DODSON (JOHN) VS. BOARD OF TRUSTEES
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RENDERED: MAY 2, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2007-CA-001025-MR
JOHN DODSON, SR.
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 03-CI-00492
BOARD OF TRUSTEES,
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND WINE, JUDGES.
KELLER, JUDGE: John Dodson, Sr. (Dodson) applied for disability retirement benefits
through the State retirement system. The hearing officer recommended the denial of
Dodson’s application, and the Board of Trustees of the Kentucky Retirement Systems
(the Board) adopted that recommendation. Dodson appealed the order denying his
claim to the Franklin Circuit Court, which affirmed. It is from the circuit court’s order
denying his appeal that Dodson appeals. On appeal, Dodson argues that the findings
of the hearing officer were not supported by substantial evidence. We affirm.
FACTS
Dodson was born on January 3, 1947. According to his testimony before
the hearing officer, Dodson has a 7th grade education1 and is essentially illiterate. He
worked for the Jefferson County Metropolitan Sewer District (the District) for
approximately eighteen years as an equipment operator, a job that would be classified
as heavy. On August 3, 2000, Dodson suffered a work-related back injury. He missed
several months of work, returning to a sedentary job as a security officer. However,
because of ongoing low back pain and right leg and right foot numbness, Dodson stated
that he was not able to continue performing his duties, and he last worked on August 4,
2000. Dodson applied for retirement disability on February 19, 2001. Dodson’s claim
was initially denied; therefore, he requested a hearing, which was conducted on
October 1, 2002. We note that, in correspondence dated August 30, 2001, the District’s
risk and benefits manager indicated that, due to budget constraints, Dodson had been
offered a different job within his restrictions. It is unclear from the record if Dodson ever
performed that job.
In support of his claim, Dodson filed records and reports from Ellen
Ballard, M.D. In her initial report, dated August 25, 2000, Dr. Ballard made diagnoses of
right hip and gluteal strains, took Dodson off work, and recommended medication and
physical therapy. When Dodson’s condition did not improve significantly with this
conservative care, Dr. Ballard recommended an MRI, which revealed a right-sided disc
herniation at L5-S1. Because of Dodson’s continued complaints of low back and right
hip pain, Dr. Ballard referred him to a neurosurgeon, Dr. Becherer. Dr. Becherer
evaluated Dodson and concluded that, with his other myriad health problems – high
blood pressure, diabetes, history of heart problems – Dodson would not be a surgical
We note that Dodson states in his brief that he has a 3rd grade education. However, his
testimony was that he has a 7th grade education. Therefore, we will rely on Dodson’s testimony.
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candidate. On February 15, 2001, Dr. Ballard placed Dodson at maximum medical
improvement, noted his numerous health problems, and stated that he was not capable
of working an eight-hour day. On April 4, 2001, Dr. Ballard noted that Dodson was
working on light duty but that he continued to have pain in his low back and right hip.
Dr. Ballard next treated Dodson on May 2, 2001, when he complained of increased pain
after a fall at work. Dr. Ballard took Dodson off work and kept him off work through
June 21, 2001. On that date, Dr. Ballard stated that Dodson “could return to work with
his previous restrictions due to his low back injury. However, because of his diabetes
and heart disease, high cholesterol, high blood pressure, and multiple medication use”
she recommended “that he apply for a medical disability and Social Security.”
The Board and Dodson filed records from Dodson’s Kentucky workers’
compensation claim. In pertinent part, those records contain the July 24, 2001, report of
Gregory E. Gleis, M.D., who performed an independent medical examination for
Dodson’s employer. Following his examination, Dr. Gleis made diagnoses of chronic
episodic back pain with mild degenerative disc changes. Dr. Gleis assigned Dodson an
8% impairment rating and stated that Dodson could continue working a forty-hour week
as a security guard provided he could alter positions between sitting and standing.
The workers’ compensation records also contain a report from Dr. Ballard
dated January 2, 2001. In that report, Dr. Ballard stated that, as a result of his back
condition, Dodson should avoid lifting more than twenty pounds and should change
positions as needed. However, she also noted that, because of his other health
conditions, Dodson “may be unable to return to any type of work” and “may well be best
served by applying for Social Security disability.”
