BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS V. CAROLYN LEDFORD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION .BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION .
AS MODIFIED : AUGUST 27, 2009
RENDERED : APRIL 23, 2009
NOT TO BE PUBLISHED
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2007-SC-000604-DG
BOARD OF TRUSTEES OF
KENTUCKY RETIREMENT SYSTEMS
V.
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APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-0001808-MR
FRANKLIN CIRCUIT COURT NO . 05-CI-00867
CAROLYN LEDFORD
APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING
This is a companion case to the series of appeals, including Board of
Trustees of Kentucky Retirement Systems v. Bowens , No . 2006-CA-000941,
which have recently come before this Court concerning the applicability of the
"treating physician rule" in disability proceedings .
Appellee, Carolyn Ledford, was employed by the Laurel County Board of
Education for 20 years. Appellee applied for disability retirement on March 9,
2001, on the basis of acute, severe asthmatic attacks. After review of her
application and subsequent hearings, Appellant rejected her claim on grounds
that Appellee failed to provide objective evidence of a condition that would
prevent her from performing her usual work activity . Appellee then filed an
appeal with the Franklin Circuit Court.
At issue in the instant appeal is the decision of the Franklin Circuit
Court . The Franklin Circuit Court affirmed the final administrative decision by
Kentucky Retirement Systems (KERS), finding, in pertinent part:
The Hearing Officer's Opinion was based on objective medical
evidence from Ledford's own doctors . His opinions were supported
by the analyses of competent doctors based on this objective
medical evidence. His determinations regarding the requirements
of Ledford's employment are based on her own descriptions of her
job . Even if Ledford's assertions that her treating doctor's opinions
(contrary to the hearing officer's determination) are more reliable or
persuasive than the evidence relied upon by the Hearing Officer,
the Hearing Officer's opinions are still support[ed] by some
"substantial evidence." Therefore, the Hearing Officer's opinion,
adopted by the [Appellees] in this case, is not arbitrary and Ledford
did not satisfy her burdens of proof and persuasion to overturn the
[Appellee's] decision .
Although Appellee argues the Hearing Officer could not have based his
opinion on the "objective medical evidence of Ledford's own doctors" because all
of her treating physicians opined that Appellee was disabled, the objective
medical evidence of record does not support the treating physicians' opinion
that Appellee was disabled under the provisions of KRS 61 .600 . Moreover,
even were the objective medical evidence sufficient to support contradictory
conclusions on the issue of disability, it is well-settled that the trier of fact may
evaluate the evidence presented and give the evidence the weight the fact-finder
deems appropriate. McManus v. Kentucky Retirement Systems, 124 S .W .3d
454, 457-458 (Ky.App. 2003) . "To put it simply the trier of facts in an
administrative agency may consider all the evidence and choose the evidence
that he believes." Bowliniz v. Natural Resource And Environmental Protection
Cabinet, 891 S .W.2d 406, 410 (Ky .App. 1994) .
Accordingly, this Court's recent decision in Board of Trustees of
Kentucky Retirement Systems v. Bowens is dispositive. In Bowens , we held
that the opinion of a treating physician is not entitled to greater weight than
the opinion of a non-treating physician . Here, Appellee objects to the weight
afforded the opinion of her treating physician that she was disabled . Because
the trial court properly applied the provisions of KRS 61 .600 and because it is
not mandated that the opinion of a treating physician must be afforded greater
weight, the trial court did not err in affirming the decision of KERS. As such,
in accordance with Bowens, we affirm the judgment of the Franklin Circuit
Court.
All sitting . Minton, C.J . ; Cunningham, Noble, Schroder, Scott and
Venters, JJ ., concur. Abramson, J ., concurs in result only.
COUNSEL FOR APPELLANT:
Michael Todd Butler
Jennifer A. Jones
Leigh Ann Jordan
Katherine l . Rupinen
Brian C . Thomas
James Eric Wampler
Kentucky Retirement Systems
Perimeter Park West
1260 Louisville Road
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Donald Duff
212 Washington Street
P.O . Box 1160
Frankfort, KY 40602-1160
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2007-SC-000604-DG
BOARD OF TRUSTEES OF
KENTUCKY RETIREMENT SYSTEMS
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-001808-MR
FRANKLIN CIRCUIT COURT NO . 05-CI-00867
V.
CAROLYN LEDFORD
APPELLEE
ORDER DENYING PETITION FOR REHEARING
AND
MODIFYING OPINION ON THE COURT'S OWN MOTION
The petition for rehearing filed by appellee, Carolyn Ledford, is hereby
DENIED .
On the Court's own motion, this Court hereby modifies the opinion
rendered on April 23, 2009 by editing party designation throughout . The
attached unpublished opinion substitutes in full for the previously rendered
opinion . Said modification does not affect the holding.
All sitting. All concur.
Entered : August 27, 2009 .
CHIEF JUSTICE
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