Opinion
NO. 2013-CA-000467-MR
02-28-2014
JEFFREY BROOKS APPELLANT v. BOARD OF TRUSTEES OF THE KENTUCKY RETIREMENT SYSTEMS APPELLEE
BRIEFS FOR APPELLANT: Lee Taylor Smith Louisville, Kentucky BRIEF FOR APPELLEE: Joseph P. Bowman Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 10-CI-01293
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. CAPERTON, JUDGE: The Appellant, Jeffrey Brooks, appeals the February 8, 2013, opinion and order of the Franklin Circuit Court, affirming the May 13, 2010, report and recommended order of the hearing officer, denying disability retirement benefits which Brooks had sought from Appellee, Board of Trustees of the Kentucky Retirement Systems (hereinafter "Systems"). Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
At the time of his application for disability retirement benefits, Brooks was employed as a coach operator by the Transit Authority of River City (TARC), a job which he had held since August of 1997. According to the employee job description, Brooks worked on the "handicap route which included escorting passengers up and down the ramp and across the street." In his brief to this Court, Brooks asserts that his job duties included moving wheelchairs from the street level, up a ramp, and onto the bus, and that he was required to reach, push, and pull repetitively for two-thirds or more of his work day. TARC, however, submitted evidence below to indicate that Brooks would sit for six to seven hours of his eight-hour work day. Brooks states that he was required to lift up to twenty pounds occasionally, and to lift fifty to one hundred pounds or more seldom or rarely.
Brooks states that during the course of his employment as a coach operator, he sustained repeated injuries to his back as a result of a series of four motor vehicle accidents and one incident pushing an elderly passenger in a wheelchair up an icy ramp, all occurring between August of 2003 and February of 2008. The record reflects that Brooks' first work accident was in 2003, that Brooks had back surgery in 2004 after injury to his back at work, and that thereafter he was involved in multiple motor vehicle accidents while driving a bus for TARC.
After those accidents, Brooks always returned to work without accommodations. Most often upon his return to work, Brooks was placed on duty restrictions, although those restrictions were usually lifted, with Brooks being given clearance to return to full duty. Following those injuries, and for the time period from 2003 through 2008, Brooks was evaluated and treated by several physicians, including Dr. Thomas Becherer, Dr. John Guarnaschelli, and Dr. Dean Collis, and also underwent physical therapy, diagnostic imagery, and work capability, assessments and evaluations.
Brooks' medical history and treatment are discussed at length in the May 13, 2010, report and recommended order. For the sake of brevity, specific, pertinent medical findings are discussed herein as necessary.
Brooks' most recent on-the-job accident occurred on February 22, 2008, when he injured his back after slipping on some ice after helping a wheelchair-bound patron onto the mechanical lift platform. Following that accident, Brooks was placed on work restrictions, and then on medical leave. He underwent an MRI on May 7, 2008, which revealed evidence of a disc bulge at LS-5 with facet atrophy, spondylosis, and degenerative disc disease at L5-S1. On June 12, 2008, Brooks' physician placed no restrictions on Brooks' ability to lift up to ten pounds, and found that Brooks could lift eleven to twenty pounds frequently, and twenty-one to fifty pounds occasionally. Brooks' doctor also stated that Brooks could frequently drive a commercial vehicle and pronounced Brooks fully capable of light duty work. Brooks nevertheless remained on medical leave until his last date of paid employment in November 2008.
Brooks alleges that as a result of the aforementioned work-related injuries, he developed debilitating spinal conditions that ultimately rendered him unable to perform his job duties. In his application for disability retirement benefits, Brooks listed his disabling condition as degenerative disc disease and failed back syndrome. Brooks claims an inability to sit for long periods without experiencing pain and numbness, and inability to repetitively perform moderate or heavy lifting or pulling.
Brooks filed an application for standard disability retirement benefits pursuant to Kentucky Revised Statutes (KRS) 61.600 on October 9, 2008. In that application, Brooks listed his disabling condition as degenerative disc disease and failed back syndrome. Brooks asserts that he requested accommodations but that TARC determined there were no reasonable accommodations for the "functional limitations caused by [his] disability." TARC placed Brooks on light duty work restrictions and eventually on medical release from his duties. Brooks remained on medical release until TARC terminated his employment on November 21, 2008. As of that date, Brooks had accrued 120 months of service credit in CERS.
Brooks' application for disability retirement benefits was denied following initial consideration and reconsideration by the Medical Review Board physicians. In issuing the denial, all three Medical Review Board physicians noted the possibility that Brooks' spinal conditions preexisted his 1997 employment date due to an incomplete medical record.
Following that denial, Brooks requested a hearing, which was held on October 27, 2009. On May 12, 2010, the hearing officer issued findings of fact, conclusions of law and a recommendation that disability benefits be denied under KRS 61.600. In so finding, the hearing officer determined that Brooks was capable of driving a commercial vehicle and that there was no objective medical evidence to support Brooks' assertion that leg numbness prevented him from performing his job duties. Finally, the hearing officer found that his conditions were not preexisting.
