basic findings were made. In view of the evidence
here, which we regard as weak, we do not think this
is a proper case to indulge such an assumption.
29
Pearl, 491 S.W.2d at 839.
30
Pursuant to KRS 13B.150(1), “[r]eview of a final order shall be conducted
by the court without a jury and shall be confined to the record[.]”
Moreover, KRS 13B.150(2) states as follows:
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
in part, and remand the case for further proceedings
if it finds the agency’s final order is:
. . .
(c)
Without support of substantial evidence
on the whole record;
(d)
Arbitrary, capricious, or characterized
by abuse of discretion; [or]
. . .
(g)
Deficient as otherwise provided by law.
-21-
the circuit court’s findings upholding the Retirement Systems’s
decision are clearly erroneous. 31
The circuit court’s role as an
appellate court is to review the administrative decision, not to
reinterpret or reconsider the merits of the claim, 32 and thus, to
determine both “[i]f the findings of fact are supported by
substantial evidence of probative value” and “whether or not the
administrative agency has applied the correct rule of law to the
facts so found.” 33
“The test of substantiality of evidence is
whether . . . it has sufficient probative value to induce
conviction in the minds of reasonable men.” 34
As long as there
is substantial evidence in the record to support the agency’s
decision, the court must defer to the agency, even if there is
conflicting evidence. 35
We must consider the findings of fact relied upon by
the Retirement Systems in its denial of benefits.
In his
31
Johnson v. Galen Health Care, Inc., 39 S.W.3d 828, 833 (Ky.App. 2001); See
also Kentucky Rules of Civil Procedure (CR) 52.01.
32
Kentucky Unemployment Insurance Commission v. King, 657 S.W.2d 250, 251
(Ky.App. 1983); Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 642 (Ky.App.
1994).
33
Southern Bell Telephone &
Commission, 437 S.W.2d 775,
365 S.W.2d 299 (Ky. 1962).
Fraser, 625 S.W.2d 852, 856
Telegraph Co. v. Kentucky Unemployment Insurance
778 (Ky. 1969)(citing Brown Hotel Co. v. Edwards,
See also Kentucky Commission on Human Rights v.
(Ky. 1981).
34
Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.
1972)(citing Blankenship v. Lloyd Blankenship Coal Co., Inc., 463 S.W.2d 62
(Ky. 1970)).
35
Fraser, 625 S.W.2d at 856.
-22-
recommended order denying benefits, the Retirement Systems’s
hearing officer made the following findings:
1)
The Claimant meets the employment
service requirements of KRS 61.600 in
that she has 81 months of total service
and at least 12 months which are
current service.
2)
The Claimant’s application for
disability retirement benefits was
timely filed on July 14, 1997. Her
last date of paid employment was June
30, 1997.
3)
Claimant’s position as an
Administrative Assistant falls within
the category of sedentary work.
4)
The Claimant’s medical conditions
relate to her back, migraine headaches,
breathing and depression and anxiety.
It is found that the migraine headaches
have documented history of existing
prior to her re-employment date in
1990. Dr. Epstein and Dr. Reddy make
reference to the history of migraines.
5)
The Claimant’s back condition,
apparently after Dr. Tibbs’ surgery in
1996, improved. Thereafter, the
Claimant began experiencing problems
with her back as indicated by Dr.
Gilbert and the MRI reflects some
bulging but apparently no nerve root
compression. The Claimant apparently
did not tell the doctors that she fell
in November and Dr. Gilbert’s report of
January, 1999 makes no reference to a
fall, nor does Dr. Cartia’s report of
April 2, 1999 make any reference to a
fall. . . . The November 17, 1998 MRI
report does not contain a reference to
her fall either. . . .
-23-
6)
The Claimant has been diagnosed with a
pain syndrome which either causes or
compounds her emotional state.
However, the record does not contain
any information as to treatment for her
depression and anxiety from a mental
health specialist other than in October
of 1997 from Dr. Belew and Ms. CollinsBernard. . . . Dr. Chaney would
include her work stresses as part of
the problem with her emotional state.
This apparently is what happened in
June of 1997 when he saw her prior to
putting her on leave.
7)
It is found that the Claimant has a
multiple of problems, in particular
previous surgery and possible injury to
her back after her last date of paid
employment in November of 1998 when she
fell, although she injured her shoulder
and leg in the fall.
