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Court of Appeals of Kentucky.


NO. 2008-CA-002153-MR

Decided: January 15, 2010

BEFORE:  CLAYTON, DIXON, AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Katherine Rupinen Frankfort, Kentucky BRIEF FOR APPELLEE:  Walter H. Hornbeck Covington, Kentucky

Kentucky Retirement Systems (“KERS”) appeals a decision of

the Franklin Circuit Court reversing KERS's Board of Trustees' (“the Board”) final order denying Judy Bramlage's application for disability retirement benefits.   We affirm.

Bramlage, who was employed as an instructional aide and school bus monitor for the Kenton County Board of Education, applied for disability retirement benefits in October 2003, when she was fifty-five years old.   In her application, Bramlage stated she suffered a bilateral knee injury after falling inside a school bus on November 12, 2002.   Bramlage opined that her knees were painful and weak, rendering her unable to stand for more than a few minutes at a time.   In 2003, Bramlage underwent surgery on both knees to repair medial and lateral tears of the meniscus, and in April 2004, she had a total left knee replacement.

In May and September 2004, the KERS medical review physicians recommended denial of Bramlage's application. Double In June 2005, Bramlage submitted a second application for disability retirement benefits, and the medical review physicians again recommended denial.   Thereafter, Bramlage requested a formal administrative hearing.

An evidentiary hearing was held October 5, 2006.   Bramlage testified that, on the day she was injured, she stood up inside the bus to shut a window when the bus hit a large pothole.   Bramlage fell to the floor, where she struck the bus's motor cover with her knees.   Following surgery, Bramlage briefly returned to work in 2003, but experienced pain and swelling in her knees.   Bramlage's last day of paid employment with the school system was June 19, 2003.

The medical evidence included:  1) medical records chronicling Bramlage's treatment for her bilateral knee injury;  2) the workers' compensation administrative record for her injury;  3) a functional capacity exam performed by Dr. John Larkin;  and 4) an independent medical examination report from Dr. Jeffrey Ellington.   The record also included the medical reports of the KERS medical review physicians, Drs. Strunk, Kimball, McElwain, Keller, and Quarles.

On April 9, 2007, the hearing officer rendered a report and recommended order denying Bramlage's request for disability benefits.   The hearing officer concluded that the objective medical evidence did not support a finding that Bramlage was totally disabled from her former job.   Specifically, the opinion noted that the accommodations offered by Bramlage's employer were sufficient for her to continue her former employment.   The hearing officer also concluded Bramlage failed to prove that her disabling condition was not the result of a pre-existing condition, in this case, osteoarthritis.   On July 10, 2007, the Board overruled Bramlage's exceptions and adopted the recommended order as the final order of the Board.

Bramlage appealed the Board's decision to Franklin Circuit Court.   On October 27, 2008, the circuit court reversed the Board, concluding that the medical evidence compelled a finding that Bramlage was totally disabled and that she did not have a pre-existing condition that precluded an award of retirement disability benefits.   This appeal by KERS followed.

“ ‘In its role as a finder of fact, an administrative agency is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses, including its findings and conclusions of fact.’ ”  McManus v. Ky. Ret. Sys., 124 S.W.3d 454, 458 (Ky.App.2003), quoting Aubrey v. Office of Attorney Gen., 994 S.W.2d 516, 519 (Ky.App.1998).   As Bramlage was unsuccessful before the Board, she is entitled to prevail on appeal only if the evidence in her favor was “so compelling that no reasonable person could have failed to be persuaded by it.”  Id.

Kentucky Revised Statutes (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 permanently 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).  However, the claimant's physical incapacity cannot “result directly or indirectly from bodily injury, mental illness, disease, or condition which pre-existed membership in the system ․ [.]” KRS 61.600(3)(d).

KERS contends the circuit court impermissibly re-weighed the evidence and substituted its judgment for that of the fact-finder.   KERS specifically argues the court misinterpreted the evidence and failed to consider the statutory definitions of sedentary work and light work in regard to Bramlage's capacity to return to her former employment.   Following a thorough review of the record, we conclude that the evidence compelled a decision in Bramlage's favor.

A. Accommodations

Pursuant to KRS 61.600(3)(a), “[i]n 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[.]”  A “reasonable accommodation” is defined as, “[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position[.]”  29 C.F.R. § 1630.2(o)(ii).

Both KERS and Bramlage agree that her former job duties constituted “light” duty work.  KRS 61.600(5)(c)(1)-(2) define the categories of sedentary work and light work for the purposes of an employee's physical exertion requirements:

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.   A job 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.

According to the employer's job description, Bramlage was expected to assist special education teachers and was required to lift or carry students.   She also repetitively crouched or stooped, frequently carried ten pounds, and occasionally carried twenty pounds.   The employer specifically noted Bramlage's position required the physical exertion of walking, climbing stairs, bending, and lifting.

