Opinion
NO. 2017-CA-000317-MR
05-04-2018
LORNA CASSADY APPELLANT v. KENTUCKY RETIREMENT SYSTEMS APPELLEE
BRIEF FOR APPELLANT: Leonard Joseph Stayton Inez, Kentucky BRIEF FOR APPELLEE: Leigh A. Jordan Davis Kentucky Retirement Systems Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 13-CI-00146 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. COMBS, JUDGE: Appellant, Lorna Cassady (Lorna), appeals from an Opinion and Order of the Franklin Circuit Court affirming the denial of her application for disability retirement benefits after the case returned to a KERS Hearing Officer on remand. After our review, we affirm.
We shall first revisit this Court's Opinion in Lorna's prior appeal, Cassady v. Kentucky Retirement Systems, 2011-CA-000451-MR, 2012 WL 1365968 (Ky. App. Apr. 20, 2012), which has established the law of the case. "The law-of-the-case doctrine is a rule under which an appellate court, on a subsequent appeal, is bound by a prior decision on a former appeal in the same court and applies to the determination of questions of law ...." Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982).
In relevant part, Cassady set forth as follows:
Lorna was born on December 19, 1952. She was last employed ... as a social services specialist with the Cabinet for Health and Family Services ....
On February 1, 2005, Lorna filed an application for disability retirement benefits alleging that she was disabled as a result of ... a work-related heart attack in October 1992 and heart surgery in November 2004; bulging discs as a result of a 2002 work-related injury; and functional scoliosis with degenerative disc disease. Subsequently, she submitted medical records relating to her mental health and diagnosis of breast cancer.
....
In pursuit of her claim for duty-related disability retirement benefits, Lorna relies on KRS[] 61.621, the Fred Capps Memorial Act, enacted in June 20 00. ...
....
The hearing officer found that Lorna's heart condition occurred prior to the effective date of the statute and that her work-related back injury did not result in a total and permanent disability as defined in the statute. On this point, we agree.
....
Because the statute requires a "single traumatic event" that occurred after June 1, 2000, and caused a permanent total functional disability, we conclude there was no error.
We turn to Lorna's contention that she is entitled to disability retirement benefits pursuant to KRS 61.600. To be entitled to benefits, Lorna was required to present objective medical evidence that, since the last date of paid employment, she has been mentally or physically incapacitated to perform her duties as a social services specialist because of injury, mental illness, or disease and that her incapacity is permanent. KRS 61.600(3).
Lorna contends that her work was improperly classified as sedentary to light. We disagree. ...
....
There was substantial evidence in the record to support the classification assigned.
[I]n contrast to KRS 61.621, KRS 61.600 does not require that a single work-related traumatic event cause a permanent disability. In Bowens,[] decided after the KERS's order in this case, the Supreme Court interpreted KRS 61.600 and adopted the "cumulative effect" rule enunciated in Dillon v. Celebrezze, 345 F.2d 753, 757 (4th Cir.1965).
....
In this case, the hearing officer addressed each of Lorna's conditions separately and did not analyze the cumulative affect [sic] of her combined conditions. Although the hearing officer and the KERS did not have the benefit of the Bowens decision when Lorna's case was decided, the KERS "exceeded the constraints of its statutory powers and arbitrarily denied" Lorna's disability claim. Id.
For the foregoing reasons, the Opinion and Order of the Franklin Circuit Court is reversed and the case remanded to the KERS for further review of the evidence under the "cumulative effect" standard.Id. at *1-6.
Kentucky Revised Statutes.
Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776 (Ky. 2009). --------
On November 16, 2012, the Hearing Officer rendered detailed Findings of Fact, Conclusions of Law, and Recommended Order on Remand. After summarizing Lorna's testimony, the Hearing Officer explained that she had recounted it at length: " to demonstrate the degree to which she embellished or magnified symptoms , and her many inconsistencies. " (Emphasis original). In addition, Lorna's " appearance and conduct at the hearing ... was [sic] totally inconsistent with the majority of her claimed limitations , such as understanding and remembering short , simple instructions and interacting appropriately with the public . " (Emphasis original). The Hearing Officer found that Lorna's subjective complaints of pain were not reliable and that her descriptions were suspect.
The Hearing Officer also found that there was no documentation or testing to support the "possible" finding of organic brain syndrome made by Lorna's treating psychologist, Dr. Williams; further, that on September 26, 2006, Dr. Traylor had found Lorna to be "'normal - no insomnia, depression, mania or mood swings.'"
The Hearing Officer found no "reliable evidence" that Lorna was permanently disabled due to her mental health. In January 2004, Dr. Granacher examined Lorna and concluded that she had the mental capacity to engage in any work for which she was qualified and that she did not require any psychiatric restrictions placed upon her job performance.
The Hearing Officer found that the objective evidence failed to demonstrate that Lorna was permanently disabled due to breast cancer and that her reports regarding her condition and treatment were unreliable. For example, medical records categorized her lymphedema as moderate or slight. But Lorna characterized it as being so severe that it could result in the loss of her arm.
