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Warman v. Ky. Ret. Sys.

Commonwealth of Kentucky Court of Appeals
May 6, 2016
NO. 2015-CA-000522-MR (Ky. Ct. App. May. 6, 2016)

Opinion

NO. 2015-CA-000522-MR

05-06-2016

SYBIL WARMAN APPELLANT v. KENTUCKY RETIREMENT SYSTEMS; COUNTY EMPLOYEES RETIREMENT SYSTEM; BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS; and DISABILITY APPEALS COMMITTEE OF KENTUCKY RETIREMENT SYSTEMS APPELLEES

BRIEF FOR APPELLANT: Bartley K. Hagerman Lexington, Kentucky BRIEF FOR APPELLEES: Carrie Bass Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 14-CI-00900 OPINION
AFFIRMING

** ** ** ** **

BEFORE: JONES, KRAMER, AND TAYLOR, JUDGES. KRAMER, JUDGE: Sybil Warman filed an original action in Franklin Circuit Court to contest a decision of the Kentucky Retirement Systems (KERS) to deny her application for disability retirement benefits. The circuit court entered an order affirming the denial of her application, and Warman appealed. We likewise affirm.

The circuit court's March 27, 2015 opinion and order aptly summarized the general background of this case. In relevant part, it provides as follows:

Petitioner, Sybil Warman ("Warman") is a member of the County Employees Retirement System ("CERS"). She has a reemployment date of September 24, 2001, and a last date of paid employment of December 1, 2011. At the time of her last date of paid employment, Warman had amassed a total of 117 months of service credit in the system.

Warman worked as an instructional assistant for the McCreary County Board of Education. As an instructional assistant, she was required to provide instruction to individuals or small groups as well as monitor and report student progress. Warman's job requirements were officially categorized as being light duty under KRS [Kentucky Revised Statute]
61.600(5)(c).

On March 6, 2012, Warman filed an application for disability retirement benefits pursuant to KRS 61.000 listing chronic obstructive pulmonary disease ("COPD") and emphysema as the basis of her disability. Warman is a smoker and has been for the past thirty (30) years. [. . .] Warman's application for disability benefits was evaluated and denied due to a finding that her COPD and/or emphysema condition(s) pre-dated her employment.
After Warman appealed the denial of her application, an administrative hearing was held on November 8, 2013. At the hearing, Warman presented medical records from
Drs. Perry and West pre-dating her reemployment with CERS. The medical records show that on February 13, 1995, Warman had sinus drainage, chest congestion, and an earache. Between 1995 through early 2000, Warman was treated for symptoms of continued sinus drainage, coughing, sore throat, choking pain in her throat, dry cough, and raw throat. Warman was not, however, ever diagnosed with either COPD or emphysema prior to her reemployment date of September 24, 2001. It was not until May 30, 2008 that Warman was diagnosed with COPD. On March 25, 2011, Warman was diagnosed with both pulmonary nodules and emphysema. Warman's condition became worse and on February 23, 2012, Warman's treating physician, Dr. Schuldheisz, wrote a letter taking Warman off work due to a diagnosis of COPD and emphysema.

The Hearing Officer, Hon. John Helmuth, found that Warman suffered from a permanent physical impairment as defined in KRS 61.600(5)(a)(1). The Hearing Officer also found that Warman's COPD and emphysema was severe enough to prevent her from performing her previous job duties as of her last date of paid employment. Additionally, the Hearing Officer found that Warman had met her burden of establishing that the COPD and emphysema did not result from a pre-existing condition that was present prior to her date of reemployment with CERS. Despite the Hearing Officer's recommendation that Warman's application for disability retirement benefits be approved, the Board of Trustees (the "Board") issued a Final Order rejecting Warman's claim. The Board found that Warman is not disabled and that, even if she was found to be disabled, any disability would have been the result of a pre-existing condition.

After considering the administrative record and Warman's contentions of error (addressed in more detail below), the circuit court affirmed the Board's decision. This appeal followed.

Warman's first argument on appeal is 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. In Warman's view, the Board acted arbitrarily and capriciously in failing to adopt the hearing officer's recommended order; accordingly, she argues she is entitled to benefits.

