Opinion
NO. 2014-CA-000152-MR
03-27-2015
WILLMER ROBINSON APPELLANT v. KENTUCKY RETIREMENT SYSTEMS APPELLEE
BRIEFS AND ORAL ARGUMENTS FOR APPELLANT: Joseph E. Lambert Mt. Vernon, Kentucky BRIEF AND ORAL ARGUMENTS FOR APPELLEE: Joseph Bowman Frankfort, Kentucky BRIEF FOR APPELLEE: Katherine Rupinen Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS WINGATE, JUDGE
ACTION NO. 13-CI-00030
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND VANMETER JUDGES. JONES, JUDGE: This appeal is from the Franklin Circuit Court's opinion and order affirming the denial of Willmer Robinson's claim for disability retirement benefits. For the reasons more fully explained below, we AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
Robinson was first hired as a deputy jailer by the Rockcastle County Detention Center on April 1, 1990. At that time, he became a member of the County Employees Retirement System. He was terminated and re-employed several times thereafter with his most recent re-employment date being on September 20, 1999.
It appears from the record that at all relevant times Robinson was employed as deputy jailer. As a deputy jailer, Robinson worked eight hours a day, with two to three hours spent sitting and five to six hours spent standing or walking. Robinson's duties as deputy jailer included making rounds of the six jail cells to make sure inmates were behaving properly, controlling incoming intoxicated individuals, and preparing inmates for court by putting them in jumpsuits and handcuffing them. Robinson was occasionally required to lift items weighing in excess of fifty pounds. He was also required to carry a five pound key ring, restock supplies, and assist prisoners to use stairs or ramps.
Robinson suffers from a myriad of health-related issues. He was diagnosed with sleep apnea in 2003, pulmonary disease in 2005, and diabetes in 2007. In early May 2010, at the age of fifty-one, Robinson began experiencing severe abdominal pain and vomiting. As a result, he requested and was granted sick leave without pay. His last paid day of employment was May 21, 2010. As of that date, Robinson had accrued 185 service credit months.
On May 26, 2010, Robinson underwent surgery and was diagnosed with stage three colon cancer. Following his surgery, Robinson noticed a severe numbness in his hands, particularly in each of the last two fingers of each hand. Robinson's treating physician, Dr. David Bullock, testified that Robinson first complained about the hand numbness in early September 2010. As a result, Dr. Bullock referred Robinson to Dr. Maria Pavez for a neurological consult. Dr. Pavez's written assessment was that Robinson's "history and finding on exam is suggestive of underlying sensory motor polyneuropathy most likely secondary to longstanding diabetes mellitus, suspected overimposed bilateral ulnar nerve mononeuropathy, probably at the elbows, may be related to often prolong pressure over the cubital tunnels during the recent surgery."
Ultimately, Dr. Bullock determined that the "significant amount of numbness in both hands with decreased grip strength" prevented Robinson from returning to his job as a deputy jailer. On November 18, 2010, Robinson applied for disability retirement benefits with Kentucky Retirement Systems pursuant to KRS 61.600. Under the section of the form asking the applicant to "list the diagnoses of the injury, illness, or disease for which you are applying for disability," Robinson stated "nerve damage in both hands last 2 fingers on both hands are numb."
As required by KRS 61.665(2)(d), three medical examiners employed by Kentucky Retirement Systems initially reviewed Robinson's claim for disability retirement benefits. They unanimously denied Robinson's application. Robinson requested a second review, which was also unanimously denied.
Following the second denial, on May 26, 2011, Robinson appealed the medical examiners' recommendations to deny his benefits and requested a hearing. A hearing officer conducted a hearing on June 29, 2012. Robinson was the sole witness to testify at the hearing. In addition to Robinson's hearing testimony, the parties filed medical records, Dr. Bullock's deposition, and other discovery into the record for the hearing officer's consideration.
The hearing officer issued his Findings of Fact, Conclusions of Law and Recommended Order on September 26, 2012. The hearing officer found as follows: (1) Robinson's job was light in nature as per KRS 61.00(5)(c); (2) accommodations and changes to Robinson's job were not possible; (3) there was no evidence produced to show that Robinson's condition was substantially aggravated by an injury or accident arising out of the course of Robinson's employment; (4) Robinson's condition did not pre-exist his latest re-employment date of September 20, 1999; (5) Robinson did not complain to his doctor concerning hand numbness until September 8 or 9, 2010; (6) the objective medical evidence did not show by a preponderance of the evidence that Robinson's hand numbness had been permanently physically disabling since his last day of paid employment; (7) the objective medical evidence did not show that Robinson's nerve damage was "permanent" as defined by KRS 61.600; and (8) the objective medical evidence did not show by a preponderance of the evidence that Robinson since his last day of employment was permanently physically incapacitated from his former job duties or jobs of like duties as a result of sleep apnea, pulmonary disease, diabetes or the cumulative effects of same. Accordingly, the hearing officer recommended that Robinson's "application for disability benefits based on his condition of nerve damage in both hands, sleep apnea, pulmonary disease, or diabetes or the cumulative effects of same be denied."