On remand, the Hearing Officer performed a cumulative-effect analysis in accordance with this Court's direction and found as follows:
10. Claimant's application for disability, which is based upon multiple conditions, specifically related to her heart, back, mental health, and breast cancer, are not disabling when considering their cumulative effect. There, in fact, is no established cumulative effect found in the objective evidence. Claimant successfully returned to work following her open heart surgery and after her back injury. There is no evidence to establish that these conditions prevented her from performing the duties of her job. Dr. Granacher who was fully informed as to Claimant's medical conditions as they existed in January 2004, did not believe Claimant required psychiatric restrictions placed on her job performance, and felt she had the mental capacity to engage in any work [that she was] trained, educated or experienced to perform. In September 2006 Claimant was found [by Dr. Traynor to] be normal with no insomnia, depression, mania or mood swings. There is no evidence that Claimant's breast cancer was disabling individually or cumulatively, as there can be no cumulative effect with her conditions related
to her heart, back or mental health. The objective medical evidence fails to demonstrate by a preponderance of that Claimant's multiple conditions, especially when considered in light of her sedentary to light work requirements, were permanently disabling.(Emphasis original).
16.[sic] Claimant has failed to demonstrated [sic] by a preponderance of the objective medical evidence that the cumulative effect of her multiple conditions mentally or physically incapacitated her on a permanent basis since or from her last day of paid employment. This finding of fact is made with consideration of evidence of the Claimant's residual functional capacity and the physical exertion requirements of her job ....
The Hearing Officer recommended that Lorna's application for disability retirement benefits be denied, and that recommendation was adopted by Final Order of the Disability Appeals Committee of the Board of Trustees of Kentucky Retirement Systems dated January 24, 2013.
Lorna appealed to the Franklin Circuit Court, which affirmed the KERS Board by Opinion and Order rendered on February 8, 2017. Citing McManus v. Kentucky Retirement Systems, 124 S.W. 454 (Ky. 2003), the court explained that "where the Board finds against an applicant for benefits, judicial review must address whether the evidence in the applicant's favor was so overwhelming as to compel a finding in her favor." The court discussed the cumulative-effects analysis:
Applying the cumulative effects analysis on remand, the hearing officer found that the objective medical evidence failed to demonstrate that [Lorna's]
multiple conditions were permanently disabling. The hearing officer determined that [Lorna's] appearance and conduct was [sic] inconsistent with her claimed injuries. The hearing officer stated that there was no established cumulative effect found in the objective medical evidence, citing that [Lorna] successfully returned to work after her heart surgery and back injury. ...[and] also cited Dr. Granacher's determination that [Lorna] was psychologically sound. This evidence was further supported by another determination in September 2006, finding that [Lorna] was normal with no insomnia, depression, mania or mood swings. After weighing the evidence, the hearing officer determined that [Lorna's] breast cancer, heart, back and mental health were not disabling, individually or cumulative.
The court correctly explained that its role was to review the evidence, not re-weigh it. "While this Court may not have reached the same conclusion as the Agency did, there is sufficient evidence in the record to provide a basis for its decision."
Lorna has again appealed. In Kentucky Retirement Systems v. Wimberly, 495 S.W.3d 141, 148 (Ky. 2016), our Supreme Court explained that:
As fact finder, KERS is afforded great deference with regard to "'its evaluation of the evidence heard and the credibility of witnesses ...' including its findings and conclusions of fact." Kentucky Retirement Systems v. Brown, 336 S.W.3d 8, 14 (Ky. 2011)(citing Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972)). When KERS denies a claim, the party seeking benefits must establish on appeal that the evidence was "so compelling that no reasonable person could have failed to be persuaded by it." Brown, 336 S.W.3d at 14-15 (citing McManus v. Kentucky Retirement Systems, 124 S.W.3d 454 (Ky. App. 2003)).
On appeal, Lorna first contends that the Hearing Officer erred in relying upon Dr. Granacher rather than Dr. Williams, her treating psychologist. She essentially re-argues her case. In Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776 (Ky. 2009), our Supreme Court held that treating physicians' opinions are not entitled to greater weight. Moreover, "[t]he trier of facts in an administrative agency may consider all the evidence and choose the evidence that he believes." Id. at 784 (citation and internal quotation marks omitted). As was her prerogative, the Hearing Officer believed Dr. Granacher and Dr. Traylor.
Next, Lorna contends that the Kentucky Retirement Systems, as affirmed by the circuit court, erred by failing to properly consider the cumulative effect of Lorna's multiple ailments. We disagree. The Hearing Officer performed a cumulative-effect analysis on remand as directed by this Court and as discussed by the circuit court. Lorna's attempt to analogize her case to Bowens ignores a crucial distinction. As the Retirement Systems points out, the Hearing Officer did not find Lorna to be a credible witness. We can find no error in this permissible exercise of discretion.
Lorna also contends that Kentucky Retirement Systems erred in finding that she was not entitled to benefits under KRS 61.621, the Fred Capps Memorial Act. That issue was decided in Lorna's first appeal and thus has become the law of the case. We are bound by it. Inman v. Inman, 648 S.W.2d 847.
We affirm the February 8, 2017, Opinion and Order of the Franklin Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Leonard Joseph Stayton
Inez, Kentucky BRIEF FOR APPELLEE: Leigh A. Jordan Davis
Kentucky Retirement Systems
Frankfort, Kentucky