Warman's reasoning labors under a misapprehension. 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.

Next, Warman argues the Board must be reversed because, in her view, she presented evidence that her emphysema and COPD were not pre-existing conditions; the Board failed to cite substantial evidence supporting its determination that her emphysema and COPD were pre-existing conditions; and "the burden of proof should be on [KERS], as this is an affirmative defense."

Warman's argument misunderstands what the burden of proof was in this matter. 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, as it was here, 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).

Because Warman initiated administrative proceedings to secure benefits under KRS 61.600, Warman (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 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.", KERS had no reciprocal obligation to disprove either of those points, present any evidence in rebuttal, or otherwise challenge evidence Warman presented which it deemed unconvincing. Kentucky Retirement Systems v. West, 413 S.W.3d 578, 581 (Ky. 2013). Accordingly, it is irrelevant whether some evidence of record supported that Warman's COPD and emphysema were not pre-existing conditions. The dispositive issue on review is whether the evidence Warman presented in that respect 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.

Before the circuit court and in her appellate brief, Warman appears to have argued that KRS 61.600(3)(d), and its requirement that an "incapacity [can] not result directly or indirectly from a [pre-existing condition]" is void for vagueness. We would disagree because this is merely an example of a broadly-drafted exclusion, but this argument is not properly before us because Warman failed to comply with KRS 418.075 at the circuit court level. That statute provides in part as follows:

In any proceeding which involves the validity of a statute, the attorney general of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard. [. . .]

Warman further argues she adduced such evidence. We disagree. And, because we find it to be dispositive of this appeal, the remainder of our review will focus upon the Board's determination that Warman failed to adduce persuasive evidence that her conditions of COPD and emphysema did not pre-exist her date of re-employment.

Therefore, we will not address the Board's alternative reason for denying Warman's application for benefits (i.e., that she failed to adduce persuasive evidence demonstrating she was permanently disabled).

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, 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.

Here, Warman's argument is largely based upon the fact that none of her treating physicians used the term 'COPD' to describe her symptoms until April 10, 2008, when Sandra Schuldheisz, M.D., reported "I think [Warman] has early COPD with airtrapping." But, it is important to review why Dr. Schuldheisz arrived at that conclusion. Elsewhere in her report, she noted Warman had visited that day for a pulmonary evaluation, adding in relevant part:

She got sick in October [2007] with what she thought was the flu, got antibiotics but kept recurring. This continued until March when she finally started to feel well. She had gotten the flu shot and everything. She has no hx of childhood asthma or pneumonia, heat pump, KY native, no travel, gas heater; dog in the house, no birds; no hx of TB exposure, negative PPD in the past, no hx of DVT or PE; [. . .] She has no exotic travel. She was actually having some trouble prior to October. She has a chronic cough, worse in the morning, "smoker's cough", some sputum, occasionally brown, may have had hemoptysis on one occasion which she attributed to sinus drainage. She has had some wheezing, worse at night. If she walks at a fast pace or a flight of stairs will get winded. She doesn't feel like she has the capacity and when she pushes out air she coughs. She has some intermittent chest pain, sometimes down the left arm, no neck.

Generally speaking, emphysema is one of several diseases known collectively as chronic obstructive pulmonary disease (COPD). It is a progressive disease marked by symptoms that include forced or slowed breathing; increased susceptibility to respiratory infection; and bronchospasm. Dr. Schuldheisz's report primarily focused upon and was concerned with Warman's recurring symptoms of chest congestion, coughing, wheezing, and shortness of breath (dyspnea). These symptoms were noted in Dr. Schuldheisz's report, and caused Dr. Shuldheisz to suspect Warman was afflicted with COPD.

"Chronic obstructive pulmonary disease" (COPD) is defined as "a chronic lung disease, such as asthma or emphysema, in which breathing becomes slowed or forced." THE AMERICAN HERITAGE STEDMAN'S MEDICAL DICTIONARY 157 (2001). "Emphysema" is generally defined as "a pathological condition of the lungs marked by an abnormal increase in the size of the air spaces, resulting in labored breathing and an increased susceptibility to infection. It can be caused by irreversible expansion of the alveoli or by the destruction of alveolar walls." Id. at 262. One authority adds "although the anatomic abnormalities of emphysema are irreversible, both bronchospasm and productive cough can be favorably affected by the discontinuation of cigarette use." See The American Medical Association's Guides to Evaluating Permanent Impairment (5th Ed.) at 90.