8)
The limitations suggested by Dr. Chaney
in his deposition would allow her to
perform sedentary work. These include
lifting no more than 10 pounds,
avoiding prolonged sitting, standing
and walking and repetitive bending,
kneeling and stooping. Claimant’s job
duties involved minimal bending and
stooping, lifting less than 10 pounds,
and the ability to alternate sitting
and standing. . . .
9)
It is further found that the Claimant
has not presented objective medical
evidence to support her claim that she
is unable to perform the sedentary
duties that she performed previously as
a result of her conditions, especially
in view of the fact that her pain has
been improving as indicated by Dr.
Gilbert . . . and Ms. Collins-Bernard
. . . in 1999.
-24-
10)
It is further unclear how the
Claimant’s migraine headaches impact
her ability to work. However, if they
are a major factor then she would be
denied because of a pre-existing
condition.
An administrative agency is afforded great latitude in
evaluating evidence and determining the credibility of
witnesses.
Although a reviewing court might have come to a
different conclusion had it heard the case de novo, such
disagreement does not deprive the agency’s decision of support
by substantial evidence. 36
Further, “the possibility of drawing
two inconsistent conclusions from the evidence does not prevent
an administrative agency’s finding from being supported by
substantial evidence.” 37
Indeed, an administrative agency’s
trier of facts may hear all the evidence and choose the evidence
that he believes. 38
While, “[t]he ‘clearly erroneous’ standard
narrows the scope of review, [ ] it is not without teeth.
The
[Retirement Systems] has not been granted an unbridled
discretion, and courts on review are not required to uphold
arbitrary or unreasonable awards of damages.” 39
When considering a claim, an administrative officer is
not required to provide a detailed analysis of the facts and the
36
Bowling, 891 S.W.2d at 410.
37
Fuller, 481 S.W.2d at 307.
38
Bowling, 891 S.W.2d at 410.
39
Fraser, 625 S.W.2d at 856.
-25-
law. 40
However, he is required to set forth sufficient facts to
support the conclusions that are reached and to permit a
meaningful appellate review. 41
Although a finding for which
there is substantial evidence may not normally be disturbed on
appeal, the parties are “entitled to at least a modicum of
attention and consideration to their individual case[,]” 42 and
to be certain that the decision was the product of a correct
understanding of the evidence. 43
We must determine whether the Retirement Systems
“complied with the statute by making adequate findings of
fact.” 44
Therefore, the question on appeal in this case is not
whether there was substantial evidence in the record to support
the conclusion, but whether the decision contained adequate
findings of fact to explain the basis for the conclusion.
Bolling was entitled to have “the benefit of knowing the factual
basis” for the Retirement Systems’s determination that she was
not entitled to the disability retirement benefits.
The
Retirement Systems’s hearing officer used 12 and one-half pages
to discuss the medical evidence but used less than two pages to
40
Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973).
41
Shields, 634 S.W.2d at 444.
42
Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47, 49-50 (Ky.App. 1988).
43
See Cook v. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985).
44
Shields v. Pittsburg & Midway Coal Mining Co., 634 S.W.2d 440, 444 (Ky.App.
1982.)
-26-
state his findings of facts.
We conclude, as this Court did in
the Kentland case, that the findings in this case are “woefully
inadequate.” 45
Despite substantial evidence in the record to
support its decision, the Retirement Systems failed to provide
the factual basis for its determination.
Specifically, Finding No. 3 established Bolling’s
position as administrative assistant as sedentary as classified
by the Retirement Systems.
However, there was contrary
testimony by Bolling and her co-workers that her actual job
duties were outside the definition of sedentary in KRS
61.510(33). 46
In Findings No. 8 and No. 9, the Retirement
Systems adopted Dr. Chaney’s restrictions placed on Bolling and
found that they would not restrict sedentary work.
However, the
Retirement Systems ignored the fact that in conjunction with
these limitations, Dr. Chaney also stated that Bolling could not
return to her job even with those restrictions.
Dr. Chaney was
deposed on May 25, 1999, with no cross-examination and his
deposition was made part of the record.
While it was in the
Retirement Systems’s discretion to accept Dr. Chaney’s opinion,
45
Kentland, 743 S.W.2d at 50.
46
See Knott County Board of Education v. Williams, 348 S.W.2d 715, 717
(Ky.App. 1961)(stating that “[t]he testimony of appellee and other lay
witnesses who observed him was competent probative evidence of his
disability, and when taken with other evidence as to injury and disability is
sufficient to support the Board’s findings”).
