Ky. Ret. Sys. v. Garrett

• Decision Date: 06 January 2017
• Docket Number: NO. 2015-CA-000144-MR,2015-CA-000144-MR
• Parties: KENTUCKY RETIREMENT SYSTEMS APPELLANT v. DAWN MICHELLE GARRETT APPELLEE
• Court: Kentucky Court of Appeals

KENTUCKY RETIREMENT SYSTEMS APPELLANT v. DAWN MICHELLE GARRETT APPELLEE

NO. 2015-CA-000144-MR

Commonwealth of Kentucky Court of Appeals

JANUARY 6, 2017

NOT TO BE PUBLISHED

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 14-CI-00501

OPINION

AFFIRMING

** ** ** ** **

BEFORE: ACREE; JONES; AND NICKELL, JUDGES.

JONES, JUDGE: Dawn Michelle Garrett, the Appellee, filed an action in Franklin Circuit Court seeking judicial review of a decision by the Board of Trustees of Kentucky Retirement Systems ("Board") denying her application for disability retirement benefits under Kentucky Revised Statute ("KRS") 61.600. The circuit court reversed and remanded the matter to the Board with instructions to enter an order granting Garrett's application for disability benefits. The Board appeals to this Court arguing that the circuit court erred by reweighing the evidence and substituting its judgment for the fact-finder in direct contravention of its role as a reviewing court. Upon review, we AFFIRM.

I. BACKGROUND

Garrett was a member of the Kentucky Employees Retirement Systems ("KERS") from September 27, 1990, until her last day of paid employment on July 19, 2010, at which time she was serving as a Social Service Supervisor for Louisville Metro Government.

On October 4, 2010, Garrett filed an application for disability retirement benefits listing the reasons as a low-back injury and back pain and spasms preventing her from sitting, standing, or walking for any length of time. Garrett stated that the medications she takes for her back pain impair her decision-making abilities and prevent her from driving to home visits.¹ Garrett explained that her back pain originated on October 16, 2009, when she injured an area of her back that had previously been treated with surgery in a work-related car accident.

Garrett attached an employer job description to her application. The description was completed by Regina Warren, Garrett's division director. Ms. Warren described Garrett's job duties as "staff supervision, grant accountability and documentation, computer work, internal and external meetings, case review, home visits." Ms. Warren stated that Garrett worked nine hours per day,approximately six to eight hours of which were sitting, and one to three were standing/walking. Ms. Warren further indicated that Garrett was occasionally required to lift case boxes and records weighing up to twenty pounds, but that she had some assistance with lifting. The description further indicated that Garrett had been terminated from employment on July 20, 2010. The Medical Review Board twice reviewed and twice denied Garrett's application for disability retirement benefits. At Garrett's request, an administrative hearing was held on her application.

The Hearing Officer's Findings of Fact, Conclusions of Law, and Recommended Order was issued on January 7, 2014. It recommended granting Garrett's application with review in one year. After the filing of exceptions, the Board issued its Final Order rejecting the Hearing Officer's Recommended Order. The Board's Final Order denied Garrett's application for disability benefits, concluding that Garrett failed to establish, by objective medical evidence, that she had a permanent physical or mental impairment which prevented her, since her last date of employment, from performing her former job or a job of similar duties. Garrett appealed the Board's decision to the Franklin Circuit Court.

In her petition for review of the Board's decision, Garrett disputed the Board's classification of her job as "sedentary" and urged the circuit court to reinstate the Hearing Officer's conclusion that Garrett's job is "light work." Additionally, Garrett protested the Board's determination that her credibility was "not good." Lastly, Garrett objected to the Board's conclusion that Garrett failed toprovide sufficient objective medical evidence as proof of her disability as of her last date of paid employment. Ultimately, the circuit court agreed with Garrett on all points. This appeal followed.