Under the category of her observations regarding Warman's respiratory functions, Dr. Schuldheisz added: "shortness of breath yes. chest congestion yes. cough yes. no wheeze. no hemoptysis / coughing up blood." In her overall assessment of Warman's condition, immediately above where she noted her thought that Warman had "early COPD with airtrapping," she stated: Assessment: 1. Cough - 786.2 (primary) 2. Wheezing - 786.09 3. Dyspnea—786.09 4. ABN PULMONARY FUNC STUDY—794.2 5. Tobacco use disorder—305.1.

However, Dr. Schuldheisz's report also indicated Warman had experienced those symptoms before April 10, 2008. This, in turn, begs the question of how long Warman had had those symptoms. An October 9, 2006 CT scan of Warman's lungs revealed "bilateral apical bullous emphysematous lung changes." According to Warman's medical evidence, shortness of breath, recurring sinus and upper respiratory infection, coughing, chest congestion, bronchospasm and wheezing were symptoms Warman continuously suffered from between the date of her reemployment to the date of her application for benefits. In its order denying Warman's application for benefits, the Board also observed that these were the same types of symptoms Warman frequently experienced prior to her reemployment date, as documented in the objective medical evidence. The Board noted in relevant part:

The record does not contain evidence of Warman's medical treatment from 2001 through 2003. From 2004 until April 10, 2008, her records indicate she presented to her various treating physicians with complaints of the aforementioned symptoms, and was also diagnosed with acute bronchitis, no fewer than sixteen times. --------

[Warman] was seen prior to her re-employment date of September 24, 2001, for the following:

On February 13, 1995 [Warman] complained of sinus drainage, chest congestion, right ear ache, and a sore throat. (Exhibit 13, p92).


. . .

[Warman] complained of head and chest congestion, dry cough, sore ears and throat, and headache on January 31, 1996. (Exhibit 13, p93).


. . .

[Warman] had a sore throat, head congestion, and dry cough on February 18, 1997. (Exhibit 13, p93).


. . .

[Warman] complained of frequent dry cough, right ear ache, pain in her chest, and sinus congestion and drainage on March 11, 1997. (Exhibit 13, p95)


. . .

On April 15, 1997 [Warman] had sinus congestion and drainage, chest congestion, wheezing, and shortness of breath. (Exhibit 13, p95).


. . .
[Warman] complained of dry cough, raw throat, ear issues, headache, nasal congestion and drainage, and chest tightness on September 17, 1997. (Exhibit 13, p94).


. . .

[Warman] complained of head and chest congestion, dry cough, headache, sore throat and ears, and body pains on November 17, 1997 and January 19, 1998. (Exhibit 13, p96).


. . .

[Warman] complained of a tight chest on January 26, 1998. (Exhibit 13, p96).


. . .

[Warman] complained of chest congestion, dry cough, and sore ears and throat on November 21, 1999. (Exhibit 13, p97).


. . .

[Warman] complained of sinus pressure, headache, a runny nose, chest congestion, sore throat and ears, and fever on August 23, 1999. (Exhibit 19, p121).


. . .

[Warman] complained of chest congestion, right ear pain, sore throat, fever, and dry cough on August 31, 1999. (Exhibit 19, p121).


. . .

[Warman] had a dry cough, runny nose, bronchospasms, and sore ears on October 25, 1999. (Exhibit 19, p122).


. . .

[Warman] complained of sinus congestion and drainage, shortness of breath, head congestion, headache, bilateral ear pain , and
raw throat on January 14, 2000. (Exhibit 19, p122).


. . .

