Opinion
NO. 2015-CA-000437-MR
01-29-2016
KENTUCKY RETIREMENT SYSTEMS APPELLANT v. JAMIE HARRIS APPELLEE
BRIEF FOR APPELLANT: Katherine Rupinen Frankfort, Kentucky BRIEF FOR APPELLEE: C. Phillip Wheeler, Jr. Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP SHEPHERD, JUDGE
ACTION NO. 10-CI-00279 OPINION
REVERSING BEFORE: KRAMER, TAYLOR, AND THOMPSON, JUDGES. KRAMER, JUDGE: At issue is whether the Franklin Circuit Court erred in reversing the final order of the Board of Trustees of the Kentucky Retirement Systems denying Appellee Jamie Harris's application for disability retirement benefits. Upon review, we reverse the circuit court.
The central issues and factual and procedural history of this matter are largely addressed in the Board's aforementioned final order. In relevant part, it provides:
The claimant Jamie Harris was a Student Affairs Assistant II for the Kentucky Community and Technical College System (KCTCS). She is years 56 [sic] old and has 164 months of service credit in the Kentucky Employees Retirement System (KERS).[ ] She filed for disability retirement benefits under KRS 61.600 on December 3, 2007 and alleged disability due to the following conditions: fibromyalgia, clinical depression, carpal tunnel syndrome, and anxiety disorder. The Medical Review Board unanimously denied her application two (2) times. Ms. Harris initiated the appeals process after the second denial.
The Board does not dispute that [Harris] was diagnosed with fibromyalgia in 1994. The Board, however, does fail to find any objective evidence in the record that proves claimant is disabled from performing the job of Student Affairs Assistant by fibromyalgia. Claimant's extensive treatment notes from her psychiatric hospitalizations mention in passing that she has been diagnosed with fibromyalgia but do not address any specific physical limitations imposed [by] this condition. (A.R. pp 19-371) Claimant later submitted a testimonial letter from Dr. Samuel J. King stating his opinion that [Harris] is disabled due to depression/anxiety and fibromyalgia combined and an informational brochure on fibromyalgia that is not specific to the claimant's case. (A.R. pp 389-395) Claimant's personal physician's judgment and general educational materials do not meet the definition of objective medical evidence set forth by KRS 61.510(33).
And, even if the Board were to classify Dr. King's statement as objective evidence, note that he never found the claimant to be disabled by fibromyalgia alone. (A.R.
pp 391-392) He based his opinion on the co-existing conditions of fibromyalgia and depression/anxiety combined, and, as noted in depth below, the psychiatric component is pre-existing, and, thus, barred by statute. Absent any objective documentation of impairment, the Board agrees with the two unanimous Medical Review Board determinations that [Harris] is not disabled by fibromyalgia.
[Harris] submitted absolutely no objective evidence pertaining to her alleged carpal tunnel syndrome. Therefore, the Board again agrees with the two unanimous Medical Review Board determinations. Claimant is not disabled by carpal tunnel syndrome.
As to the psychological component of this case, Dr. McElwain properly raised the possibility of the pre-existing exclusion when he read the statement "patient reports she has struggled with depression all her life" on her admission form for the Ridge, an in-patient psychiatric treatment facility. (A.R. p53) Thorough examination of the record reveals additional statements that suggest the presence of a pre-existing condition. The claimant's 2007 treatment plan from the Ridge notes that [Harris] has a "long history of illness and not opening up to others." (A.R. p86) The discharge summary from her 2004 hospitalization at the Ridge noted that [Harris] used to see a Dr. Charles Johnson who repeatedly tried to prescribe antidepressants which she refused. (A.R. p152) Claimant submitted no records from a Dr. Charles Johnson. This same discharge summary also noted a history of bipolar disorder in the claimant's immediate family, with two confirmed diagnoses, and one suspected. (A.R. p. 153) Finally, progress reports from claimant's 2004 stay at the Ridge twice record that [Harris] stated her intention to follow up with her "regular therapist, Lynn Weddle, ARNP" at St. Joseph's after discharge. (A.R. pp212-213) If claimant had a regular therapist prior to her 2004 hospitalization, these treatment notes would have been highly relevant to her application. However, [Harris] never once mentioned Ms. Weddle, nor did she submit any records from St. Joseph's or a Lynn Weddle, ARNP.
