Opinion
NO. 2016-CA-000095-MR
05-12-2017
LISA LOVINS APPELLANT v. KENTUCKY RETIREMENT SYSTEMS AND BOARD OF TRUSTEES OF THE KENTUCKY RETIRMENT SYSTEMS APPELLEES
BRIEFS FOR APPELLANT: Roy C. Gray John H. Gray Frankfort, Kentucky BRIEF FOR APPELLEE: Mathew Galante Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 14-CI-00340 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND NICKELL, JUDGES. DIXON, JUDGE: Lisa Lovins appeals from a judgment of the Franklin Circuit Court affirming an order of the Board of Trustees of the Kentucky Retirement Systems that denied Lovins's claim for disability retirement benefits. We affirm.
Lovins was employed as a family support specialist with the Cabinet for Health and Family Services from May 1994, until her last day of paid employment on April 2, 2010. Lovins's position was sedentary and involved registering individuals for public assistance benefits. Lovins initially filed a claim for disability retirement benefits in May 2000, alleging she suffered from chronic pain, fibromyalgia, degenerative disc disease, major depression, and chronic anxiety disorder. The Medical Review Board denied the application. In February 2001, Lovins filed a workers' compensation claim alleging she sustained cumulative trauma injuries to her low back and neck as a result of her employment. An ALJ issued an opinion and order dismissing Lovins's claim in December 2001. In May 2010, Lovins filed a second application for disability retirement benefits based on several health conditions, including bipolar II disorder and severe anxiety disorder. Lovins alleged she was disabled from performing her job duties due to constant pain and the stress of a hostile work environment created by her supervisor. Lovins submitted voluminous medical records covering approximately twenty years of treatment. The Medical Review Board denied Lovins's application, concluding there was no objective medical evidence of permanent disability.
Lovins also alleged disability due to fibromyalgia, acid reflux, stomach hernia, eye cataracts, positive ANA, arthritis, severe degenerative disc disease, stenosis, nerve damage in her arms and legs, disc disease in her neck, sleep disorder, osteoporosis, skin rashes, eczema, psoriasis, and chronic sinusitis. Lovins's arguments on appeal contend she was entitled to disability benefits due to bipolar disorder. --------
Lovins requested an administrative hearing and submitted a "Mental Residual Functional Capacity Questionnaire" completed by her treating psychiatrist, Dr. Robert Elliot. The report noted Dr. Elliot had a fifteen-minute medication management visit with Lovins every three months. Dr. Elliot diagnosed Lovins with Bipolar II disorder and panic disorder without agoraphobia. Dr. Elliot's clinical findings indicated severe depression, anxiety, and impaired concentration and memory. Dr. Elliot asserted Lovins's depression and anxiety caused cognitive impairments that limited her functional abilities. He further opined her mood and behavioral changes would interfere with her ability to consistently perform in a job. Dr. Elliot indicated Lovins's mental impairments did not preexist her employment date of May 14, 1994. Lovins testified at the hearing, asserting her workload doubled after a new supervisor was hired. She stopped working in February 2010, because she was overloaded with clients and experienced manic-depressive episodes. While Lovins acknowledged her employment evaluation was graded "highly effective" one month before she left her job, she refused to sign the evaluation because she believed she deserved a higher score. Regarding her anxiety, Lovins testified she was first diagnosed in 1995, and she felt Xanax controlled her symptoms. Lovins disputed the accuracy of a treatment note from Mountain Comprehensive Health in 1991, wherein she complained of a history of anxiety with chest pain and received a prescription for Valium.