-27-
it should have stated in its findings sufficiently why it was
rejected. 47
Finding No. 9 indicates that there was no objective
medical evidence presented that during the statutory period
Bolling could not perform her work duties.
Without explanation,
the Retirement Systems disregarded Dr. Chaney’s testimony that
his opinions were based on objective medical evidence.
Findings No. 4 and No. 10 indicate that Bolling had a
documented history of migraine headaches prior to her reemployment date in 1990.
However, the Retirement Systems failed
to discuss the undisputed fact that Bolling had unrelated
headaches due to her pseudotumor cerebri and the effect that
fact had on Bolling’s disability claim. 48
The Retirement
Systems should have provided a finding, based on the medical
evidence, establishing that the headaches Bolling suffered from
during the proscribed period were related solely to her
migraines.
Further, there is only a mention in Finding No. 4
that Bolling’s medical condition relates to her breathing.
However, there is no elaboration as to the evidence regarding
her breathing condition.
47
Mengel, 618 S.W.2d at 187.
48
The Retirement Systems argues that while Bolling still complained of
migraines, they are a different etiology than the pseudotumor cerebri
headaches and pre-existed her re-employment date and are thus excluded as
basis for Bolling’s application as found by the Retirement Systems.
-28-
Finding No. 5 discusses Bolling’s low back pain.
Despite the extensive record regarding Bolling’s low back
condition, the Retirement Systems’s findings regarding the issue
emphasize the failure of the medical records to reference her
fall.
This finding in no way explains why the Retirement
Systems found that Bolling’s low back pain did not qualify her
for disability benefits.
For the same reasons, Finding No. 7
provides no support for the denial of Bolling’s disability claim
as it discusses a fall after the 12-month statutory period. 49
Finding No. 6 discusses Bolling’s emotional state.
The Retirement Systems acknowledged that Bolling had pain which
“causes or compounds” her emotional state.
The Retirement
Systems acknowledged Dr. Chaney’s undisputed testimony that he
saw Bolling for depression prior to her last date of paid
employment, but disregarded it with no explanation.
Further,
the Retirement Systems stated in Finding No. 9 that it based its
decision on the notes of Ms. Collins-Bernard in 1999.
A review
of those notes only indicate that Bolling was doing better, but
does not establish that she was ready or capable of returning to
work, and advised that she should continue cognitive therapy.
49
Bolling discussed at length in her brief the evidence surrounding her fall
in November 1998. Bolling argued that the fall was used as a basis for the
Retirement Systems’s denial of her disability retirement claim, but its
relevance is not disclosed. Bolling stated that the fall was not a source of
her disability and it occurred more than 12 months after the last day of paid
employment.
-29-
Dr. Chaney further testified that Bolling’s depression would
prevent her from working.
The Retirement Systems in its brief sets out the
factual basis why it believes that it was correct to deny
Bolling disability retirement benefits. 50
Had the Retirement
Systems made these facts part of its findings, Bolling would
have been adequately advised of the substantial evidence
supporting the denial.
Being mindful our high standard of
review, we hold as a matter of law that the circuit court erred
50
The Retirement Systems argues as follows: There is no objective medical
evidence from 1997 establishing that Bolling was totally and permanently
incapacitated as of her last day of paid employment as required by KRS
61.600. According to Dr. Gilbert’s notes, Bolling less than three months
after her last day of paid employment, had full range of motion in her
thoracic and lumbar spine with no deformation or restriction, no fibro
muscular tenderness, tightness, or trigger points. On March 18, 1998, almost
9 months after her last day of paid employment, Bolling’s range of motion was
slightly decreased and she had a positive straight leg raising test at 25
degrees. These are the first indications of any degree of functional
impairment and they do not occur until several months after her last day of
paid employment. There is no objective medical evidence of record indicating
that Bolling had any functional impairment regarding her back as of her last
day of paid employment as evidence from the time period nearest to her last
day of paid employment indicates that Bolling had full range of motion in her
spine with no restrictions. It was not until almost nine months after
Bolling’s last day of paid employment, after Bolling had quit physical
therapy and become deconditioned to work that Bolling had a sight decrease in
her range of motion. Bolling’s back problems have worsened somewhat over
time due to her extremely sedentary lifestyle and not working but when she
left her employment on June 30, 1997, she still had full range of motion in
her cervical and thoracic lumbar spine as shown by Dr. Gilbert’s examination
on September 24, 1997, and she was not impaired from working a sedentary job.