Once the issue is raised, the claimant bears the burden of proving by a preponderance of the evidence that her psychological conditions did not pre-exist her membership in Systems. McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2004); KRS 13B.090. The obvious way to do this is to provide medical records that predate record Systems membership. However, the administrative record in this case does not contain any medical reports dated prior to the claimant's membership date of 1994. The earliest pertinent record submitted is dated December 31, 2001 and notes that [Harris] has depression/anxiety and is continuing Effexor XR 75. (A.R. pp 347-348)
[Harris] maintains that she refuted the possibility of pre-existing conditions through her hearing testimony. (see Claimant's Reply p3) However, a claimant's testimony is purely subjective evidence. [Harris] further maintains that it is unreasonable to expect her to produce medical records that do not exist. However, what may be more unreasonable is the assertion that a 56 year old woman, with alleged physical issues like migranes, cervical disc surgery, thyroid disorder, hysterectomy, insomnia, GERD, carpal tunnel syndrome, etc. did not generate any medical records whatsoever prior to 1994. General practitioners, specialists, urgent treatment centers, and emergency rooms all usually obtain at least a cursory health history that might elicit some mention of demeanor, mood, past psychological diagnoses/problems, past medications, etc. Production of even just a few pre-1994 health records that contain no mention of such issues would have allowed the claimant to reasonably assert that she had disproved the pre-existing allegation.
The argument that earlier records do not exist is simply not believable, especially in light of the questions raised by the administrative record above. Therefore, the failure to produce pre-membership medical records, even after the pre-existing issue was raised and communicated to her, can only lead one to assume that these records would indeed reveal that depression and/or its precursors were present prior to Ms. Harris's membership date.
[Harris] may be disabled by depression and/or anxiety. However, she has less than sixteen (16) years of service credit and has substantially failed to meet her burden of proving by a preponderance of the evidence that these conditions did not predate her employment.
FINDINGS OF FACT
1. [Harris] timely applied for disability retirement benefits pursuant to KRS 61.600 on December 3, 2007.
2. [Harris] has 164 months of KERS membership.
3. [Harris's] job is properly classified as sedentary to light in nature.
4. Reasonable accommodations were requested.
5. The objective medical evidence does not establish by a preponderance of the evidence that [Harris] is totally and permanently disabled by reason of any physical condition, or by the cumulative effects of any physical conditions, nor that she is likely to remain so disabled for a period of not less than 12 months from her last date of paid employment.
6. The objective medical evidence does establish by a preponderance of the evidence that [Harris] is totally and permanently disabled by reason of a mental health condition and that she is likely to remain so for a period of not less than 12 months from her last date of paid employment.
7. [Harris] has failed to establish by a preponderance of the evidence that her mental health condition did not pre-exist her membership in the retirement system.
CONCLUSION OF LAW
The claimant Jamie Harris is not entitled to disability retirement benefits pursuant to KRS 61.600.
The Board referred to the Kentucky Retirement Systems as "KERS." To prevent confusion, we will do so as well.
Additionally, the Board's final order rejected a prior recommended order of a KERS hearing officer which would have granted benefits to Harris, but solely on the basis of Harris's mental illness (i.e., depression).
Harris filed an original action in Franklin Circuit Court appealing the Board's decision, and the circuit court reversed. The circuit court's reasoning for reversing the Board (which Harris has adopted in her appellee brief) can be summarized as follows: (1) the Board has authority to reject its hearing officer's recommended order only if its decision to do so is not arbitrary and capricious; (2) the Board's decision to reject its hearing officer's recommended order was arbitrary and capricious because the Board's final opinion failed to cite substantial evidence proving that Harris's depression was a pre-existing condition; and (3) the evidence of record supports that Harris was totally disabled and entitled to benefits based upon her depression, or alternatively based upon her diagnosis of fibromyalgia.
KERS now appeals, arguing that the circuit court's decision to reverse the Board was the product of legal misinterpretation and impermissible re-weighing of the evidence. We agree.