II. STANDARD OF REVIEW

"Kentucky case law establishes that it is the role of the administrative agency, acting as the trier of fact, to determine the credibility of witnesses and pass on the weight of the evidence." Johnson v. Galen Health Care, Inc., 39 S.W.3d 828, 832 (Ky. App. 2001). "The circuit court's role as an appellate court is to review the administrative decision, not to reinterpret or to reconsider the merits of the claim, nor to substitute its judgment for that of the agency as to the weight of the evidence." 500 Associates, Inc. v. Nat. Res. & Envtl. Prot. Cabinet, 204 S.W.3d 121, 131 (Ky. App. 2006) (footnote omitted). The circuit court's review of an agency's factual findings is quite limited. See Runner v. Commonwealth, 323 S.W.3d 7, 10 (Ky. App. 2010).

Our Supreme Court recently explained the nature of this limited review as follows:

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 the party's favor is so compellingthat no reasonable person could have failed to be persuaded by it.

Kentucky Ret. Sys. v. Brown, 336 S.W.3d 8, 14-15 (Ky. 2011) (quoting McManus v. Kentucky Ret. Sys., 124 S.W.3d 454 (Ky. App. 2003)).

III. ANALYSIS

KRS 61.600 sets forth the criteria for disability retirement. The statute requires a determination, based on objective medical evidence, as to whether "[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." KRS 61.600(3)(a)-(c). An incapacity is permanent if is expected to continue for at least one year following the claimant's last day of employment. KRS 61.600(5)(a)(1). A determination of permanency must be based on the medical evidence and the claimant's "capacity for work activity on a regular and continuing basis." KRS 61.600(5)(a)(2) and KRS 61.600(5)(b).

Central to this appeal is whether Garrett's position is classified as sedentary or light work, pursuant to the definitions set forth in KRS 61.600(5)(c). This is so because the medical evidence is essentially undisputed that Garrett cannot perform any work other than sedentary work.

The Hearing Officer's recommended findings determined that Garrett's position was in the nature of light work. The Board did not accept this finding. Instead, the Board concluded:

5. Claimant was employed as a Social Service Supervisor for Louisville Metro Government. Claimant's job is best described under KRS 61.600 (5) (c) as sedentary duty work. Claimant's primary duties were to supervise staff, complete grant accountability documentation, work on the computer, attend internal and external meetings and perform case review and do home visits. Claimant sat for approximately 6 hours of a 9 hour day and stood/walked for approximately 3 hours. Claimant had to occasionally lift boxes up to 20 pounds, which would put her job duties into the light duty category. However, claimant's employer indicated that she had assistance with any lifting required of her. (Record, p. 8). Taking this accommodation into account, Claimant's job is actually sedentary duty in nature. The Hearing Officer erred by failing to acknowledge that the Claimant was accommodated by assistance with all lifting. Accommodations must be considered in determining an individual's job requirements and the Hearing Officer failed to do so in this case.

6. Claimant was given assistance with all the lifting requirements of her job.

The circuit court determined that the Board erred in classifying Garrett's position as sedentary because "there is simply nothing in the record to support the conclusion that Garrett had help available for all her lifting duties."

We begin our analysis with KRS 61.600(5)(c). It provides:

1. Sedentary work shall be work that involves lifting no more than ten (10) pounds at a time and occasionally lifting or carrying articles such as large files, ledgers, and small tools. Although a sedentary job primarily involves sitting, occasional walking and standing may also be required in the performance of duties.

2. Light work shall be work that involves lifting no more than twenty (20) pounds at a time with frequent lifting or carrying of objects weighing up to ten (10) pounds. Ajob shall be in this category if lifting is infrequently required but walking and standing are frequently required, or if the job primarily requires sitting with pushing and pulling of arm or leg controls. If the person has the ability to perform substantially all of these activities, the person shall be deemed capable of light work. A person deemed capable of light work shall be deemed capable of sedentary work unless the person has additional limitations such as the loss of fine dexterity or inability to sit for long periods.

(emphasis added)

Based on the definitions set forth in the statute, we agree with the circuit court that the Board's classification of Garrett's position as sedentary is contrary to the facts of record. While there was evidence in the record that Garrett may have had some assistance with lifting, the job description completed by Ms. Warren required Garrett to be able to lift up to twenty pounds without assistance. There was no evidence that Garrett was excused from the lifting requirements or that assistance was always available to her. Additionally, the record was silent as to the nature of the assistance provided to Garrett.

More problematic, however, is that the Board...