BOONE (SAM) VS. KENTUCKY RETIREMENT SYSTEMSAnnotate this Case
RENDERED: AUGUST 29, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 05-CI-01552
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Samuel Boone appeals from the denial of his application for
disability retirement benefits and duty-related disability retirement benefits. After
careful review, we affirm.
Boone worked with the Livingston County Road Department from
March 1978 to October 2002. On August 12, 2002, while Boone was on duty, a
trailer became disconnected from its hauling vehicle, crossed the center line, and
connected with Boone’s truck, causing his truck to flip several times. Boone was
taken by ambulance to a hospital where he was treated for “neck pain.” A CT scan
of his cervical spine revealed “mild disc C2-C3 and C3-C4 protrusions...with no
definite evidence of nerve root compression.” Shortly thereafter, Boone saw Dr.
William E. Barnes, Jr., a board certified surgeon, for “numbness down both arms.”
Dr. Barnes stated that Boone’s numbness was related to thoracic outlet syndrome
(TOS) but that he thought Boone would be able to return to work in about three
months. Boone was then transferred to Dr. Michael P. Gavin, another board
certified surgeon, of the same office, due to Dr. Barnes taking a leave of absence
because of illness. Dr. Gavin diagnosed Boone with C5-C6 disc herniation, based
on an MRI, but a cervical spine x-ray from over a year before the accident showed
“degenerative change with narrowing of C5-C6 disc space.”
Boone also saw neurologist, Dr. William Hogancamp, who stated that
“there is no neurologic[al] reason for him to have [such symptoms].” Dr.
Hogancamp ordered a Duplex Arterial (or Doppler) study of Boone’s arms on
January 14, 2003. The results of this test revealed that Boone had “significant
brachial waveform abnormalities identified bilaterally...[with] persistently
reproducible and bilateral brachial waveform abnormalities.” Dr. Hogancamp
referred Boone to vascular surgeon Dr. Charles Ross who opined that “[Boone]
may well require surgical decompression of the thoracic outlet.” Two other
physicians, Dr. Erdogan Atasoy and Dr. Gregory Gleiss, saw Boone and agreed on
the diagnosis of TOS. Dr. Ross, however, testified that TOS is quite
“controversial” and “is a source of controversy in medical literature.” Dr. Gleiss
went on to opine that Boone could return to work with certain restrictions.
Furthermore, Dr. Gleiss noted that Boone used “inconsistent effort with...testing.”
Boone was also evaluated by Dr. Robert Weiss for the workers’
compensation carrier. Dr. Weiss found nothing wrong with Boone and stated that
he thought Boone was magnifying his symptoms.
On August 1, 2003, Boone applied for disability retirement benefits
and duty-related disability retirement benefits from the Kentucky Retirement
Systems pursuant to KRS 61.600 and KRS 61.621. The Kentucky Retirement
Systems’ Medical Review Board denied Boone’s application. An administrative
hearing was conducted to appeal the denial at Boone’s request. The Hearing
Officer recommended that the application be denied as well. The Disability
Appeals Committee of the Board of Trustees (the Committee) then carefully
reviewed all the evidence of record and adopted the Hearing Officer’s Report and
Recommended Order as the final order of the Committee, denying Boone’s
application for enhanced disability retirement benefits. The Committee held that
Boone failed to establish by objective medical evidence the existence of a
permanent physical or mental impairment that would prevent him from performing
his former job or a job of like duties as of his last day of paid employment.
Boone appealed this final agency action in Franklin Circuit Court,
which upheld the decision of the Disability Appeals Committee. Boone now
appeals the decision of the Franklin Circuit Court.
“The position of the circuit court in administrative matters is one of
review, not of reinterpretation.” Commonwealth, Department of Education v.
Commonwealth, Kentucky Unemployment Insurance Commission, 798 S.W.2d
464, 467 (Ky.App. 1990). The court is not free to consider new or additional
evidence or substitute its judgment as to the credibility of the witnesses and/or the
weight of the evidence concerning questions of fact. Mill Street Church of Christ
v. Hogan, 785 S.W.2d 263 (Ky.App. 1990). Thus, if administrative findings of
fact are based upon substantial evidence, meaning evidence that when taken alone
or in the light of all the evidence has sufficient probative value to induce
conviction in the minds of reasonable persons, then those findings are binding
upon the court. See e.g., Commonwealth, Dept. of Education, 798 S.W.2d 464,
467 (Ky. 1990); Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298,
308 (Ky. 1972). Moreover, where the administrative agency’s decision is to deny
relief to the party with the burden of proof, as in the instant case, “the issue on
appeal is whether the evidence in that party’s favor is so compelling that no
reasonable person could have failed to be persuaded by it.” See McManus v.
Kentucky Retirement Systems, 124 S.W.3d 454 (Ky.App. 2004).
The only question remaining for the court then to address is “whether
or not the agency applied the correct rule of law to the facts so found.” Starks v.
Kentucky Health Facilities, 684 S.W.2d 5, 6 (Ky.App. 1984). If the court finds the
correct rule of law was applied to facts supported by substantial evidence, the final
order of the agency must be affirmed. Brown Hotel Company v. Edwards, 365
S.W.2d 299, 302 (Ky. 1963).
KRS 61.600 states in pertinent part that:
(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 be determined 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
(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 pre-existed
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
The Hearing Officer’s report and the Committee’s subsequent
adoption of said report were based on an extensive review of Boone’s medical
history before, during, and after the relevant period of time, October 15, 2002October 15, 2003, and correctly applied the above statute. The opinion of the
Franklin Circuit Court outlines in detail the precise and substantial medical
evidence taken into consideration by the Hearing Officer and the Committee in the
decision to deny Boone disability benefits. Moreover, the court’s opinion
recognizes, as we do, that Boone offered medical evidence in support of his
contention that he was entitled to disability benefits. In Com. Transp. Cabinet v.
Cornell, 796 S.W.2d 591, 594 (Ky.App. 1990), this Court stated quite simply that
“the trier of facts in an administrative agency may consider all of the evidence and
choose the evidence that he believes.” The record clearly reflects that substantial
evidence existed to support the Committee’s decision to deny Boone disability
benefits, and it was within its discretion to decide what evidence was credible as
well as the weight afforded said evidence.
Accordingly, we affirm the opinion and order of the Franklin Circuit
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William F. McGee, Jr.
Leigh A. Jordan