To begin, the circuit court cited no authority in support of its conclusion that the Board can only reject its hearing officer's recommended order so long as its decision to do so is not arbitrary and capricious. This is unsurprising because no such authority exists. Chapter 13B of the Kentucky Revised Statutes governs administrative hearings before state agencies such as KERS. KRS 13B.110 authorizes a hearing officer to draft a recommended order which contains findings of fact, conclusions of law and a recommended disposition of the matter. According to KRS 13B.120(2), however, the head of an agency (e.g., the Board) is the ultimate fact-finder. To that end, the Board is not bound to accept its hearing officer's recommended order or otherwise accord it any form of deference; it is merely required to include in its final order its own separate findings of fact and conclusions of law to the extent that its decision differs. KRS 13B.120(3). The Board did so here, and nothing more was required.
The circuit court likewise erred in concluding that the Board was required to cite substantial evidence proving Harris's depression was a pre-existing condition. In administrative proceedings, the claimant bears the burden of proving entitlement to a benefit by a preponderance of the evidence, and the claimant likewise carries the risk of non-persuasion. See KRS 13B.090(7). 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 not whether the fact-finder's denial is supported by substantial evidence; rather, "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 v. Kentucky Ret. Sys., 124 S.W.3d 454, 458 (Ky. App. 2003).
Thus, because Harris initiated administrative proceedings to secure benefits under KRS 61.600, Harris (the claimant) had the burden of proving—and persuading the Board (the fact-finder)—not only that she had a disabling condition, but that her disabling condition did not exist at the time she became a member of KERS. KERS had no reciprocal obligation to disprove either of those points, present any evidence in rebuttal, or otherwise challenge evidence Harris presented which it deemed unconvincing. Kentucky Retirement Systems v. West, 413 S.W.3d 578, 581 (Ky. 2013). Accordingly, it is irrelevant whether (as the circuit court concluded in the third prong of its reasoning) evidence of record supported that Harris was disabled due to either depression or her diagnosis of fibromyalgia, or whether evidence supported that her depression was not a pre-existing condition. The dispositive issue on review is whether that evidence was "so compelling that no reasonable person could have failed to be persuaded by it." McManus, 124 S.W.3d at 458.
In relevant part, KRS 61.600 provides: . . . . (3) 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. For purposes of this subsection, reemployment shall not mean a change of employment between employers participating in the retirement systems administered by the Kentucky Retirement Systems with no loss of service credit.
With that said, the first grouping of evidence cited by the circuit court in this regard was a series of annual performance reviews Harris's former employer conducted to assess the quality of her work. These reviews range from 1994 to 2007. While her reviews from 2006 and 2007 note "Jamie continues to work on her absences" or provide comments of similar effect (a point the circuit court focused upon to support its conclusion that Harris's ability to work was critically declining due to depression and fibromyalgia), all of Harris's reviews undercut the notion that Harris was disabled because they each indicate she consistently satisfied her employer's expectations. Moreover, these reviews are of no probative value, and should not have been considered in ascertaining whether Harris had a disability qualifying her for benefits under KRS 61.600, because these employment reviews do not constitute the "objective medical evidence" necessary to support a determination of disability.
As noted, KRS 61.600(3) requires the existence of a qualifying disability to be supported by "objective medical evidence." That term is further defined in KRS 61.510(33) as:
[R]eports of examinations or treatments; medical signs which are anatomical, physiological, or psychological abnormalities that can be observed; psychiatric signs which are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings which are anatomical, physiological, or psychological phenomena that can be shown by medically acceptable laboratory diagnostic techniques, including but not limited to chemical tests, electrocardiograms, electroencephalograms, X-rays, and psychological tests[.]
Next, the circuit court focused upon (1) Harris's testimony that prior to 1994 she did not seek treatment for or experience active symptoms of the depression she currently has; and (2) the fact that no medical records prior to Harris's 1994 membership date indicated she was affected by or afflicted with depression.
To be sure, the Kentucky Supreme Court has explained that for the purpose of determining eligibility for disability retirement benefits a claimant may offer his or her own medical history to prove the negative described in KRS 61.600(3) (i.e., that a disabling condition was not pre-existing). Specifically, if a claimant's medical history shows no indication of the condition or disease until after the date of membership, a permissible inference is that the condition or disease was either not pre-existing, or was "dormant" and "asymptomatic" and nonetheless compensable. Kentucky Retirement Systems v. Brown, 336 S.W.3d 8, 15 (Ky. 2011). The holding of Brown, however, was based upon the circumstance in which a claimant introduced a "plethora" of evidence so compelling that no reasonable person could have failed to be persuaded by it. Id. at 11 and 16. Among other things, that evidence included testimony from a physician that the claimant's disabling condition did not pre-exist his membership; it also included a comprehensive medical history that did not include "any indication" to the contrary. Id. at 11-12.