Subsequently, on July 13, 2010, the Board of Trustees of Kentucky Retirement Systems adopted the hearing officer's recommendation to deny benefits, with the modification that Brooks' job fell into the category of "light" duty work based on his own accounts of lifting requirements and sworn testimony of having a mechanical lift available on the bus to board senior citizens. The Systems further noted that Brooks chose his route, and could have actually returned to a standard TARC route with even fewer lifting requirements if he so desired.
Additionally, the Systems relied upon McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 457-58 (Ky. 2003), in arguing that the burden was upon Brooks to show the absence of a preexisting condition and stated that Brooks' assertion that "he had absolutely no medical records that pre-dated 1997 is highly suspect, given that certain issues diminishing his credibility arose during the hearing." Specifically, it was noted that although Brooks stated on the record that he had no back pain prior to 2003, the Systems produced evidence of multiple work absences attributed to back pain prior to that date. The Systems also found that there had been no substantial aggravation of any preexisting conditions because Brooks returned to his normal job duties after each incident.
On August 12, 2010, Brooks filed a complaint, petition for review, and appeal in the Franklin Circuit Court. An answer was timely filed. More than a year went by and no further action was taken by Brooks to advance his appeal. Accordingly, on November 4, 2011, the Franklin Circuit Court issued a notice to dismiss for lack of prosecution. Appellant subsequently filed a brief and an opinion and order was entered by the circuit court on February 8, 2013. In that opinion and order, the court affirmed the hearing officer's recommendation and the agency's final order denying disability retirement benefits under KRS 61.600.
In making that determination, the court noted that though Brooks alleged that his job required lifting up to fifty pounds, he actually had a mechanical lift on the bus to bring patrons up and down to boarding level. Further the court noted that Brooks voluntarily chose a more strenuous route and could have returned to a less physically demanding route if he desired. The court also noted Brooks' own testimony that the heaviest items he would have to lift with any frequency were five- to ten-pound grocery bags, and stated that the correct classification of his job was "light duty." While recognizing that Brooks was involved in a series of accidents from 2003 through 2008, the court noted that he always returned to work without accommodations and that any duty restrictions were temporary and ultimately terminated. The court also relied upon the fact that even after Brooks' most recent alleged injury in February of 2008, he was ultimately released to lift up to fifty pounds and frequently drive a commercial vehicle. The court found that despite statements from doctors indicating that he could return to work, Brooks remained on medical leave.
Concerning the issue of whether or not there was a preexisting condition, the court found that the final order of the Systems disregarded the hearing officer's finding that Brooks' back condition was not preexisting, and stated that, "In the event it was determined to be a pre-existing condition, there is no question that he has had accidents or injuries arising out of the course of employment that has substantially aggravated any pre-existing back condition." The court went on to state that, "In doing so, the Systems erred as a matter of law in not following the mandate of KRS 61.600(4)(a)." Nevertheless, the court went on to state that:
Notwithstanding the effect of KRS 61.600(4)(a), this Court finds that the Systems' Final Order properly denied Brooks' application for disability retirement benefits because Brooks did not prove by objective medical evidence that he suffers from a permanent disability which prevents him from returning to his job or a job of like duties.February 8, 2013, Opinion and Order of the Franklin Circuit Court, p. 7. It is from that opinion and order that Brooks now appeals to this Court.
Prior to reviewing the arguments of the parties, we note that an appellate court's role in a KRS Chapter 13B appeal is to review the administrative decision, not to reinterpret or reconsider the merits of the claim, nor to substitute our judgment for that of the agency as to the weight of the evidence. 500 Associates, Inc. v. Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121, 131 (Ky. App. 2006). The reviewing court may only overturn the decision of the agency if it determines that the agency acted arbitrarily or outside the scope of its authority, if the agency applied an incorrect rule of law, or if the decision itself is not supported by substantial evidence in the record. Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298 (Ky. 1972). The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. Id. In short, the trier of fact in an administrative agency is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses appearing before it. Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1994). As long as there is substantial evidence in the record to support the agency's finding, the Court must defer to that finding, even if there is evidence to the contrary. Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852 (Ky. 1981). We review this matter with this in mind.
As his first basis for appeal, Brooks argues that his benefits were improperly denied because the Systems final order was not supported by substantial evidence. Brooks argues that the evidence he submitted compels a finding that he suffers from a permanent disability which prevents him from returning to his job or a job of like duties. Brooks specifically takes issue with the finding made by the Systems that his complaints of leg numbness are subjective and not corroborated by objective medical evidence. He argues that a greater number of records than not corroborate his complaints of leg numbness, and asserts that those complaints are bolstered by the fact that he has been diagnosed with foraminal stenosis and lumbar stenosis, both of which are associated with numbness in the lower extremities. Accordingly, Brooks asserts that objective medical evidence supports a finding that he is permanently disabled, and that the court below erred in finding otherwise.
