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Court of Appeals of Kentucky.


NO. 2010-CA-000783-MR

Decided: March 18, 2011

BEFORE:  TAYLOR, CHIEF JUDGE;  ACREE AND COMBS, JUDGES. BRIEF FOR APPELLANT:  Katherine Rupinen Frankfort, Kentucky BRIEF FOR APPELLEE:  Craig Housman Paducah, Kentucky



The Kentucky Retirement Systems appeals an award of disability benefits to James Coltharp by the Franklin Circuit Court.   Following careful review, we are compelled to remand.

Coltharp enrolled in the Kentucky Retirement Systems in 1990 when he began working as a deputy jailer in Graves County.   He was subsequently elected jailer.   On April 18, 2002, during his last term serving as jailer, Coltharp caught a heavy cell door as it closed, twisting his back.   He has suffered severe back and leg pain ever since.   Due to the severe pain, Coltharp was unable to perform his jail duties for the remainder of his term, which ended on January 5, 2003.

Coltharp underwent back surgery in 1986.   After recovering from the surgery, he did not suffer any problems until the injury in 2002.   The record shows that he sustained a broken hip in 1994 and that he fell on his back in 1998, but neither of those injuries caused lasting pain.   Following the April 2002 incident, several doctors diagnosed Coltharp with grade I to II spondylolisthesis, spinal stenosis, and bilateral foraminal encroachment.   He was prescribed several strong painkillers.   He was also treated with epidural injections and a spinal cord stimulator.   There is no indication that Coltharp has experienced any real relief from the pain that began on April 18, 2002.

Coltharp applied for disability benefits from Kentucky Retirement Systems in June 2003.   His application was denied several times.   An administrative hearing was held on December 13, 2004;  on May 1, 2005, the hearing officer issued her findings of fact and recommended order.   She again denied Coltharp's application, holding that he “suffers from a back condition which predates his membership in the retirement system.”   On September 8, 2005, the Disability Appeals Committee of the Board of Trustees of the retirement system adopted the hearing officer's recommendation without making any of its own independent findings or comments.   Coltharp appealed to the Franklin Circuit Court.   It entered its opinion and order on April 15, 2010, reversing the Board's order.   This appeal follows.

Kentucky Revised Statute(s)(KRS) 61.600(3)(d) prohibits the award of disability benefits if incapacity results from a condition that pre-existed the date of the applicant's enrollment in the retirement system.   However, KRS 61.600(4)(a) provides an exception;  the prohibition does not apply if “the incapacity is a result of ․ condition which has been substantially aggravated by an injury or accident arising out of or in the course of employment[.]”

Kentucky Retirement Systems makes several arguments, but one is dispositive.   It contends that the circuit court erred when it reversed the Board instead of remanding for it to make appropriate findings.   We agree.

In its opinion and order, the circuit court reasoned that because the hearing officer did not make findings concerning whether Coltharp's pre-existing condition was substantially aggravated by a workplace injury, the Board lacked substantial evidence to support its denial of disability benefits.   Accordingly, the court reversed the Board's adoption.

A recent case closely analogous to the facts before us is Bd. of Tr.'s, Kentucky Ret. Sys. v. Grant, 257 S.W.3d 591 (Ky.2008).   In Grant, the petitioner argued equitable estoppel during the administrative hearing.   The hearing officer declined to address the issue, and the Board merely adopted the hearing officer's findings.   On appeal, the circuit court agreed with the petitioner and ruled on the estoppel issue, reversing the findings of the Board.   We held that the circuit court erred in deciding the estoppel issue and that it should have remanded for a factual finding.  Id. at 595.  (Emphasis added.)

The facts before us are nearly identical.   Coltharp argued that a pre-existing injury was substantially aggravated by the workplace injury.   However, the hearing officer declined to make findings and instead summarily found that he had a pre-existing condition.   Coltharp filed exceptions to the hearing officer's findings, explicitly asking the Board to make findings concerning substantial aggravation of a pre-existing injury.   Instead, the Board simply adopted the hearing officer's findings.   On appeal, the Franklin Circuit Court found that a workplace injury had substantially aggravated the pre-existing condition, reversing the Board's finding.

Whether a disability results from a pre-existing condition is a finding of fact.  Caudill v. Commonwealth of Kentucky, Kentucky Ret. Sys., 240 S.W.3d 662 (Ky.App.2007).   Only the hearing officer and the Board are empowered to make findings of fact.  Bd. of Tr.'s, Kentucky Ret. Sys. v. Grant, 257 S.W.3d at 595;  KRS 13B.150(2).   Like the court in Grant, we conclude that the circuit court erred when it reversed the Board.   We are compelled by Grant “to remand this case to the Board of Trustees with directions that it make a factual finding” as to whether Coltharp suffered a substantial aggravation of a pre-existing condition that rendered him disabled.  Id. See also KRS 13B.150(2).

It is indeed unfortunate that yet another step in this protracted litigation is a procedural necessity.   Mr. Coltharp has suffered greatly for a very long time, and no doubt the Franklin Circuit Court was mindful of the extreme length of time involved.

The remand for findings renders moot the remaining arguments of Kentucky Retirement Systems.   The order of the Franklin Circuit Court is vacated, and this case is case remanded to the Board for further findings.