In addition to Dr. Ballard’s records, Dodson filed records from Alan
Rothschild, M.D. Dr. Rothschild performed cardiac bypass surgery on January 4, 2000,
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and treated Dodson in follow-up after that surgery. Dr. Rothschild’s records do not
contain any work restrictions.
Dodson also filed records from Jagdish Kothari, M.D. On March 5, 2001,
Dr. Kothari opined that Dodson was mentally or physically incapacitated at that time but
Dodson’s incapacity was expected to last for less than twelve months.
The Board filed the February 21, 2002, report of William P. McElwain,
M.D. Dr. McElwain recommended rejecting Dodson’s application, noting an absence of
physical limitations that would prohibit Dodson from performing his job as a security
officer.
The Board also filed the April 1, 2002, report from Roger W. Strunk, M.D.
Dr. Strunk reviewed records from Dr. Ballard, Dr. Rothschild, and Dr. Kothari and
concluded that there was no indication that Dodson was disabled or would be disabled
for a period of more than twelve months. Therefore, Dr. Strunk also recommended
denial of Dodson’s claim.
Based on the above evidence, the hearing officer recommended denial of
Dodson’s claim. In doing so, the hearing officer noted Dodson’s complaints and the
above listed medical records and reports. Specifically, the hearing officer noted that
Dodson appeared to have recovered from his cardiac condition. He also noted that the
orthopedic restrictions from Dr. Gleis and Dr. Ballard would permit Dodson to return to
his work as a security guard. As to Dodson’s high blood pressure and diabetes, the
hearing officer stated that “[n]one of the Claimant’s physicians have indicated that he
would be unable to work because of these conditions.”
Dodson timely filed exceptions to the hearing officer’s report and
recommended order. In his exceptions, Dodson primarily complained that the hearing
officer relied on the orthopedic restrictions from Drs. Ballard and Gleis but ignored Dr.
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Ballard’s statement that the combination of Dodson’s conditions would prevent him from
working an eight-hour day.
As noted above, the Board adopted the hearing officer’s report and
recommended findings and denied Dodson’s claim. Dodson appealed the Board’s
denial to the Franklin Circuit Court, which affirmed the Board. On appeal, Dodson
argues before us, as he did before the circuit court, that the hearing officer’s report and
recommended findings were not supported by evidence of substance.
Although there is nothing in the record, we note that counsel for Dodson
states in his brief before us that Dodson died on March 12, 2004, as a result of
complications related to his heart condition, high blood pressure, and diabetes. That
information is not supported by anything in the record, and while we offer our
condolences to Dodson’s family, we cannot consider it in addressing the issue raised by
Dodson.
STANDARD OF REVIEW
In reviewing the Board’s findings, this Court, like the circuit court, is
required to determine if the Hearing Officer’s findings of fact, as adopted by the Board,
are supported by substantial evidence of probative value and if the Board applied the
correct rule of law to the facts. Southern Bell Telephone & Telegraph Co. v. Kentucky
Unemployment Insurance Commission, 437 S.W.2d 775, 778 (Ky. 1969); see also
Kentucky Board of Nursing v. Ward, 890 S.W.2d 641, 642-43 (Ky. App. 1994). As long
as there is substantial evidence in the record to support the Board’s decision, this Court
must defer to the Board, even if there is conflicting evidence. Kentucky Commission on
Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). Evidence is substantial if “it
has sufficient probative value to induce conviction in the minds of reasonable men.”
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Blankenship v. Lloyd Blankenship Coal Co., Inc., 463 S.W.2d 62, 64 (Ky. 1970). With
this standard in mind, we will address the issue raised by Dodson.
ANALYSIS
Dodson argues that the hearing officer, and subsequently the Board and
the circuit court, focused only on his back condition, ignoring his other medical
conditions. According to Dodson, if all of his conditions are taken into consideration, a
finding in his favor is compelled. The Board argues that the hearing officer’s report and
recommended order are supported by substantial evidence. Furthermore, the Board
argues that there is no objective medical evidence to support Dodson’s contention that
his high blood pressure, heart condition, high cholesterol, and diabetes were in any way
disabling. For the reasons set forth below, we agree with the Board.
