Opinion
NO. 2016-CA-001197-MR
08-11-2017
JULIA LAINHART APPELLANT v. KENTUCKY RETIREMENT SYSTEMS, BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS, DISABILITY APPEALS COMMITTEE OF THE BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS, COUNTY EMPLOYEE RETIREMENT SYSTEMS, AND KENTUCKY EMPLOYEE RETIREMENT SYSTEMS APPELLEES
BRIEF FOR APPELLANT: Timothy Elijah Geertz Lexington, Kentucky BRIEF FOR APPELLEE: Leigh Ann Jordan Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 15-CI-00285 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES. LAMBERT, D., JUDGE: Julia Lainhart appeals from a Franklin Circuit Court order upholding the administrative decision of the Kentucky Retirement System (KERS) to deny her claim for disability retirement benefits. After review, we affirm.
I. BACKGROUND
Lainhart retired from her job as a 911 operator with the Lexington-Fayette Urban County Government Police Department effective New Year's Day 2013. At the time of her retirement, she had a claim for disability retirement benefits pending with KERS. She had filed the claim with KERS in May 2011.
In total, Lainhart worked in state government for 225 months. Her most recent position, the 911 operator job, required her to field emergency calls and input information regarding those calls into two separate computers. She worked 10-hour days, sitting for 9.5 of those hours and standing for a half hour.
She was a member of the County Employees Retirement System (CERS) for 213 of those months and a member of KERS for eight more. The balance consisted of sick leave.
In her application for disability benefits, Lainhart alleged four debilitating conditions: asthma, diabetes, high blood pressure, and a permanent back injury. She claimed each of these conditions prevented her from sitting or standing for long periods of time, which consequently kept her from being able to perform her job. A medical review board comprised of licensed physicians examined Lainhart's medical history and recommended denying her claim. The medical review board also recommended denial a second time after Lainhart later supplemented her initial application with additional medical information. Following the medical review board's second recommendation, Lainhart requested an evidentiary hearing on her case.
During the hearing, Lainhart represented herself. She submitted her medical records for the hearing officer to admit into the record, and the records were so admitted. The hearing officer also received evidence from KERS regarding Lainhart's alleged injuries and the relative impact those injuries had on Lainhart's ability to work.
In the months following the hearing, the hearing officer allowed Lainhart to supplement the record with additional medical evidence. The hearing officer also allowed Hon. Timothy E. Geertz to represent Lainhart. Notwithstanding these allowances, the hearing officer eventually denied Lainhart's application. The hearing officer also denied Lainahrt's application a second time when tasked, on remand, with determining whether the cumulative effect of Lainhart's injuries resulted in a permanent disability under KRS 61.600. The hearing officer found it did not. As a result, Lainhart sought judicial review in the Franklin Circuit Court.
Kentucky Revised Statutes. --------
Before the circuit court, Lainhart reiterated that she was entitled to retirement disability benefits because of her injuries. The circuit court considered this argument in light of the evidence in the record and disagreed. In a thorough opinion, the circuit court applied the statutory requirements of KRS 61.600 to the agency's factual findings regarding each alleged injury and explained that Lainhart had failed to show that the agency made an arbitrary decision. This appeal followed.
II. STANDARD OF REVIEW
Kentucky courts defer to an administrative agency's factual findings, including the agency's consideration of the evidence and witness credibility. See Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 309 (Ky. 1972). The reviewing court may not substitute its judgment for that of the administrative agency with respect to these additional considerations. Department of Labor v. Morel Const. Co., Inc., 359 S.W.3d 438, 442 (Ky. App. 2011). An agency's legal conclusions are reviewed de novo, without deference. See Aubrey v. Office of Attorney General, 994 S.W.2d 516, 519 (Ky.App.1998). If the agency's ultimate decision applied the appropriate legal standard to sufficiently supported facts, it will not be disturbed. McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003).
