KENTUCKY RETIREMENT SYSTEMS VS. MCGREW (CAROLYN)
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RENDERED: OCTOBER 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001976-MR
KENTUCKY RETIREMENT SYSTEMS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-01040
CAROLYN MCGREW
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; DIXON, JUDGE; HENRY,1 SENIOR
JUDGE.
HENRY, SENIOR JUDGE: Kentucky Retirement Systems appeals from a
decision of the Franklin Circuit Court which reversed the denial of benefits as
determined by the Board of Trustees. After our review of the law and facts of this
1
Senior Judge Michael L. Henry 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.
case, we reverse the decision of the Franklin Circuit Court and remand this matter
for actions consistent with the following opinion.
Carolyn McGrew was employed as a school bus driver by the
Grayson County School System for 23 years. As of her last date of employment
on September 20, 2006, she had accrued a service credit of 240 months with
Kentucky Retirement Systems. In March or April of 2006, she began to manifest
symptoms of anxiety and depression which she alleges reached disabling severity.
These may have been related to a fall she suffered while she was hospitalized for
an unrelated illness. She used all of her accumulated sick leave and annual
vacation time but was unable to return to work when she had exhausted those
options. She then filed for disability retirement benefits with Kentucky Retirement
Systems.
She submitted approximately 500 pages of medical records, some of
which detailed other medical ailments but a large portion of which related to
treatment for the anxiety and depression. The retirement system’s Medical Review
Board, which is comprised of three physicians, determined she did not meet the
standard for disability retirement. Two physicians recommended denial while a
third was unable to render an opinion without additional information. That doctor
recommended McGrew receive an evaluation by Dr. Ebbens, a retirement systems
contract psychiatrist. McGrew submitted approximately 100 pages of additional
information but was again denied disability retirement status.
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An administrative hearing officer issued a recommended order
denying disability benefits on March 13, 2008, after conducting a hearing on the
matter. The Board of Trustees adopted the recommended order and denied
disability retirement benefits. McGrew then sought a review of that decision in the
Franklin Circuit Court, which was charged with acting as a court of review. That
court reversed the determination of the Board of Trustees and this appeal followed.
McGrew, the claimant, had the burden of proof before the Board.
KRS 13B.090(7). “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.” McManus v. Kentucky Retirement Systems, 124 S.W.3d 454,
458 (Ky. App. 2003). If the record contains substantial evidence to support the
agency’s findings, that decision must be affirmed even if there is conflicting
evidence. Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856
(Ky. 1981) (internal citations omitted). “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.” McManus at 458-59. The circuit court found the agency
decision “blatantly erroneous” and suggested it was only by “taking isolated
evidence from the record, and relying on it out of context, without consideration of
the record as a whole” that it could deny McGrew was disabled and entitled to
disability benefits. The circuit court misstated the applicable standard of review.
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It is the quality of the evidence and not the amount that determines the
outcome of any decision. “'Substantial evidence’ is not simply some evidence or
even a great deal of evidence[.]” Commonwealth, Revenue Cabinet v. South
Hopkins Coal Co., 734 S.W.2d 476, 479 (Ky. App. 1987). The trier of fact “is
afforded great latitude in its evaluation of the evidence heard and the credibility of
witnesses appearing before it.” Bowling v. Natural Resources and Ennvironmental
Protection Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1995). “[T]he trier of facts
in an administrative agency may consider all the evidence and chose the evidence
that he believes.” Id. at 410, quoting Commonwealth, Transportation Cabinet v.
Cornell, 796 S.W.2d 591, 594 (Ky. 1990). Evaluating all the evidence and making
an informed judgment based upon its relative credibility and persuasiveness is
what is required of hearing officers, not a mechanical weighing of the volume of
proof presented by each side. The administrative hearing officer is in the best
position to evaluate the quality of the evidence regardless of the quantity of
conflicting evidence that may be submitted. A reviewing court “shall not
substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.” Louisville Edible Oil Products, Inc. v. Revenue Cabinet,
Commonwealth of Kentucky, 957 S.W.2d 272, 273 (Ky. App. 1997).
Subject to the conditions listed in Kentucky Revised Statutes (KRS)
61.600, a person is entitled to disability retirement benefits if they meet the burden
of proof showing they are permanently disabled. The person must first receive “a
satisfactory determination” from the three doctor panel assigned to evaluate the
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claim. KRS 61.600(1)(d); KRS 61.665. McGrew did not meet this requirement.
One doctor recommended she receive an evaluation from Dr. Ebbens but she failed
to comply with this request.
Further requirements of the KRS 61.600 include:
(3) Upon 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 . . .
(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;
KRS 61.600(3). McGrew’s last date of paid employment, after exhausting all of
her accrued personal leave and sick days was September 20, 2006.