This case stands in stark contrast to Brown. To begin, even if the uncontradicted testimony of an interested witness such as Harris could be considered objective medical evidence, it is not binding on a fact-finder. See Grider Hill Dock, Inc. v. Sloan, 448 S.W.2d 373 (Ky. 1969). Moreover, the reason that no medical records prior to Harris's 1994 membership date indicated Harris was affected by or afflicted with depression was, as the Board noted, because Harris did not introduce any medical records predating 2004, much less 1994. The Board also acted within its authority when it chose to disbelieve what appears to have been Harris's representation that she simply had no medical records from that time period. Additionally, any difficulty Harris may have had in obtaining such records—if that was the reason underpinning her failure to present them—provides no basis for relaxing her burden of persuasion. West, 413 S.W.3d at 582-83.
In its final order, the Board also underscored several instances throughout the medical records Harris did produce which suggested Harris's depression could have pre-existed her 1994 membership date. As an aside, much of the circuit court's order in this matter emphasized that what the Board's final order discussed in this respect did not prove Harris's depression was a pre-existing condition. Again, however, this was merely a symptom of the circuit court's misunderstanding of who had the burden of proof in this matter. Harris's application for benefits was not denied because KERS offered evidence proving that her condition was pre-existing. Rather, Harris's application was denied because, in the proper exercise of its authority, KERS took into account gaps, ambiguities, and questions that were raised in her medical records that detracted from the weight and persuasive value of the evidence she presented. See Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 643 (Ky. App. 1994) ("In determining whether the evidence is substantial, the court must take into account whatever in the record fairly detracts from its weight.") (Internal quotation marks omitted).
Lastly, we turn to the circuit court's conclusion that Harris was entitled to disability benefits based upon her diagnosis of fibromyalgia alone. KERS argues Harris never preserved a claim to this effect. It notes the hearing officer specifically rejected this notion in the recommended order; Harris filed no exceptions to the recommended order; and on appeal before the circuit court Harris's petition urged that the hearing officer's decision should be reinstated. KERS also argues that even if Harris had preserved this argument, the evidence of record did not compel reversal.
We begin with the evidence Harris provided to support that fibromyalgia rendered her disabled. Aside from her subjective complaints, this evidence consisted of the October 6, 2008 letter from her treating physician, Dr. King, which the Board discussed at length in its final order. In relevant part, Dr. King's letter states:
To Whom it May Concern:
Jamie Harris has been a patient of ours in the office now since on or about 12/19/07. We undertook a history and physical with this patient and arrived at an assessment and plan of treatment. She has a surgical history of a hysterectomy and cervical spine surgery x2 disk herniations, as well as a history of fibromyalgia syndrome, muscle contracture headaches, major depression with anxiety neurosis, hypothyroidism, GERD, hyperlipidemia, seasonal allergies, postcholecystectomy syndrome, COPD, and tobacco disuse. We have continued to see her on an ongoing basis. She continues to exhibit worsening of her depressive symptoms, with very poor sleep architecture which is nonrestorative, no energy, and lethargy throughout the day. She has been on medications and has
been referred to Mountain Comprehensive Care. She has been instructed on sleep hygiene techniques and encouraged on smoking cessation, as well as continued on medical management with the following medications:
1. Synthroid 88 mcg p.o. q. AM.
2. Omeprazole 20 mg p.o. b.i.d.
3. Lamictal 100 mg p.o. daily.
4. Alprazolam 0.5 mg p.o. b.i.d.
5. Ambien 10 mg p.o. nightly.
6. Hydroxyzine 50 mg p.o. nightly.
7. Soma plain p.o. t.i.d. p.r.n. for spasms.
8. Hydrocodone 5 mg p.o. b.i.d. p.r.n.
9. Welchol 2 tablets p.o. b.i.d. with food.
She has been instructed on a home exercise program and given a sheet on fibromyalgia syndrome. As her symptoms of her depression, anxiety, and fibromyalgia have continued to worsen despite treatment, she has been recommended to continue to follow up with medical management and with Mountain Comprehensive Care and their psychiatrist, Dr. Stamper.
