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Allen v. Ky. Retirement Systems

Court of Appeals of Kentucky
Apr 23, 2010
No. 2009-CA-000729-MR (Ky. Ct. App. Apr. 23, 2010)

Opinion

No. 2009-CA-000729-MR.

Rendered April 23, 2010. NOT TO BE PUBLISHED

Appeal from Franklin Circuit Court, Honorable Thomas D. Wingate, Judge, Action No. 08-CI-01247.

Timothy J. Salansky, Louisville, Kentucky, Briefs for Appellant.

Jennifer A. Jones, Frankfort, Kentucky, Brief for Appellee.

Before: CLAYTON and NICKELL, Judges; KNOPF, Senior Judge.

Senior Judge William L. Knopf 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.


OPINION


Marslene Allen appeals the March 20, 2009, opinion and order of the Franklin Circuit Court affirming a prior decision of the Board of Trustees (Board) of the Kentucky Retirement Systems (KERS). That July 16, 2008, decision of the Board denied Allen's claim for disability retirement benefits. Because we hold that the trial court did not err in its decision to affirm the Board's decision to deny benefits, we affirm.

Allen was employed by the Jefferson County Public Schools (JCPS) from January 1997 through October 2006 as a full-time bus monitor. During that time, she accrued 75 months of service credit in the County Employees Retirement System (CERS). At some time, Allen began experiencing pain in her low back and leg. In 2001, Allen was assessed with acute lumbo-sacral sprain with musculo-skeletal spasm. In 2004, Allen underwent an MRI which indicated a small, left-sided disc herniation. Also in 2004, Allen underwent back surgery. Allen participated in physical therapy and was eventually released for lack of progress. She continued to experience pain in her back, and in 2007, she had another MRI, the results of which documented straightening of the lumbar lordosis and a disc protrusion. Another doctor's report indicated that she had a disc herniation with radicular symptoms in both the left and right legs. Allen has also been diagnosed with a depressive disorder.

Allen was not eligible to earn service for every month of her employment.

Although we know that Allen began requesting medical leave for her symptoms in 2004, it is unclear exactly when Allen's symptoms began.

On April 19, 2006, Allen filed for disability retirement benefits. Her claim was denied by KERS's medical examiners, who concluded that her condition was the result of a condition that pre-existed her membership in the retirement system. She subsequently requested an administrative hearing. An evidentiary hearing was held, and on April 3, 2008, the hearing officer submitted a report and recommended order, recommending that Allen's application be denied. In support of his recommendation, the hearing officer found that Allen failed to show, by a preponderance of the evidence, that she suffered from an incapacitating condition and that her diagnostic tests showed mainly subjective complaints. The hearing officer also found that the evidence strongly suggested that at least a portion of Allen's condition pre-existed her membership in KERS.

Allen filed exceptions to the hearing officer's findings of fact, conclusions of law, and recommended order. On July 16, 2008, the Board issued a final order adopting the hearing officer's recommended order and ultimately denied Allen's application for benefits. Allen then appealed the Board's decision to the Franklin Circuit Court, pursuant to KRS 61.645(14) and (16), and KRS 61.665(5). On March 20, 2009, the Franklin Circuit Court affirmed the decision of the Board. This appeal followed.

Employees may qualify for disability retirement benefits if they meet certain conditions, as specified by KRS 61.600. Among these conditions are the following:

Upon the 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. 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.

KRS 61.600(3).

The standard of review for appeals of the Board's decision regarding disability benefits is as follows:

When the decision of the fact-finder is in favor of the party with the burden of proof or persuasion, the issue on appeal is whether the agency's decision is supported by substantial evidence, which is defined as evidence of substance and consequence when taken alone or in light of all the evidence that is sufficient to induce conviction in the minds of reasonable people. 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.

McManus v. Kentucky Ret. Sys., 124 S.W.3d 454, 458 (Ky. App. 2004) (citations omitted). Because Allen was the party seeking a grant of benefits, she carried the burden of proving, by a preponderance of the evidence, that she was entitled to such benefits. See Id. at 457.

Allen first argues that the Board's finding that she was not totally and permanently disabled is not supported by substantial evidence. However, as noted above, this is not our standard of review. Instead, our task is to determine whether the evidence in Allen's favor was so compelling that no reasonable person could have failed to be persuaded by it. Id. at 458.

In support of its decision to affirm the Board's decision, the trial court noted that the Board based its decision upon diagnostic tests as well as reports of doctors' examinations. The trial court correctly points out that the majority of the medical records which comprise Allen's evidence document only subjective complaints of pain without actual findings of a permanent disability, by either diagnostic machines or treating physicians. As the trial court also pointed out, the medical reports do not contain a finding of physical or neurological dysfunction; doctor-ordered work restrictions appeared to be temporary; and there was no indication that Allen's doctors expected any of her medical conditions to be totally and permanently disabling. Furthermore, the trial court properly noted that Allen failed to support a conclusion of disabling depression with any medical records. After reviewing the record, we find no error with the trial court's findings. Allen failed to offer evidence so compelling that no reasonable person could have failed to be persuaded by it and thus failed to meet her burden of persuasion. We therefore hold that the trial court's conclusion that the Board's decision to deny Allen benefits, based on a lack of evidence supporting total and permanent disability, was appropriate.

Allen's second argument is that the Board's finding that she had a preexisting condition is mere speculation and is not supported by substantial evidence. Failure of a claimant to prove just one condition of KRS 61.600(3) is a sufficient reason to deny his or her claim for benefits. Although we have already held Allen's claim to be properly denied, due to her failure to prove total and permanent disability, we will nonetheless address this second argument.

We first reiterate that it was Allen who carried the burden of proof. See McManus, 124 S.W.3d at 457. Therefore, her burden was to prove by a preponderance of the evidence that her condition was not pre-existing. See KRS 61.600(3)(d). Allen failed to provide any medical records that predated her membership with CERS and thus failed to provide direct medical evidence that her condition was not pre-existing. Accordingly she failed to satisfy the evidentiary requirements of the statute and likewise failed to meet her burden of proof. Consequently we conclude that she failed to offer evidence so compelling that no reasonable person could have failed to be persuaded by it and that the trial court was correct in affirming the Board's decision to withhold benefits based on this issue.

For the foregoing reasons, the March 20, 2009, opinion and order of the Franklin Circuit Court is hereby affirmed.

ALL CONCUR.


Summaries of

Allen v. Ky. Retirement Systems

Court of Appeals of Kentucky
Apr 23, 2010
No. 2009-CA-000729-MR (Ky. Ct. App. Apr. 23, 2010)
Case details for

Allen v. Ky. Retirement Systems

Case Details

Full title:Marslene ALLEN, Appellant v. KENTUCKY RETIREMENT SYSTEMS, Appellee

Court:Court of Appeals of Kentucky

Date published: Apr 23, 2010

Citations

No. 2009-CA-000729-MR (Ky. Ct. App. Apr. 23, 2010)