Bramlage submitted paperwork describing her daily job activities.   She opined that she spent at least four and one-half hours per day standing or walking.  DoubleDouble Bramlage also noted she frequently carried books that weighed between twenty and twenty-five pounds.   At the hearing, Bramlage explained that she had to move books between classrooms to assist special needs children with reading and math.

In August 2003, Dr. Larkin placed Bramlage on work restrictions that limited standing to no more than one to two hours per day, limited her ability to push/pull/carry to ten pounds, and prohibited bending, climbing, or kneeling.   Dr. Larkin recommended sedentary job activities for Bramlage.

In October 2003, Dr. Edward Lim evaluated Bramlage for an IME and recommended that she avoid stooping, squatting, and bending.   Dr. Lim also advised that Bramlage should not lift more than ten to fifteen pounds, and she should stand and sit intermittently.

In April 2004, Dr. Ellington rendered an IME opinion recommending work restrictions of occasional lifting of twenty pounds, frequent lifting of ten pounds, and no more than four hours of standing or walking each day.

In September 2004, Dr. Forest Heis, Bramlage's orthopedic surgeon, concluded Bramlage was restricted to sedentary activity, and she did not retain the physical capacity to return to her former employment. Double

Based upon her work restrictions, Bramlage sought accommodations from her employer.   The school was able to provide access to an elevator, use of a handcart, and assistance from other aides.   While the hearing officer accepted these accommodations as reasonable, we believe Bramlage would still not be able to perform the essential functions of her job in light of her disabling knee condition.   For instance, using an elevator would allow Bramlage to avoid stairs, but she would still have to stand or walk around the classroom helping children.   Likewise, the use of a handcart would assist Bramlage in transporting books, but she would still have to load/unload the cart and push or pull it from room to room.   In addition, while other employees were able to assist Bramlage with physical tasks, Bramlage's employer noted she was “called upon at times to respond to special circumstances,” involving special needs children.   Finally, the record includes a July 2004 letter from the school system advising that no sedentary jobs were available.

While we certainly acknowledge that the hearing officer was entitled to determine the credibility of the evidence, under the circumstances presented here, we believe the decision to deny benefits to Bramlage was arbitrary.   McManus, 124 S.W.3d at 458-59.   The medical records indicate that all of Bramlage's physicians placed varying degrees of restriction on walking, standing, lifting, carrying, bending, squatting, and crouching.   In light of her restrictions, we believe Bramlage was capable of sedentary physical exertion pursuant to KRS 61.600(5)(c)(1).   It is undisputed that Bramlage's position was “light” duty pursuant to the statute, and the school system was unable to provide Bramlage with a sedentary position.   We conclude the medical evidence presented by Bramlage compels a finding that she was physically incapacitated from performing her prior job or a job of like duties, even with the accommodations provided by her employer.   Accordingly, the circuit court properly reversed the Board on this issue.

B. Pre-Existing Condition

As previously noted, KRS 61.600(3)(d) precludes benefits if the disability results “directly or indirectly from bodily injury, mental illness, disease, or condition which pre-existed membership in the system ․ [.]” KERS correctly points out that it was Bramlage's burden to prove she did not have a pre-existing osteoarthritic condition that caused her disability.  McManus, 124 S.W.3d at 458.   After thorough review of the record, we conclude that Bramlage sustained her burden.

Bramlage became a member of KERS in September 1989, when she was forty-one years old.   A 1998 MRI of her left knee noted patellofemoral joint osteoarthritis and chrondromalacia patella.   Bramlage testified in her deposition that she sought the MRI in 1998 after twisting her knee on the school bus.   Following the 2002 work injury, Bramlage's treating physicians also noted degenerative changes in both knees.   However, the evidence also indicates that Bramlage sustained trauma to her knees because of the November 2002 injury.   Dr. Heis described Bramlage's knees as “crushed,” and Dr. Lim noted that any pre-existing degeneration was aggravated by Bramlage's bilateral knee trauma.

There is no evidence Bramlage suffered any symptoms of osteoarthritis prior to her membership date.   Although KERS contends the absence of such evidence indicates Bramlage failed to meet her burden, we believe it simply indicates she did not require medical treatment for a pre-existing condition.   Furthermore, it is evident that she sought an MRI in 1998 because of an injury, not because she suffered symptoms of osteoarthritis.   While we are cognizant that Bramlage bore the burden of proof on the issue of a pre-existing condition, we are not persuaded that the notation of osteoarthritic or degenerative changes, after nearly ten years of employment, constitutes evidence of a pre-existing “condition” sufficient to preclude disability benefits within the meaning of KRS 61.600(3)(d).  As a result, the hearing officer's finding to the contrary was arbitrary, and the circuit court properly reversed the Board on this issue.

For the reasons stated herein, we affirm the decision of the Franklin Circuit Court.