In accordance with KRS 13B.110(4), the hearing officer's recommendation included a "notice of right to file exceptions and to appeal." On October 11, 2012, acting with the assistance of counsel, Robinson filed exceptions to the hearing officer's report and recommendations. Robinson's exceptions were as follows: (1) "the Hearing Officer, Hon. Roland Merkel, failed to find that Mr. Robinson was permanently disabled, contrary to the weight of the evidence presented"; and (2) "Hearing Officer Merkel failed to give any credence to the testimony of Mr. Robinson as to his ongoing inability to use his hands effectively."
On December 19, 2012, the Disability Appeals Committee of the Board of Trustees of Kentucky Retirement Systems ("Board") entered a Final Order and Notice of Appeal Rights. The Board adopted the hearing officer's recommended order with the only exception being the correction of a minor typographical error.
Robinson sought judicial review by filing a petition in the Franklin Circuit Court pursuant to KRS 61.665(5). Robinson complained in his petition that the Board's findings were arbitrary and capricious and should be set aside because they were contrary to the weight of the evidence that showed Robinson was permanently disabled as a result of the nerve damage to his hands. Robinson further asserted that the hearing officer (and the Board in turn) "totally disregarded evidence presented by Mr. Robinson's treating physician, Dr. David Bullock and erroneously found that the opinion of his neurologist, Dr. Maria Pavez, could not be considered."
On January 3, 2014, the circuit court affirmed the Board's denial of Robinson's application for retirement disability benefits. The circuit court concluded that the Board did not err because "while Robinson's records may show that his surgery accelerated his nerve damage, what it does not show is that he was permanently incapacitated as of his last date of paid employment, on May 21, 2010." The circuit court further noted that Robinson failed to file an exception regarding the hearing officer's conclusion that Robinson's hand numbness had not been permanently physically disabling since his last day of paid employment. Relying on Rains v. Kentucky Ret. Sys., 2010-CA-000441-MR, 2011 WL 2693972 (Ky. App. July 8, 2011), the circuit court found that "Robinson's nerve damage cannot be the basis for an award of disability retirement benefits because it did not arise until after his last day of paid employment." Based on these conclusions, the circuit court affirmed the Board.
This appeal followed.
II. STANDARD OF REVIEW
Judicial review of an administrative agency's decision is limited. Upon review of the denial of disability retirement benefits, the Board's findings of fact will not be disturbed if supported by substantial evidence. Kentucky Ret. Sys. v. Lowe, 343 S.W.3d 642 (Ky. App. 2011). To prevail on a factually-based challenge, a claimant who is denied disability benefits must demonstrate that the evidence compels a finding in his favor. Id. Issues of law are reviewed de novo. Id.
III. ANALYSIS
In his prehearing statement, Robinson asserts the following issues are presented by this appeal: "(1) whether there was substantial evidence to support the administrative agency and trial decisions; (2) whether the evidence for Robinson compels a finding in his favor; (3) whether the objective medical evidence shows Robinson was permanently incapacitated as of the last day of his employment; and (4) whether the administrative agency and the trial court correctly applied the law to the administrative facts."
As part of this argument, Robinson argues that we should overrule Rains because it misconstrues and misapplies KRS 61.600.
As part of this argument, Robinson asserts that the lower court failed to consider the "cumulative effect" rule.
A. Preservation of Error
Kentucky Retirement Systems first responds that Robinson is barred from raising, as part of this appeal, any issues related to the timing of Robinson's disabling nerve damage and any failure to consider the "cumulative effect" rule because Robinson did not file exceptions with the Board as related to those issues.
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. Id. 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 agency head's final order that differ from those contained in the hearing officer's recommended order. Id. at 563-64. The Rapier court explained as follows:
Under Chapter 13B, the filing of exceptions provides the means for preserving and identifying issues for review by the agency head. In turn, filing exceptions is necessary to preserve issues for further judicial review. 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 agency head's final order that differ from those contained in the hearing officer's recommended order.Id. at 563-64 (citations omitted). In other words, a party is precluded from seeking judicial review of issues that were not contained in the exceptions the party filed with the Board. See Kentucky Ret. Sys. v. West, 413 S.W.3d 578, 583 (Ky. 2013).