The hearing officer rendered lengthy findings of fact and conclusions of law, which summarized all of the evidence contained in the record and recommended denying Lovins's claim for benefits. The hearing officer found Lovins gave conflicting testimony and was not a credible witness. The hearing officer also questioned the credibility of Dr. Elliot's opinion because Lovins's pre-employment medical records indicated treatment for anxiety in 1991 and depression in 1993. The hearing officer concluded Lovins's diagnosis of bipolar disorder was not pre-existing; however, the hearing officer determined Lovins failed to establish she was permanently incapacitated from performing her former job or a job of like duties. The Board of Trustees adopted the recommended order denying Lovins's claim for retirement disability benefits. Thereafter, Lovins filed a petition for review in the Franklin Circuit Court alleging uncontradicted medical evidence established she was permanently disabled as a result of bipolar disorder. The circuit court affirmed the Board's decision, and this appeal followed.
"'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.'" McManus v. Ky. Ret. Sys., 124 S.W.3d 454, 458 (Ky. App. 2003). As Lovins was unsuccessful before the Board, she is entitled to prevail on appeal only if the evidence in her favor was "so compelling that no reasonable person could have failed to be persuaded by it." Id.
Kentucky Revised Statutes (KRS) 61.600 sets forth the criteria for disability retirement. The statute requires a determination, based on objective medical evidence, as to whether the claimant has been permanently incapacitated by injury, disease, or mental illness from performing his prior job or a job of like duties. KRS 61.600(3)(a)-(c). A claimant's incapacity is permanent if it is expected to last for a continuous period of at least one year from the last day of paid employment. KRS 61.600(5)(a)1. Where the claimant was employed for less than sixteen years, she must establish her disabling condition did not pre-exist her date of employment. KRS 61.600(3)(d).
On appeal, Lovins argues the Board's decision was arbitrary and unsupported by substantial evidence. Lovins asserts she put forth objective medical evidence, in the form of Dr. Elliot's report, she was permanently disabled by bipolar disorder; consequently, she believes the Board was without authority to reject Dr. Elliot's uncontradicted medical opinion. We disagree.
Lovins bore the burden of proving she was entitled to disability benefits by a preponderance of the evidence. KRS 13B.090(7). In Kentucky Retirement Systems v. West, 413 S.W.3d 578, 581 (Ky. 2013), the Kentucky Supreme Court clearly rejected the notion a hearing officer lacks authority to disregard uncontested evidence. The Court explained:
[T]he Court of Appeals broadly states that the hearing officer may not reject uncontested evidence. On the contrary, the Systems does not bear the burden of proof and may choose not to challenge evidence it deems unconvincing. The sufficiency of the claimant's showing
is not wholly calculated by whether or not the Systems presents evidence in rebuttal.Id.
Although the Board concluded Lovins's bipolar disorder did not pre-exist her employment, the Board was not convinced Lovins was permanently incapacitated by bipolar disorder. The sole evidence indicating Lovins's mental health conditions rendered her permanently disabled came from Dr. Elliot's report, which simply stated:
The patient's depression and anxiety cause cognitive impairments that limits her functional abilities. Her mood and behavioral changes would interfere with her ability to consistently perform in a job.
The Retirement Systems had no obligation to present evidence to rebut Dr. Elliot's opinion. Id. The administrative record included treatment notes from 1991 and 1993 indicating Lovins sought treatment for anxiety and depression prior to her employment. In contrast, Dr. Elliot opined Lovins's impairments were not the result of a condition which pre-existed her employment. The Board determined the credibility of Dr. Elliot's opinion was diminished by the pre-employment treatment notes from Mountain Comprehensive Health. It was fully within the province of the fact-finder to weigh the evidence and choose what evidence to believe. Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 410 (Ky. App. 1994). The Board concluded Lovins failed to satisfy her burden of proving she was permanently incapacitated by bipolar disorder. Having reviewed the lengthy record, we are not persuaded the evidence in Lovins's favor compelled a different result. The trial court properly affirmed the Board's order denying retirement disability benefits.
For the reasons stated herein, we affirm the decision of the Franklin Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy C. Gray
John H. Gray
Frankfort, Kentucky BRIEF FOR APPELLEE: Mathew Galante
Frankfort, Kentucky