Therefore, based upon her assessment involving the aforementioned diagnoses, this individual continues to remain both totally and permanently disabled from any and all occupations, is not a candidate for rehabilitative training, and will require ongoing medical management and psychiatric followup indefinitely.
As to why the hearing officer rejected the proposition that fibromyalgia qualified Harris as disabled for the purpose of receiving benefits, the hearing officer held:
[Harris's] treating physician has diagnosed [Harris] with fibromyalgia but other than the subjective complaints from [Harris] over an extended period of time, there is no objective evidence in the way of diagnostic tests or imaging studies to establish either that she indeed suffers from the condition nor that she is incapacitated because of it.
As noted, the Board agreed with its hearing officer on this point. The Board added that even if Dr. King's letter did qualify as objective medical evidence required by KRS 61.600, Dr. King "never found [Harris] to be disabled by fibromyalgia alone" and "based his opinion on the co-existing conditions of fibromyalgia and depression/anxiety combined, and . . . the psychiatric component is pre-existing, and, thus, barred by statute."
In reversing the Board and holding that fibromyalgia rendered Harris disabled, the circuit court relied upon the series of annual performance reviews Harris's former employer conducted to assess the quality of her work. As previously discussed, this was improper.
The circuit court also cited to the fact that Harris had been diagnosed with fibromyalgia. However, to paraphrase the Kentucky Supreme Court in Gibbs v. Premier Scale Company/Indiana Scale Co., 50 S.W.3d 754, 761-62 (Ky. 2001), the fact that a particular diagnosis is made in the standard manner will not render it objective medical evidence. We recognize that a diagnosis of a harmful change which is based solely on complaints of symptoms may constitute a valid diagnosis for the purposes of medical treatment and that symptoms which are reported by a patient may be viewed by the medical profession as evidence of a harmful change. However, KRS 61.600(3) and 61.510(33) clearly require more, and the courts are bound by those requirements even in instances where they exclude what might seem to some to be a class of worthy claims. A patient's complaints of symptoms clearly are not objective medical evidence as the term is defined by KRS 61.510(33). Therefore, we must conclude that a diagnosis based upon a claimant's complaints of symptoms but not supported by objective medical evidence is insufficient to prove a qualifying disability for purposes of KRS 61.600.
Gibbs was a worker's compensation matter. There, the Supreme Court's opinion addressed whether a diagnosis based upon subjective complaints qualified as an "objective medical finding" within the meaning of KRS 342.0011(33) (defined as "information gained through direct observation and testing of the patient applying objective or standardized methods"). The standard for "objective medical evidence," which was required in the instant matter by KRS 61.600(3) and defined in KRS 61.510(33), is not meaningfully different. --------
Lastly, the circuit court held that the Board had misinterpreted Dr. King's letter. The circuit court held, contrary to the Board's conclusion that Dr. King "based his opinion on the co-existing conditions of fibromyalgia and depression/anxiety combined," that a more reasonable interpretation of Dr. King's letter was "Dr. King unequivocally stated that Ms. Harris was totally and permanently disabled due to depression and anxiety and fibromyalgia." Thus, the circuit court reasoned Dr. King actually meant that any of those three conditions, standing alone, rendered Harris disabled.
In its review of this administrative matter, however, the circuit court only needed to reverse the Board "if it overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). The Board has the sole authority to determine the weight, credibility, substance, and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Here, the circuit court has attempted to take over the fact-finding role from the Board. Rather than determining whether the evidence of record compelled a different result, the circuit court reinterpreted the evidence in a manner to support its own conclusion. The Board was free to interpret Dr. King's letter and the Board's conclusions based upon its reading of that letter were not unreasonable. Accordingly, the circuit court further erred in citing Dr. King's letter as a basis for reversal.
In light of the foregoing, the circuit court is REVERSED.
ALL CONCUR. BRIEF FOR APPELLANT: Katherine Rupinen
Frankfort, Kentucky BRIEF FOR APPELLEE: C. Phillip Wheeler, Jr.
Pikeville, Kentucky