The administrative hearing officer made the following relevant
findings of fact:
6. A neuropsychological evaluation completed by a
licensed psychologist on October 2, 2006 – twelve days
following Claimant’s last day of paid employment,
included extensive objective testing which showed
possible exaggeration of cognitive impairment and
psychopathology on multiple tests. The profile was not
felt to accurately represent her actual functional
capabilities due to her high level of emotional distress.
The psychologist determined that the examination did not
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show definitive evidence of malingering but the
possibility of some overemphasis of deficit, and did not
rule out the possibility of secondary gain. This testing
was never repeated, nor was it explained or disputed by
any of claimant’s treating mental health professionals.
7. Claimant was prescribed Lorazepam for nerves during
an April 1, 2006 hospitalization for asthmatic bronchitis,
and was reported to be getting depressed and was
prescribed Lexapro in a second hospitalization a little
more than two weeks later. When hospitalized on July 3,
2006 Claimant reported she had been going to Dr. Green
for treatment of depression for months and had been put
on Effexor. There is no documentation in the record to
establish specifically when such treatment may have
begun or the severity of depression that claimant reported
to Dr. Green.
8. It was Claimant’s sworn testimony that she could not
go back to work after her hospitalization for asthmatic
bronchitis because of medication which she could not
specifically identify that made her dizzy; she didn’t drive
the school bus for the remainder of the school year
following the hospitalization but had no psychological
symptoms at that point – testifying only that it was hard
to breathe; she didn’t know the dates or how long she had
had psychological symptoms but was home before they
started; she stopped driving when she started passing out
after she was hospitalized in July 2006. Claimant’s
husband testified that she tore a car mirror off of her
private vehicle when she hit a mailbox, which happened
within two weeks of Claimant’s discharge from the
hospital in April 2006. He also testified that the other
incidents related to dizziness/passing out occurred within
a two to three week periods (sic) although Claimant
would not tell him when they occurred.
9. Following the hospitalization for asthmatic bronchitis
between April 13 and 18, 2006 Claimant was unwilling
to be discharged stating that she did not want to “get out
and catch anything.” She expressed reluctance to return
to driving the bus “until at least several days” but was
released to return to work on April 24, 2006.
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10. Although Claimant testified to multiple accidents or
near accidents that occurred while she was driving, she
never received a traffic citation, no litigation was
initiated, none of the accidents were witnessed, and no
objective evidence was provided including accident
reports, photographs of damage to Claimant’s vehicle or
the mailbox allegedly hit, or documentation of repairs to
the damaged mirror.
11. In July 2006 a mental status examination showed
Claimant to have fair attention and concentration span,
intact memory, and average intellectual functioning
based on general fund of knowledge, word usage and
abstraction, and fair judgment and insight.2
12. The record extensively documents Claimant’s
stressors to include marital difficulties/conflict with her
husband. Claimant’s family reported that the emergency
room trip via ambulance on December 30, 2006 occurred
after Claimant had an argument with her husband.
13. Assessments of the debilitating nature of Claimant’s
mental health condition have been based upon Claimant’s
subjective reporting of symptoms or of behaviors
displayed by Claimant such as crying. The
neuropsychological evaluation which showed possible
exaggeration of cognitive impairment and
psychopathology and the potential for secondary gain, as
well as the inconsistencies in Claimant’s testimony and
statements made to medical professional render
Claimant’s subjective reporting unreliable.
14. The objective medical evidence fails to establish that
Claimant was totally and permanently incapacitated to
perform the duties of bus driver, or jobs of like duties,
from which she received her last paid employment.
Claimant has failed to maintain her burden to prove by a
preponderance of the evidence that she is entitled to
receive regular disability retirement benefits pursuant to
KRS 61.600.
2
We note the April and July 2006 dates are prior to McGrew’s final paid day of employment yet
the findings are relevant because of the ongoing and increasing nature of her alleged disability.
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“[I]t is the exclusive province of the administrative trier of fact to pass upon the
credibility of witnesses, and the weight of the evidence.” 500 Associates, Inc., v.
Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121, 132
(Ky. App. 2006), quoting Bowling v. Natural Resources and Environmental
Protection Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1995) (internal citation
omitted). We have examined the evidence relied on by the administrative hearing
officer and find it is substantial and sufficient to support the conclusion that
McGrew failed to carry her burden of proof by a preponderance of the evidence
that she was entitled to disability benefits. There is nothing in the record to
suggest the agency acted arbitrarily or beyond the scope of its authority or that it
applied an incorrect rule of law.
The judgment of the Franklin Circuit Court is reversed and this action
is remanded to that court with directions to enter a judgment affirming the decision
of the Board of Trustees in conformity with this opinion.
TAYLOR, CHIEF JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Katherine Rupinen
Frankfort, Kentucky
Karen G. Chrisman
Frankfort, Kentucky
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