The Retirement Systems argues that Bolling was diagnosed with depression four
months after her last day of employment and it became more severe ten months
after her last day of paid employment. There are mental function evaluations
in the record showing that Bolling is functionally incapacitated by her
depression as of her last day of employment. Even if she was depressed on
that date, it should not have extended over 12 months with proper treatment.
All evidence of record indicates that Bolling’s cognitive functioning was
intact. There is no objective medical evidence of record indicating that
Bolling was totally or permanently mentally functionally incapacitated as of
her last day of paid employment.
-30-
in affirming the Retirement Systems’s denial of Bolling’s
petition for disability retirement benefits and should have
remanded the case to the Retirement Systems for more specific
findings based on the substantial evidence of record. 51
We
conclude the Retirement Systems’s findings in this case are
insufficient to apprise this Court and the parties of the basis
of his decision, and thus hampers our ability to conduct a
meaningful appellate review. 52
In the absence of sufficient
findings by the Retirement Systems, this Court is not authorized
to make its own factual findings, 53 but must remand the case to
the Retirement Systems for further proceedings. 54
Bolling addresses several other issues in her appeal,
none of which has any merit.
Throughout her brief, Bolling
asserts that the Retirement Systems did not preserve its
arguments prior to the administrative hearing as the statutory
requirements of the notice of hearing under KRS 13B.050(3)(d)
were not met and further Bolling’s motion for a more definite
statement was denied.
However, Bolling was given notice of the
hearing on April 9, 1999, and the notice stated the issues to be
51
City of Louisville v. Louisville Professional Firefighters Assoc., Local
Union No. 345, 813 S.W.2d 804, 808 (Ky. 1991).
52
See Kentland, 743 S.W.2d at 47; and Shields, 634 S.W.2d at 440.
53
See Kentucky Commission on Human Rights v. Lesco Manufacturing & Design
Co., Inc., 736 S.W.2d 361, 364 (Ky.App. 1987).
54
KRS 13B.150(2).
-31-
decided.
We agree with the circuit court’s conclusion that this
notice satisfies the Retirement Systems’s duty to notify Bolling
of the issues presented.
Bolling also argues that the Retirement Systems
violated the Kentucky Unfair Claims Settlement Practices Act.
This act applies to insurance policies and settlements.
Bolling
has not explained, nor do we see, how this Act applies to the
Retirement Systems and its duties to Bolling.
Further, we do not follow Bolling’s argument regarding
the Retirement Systems’s fiduciary relationship in this case.
Bolling also argues that the medical forms submitted to her
treating physicians by the Retirement Systems were inadequate
because there was no place on the forms for the physicians to
list the objective medical evidence upon which he or she based
their opinion and no place to list recommended limitations.
In
reviewing the requirements of KRS 61.665(2), we conclude that
the forms comply with the statute.
There is no evidence that
the Retirement Systems relied solely on the information provided
on these medical forms, as there were also doctors’ notes,
letters, and a deposition contained in the record.
Bolling argues that the medical examiners on the
medical review board were not physicians “practicing in the
state,” as required by statute because they were not actively
engaging in practicing medicine when deciding Bolling’s case.
-32-
Bolling argues that “practicing in the state” is not defined and
by its ordinary meaning requires “actual hands on treatment of
patients.”
This Court in McManus v. Kentucky Retirement
Systems, 55 ruled that the statute “merely requires that the
examiners be licensed to practice in the state[, and that it] is
clear and unambiguous” [citations omitted]. 56
We are not
persuaded by Bolling’s arguments that McManus should be
overruled.
Thus, we hold that, despite substantial evidence in
the record, the Retirement Systems as a matter of law failed to
provide sufficient findings to inform Bolling of the basis of
the denial of her claim, and thus, the circuit court’s
affirmance of the Retirement Systems’s denial was erroneous.
Accordingly, we vacate the order of the Franklin Circuit Court
and remand this matter to the Retirement Systems to make
specific findings sufficient for appellate review.
ALL CONCUR.
BRIEFS FOR APPELLANT:
James P. Benassi
London, Kentucky
BRIEF FOR APPELLEE, BOARD OF
TRUSTEES KENTUCKY RETIREMENT
SYSTEMS:
Katherine I. Rupinen
Frankfort, Kentucky
55
124 S.W.3d 454 (Ky.App. 2004).
56
Id. at 460.
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