In all total, progress notes from the Perry & West Family Practice show that [Warman] was treated for pulmonary complaints, including sinus drainage, sinus congestion, chest congestion, dry coughs, shortness of breath, productive brown congestion, and chest tightness, on no less than eighteen (18) occasions during the five-year period from February 13, 1995 through January 14, 2000. (A.R., pp92-97; pp121-122).

In short, the Board highlighted that the symptoms Warman had complained of since at least 1995 had been recurring; were, according to its medical review physicians, early signs and symptoms of COPD and emphysema; and that the evidence suggested those symptoms had progressively worsened. The Board inferred from this evidence that, while not diagnosed per se with a label, Warman's emphysema and COPD had been symptomatic prior to her reemployment date. Accordingly, the Board found these were pre-existing, non-compensable conditions.

As to the other evidence Warman contends compelled a finding that her COPD and emphysema were either asymptomatic or non-existent prior to her re-employment date of September 24, 2001, she points out that she testified she was exposed to black mold and asbestos between 2003 and 2006 over the course of her employment with the McCreary County Board of Education. She concludes her COPD and emphysema could have resulted from this exposure.

However, this is merely the uncorroborated and self-interested testimony of a claimant, which the Board was free to disregard. See Grider Hill Dock, Inc. v. Sloan, 448 S.W.2d 373 (Ky. 1969). No objective medical evidence of record supports Warman's conclusion that asbestos or black mold caused her condition.

Warman points out that an x-ray of her chest taken at The Imaging Center on June 7, 2004, showed no abnormalities at that time. However, there is no evidence indicating that if emphysema was present in her lungs at that time, an x-ray would have definitively identified it; or that her symptomatology, as discussed by the Board and its medical review physicians, was not an otherwise reasonable indication of the disease's existence and progress.

Lastly, Warman focuses upon a December 11, 2013 letter Dr. Schuldheisz wrote in support of her application for benefits, in which Dr. Schuldheisz stated:

To whom it may concern:

This letter is in regard to my patient, Sybil Warman. She has been a patient of mine since 2008. When I first met her she described an acute illness that occurred in October of 2007 that was not resolving. Prior to that event, she had no significant baseline pulmonary issues and had no functional limitations with her breathing. She had minimal "smokers cough" but otherwise had no wheezing or dyspnea on exertion and had no history of asthma or COPD. She has developed ongoing pulmonary issues over the course of the subsequent six years and now is functionally very limited due to her breathing. At the time of her initial employment, she had absolutely no
pulmonary symptoms and, therefore, is not possible that her current condition predated her employment.

This letter also fails to qualify as compelling evidence. As it notes, Warman did not become Dr. Schuldheisz's patient until 2008. It is unclear whether Dr. Schuldheisz based her opinions in this letter upon what Warman told her in 2008, or upon a review of Warman's prior medical documentation—which, to the contrary, clearly evinces over a decade of Warman's pulmonary complaints such as shortness of breath, wheezing, congestion, and chest pain.

To be sure, the habitual act of smoking, in and of itself, does not qualify as a pre-existing condition for purposes of KRS 61.600(3)(d). See Brown, 336 S.W.3d at 16. What differentiates this case from Brown, however, is that the claimant in that matter had no documented symptoms of any preexisting condition in the extensive documentation that was produced. Id. at 12. Here, the opposite is true. And, in the proper exercise of its authority, the Board found that Warman's extensively documented symptoms 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).

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). We cannot reverse the Board unless "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). Because we cannot find the Board committed such an error, we AFFIRM.

ALL CONCUR. BRIEF FOR APPELLANT: Bartley K. Hagerman
Lexington, Kentucky BRIEF FOR APPELLEES: Carrie Bass
Frankfort, Kentucky


Summaries of

Warman v. Ky. Ret. Sys.

Commonwealth of Kentucky Court of Appeals
May 6, 2016
NO. 2015-CA-000522-MR (Ky. Ct. App. May. 6, 2016)
Case details for

Warman v. Ky. Ret. Sys.

Case Details

Full title:SYBIL WARMAN APPELLANT v. KENTUCKY RETIREMENT SYSTEMS; COUNTY EMPLOYEES…

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 6, 2016

Citations

NO. 2015-CA-000522-MR (Ky. Ct. App. May. 6, 2016)