Opinion
No. 2008-CA-000857-MR.
Rendered September 4, 2009.
Appeal from Franklin Circuit Court, Honorable Thomas D. Wingate, Judge, Action No. 05-CI-01431.
Molly Smith, Pro se, Burnside, Kentucky, Brief for Appellant.
Katherine Rupinen, Frankfort, Kentucky, Brief for Appellees.
OPINION
Molly Smith appeals pro se from an order of the Franklin Circuit Court affirming the Final Order of the Kentucky Retirement Systems and denying Smith's appeal from that decision. Smith applied for disability retirement benefits under KRS 61.621, and the Kentucky Retirement Systems' medical review board denied her application. Smith requested a hearing on this matter. The Hearing Officer's Report and Recommended Order stated that Smith was not permanently and totally disabled and that her conditions pre-existed the incident giving rise to her claim. The report therefore recommended that Smith's application for disability retirement benefits be denied. This recommendation was adopted by the Kentucky Retirement Systems' Board of Trustees, who also denied Smith's application. After careful review of the record and consideration of the briefs, we affirm.
Smith's claim for disability retirement arises from an injury suffered while employed as a daycare worker for the Pulaski County School System. She began work for the school on June 1, 2001, and her last day of paid employment was October 24, 2001. Smith's last day of paid employment was precipated by a work-related fall suffered on October 23, 2001. Smith was chasing a child when she slipped and fell in a puddle of water. Smith bases her claim for disability retirement on this fall and a number of health problems that she claims were caused by this fall. These problems include injury to her back, neck, legs and knees. Besides injury, Smith also claims that her other health conditions, heart disease, anemia, sinus problems, incontinence and high blood pressure, were caused or exacerbated by this fall.
Smith claims her fall and injuries qualify her for disability retirement under KRS 61.621. KRS 61.621, as it read on the date of Smith's injury, stated:
Smith cannot seek a claim under the general disability retirement statute applicable to state employees, KRS 61.600. KRS 61.600 requires that an employee accrue sixty months of service before being eligible for disability retirement. Smith had only accrued four months of service.
(1) Notwithstanding any provision of any statutes to the contrary, effective June 1, 2000, any employee participating in one (1) of the state-administered retirement systems who is not in a hazardous duty position, as defined in KRS 61.592, shall be eligible for minimum benefits equal to the benefits payable under this section or Section 2 of this Act if the employee dies or becomes disabled as a result of a duty-related injury.
(2)(a) For purposes of this section, "duty-related injury" means:
1. a. A single traumatic event that occurs while the employee is performing the duties of his position; or
b. A single act of violence committed against the employee that is found to be related to his job duties, whether or not it occurs at his job site; and
2. The event or act of violence produces a harmful change in the human organism evidenced by objective medical findings.
(b) Duty-related injury does not include the effects of the natural aging process, a communicable disease unless the risk of contracting the disease is increased by nature of the employment, or a psychological, psychiatric, or stress-related change in the human organism unless it is the direct result of a physical injury.
To qualify for benefits under KRS 61.621, Smith must show (1) that her job is not classified as hazardous duty, (2) that she is disabled, and (3) that this disability is the result of a "single traumatic event that occurs while the employee is performing the duties of his position." The Kentucky Retirement Systems is tasked with the administration of KRS 61.621 and, thus, with evaluating whether Smith meets these criteria.
In reviewing the decision of the Kentucky Retirement Systems' Board of Trustees, it is this Court's duty only to determine whether or not that decision was based upon substantial evidence or whether the evidence is so compelling that no reasonable person could have made that decision. McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458. Given the evidence presented, the law demands that the decision of the Board remain undisturbed
The scope of judicial review of an administrative decision is circumscribed by KRS 13B.150 (2), which states, "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Therefore, when an administrative agency is the trier of fact, it "is afforded great latitude in its evaluation of evidence heard and the credibility of the witnesses appearing before it." Bowling v. Natural Resource, 891 S.W.2d 406, 409 (Ky. App. 1995) (citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)). Because of the latitude granted to administrative agencies functioning as a trier of fact, McManus, 124 S.W.3d at 458 held that:
Determination of the burden of proof also impacts the standard of review on appeal of an agency decision. 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.
(citations omitted)
Since the burden of proof determines the standard for judicial review, we must determine which party had the burden of proof in the administrative hearing. KRS 13B.090 (7) establishes who carries the burden of proof at an administrative hearing.
In all administrative hearings . . . the party proposing the agency take action or grant a benefit has the burden to show the propriety of the agency action or entitlement to the benefit sought. . . . The party asserting an affirmative defense has the burden to establish that defense.
Smith carried the burden of establishing that she was disabled by her fall at work, and the Kentucky Retirement Systems carried the burden of establishing that her condition predated her fall and injury. Therefore, if we are to overturn the agency's decision, the record must establish that (1) Smith's evidence of disability is so compelling that no reasonable person could conclude that she was not disabled by her fall and (2) that there is not substantial evidence that Smith's condition predated her fall. The record does not establish either.