KRS 61.600(3) provides that a person who is otherwise qualified is entitled
to retirement disability if he can establish with objective medical evidence that
(a) [s]ince his last day of paid employment, [he] 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 organism other than
disease or mental illness;
(c) The incapacity is deemed to be permanent; and
(d) 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. . . .
See also 105 KAR 1:210 § 8(2). Based on the above, we agree with the Board that the
issue is whether there was any objective evidence that Dodson’s medical conditions
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were disabling. Therefore, we must examine each of Dodson’s conditions to determine
whether there is any objective evidence that they singularly or collectively cause
disability sufficient to qualify Dodson for retirement disability benefits.
There is little dispute that Dodson suffered a back injury and that objective
evidence supports a diagnosis of degenerative changes and a herniated disc. Both Drs.
Ballard and Gleis stated that, taking into consideration only Dodson’s back condition,
Dodson was capable of returning to his job as a security guard. Therefore, there is also
little dispute that Dodson’s back injury, in and of itself, would not result in his disability
as defined in KRS 61.600(3). It follows then that the hearing officer correctly found that,
based on his back condition, Dodson did not qualify for retirement disability benefits.
Next, we look to Dodson’s heart condition. Dr. Rothschild performed bypass surgery in January of 2000 and treated Dodson following that surgery. Dr.
Rothschild did not place any permanent restrictions on Dodson, and Dodson returned to
his job as an equipment operator following his recovery from surgery. This evidence
indicates that Dodson did not have any disability related to his heart condition and
supports the findings of the hearing officer, the Board, and the circuit court.
As to Dodson’s diabetes, we note that Dr. Rothschild noted its existence,
as did Drs. Becherer, Ballard, Gleis, and Kothari. Furthermore, blood test results
contained in Dr. Kothari’s records show elevated blood sugar levels. However, no
physician specifically stated what impact, if any, Dodson’s diabetes had on his ability to
perform work activity. In the absence of such evidence, the hearing officer and the
Board could not have found that Dodson’s diabetes was disabling. Therefore, we
discern no error in the findings of the hearing officer, the Board, or the circuit court with
regard to the disabling nature of Dodson’s diabetes.
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As to Dodson’s blood pressure, we note that, in his last letter, dated June
6, 2000, Dr. Rothschild found that Dodson’s blood pressure had risen to 160/80.
However, Dr. Kothari’s records show that Dodson’s blood pressure dropped in the fall of
2001 to 128/72 and, in the spring of 2002, it was 130/80. Furthermore, as with
Dodson’s heart condition and diabetes, there is no indication from any physician what
specific impact, if any, Dodson’s blood pressure had on his ability to perform his job
duties. Therefore, we discern no error in the findings of the hearing officer, the Board,
or the circuit court with regard to the disabling nature of Dodson’s blood pressure.
As to Dodson’s cholesterol, we note that blood test results in Dr. Kothari’s
records indicate that Dodson’s cholesterol level was consistently elevated. However, as
with all of Dodson’s medical conditions, other than his back, there is no specific
indication how his elevated cholesterol levels interfered with Dodson’s ability to return to
his work as a security guard. Therefore, as with Dodson’s other conditions, we discern
no error with the findings of the hearing officer, the Board, or the circuit court.
Based on the above, only Dodson’s back condition resulted in the
imposition of any restrictions. Those restrictions would not have precluded Dodson
from returning to work as a security guard or from performing other similar work.
Despite Dr. Ballard’s statement, Dodson had no restrictions related to his heart
condition, diabetes, high blood pressure, or high cholesterol. Therefore, the hearing
officer’s finding that the cumulative effect of Dodson’s conditions did not result in
disability sufficient to warrant an award of benefits is supported by substantive
evidence. We cannot disturb that finding on appeal and must affirm.
CONCLUSION
Based on the paucity of evidence regarding the disabling impact of
Dodson’s non-back related physical conditions and the evidence from Dr. Gleis and Dr.
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Ballard, we hold that Board’s denial of Dodson’s claim was supported by substantial
evidence. Therefore, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward A. Mayer
Louisville, Kentucky
Katherine Rupinen
Frankfort, Kentucky
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