III. DISCUSSION
On appeal, Lainhart mainly urges this Court to accept medical evidence tending to show her disability over medical evidence relied upon by the agency to deny her claim. Lainhart lists her protracted, and well-documented, struggle with various ailments and asserts that the medical evidence supporting her disability claim is "so compelling that no reasonable person could have failed to be persuaded by it," citing McManus, supra. For the following reasons, the agency had a sufficient basis for the ultimate decision to deny Lainhart's claim.
Under KRS 61.600, a member of KERS or CERS with at least 16 years' service may retire on disability if objective medical evidence by licensed physicians shows that the member has suffered a permanent physical or mental incapacity preventing him from performing his last job or other jobs of like duties. Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776, 781 (Ky. 2009). An incapacity is "permanent" under the statute "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). Kentucky does not require the agency to give more weight to the opinion of a treating physician than that of a non-treating physician. See Bowens, 281 S.W.3d at 784 (rejecting treating physician rule).
Here, although Lainhart provided a detailed medical history regarding her asthma, diabetes, high blood pressure, and back injury, the hearing officer decided those conditions were not permanently incapacitating either individually or in the aggregate. First, the hearing officer acknowledged Lainhart's past respiratory trouble, but concluded her asthma was not disabling. The hearing officer reached this conclusion upon classifying Lainhart's 911 operator job as a sedentary position, based on the job responsibilities, and further relying on Dr. John Hill's opinion that Lainhart's breathing was stable when not physically active. Since this was a reasonable finding, the conclusion was proper.
Second, the hearing officer concluded that Lainhart's diabetes was not disabling. In arriving at that decision, the hearing officer reasonably accepted the opinion of Dr. Keith Applegate, who noted that Lainhart's diabetes was under control and stable under her current medication regimen. Accordingly, this was an appropriate decision.
As for the high blood pressure condition, the hearing officer concluded for a third time that Lainhart did not have a disabling condition. The hearing officer made this determination after reviewing a medical evaluation from October 2012, which confirmed Lainahrt's hypertension was consistently moderate and treatable through reasonable accommodations in the workplace. Specifically, the hearing officer considered Dr. Frank Burke's opinion that Lainhart's hypertension would cause problems in her lower extremities if she sat for more than eight hours a day and found such a situation could be resolved by an employer's accommodation. This finding was based on adequate record evidence and thus led to a proper conclusion.
Fourth, regarding Lainhart's back injury, the hearing officer consulted Lainhart's Workers' Compensation Records. These records detailed two falls, one in 1992 and another four years later. The hearing officer opined that the 1996 fall appeared to be the main source of Lainhart's current back injury and noted that her records showed a diminished tolerance for prolonged sitting and standing. This information notwithstanding, the hearing officer found Lainhart's back injury had improved by 2010 based on the statements made in an Activities of Daily Living Questionnaire. In that document, Lainhart admitted she could sit in a chair as long as she liked and could tolerate her back pain without medication. The hearing officer also noted that in 2011, Lainhart admitted to her treating physicians at KY Spine & Rehab that sitting helped her manage her back pain. Three months later, Lainhart also admitted that she did not have back pain and was tolerating her activities of daily living. The hearing officer accepted this evidence over a conflicting opinion of Dr. Burke—which was dated more than one year from Lainhart's last day of work— before concluding Lainhart's back injury was not disabling. Because we do not second guess the hearing officer's appraisal of the evidence on appeal, this decision was also proper.
Finally, with respect to the cumulative effect of her conditions, the hearing officer found it did not constitute a permanent disability. The hearing officer found that all of her conditions were under control and that no medical records contained a definite statement indicating she was disabled as a result of the cumulative effect of her conditions. In light of the hearing officer's previous conclusions and the lack of a definite statement in the record, we agree that this was a proper decision. Moreover, as the circuit court did not err in upholding the agency's adequately supported decision, the order of the Franklin Circuit Court is hereby affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy Elijah Geertz
Lexington, Kentucky BRIEF FOR APPELLEE: Leigh Ann Jordan
Frankfort, Kentucky