First, we must consider whether the evidence compels a finding that Smith is disabled. To do this it must be determined what qualifies as disabled under KRS 61.621. The Hearing Officer read disabled to mean "totally and permanently disabled." This reading is correct and is supported by the language of the law itself as well as its legislative history.
KRS 61.621(4) (2001) states that an employee "is determined to be disabled as provided in KRS 61.600." KRS 61.600(2)(a) (2001) provides that "[t]he 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." Additionally, KRS 61.600(2)(c) provides that this disability be permanent. The administrative regulation accompanying KRS 61.621, 105 KAR 1:310 sec. 2 (2), states that "[t]he application for duty-related injury disability benefits shall be reviewed by the board's medical examiners and administered in the same manner as provided in KRS 16.582. . . ." KRS 16.582 requires total and permanent disability and defines such as "a disability which results in the member's incapacity to engage in any occupation for remuneration or profit."
This language seems to create a conflict in determining the extent of disability required for benefits under KRS 61.621 as it was written when Smith suffered her injury. However, the legislative history resolves this conflict in favor of total and permanent disability. In 2004, the legislature changed the language of KRS 61.621. The text now stated that to be eligible for benefits an applicant must "become[] totally and permanently disabled to engage in any occupation for remuneration or profit as a result of a duty-related injury." KRS 61.621 (1). However, KRS 61.621(4) still states that an employee should be "determined to be disabled as provided in KRS 61.600 or other applicable disability statutes in any other state-administered retirement system." This indicates that the reference to KRS 61.600 is not stating the appropriate standard to determine disability. Rather, it indicates that the process to be used to determine disability is the same as that used in every state-administered retirement system.
The law requires total and permanent disability. Therefore, to succeed on this appeal, Smith must show that the evidence of total and permanent disability is "so compelling that no reasonable person could have failed to be persuaded by it." McManus, 124 S.W.3d at 458. Smith simply cannot meet this high evidentiary burden. As the hearing officer stated in his report, this is a close case regarding disability. It is because of close cases, such as this, that great deference is afforded to the decisions of fact finders in administrative hearings. Bowling, 891 S.W.2d at 409. It would be inappropriate for this court to substitute its judgment for that of the hearing officer who was in a better position to evaluate the credibility of witnesses and inferences to be drawn from the evidence. Railroad Commission v. Chesapeake O. Ry. Co., 490 S.W.2d 763, 766 (Ky. 1973).
The medical records show that Smith has been seen and evaluated by at least ten different doctors. Several of these doctors have released Smith to return to work with limitations. Dr. Brett Scott, who had seen this patient on a number of occasions, stated in a May 9, 2002 letter that Smith could return to work immediately with several restrictions. These limits include a maximum lifting weight of 20 pounds, lifting no more than ten pounds on a regular basis, limits on sitting or standing for extended periods of time without a break, and not working in a stooped position or engaging in repetitive bending. While these limitations are restrictive, Dr. Scott noted that Smith could engage in seated work with ease and that her speech and cognitive functions were not impaired. Two other doctor's reports indicate similar restrictions. Furthermore, no doctor has assigned a total and permanent restriction on her ability to do any work. The evidence seems open to the interpretation that Smith can engage in work for remuneration or profit and is therefore not "totally and permanently disabled." As this evidence does not compel a decision in Smith's favor, it does not meet the high standard required by McManus to overturn an administrative agency's decision.
Second, there is substantial evidence that Smith's conditions were not caused by her fall. The record indicates that Smith had back problems and pain as early as 1999. Additionally, the medical records indicate that Smith's back condition is degenerative in nature. Again, Dr. Scott noted that the back condition, spondylisthesis, which was causing her back pain, was a long standing problem. Additionally, of the doctor's reports which document a cause for Smith's spondylisthesis, most report that this is a degenerative change and therefore not caused by her fall at work. The record also makes abundantly clear that Smith's other health conditions, heart disease, anemia, sinus problems and high blood pressure pre-date her fall. She was noted to have cardiac problems in 1994 and poorly controlled hypertension in 1995. Smith was also admitted to the hospital on September 7, 2001, with an a trial fibrillation. Even if this were not the case, there is no medical evidence in the record to indicate that these conditions were caused by or exacerbated by her fall. This evidence is clearly substantial evidence sufficient to "induce conviction in the minds of reasonable men" that Smith's medical problems, including her back problems, predated her fall and were not caused by it. McManus, 124 S.W.3d at 458.
The Appellant cannot meet the high evidentiary burden required to overturn the Kentucky Retirement Systems' decision to deny her disability benefits. Therefore, the order of the Franklin Circuit Court to uphold that decision is now affirmed.
ALL CONCUR.