In an unpublished opinion, another panel of our Court held that Rapier only applied where no exceptions were filed, and therefore, could not be used to preclude appellate review where the exceptions filed only omitted issues the claimant later attempted to raise on appeal. Kentucky Ret. Sys. v. Stewart, Nos. 2011-CA-001262-MR, 2011-CA-001340-MR, 2013 WL 1844760, 4 (Ky. App. Jan. 18, 2013) ("The Rapier case dealt with a situation where no exceptions had been filed, not one where exceptions had been filed but an issue had not been raised. Since the circuit court is hearing an original action, there is no requirement that issues be preserved for appeal. Thus, we will review the Franklin Circuit Court's decision."). A careful review of the record in West indicates that exceptions were filed, but those exceptions did not raise an issue about cumulative effect. On appeal, the Kentucky Supreme Court held: "West did not raise the cumulative effect argument in his exceptions, which preserves administrative decisions for judicial review." West, 413 S.W.3d at 583. Accordingly, the Supreme Court held that the cumulative effect error had not been properly preserved for review.
On appeal, Robinson acknowledges that he failed to take exception to the hearing officer's factual determination that his "hand numbness had [not] been permanently physically disabling since his last day of paid employment" or the hearing officer's alleged failure to consider the cumulative effect of Robinson's various ailments. Nevertheless, Robinson asks us to review those issues for palpable error under Civil Rule (CR) 61.02.
As set forth above, Robinson's exceptions were limited to whether to the hearing officer's failure to find Robinson permanently disabled was contrary to the weight of the evidence presented; and whether the hearing officer failed to give credence to Robinson's testimony regarding his inability to use his hands.
In Givens v. Commonwealth, 359 S.W.3d 454, 464-65 (Ky. App. 2011), this Court addressed a similar argument regarding palpable error review. In Givens, the appellant argued that the circuit court could have reviewed her argument under the palpable error standard of CR 61.02, relying on Herndon v. Herndon, 139 S.W.3d 822 (Ky.2004), which held that a court could review the report of a domestic commissioner for palpable error. However, the Givens court explained that Herndon involved appellate review of a judicial decision, not an administrative proceeding. Givens, 359 S.W.3d at 464. We held that because Givens filed no exceptions capable of preserving any error regarding the hearing officer's recommended order and the Cabinet adopted the recommended order without change, it followed that no issues existed for the trial court's consideration. Id.
Based on Rainer and Givens, we believe the circuit court was limited in its review to the issues Robinson presented in his exceptions, i.e., whether substantial evidence supported the hearing officer's finding that he was not permanently disabled and whether the circuit court gave appropriate consideration to Robinson testimony regarding his limitations. We do not believe that it was appropriate for the circuit court to expand its review beyond those issues. And, it appropriately declined to do so. Likewise, we do not believe that we should review the circuit court's opinion to determine whether Robinson has raised a palpable error with respect to the timing issue or the cumulative effect of his aliments.
Nevertheless, we pause to note that we are somewhat perplexed by Robinson's argument that the hearing officer failed to consider the cumulative effect of his various medical problems. On page 10 of the hearing officer's recommendation, he concluded as follows: "[t]he objective medical evidence does not show by a preponderance of the evidence that Claimant since his last day of paid employment, has been permanently mentally or physically incapacitated from his former job duties or jobs of like duties, as a result of sleep apnea, pulmonary disease, or diabetes, or the cumulative effects of same, or their cumulative effects with his condition of nerve damage in both hands." This conclusion was supported by substantial evidence of record, mainly Dr. Bullock's deposition testimony. Accordingly, even if this issue had been properly preserved for review, we do not believe that it would have merited reversal.
In Kentucky, the cumulative effect rule is explained as follows:
[I]n considering Appellee's claim for disability benefits, the hearing officer evaluated the effect of each insular injury on Appellee's ability to perform her job duties and determined that no one injury rose to the level of disabling Appellee. He did not evaluate the cumulative effect of Appellee's multiple ailments on the "whole person." At a minimum, Appellee produced sufficient evidence of disability due to her various ailments that she was entitled to a determination of whether the cumulative effect of her ailments rendered her unable to work. However, analyzing each ailment singularly, the hearing officer "so fragmentized [Appellee's] several ailments and the medical opinions regarding each of them that he failed to properly evaluate their effect in combination upon this claimant." The hearing officer's review and findings regarding Appellee's injuries thus failed to consider her multiple ailments in accordance with the "residual functional capacity" standard in KRS 61.600(5)(a)(2)[.]
