Opinion
NO. 2011-CA-001999-MR
05-17-2013
KENTUCKY RETIREMENT SYSTEMS, BOARD OF TRUSTEES APPELLANT v. DENISE ALLGOOD APPELLEE
BRIEFS FOR APPELLANT: Katherine Rupinen Frankfort, Kentucky BRIEF FOR APPELLEE: T. Scott Abell Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 10-CI-01160
OPINION
VACATING AND REMANDING
BEFORE: CAPERTON, MAZE, AND VANMETER, JUDGES. VANMETER, JUDGE: The Board of Trustees of the Kentucky Retirement Systems ("Board") appeals from the Opinion and Order of the Franklin Circuit Court which reversed the Board's order denying Denise Allgood's application for disability retirement benefits. We vacate the decision of the Franklin Circuit Court and remand this matter with instructions to affirm the Board's order.
Allgood enrolled in the Kentucky Retirement Systems ("KERS") on October 31, 1988. She first applied for disability retirement benefits in December 2004, alleging she suffered from fibromyalgia, osteoarthritis, "stroke-dizziness (vertigo)-headaches," hypertension, depression - panic attacks, and degenerative disc disease. The application was denied. Allgood continued to work and, over three years later, in April 2008, she again filed for disability retirement benefits. She alleged she suffered from conditions of fibromyalgia, degenerative disc disease, osteopenia, arthritis, major depression, severe anxiety disorder, chronic pain, chronic fatigue syndrome, IBS, shingles, RLS, rapid weight loss, panic attacks, insomnia, malnutrition, renal insufficiency, and shoulder injury. Allgood retired on May 26, 2008. Her second application was also denied, and Allgood requested an administrative appeal and hearing. Following a hearing, the hearing officer recommended Allgood's application be denied and the Board adopted the hearing officer's report as the final administrative decision.
Allgood appealed the Board's decision to the Franklin Circuit Court, which reversed and remanded the action to the Board, with instructions to grant Allgood's application for benefits. Specifically, the court determined that the hearing officer failed to consider the cumulative effect of the numerous impairments alleged by Allgood. Due to that failure, the court reasoned that the hearing officer's report was arbitrary, and in its review of the evidence found that Allgood provided objective medical evidence of a permanent disability and that the KERS failed to rebut the evidence. This appeal followed.
Upon review of the Board's denial of an application for disability retirement benefits, we review "whether the evidence in [the claimant'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) (citations omitted). During our review of the evidence, we grant the Board "'great latitude in its evaluation of the evidence heard and the credibility of witnesses, including its findings and conclusions of fact.'" Id. (citation omitted). To adhere to that deference, a reviewing court may only substitute its judgment for that of the Board's if the Board's decision "is arbitrary and capricious." Id. (citation omitted).
The Board raises two issues on appeal. First, it argues the court erred by finding it failed to consider the cumulative effect of Allgood's medical conditions. Second, it claims the court erred by reweighing the evidence to conclude that the objective medical evidence compelled a finding in favor of Allgood. We agree with both arguments.
KRS 61.600 provides for disability retirement benefits to KERS members and reads, in pertinent part, as follows:
Kentucky Revised Statutes.
(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. . . .;
(b) The incapacity is a result of bodily injury, mental illness, or disease. . . .;
(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.
When circumstances require, a hearing officer shall determine whether a claimant is permanently disabled due to the cumulative effect of multiple ailments. Kentucky Ret. Sys. v. Bowens, 281 S.W.3d 776, 783 (Ky. 2009). In Bowens, the hearing officer only considered each ailment singularly, which the court held "'so fragmentized [claimant's] several ailments and the medical opinions regarding each of them that he failed to properly evaluate their effect in combination upon this claimant.'" Id. (citation omitted).
As in Bowens, Allgood alleged a litany of medical issues, some of which were supported by objective medical evidence, and others which were only documented as subjective complaints in the record. However, unlike in Bowens, here, the hearing officer specifically found that no objective medical evidence supported a finding that the cumulative effect of the alleged conditions mentally or physically incapacitated Allgood on a permanent basis. This finding is supported by the record. The hearing officer addressed the interplay between the mental and physical conditions alleged by Allgood and found they neither singularly nor cumulatively rendered her permanently disabled. Thus, the court incorrectly determined that the Board failed to consider the cumulative effect of Allgood's alleged impairments and erred by reversing the Board's order on that basis.
Subsequently, rather than remanding the matter to the Board to review further evidence of the cumulative effect of the alleged impairments, the court reconsidered the evidence and misapplied the law in determining that the medical records of the treating physicians supported a finding that Allgood was disabled, and that KERS failed to submit "any objective medical evidence (e.g., reports of any treating physicians, as opposed to doctors who merely review her files) that dispute these findings." Such reasoning is clearly in contradiction with Bowens, wherein the court struck down an attempt by a reviewing court to grant greater weight to a treating physician's opinion than that of a reviewing physician employed by the Board. 281 S.W.3d at 784. By reconsidering the evidence and assigning higher regard to the treating physicians' medical records, the circuit court misapplied the holding in Bowens.
Additionally, as we stated above, a reviewing court may only substitute its judgment for that of the Board's if the Board's opinion was arbitrary or capricious. McManus, 124 S.W.3d at 58. Our review of the record indicates that the Board's decision to adopt the recommendation of the hearing officer and to deny disability retirement benefits to Allgood was supported by substantial evidence. The decision was largely based on Dr. Jacquelyn Graven's September 2009, neuropsychological evaluation which stated that Allgood did not have a cognitive impairment. The evaluation further stated that any symptoms exhibited by Allgood were likely due to mood-based issues and lack of coping skills. In addition, the hearing officer noted that the medical records of Dr. Sunil Chhibber from October 2004 indicated that reasons other than disability may have prompted Allgood to file for disability; specifically, she expressed that she was disappointed with the lack of opportunity for career advancement at her job. These records were made prior to Allgood filing for disability in 2004 and indicate Allgood desired alternative employment, which the Board found to undermine her claim that she could not perform a job "of like duties," considering that her last position was "sedentary" in nature. Furthermore, Dr. William Keller reviewed the records documenting Allgood's physical complaints and diagnoses, and did not believe any physical impairment rendered her permanently disabled and unable to perform her relatively non-strenuous job requirements. Since substantial objective medical evidence supports the Board's denial of disability retirement benefits, the circuit court erred by substituting its judgment for that of the Board.
The Opinion and Order of the Franklin Circuit Court is vacated and this case is remanded with instructions to affirm the Board's order.
CAPERTON, JUDGE, CONCURS.
MAZE, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Katherine Rupinen
Frankfort, Kentucky
BRIEF FOR APPELLEE: T. Scott Abell
Louisville, Kentucky