DEBORAH BURCHETT v. BOARD OF TRUSTEES, KENTUCKY RETIREMENT SYSTEMS
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RENDERED: APRIL 8, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000537-MR
DEBORAH BURCHETT
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO.01-CI-00191
BOARD OF TRUSTEES,
KENTUCKY RETIREMENT SYSTEMS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: McANULTY AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
Deborah Burchett appeals from a
judgment upholding the denial of her claim for disability
retirement benefits pursuant to KRS2 61.600.
Appellant argues
that the Franklin Circuit Court erred in concluding that there
was substantial evidence to support the appellee board’s
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
Kentucky Revised Statutes.
decision to deny her claim.
Having carefully reviewed the
evidence presented in this case, we find no error in the circuit
judge’s conclusion that the evidence before the board was
sufficient to support its determination.
Accordingly, we affirm
the judgment in this case.
The standard of judicial review of decisions of
administrative agencies is so well-settled that it hardly bears
repeating.
Judicial review is intended to insure that an
agency action is not arbitrary and that the correct rule of law
was applied to the facts of the case.3
It is not the function of
an appellate court to re-interpret the evidence or to reconsider
the merits of a claim.4
The framework for judicial review of
administrative action is now codified in KRS 13B.150 and
confines the court’s authority to determining whether the agency
decision: a) violates constitutional or statutory provisions; b)
is in excess of the agency’s statutory authority; c) is
supported by substantial evidence based upon the whole record;
d) is arbitrary, capricious or constitutes an abuse of
discretion; e) is based upon improper and prejudicial ex parte
communications; f) has been prejudiced by the failure to
disqualify the hearing officer; or g) is deficient as otherwise
3
American Beauty Homes Corp. v. Louisville and Jefferson County Planning and
Zoning Commission, 379 S.W.2d 450 (Ky. 1964).
4
Kentucky Unemployment Ins. Commission v. King, 657 S.w.2d 250 (Ky.App.
1983).
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provided by law.
The statute also clearly specifies that the
reviewing court “shall not substitute its judgment for that of
the agency as to the weight of the evidence on questions of
fact.”
Furthermore, we are bound by the agency’s properly
supported factual findings regardless of the existence of
conflicting evidence in the record.5
Finally in this regard, an
administrative agency’s failure to grant relief to the party
having the burden of proof will be considered arbitrary “if the
record compels a contrary decision in light of substantial
evidence” contained in that record.6
Because appellant Burchett
bore the burden of proving her entitlement to disability
retirement benefits, the focus of our review is whether the
evidence in the record as a whole compelled a finding in her
favor.
At the time of appellant’s termination from employment
with the Natural Resources and Environmental Protection Cabinet,
she was working in the capacity of an Environmental Inspector
III.
The responsibilities of that position include conducting
inspections of surface and underground mines to insure
compliance with state laws and regulations.
The record contains
uncontradicted evidence that the terrain surrounding these mine
sites often consists of steep slopes, mountain tops or valleys.
5
Urella v. Kentucky Board of Medical Licensure, 939 S.W.2d 869 (Ky. 1997).
6
Bourbon County Board of Adjustment v. Currans, 873 S.W.2d 836,838 (Ky.App.
1994).
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The physical rigors of appellant’s job require that she drive a
four-wheel-drive vehicle over very rough roads and terrain.
Occasionally, no road existed all the way to the inspection site
and appellant would be forced to negotiate the rough terrain on
foot.
Appellant was required to transport the entire mining
permit file to the site, and often these files consisted of up
to three bankers boxers weighing as much as 70 pounds.
Occasionally, appellant’s vehicle would get stuck in rough
roadways and she would have to winch the vehicle out of trouble.
These activities and conditions comprised about one-half of
appellant’s workday and sedentary activities comprised the
remainder of the day.
In January, 1997, while photographing a mine site,
appellant fell on some loose dirt and injured her ankle.
Although appellant did not seek immediate medical attention,
later that evening she began to experience swelling in her feet,
a “pins and needles” sensation, inability to turn her head and
muscle spasms.
After seeking medical treatment, appellant
attempted to return to work but was subsequently taken off work
by her treating physician for approximately three months.