... Appellant exceeded the constraints of its statutory powers and arbitrarily denied Appellee's disability claim. Given Appellee's evidence in this case, a "cumulative effects" analysis is mandated. Accordingly, we affirm the Court of Appeals on this issue."
B. Did the Record Compel a Finding in Robinson's Favor?
As the person seeking the entitlement determination, Robinson bore the burden of proving all the threshold elements in KRS 61.600 by a preponderance of the evidence. Kentucky Ret. Sys. v. Brown, 336 S.W.3d 8, 14 (Ky. 2011). On appeal, Robinson must show that he presented evidence "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). In considering this question, we must bear in mind that "[i]n its role as 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." Aubrey v. Off of Atty Gen., 994 S.W.2d 516, 519 (Ky. App. 1998) (citing Kentucky State Racing Comm v. Fuller, 481 S.W.2d 298, 309 (Ky. 1972)); see also McManus, 124 S.W.3d at 458.
Pursuant to KRS 61.600(3) an award of disability benefits requires "objective medical evidence by licensed physicians" sufficient to establish 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;KRS 61.600(3). The statute further provides that an "incapacity shall be deemed to be permanent if it is expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months from the person's last day of paid employment in a regular full-time position." KRS 61.600(5)(a)1 (emphasis added).
(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.
As established by KRS 13B.090(7), Robinson bore the burden of proving entitlement to the benefits he sought, and he was to do so by a preponderance of the evidence. Thus, the issue on appeal is whether the evidence in Robinson's favor was so compelling that no reasonable person could have failed to be persuaded by it. Stated otherwise, if the agency's determination that Robinson failed to meet his burden of proof was supported by substantial evidence, the circuit court (and this court in turn) is bound to affirm. See Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852 (Ky. 1981).
Robinson attempts to tie the nerve damage in his hands to his diabetes. He asserts that the evidence irrefutably established that his diabetes was present on the last paid day of his employment. However, it is clear that KRS 61.600 distinguishes between incapacity caused by a condition and the condition itself. The statute is clear that both the condition and the incapacity arising out of that condition must both be present on the last paid day of paid employment.
This is the same conclusion a panel of this Court reached in the unpublished opinion in Rains. 2011 WL 2693972. In Rains, we held as follows:
The statutory scheme supports this conclusion by requiring proof that the incapacity be permanent and by defining permanent incapacity as an incapacity which can be expected to last for at least twelve months from the person's last day of paid employment. When read in context, the phrase "since the last day of paid employment" clearly anticipates that the totally disabling condition exists from the last day of paid employment forward.Id. at *2.
Rains is unpublished. Contrary to Robinson's contention, if we disagreed with Rains, we would not have to overrule it; we would simply reach a different outcome. Likewise, the circuit court was not bound by Rains. Civil Rule 76.28(4)(c) is clear in this regard. It plainly states: "Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court." Id. (emphasis). Nevertheless, this is largely a moot issue because we do happen to agree with Rains; likewise, we find no fault with the circuit court's application of Rains to the facts of this case.
The objective evidence of record, including Robinson's and Dr. Bullock's testimony clearly established that the incapacity Robinson alleged (the numbness in his hands) was not present on May 21, 2010, the last paid date of his employment. The evidence further supported that the condition did not arise until sometime after Robinson's colon surgery and that he did not complain to his doctor about it until early September 2010, over three months after his paid employment ceased.
Thus, we agree with the trial court's conclusion that the evidence of record supported the Board's conclusion that Robinson was not permanently incapacitated by his hand numbness on his last date of paid employment. We likewise agree with the trial court that this finding precluded an award of benefits to Robinson pursuant to KRS 60.600(3) and (5).
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the Franklin Circuit Court.
ALL CONCUR. BRIEFS AND ORAL ARGUMENTS
FOR APPELLANT:
Joseph E. Lambert
Mt. Vernon, Kentucky
BRIEF AND ORAL ARGUMENTS
FOR APPELLEE:
Joseph Bowman
Frankfort, Kentucky
BRIEF FOR APPELLEE: Katherine Rupinen
Frankfort, Kentucky
Kentucky Ret. Sys. v. Bowens, 281 S.W.3d 776, 783 (Ky. 2009).