Likewise, Brooks asserts that substantial evidence in the record proves that his permanent disability prevents him from returning to his job or a job of like duties, and that the findings made otherwise by the Systems and the circuit court were not supported by substantial evidence. In support of this argument, Brooks asserts that the final order issued by the Systems contained two errors: First, that Brooks testified that the "sole extent of his lifting" was "occasionally having to assist wheelchair-bound patrons onto the lift," and, secondly, that based on Brooks' testimony at the hearing, he "could easily have returned to a standard TARC route (which involves even less physical effort") at any time. Brooks asserts that, to the contrary, the record clearly reflects that his job description states that he worked on the "handicap route which included escorting [wheelchair-bound] passengers up and down the ramp across the street," and also that he legibly checked the box next to the statement indicating that he was required to use stairs or ramps. Moreover, Brooks asserts that the Systems' finding that he could have chosen a less demanding route was contradicted by its later finding that TARC could not provide reasonable accommodations for the functional limitations caused by Brooks' disability. Accordingly, Brooks argues that he was improperly denied disability retirement benefits due to factually erroneous interpretations of his job requirements and medical records, and that the findings of the court below were not supported by substantial evidence.
As discussed herein, infra, the evidence of record, including Brooks' own testimony, indicates that he could have returned to the less physically demanding route if he so chose. Moreover, and regardless of his testimony to this effect, the record indicates that he did in fact retain the residual functional capacity to perform the physical exertion requirements of the "special" route that he was driving on the last day of paid employment. As noted in the Hearing Officer's finding of fact No. 11, "Dr. Collis, in June of 2008, had set forth the restrictions of lifting up to 50 pounds, but not over 50 pounds." Brooks' essential job duties consisted of sitting eight hours a day, and performing basic lifting of five to ten pounds, and only rarely anything greater. We feel that these findings were supported by objective medical evidence and do not require or compel a finding of disability.
In response, the Systems argues that the decision denying Brooks' request for disability retirement benefits was supported by substantial evidence in the record and, accordingly, urges this Court to affirm. The Systems maintains that the hearing officer comprehensively reviewed and weighed the evidence in the record, and chose which evidence he believed to be most persuasive in making a finding that Brooks failed to prove by objective medical evidence that he suffers from a permanent incapacity which prevents him from returning to his job or a job of like duties, as is required by KRS 61.600.
We note that KRS 61.600(3)(a) requires a claimant to show by objective medical evidence that since his last day of paid employment, he "has been permanently mentally or physically incapacitated to perform the job, or jobs of like duties, from which he received his last paid employment." Below, Brooks' claim centered upon his assertion that he was incapacitated by leg numbness. While Brooks correctly asserts that there was evidence in the record to support a claim of leg numbness, there was also evidence consisting of objective observation and testing that did not corroborate those complaints, including reports from Dr. Becherer, evaluations from Louisville Physical Therapy, and other records. Indeed, at the time of the disability hearing, Brooks was not receiving treatment for any medical condition, was not taking prescription medications for any medical condition, and was not under the care of a medical professional for any alleged disability nor did he require the use of any orthopedic devise to assist in ambulation as a result of leg numbness. Further, the record indicates that after each accident from 2003 through 2008, Brooks was capable of returning to full, unrestricted duty.
Moreover, upon review of the record, including Brooks' job description and his own testimony, we are in agreement with the findings of the Systems and the court below that Brooks' job was appropriately classified as "light" duty and that the physical requirements of the job were well within the capabilities he was determined to have as evidenced by objective findings in his medical records. The evidence of record shows that Brooks had the residual functional capacity to perform his job, or a job of like duties, because he could lift the necessary weight, sit for the time required, and push the occasional wheelchair on or off the mechanical lift for boarding.
Ultimately, once there has been a determination that an agency's decision is supported by substantial evidence, the concluding inquiry on judicial review is whether the agency decision also represented a correct application of the law. See Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins. Comm'n, 437 S.W.2d 775, 778 (Ky. 1969). Below, though the circuit court disagreed with the initial agency decision regarding the existence of a preexisting condition, it nevertheless found no error in the agency's application of law in making the final determination that Brooks was not entitled to disability retirement benefits under KRS 61.600.
In its brief to this Court, the Appellee continues to assert its disagreement with the initial agency decision regarding the presence of a preexisting back condition. Having found that the order of the court below is based upon substantial evidence and can be affirmed regardless of its determination on this particular issue, we decline to address this matter further herein.
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While Brooks now argues that the hearing officer, agency, and circuit court misapplied the law in failing to review the entire record regarding his job duties and the medical evidence, we disagree. A review of the hearing officer's twenty-page findings of fact, conclusions of law, and recommendation indicates evaluation of diagnostic imaging, medical records from multiple medical professionals and specialists, residual capacity evaluations, restrictions, and physical therapy evaluations. We believe the review by the agency was thorough and comprehensive, and we decline to reweigh the evidence on appeal.
Wherefore, for the foregoing reasons, we hereby affirm the February 8, 2013, opinion and order of the Franklin Circuit Court, the Honorable Thomas D. Wingate, presiding.
ALL CONCUR. BRIEFS FOR APPELLANT: Lee Taylor Smith
Louisville, Kentucky
BRIEF FOR APPELLEE: Joseph P. Bowman
Frankfort, Kentucky