Opinion
NO. 2013-CA-000441-MR
06-20-2014
DIANE BUSH APPELLANT v. KENTUCKY RETIREMENT SYSTEMS APPELLEE
BRIEF FOR APPELLANT: Edmond Collett Asher, Kentucky BRIEF FOR APPELLEE: Jennifer A. Steele Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 11-CI-00902
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE: Diane Bush appeals from the denial of disability retirement benefits by Kentucky Retirement Systems as affirmed by the Franklin Circuit Court.
Bush was employed by the Commonwealth for more than seventeen years, most recently as an Office Support Assistant II for the Cabinet for Health and Family Services. The last day Bush worked was June 13, 2007, when she suffered an acute lumbar sprain while working. Her last day of paid employment was December 31, 2007.
On February 1, 2009, Bush filed an application for disability retirement benefits pursuant to KRS 61.600. She claimed she was disabled due to degenerative disc disease, fibromyalgia, bone spurs of the neck and spine, carpal tunnel syndrome, osteoarthritis and depression/anxiety. She claimed she could not perform her essential job duties because she was unable to bend or squat, sit over twenty minutes at a time, her hands and arms hurt and suffered spasms when she used them, and her medication caused drowsiness, fatigue and nausea.
After Bush's application was denied by the Kentucky Retirement Systems medical review board, she petitioned for a hearing. The hearing officer made the following factual findings: (1) Bush's position was best described as sedentary to light work; (2) reasonable accommodation was not requested; and (3) Bush failed to show through medical evidence that as of the last day of her paid employment and for a period of not less than twelve months afterwards, that her conditions prevented her from performing her job. In making this final finding, the hearing officer relied on the following evidence: MRIs revealed Bush had disc degeneration but the cord signal was normal. The medical review board doctors, Drs. Ballard, Sheridan and Shraeberg, concluded Bush could return to her previous position. Treating physician Dr. Dansereau intended to return Bush to light duty prior to her last day of paid employment. The earliest records of Bush's depression were after her last day of paid employment and there was no evidence as to her mental status prior to that time.
The hearing officer rejected Dr. Patel's and Dr. Cornett's opinions that Bush was permanently incapacitated. The hearing officer rejected Dr. Patel's opinion as to Bush's incapacity due to mental health because the global assessment of functioning score he assigned to Bush was inconsistent with other physicians' assessments of her functioning as noted by Dr. Shraeberg. The hearing officer determined Dr. Cornett's opinion of incapacity appeared to be based on subjective complaints received from Bush after Dr. Dansereau released her to return to work.
Accordingly, the hearing officer made the following legal conclusion:
[Bush] has failed to prove by a preponderance of objective medical evidence that [her] conditions or the cumulative effect of these conditions, mentally or physically incapacitated her on a permanent basis since or from her last day of paid employment. This finding is made with the consideration of the evidence of [Bush's] residual functional capacity and the physical exertion requirements of her last job, as accommodated, or a job of like duties.
Bush failed to file exceptions. The Kentucky Retirement Systems' Board of Trustees adopted the hearing officer's recommended order. Bush filed a petition for review before the Franklin Circuit Court, which affirmed.
The Board modified the recommended order to correct a typographical error.
Bush appeals arguing the Board's findings were not supported by substantial evidence because the evidence establishes that she is permanently disabled due to degenerative disc disease and her mental condition based upon the opinions of Dr. Patel and Dr. Cornett. We affirm.
Bush bore the burden of proof of establishing her entitlement to disability retirement benefits. McManus v. Kentucky Ret. Sys., 124 S.W.3d 454, 458 (Ky.App. 2003); KRS 13B.090(7). Therefore, pursuant to KRS 61.600(3), Bush had to establish by objective medical evidence that since her last day of paid employment she was permanently mentally or physically incapacitated as a result of bodily injury, mental illness or disease from performing her job with any reasonable accommodation.
"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, 124 S.W.3d at 458. In weighing the substantiality of the evidence, we will defer to the administrative fact-finder's credibility determinations and will not substitute our judgment for that of the fact-finder unless it was arbitrary and capricious. Id.; Bowling v. Natural Res. & Envtl. Prot. Cabinet, 891 S.W.2d 406, 409-410 (Ky.App. 1994).
To preserve issues for judicial review, the party aggrieved by the hearing officer's decision must file exceptions. Rapier v. Philpot, 130 S.W.3d 560, 563 (Ky. 2004); KRS 13B.110(4); KRS 13B.120(1).
Under Kentucky law, this rule of preservation precludes judicial review of any part of the recommended order not excepted to and adopted in the final order. Thus, when a party fails to file exceptions, the issues the party can raise on judicial review under KRS 13B.140 are limited to those findings and conclusions contained in the agencyRapier, 130 S.W.3d at 563-564 (internal citation omitted). Here, the final order of the Board did not differ from the hearing officer's recommended order and, therefore, there were no issues preserved for review.
head's final order that differ from those contained in the hearing officer's recommended order.
Had issues been preserved for review, we determine the adopted factual findings were reasonable and supported the legal determination that Bush did not meet her burden of establishing she was incapacitated from performing her job. Although Bush was able to establish the existence of some impairment to her physical capacity to perform certain tasks because of her degenerative disc disease, her medical records showed this was a chronic condition that had not previously prevented her from working and she recovered from the work injury to her back before she sought disability retirement benefits. There was objective medical evidence from the majority of the physicians that Bush was fit to resume her duties with reasonable accommodation.
Accordingly, we affirm the Franklin Circuit Court's opinion and order affirming the Board's decision denying Bush disability retirement benefits.
ALL CONCUR. BRIEF FOR APPELLANT: Edmond Collett
Asher, Kentucky
BRIEF FOR APPELLEE: Jennifer A. Steele
Frankfort, Kentucky