STIVERS (VERONICA) VS. KENTUCKY RETIREMENT SYSTEMS
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RENDERED: DECEMBER 30, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000365-MR
VERONICA STIVERS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-00490
KENTUCKY RETIREMENT
SYSTEMS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND VANMETER, JUDGES; HARRIS,1 SENIOR
JUDGE.
HARRIS, SENIOR JUDGE: Veronica Stivers appeals from an opinion and order
of the Franklin Circuit Court entered on February 11, 2009, which affirmed the
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
denial of disability retirement benefits by the Board of Trustees of the Kentucky
Retirement Systems. Stivers argues that the trial court erred by affirming the
decision of the Board because the Board’s decision was arbitrary and capricious
and not supported by substantial evidence. After careful review of the briefs and
record, we affirm.
Stivers was employed as an administrative specialist by the Kentucky
Board of Nursing from March 16, 1987, to January 31, 2006. Her job duties
included opening mail, entering data, filing, faxing, and answering the phones.
Stivers’ job required her to sit 6 hours a day, lift up to 50 pounds occasionally, and
walk extensively. In January 2006, Stivers sought medical attention for persistent
left hip and thigh pain. An MRI examination revealed a cancerous lesion. In
February 2006, Stivers underwent surgery to remove the lesion and to reconstruct
her left femur. Following the surgery, Stivers was required to walk with a cane,
although the cancer has apparently not recurred as of the date of the denial of
disability benefits.
Stivers applied for disability retirement benefits, which were denied
by the medical review board on two occasions. On Stivers’ request pursuant to
KRS 61.665(3)(a), a formal administrative hearing was conducted on September 5,
2007. The hearing officer issued a recommended order containing findings of fact
and conclusions of law, which recommended denial of disability retirement
benefits. The Board adopted the hearing officer’s recommended order, as
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modified,2 as its final order entered on February 29, 2008. Stivers appealed the
decision of the Board to the Franklin Circuit Court. The trial court entered an
opinion and order on February 11, 2009, which affirmed the decision of the Board.
This appeal followed.
Stivers argues that the trial court erred by affirming the decision of the
Board because the Board’s decision was arbitrary and capricious and not supported
by substantial evidence.
The applicable standard of review was set forth in McManus v.
Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003), as follows:
Where the fact-finder’s decision is to deny relief to the
party with the burden of proof or persuasion, 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. “In its role as a finder of fact, an
administrative agency is afforded great latitude in its
evaluation of the evidence heard and the credibility of
witnesses, including its findings and conclusions of fact.”
Causation generally is a question of fact. A reviewing
court is not free to substitute its judgment for that of an
agency on a factual issue unless the agency's decision is
arbitrary and capricious.
(Internal citations omitted).
KRS 61.600 sets forth the qualifications for disability retirement
benefits and provides in pertinent part:
(3) Upon the examination of the objective medical
evidence by licensed physicians pursuant to KRS 61.665,
it shall be determined that:
2
The Board corrected a typographical error in the hearing officer’s report concerning the date
Stivers first experienced hip pain.
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(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 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
service credit.
(4) 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.
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Based upon our review of the record and given the deference owed to
the finder of fact, we cannot conclude that the evidence compels a finding that
Stivers is permanently physically incapacitated to perform the job, or like duties,
from which she received her last paid employment. Although the evidence
demonstrated that Stivers underwent a radical operation to reconstruct her left
femur following the removal a cancerous lesion, the evidence also demonstrated a
successful recovery. Stivers has not experienced a recurrence of the cancerous
lesion. She is not currently taking any prescription pain medications nor is she
currently receiving physical therapy. As of August 21, 2007, although she still
required the use of a cane, Stivers’ treating physician reported that she had reached
maximum medical improvement. There is no medical evidence which
corroborates her belief that she will not be able to perform her work duties.
Stivers takes issue with alleged misstatement of applicable law and
fact in the reports of the medical examiners. However, there is no indication that
these alleged misstatements were in any way adopted as findings by the Board. As
stated above, this Court does not review the evidence de novo. Although there is
some conflicting evidence in the record and Stivers presents a sympathetic case,
we cannot conclude that the evidence compels a ruling in her favor.
Accordingly, the opinion and order of the Franklin Circuit Court
entered on February 11, 2009, is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Kenneth Nevitt
Louisville, Kentucky
Katherine Rupinen
Frankfort, Kentucky
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