In
May, 1997, she returned to work on a permanent basis but was
forced to take time off regularly, missing three weeks due to
migraine headaches.
days.
Appellant finally reduced her work to half
In October, 1998, while on medical leave but after her
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last date of paid employment, appellant fell and fractured her
right ankle, necessitating the implantation of a plate and pins.
Appellant testified at the hearing on her claim that
the 1997 accident was the commencement of her problems with
migraine headaches and muscle spasms.
Although she stated that
in 1994 she was diagnosed with carpal tunnel syndrome, which was
surgically repaired, and that an MRI taken around the same time
revealed a mild herniated disc in her back, appellant traced the
majority of her current problems to the 1997 fall.
Appellant
listed as follows the medical problems which she alleges
preclude her from returning to her job:
disc problems in her
neck, headaches, muscle spasms, left shoulder and arm numbness,
muscle pain in her back, weak and tired hands, and hurting feet
(especially the left ankle which still has pins and screws in
it).
KRS 61.600(3) directs that “objective medical
evidence” of a claimant’s physical or mental incapacity to
perform a job be evaluated by a statutorily-created medical
review board.
Objective medical evidence is defined in KRS
61.510(33) as:
reports of examinations or treatments,
medical signs which are anatomical,
physiological, or psychological
abnormalities that can be observed;
psychiatric signs which are medically
demonstrable phenomena indicating specific
abnormalities of behavior, affect, thought,
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memory, orientation, or contact with
reality; or laboratory findings which are
anatomical, physiological, or psychological
phenomena that can be shown by medically
acceptable laboratory diagnostic techniques,
including but not limited to chemical tests,
electrocardiograms, electroencephalograms,
x-rays, and psychological tests.
The medical evidence offered in support of appellant’s
claim was submitted to the medical review board, each of whom
ultimately recommended denial of disability retirement benefits.
The medical examiners were of the opinion that appellant’s
complaints were not supported by objective medical findings.
As
noted by Dr. William P. McElwain, the medical reports from
multiple physician visits “document the history of multiple
subjective symptoms” but the “[o]bjective findings offer little
if any understanding of the discomfort.”
After reviewing the medical evidence in light of the
nature of appellant’s job description of “light to medium work”
based on the standards set out in KRS 61.600(5) (c)(2), the
hearing officer concluded that the “preponderance of the
objective medical evidence contained of record indicates that
the Claimant is not permanently disabled as a result of her
various complaints as defined by KRS 61.600.”
The hearing
officer noted that evidence concerning the fracture of
appellant’s left ankle could not be considered because that
injury occurred almost seven months after the date of her last
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paid employment.
The denial of benefits was upheld by the
board, as well as by the Franklin Circuit Court.
In this
appeal, appellant argues that the preponderance of the evidence
establishes that she has serious medical problems which prohibit
her from performing any type of physical labor, asserting that
the fact of her permanent total disability is substantiated by
an opinion and award of the Workers’ Compensation Board.
Concerning the reference to an award in appellant’s workers’
compensation case, because that evidence was not considered by
the board in her retirement claim, we cannot consider it in this
appeal.
We would note, however, that the decision on her
workers’ compensation claim would not be controlling in any case
as the criteria for retirement disability differ from the
factors utilized in assessing workers’ compensation claims.
Finally, our review of the extensive medical evidence
submitted in this case discloses the existence of conflicting
opinions as to the extent of appellant’s medical problems, as
well as to the disabling nature of those conditions.
Thus,
while are sympathetic to appellant’s physical problems and might
have reached a different conclusion on her claim, we are not
free to substitute our opinion of the evidence for that of the
agency charged with that determination.
The existence of
conflicting evidence or the possibility of drawing inconsistent
conclusions from that evidence does not deprive an agency’s
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determination of the support of substantial evidence.7
The
bottom line is that because the board’s denial of retirement
disability benefits is supported by substantial evidence, we
have no authority to set that decision aside.
Accordingly, the judgment of the Franklin Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Thomas Hardin
Inez, Kentucky
Jennifer A. Jones
Frankfort, Kentucky
7
Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 307 (Ky. 1972).
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