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Kentucky Retirement Systems v. West

Supreme Court of Kentucky

August 29, 2013

Roger WEST, Appellee.

Rehearing Denied Dec. 19, 2013.

Page 579

Jennifer A. Jones, Katherine I. Rupinen, Leigh Ann Jordan, Brian C. Thomas, Joseph Patrick Bowman, Jennifer Ann Steele, Christopher Louis Tapia, Counsel for Appellant.

Thomas Wayne Moak, Counsel for Appellee.



Appellee, Roger West, was employed as a plant operator by the City of Middlesboro when he filed for disability retirement benefits as a member of the County Employees Retirement Systems on November 23, 2005. He began working at the city's water treatment facility in 1991, though he had periodically been employed by various state and local entities prior to this date. His last date of paid employment was December 18, 2005.

He based his application on a work-related back injury, as well as " breathing problems." He cited exposure to chemicals at the facility and his diagnosis of chronic obstructive pulmonary disease (" COPD" ) as the basis of the breathing problems. Included in his medical records are additional diagnoses of seizure disorder, sleep apnea, degenerative joint disease, hypertension, hypercholesterolemia, and hyperthyroidism. His application was reviewed by three independent medical examiners, all of whom recommended denial of disability retirement benefits.

Page 580

West then requested and received an administrative hearing. The testimony and medical evidence submitted confirmed that West's COPD was a direct result of his lengthy and chronic use of tobacco, not exposure to chemicals. Further, the physicians agreed that West is 100% disabled as a result of severe COPD, though not permanently because he would experience relief of symptoms were he to cease smoking.

With respect to his back injury, the examining physicians agreed that there was no permanent impairment. Also, the hearing officer concluded that West failed to produce any convincing evidence to establish that his back injury did not pre-date his employment date. Accordingly, the hearing officer also recommended denial of benefits. On appeal, the Disability Appeals Committee adopted the hearing officer's report and recommended order.

West then appealed this final administrative decision to the Franklin Circuit Court, which affirmed the decision of the Disability Appeals Committee. He appealed the circuit court's decision to the Court of Appeals, which reversed and remanded. The Court of Appeals concluded that the hearing officer had failed to consider the cumulative effect of West's various impairments. The Court of Appeals also determined that the hearing officer improperly considered West's chronic tobacco use as a " pre-existing condition."

Appellant, Kentucky Retirement Systems (the " Systems" ), then moved this Court for discretionary review, which was granted. We remanded the matter to the Court of Appeals for reconsideration in light of our decision in Kentucky Retirement Systems v. Brown, 336 S.W.3d 8 (Ky.2011). On remand, the Court of Appeals reached the same result. Relying on Brown, the Court of Appeals reaffirmed that smoking is not a " condition" within the meaning of KRS 61.600(3)(d). Further, it again remanded the matter for determination of whether the combined effect of West's impairments rendered him unable to return to his former position or like positions.

The Systems then filed a second motion for discretionary review, which was again granted by this Court. For the reasons set forth herein, we reverse the Court of Appeals' opinion.

Burden of Proof

West applied for disability benefits pursuant to KRS 61.600, which requires a showing that " [t]he incapacity does not result directly or indirectly from bodily injury, mental illness, disease, or condition which pre-existed membership in the system or reemployment, whichever is most recent." In all administrative hearings, the party seeking a benefit bears the burden of proof, and must satisfy this burden by a preponderance of the evidence. KRS 13B.090(7). To be sure, the pre-existing condition requirement contained in KRS 61.600(3)(d) is not a " full-scale affirmative defense," so as to shift the burden of proof to the Systems. McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky.App.2003). Rather, West properly bore the burden of proof in establishing that his COPD was not a pre-existing condition.

The Court of Appeals concluded that West had satisfied his burden of proving that the COPD was not a pre-existing condition. In a series of three arguments, the Systems attacks this conclusion, as well as the burden of proof applied by the Court of Appeals. We agree that the Court of Appeals erred.

The Court of Appeals recognized that West bore the burden of proof in establishing that his COPD was not the result of a pre-existing condition, but went on to discuss

Page 581

the quantum of evidence necessary to satisfy this burden:

Thus, we find the proper interpretation of the statute to be that a claimant bears the burden to come forward with some evidence that his condition did not pre-exist his service with the Commonwealth. Upon such a threshold showing, the burden of going forward shifts back to the Systems. While the ultimate burden of persuasion is not moved from the party upon which it was originally cast (the claimant), the Systems must come forward with some evidence in rebuttal where a claimant makes a threshold showing that his or her condition was not pre-existing. While we agree with the Systems that the fact-finder is free to accept or reject any evidence it chooses, it is not free to reject uncontested evidence. (Emphasis in original).

We cannot agree with this interpretation of the claimant's evidentiary burden. KRS 13B.090(7) plainly states that the claimant bears the burden of proving his entitlement to a benefit by a preponderance of the evidence. In claims brought under KRS 61.600, this includes the burden of establishing that the condition did not exist at the time the claimant became a member of the Systems. There is nothing in either statute to support the conclusion that the claimant must only make a threshold showing. The Systems may or may not present evidence to rebut the claimant's proof. Regardless, the burden does not shift to the Systems.

In fact, this case demonstrates precisely why the Court of Appeals' scheme is untenable. West bore the burden of establishing that his COPD did not pre-date his reemployment. While the evidence presented by West might be considered a " threshold showing," it certainly does not amount to a " preponderance of the evidence" as required by KRS 13B.090(7). Further, the Court of Appeals broadly states that the hearing officer may not reject uncontested evidence. On the contrary, the Systems does not bear the burden of proof and may choose not to challenge evidence it deems unconvincing. The sufficiency of the claimant's showing is not wholly calculated by whether or not the Systems presents evidence in rebuttal.

We thus evaluate whether West satisfied his burden of proving, by a preponderance of the evidence, that his COPD did not pre-exist his membership in the Systems. " 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 that party's favor is so compelling that no reasonable person could have failed to be persuaded by it." McManus, 124 S.W.3d at 458. Great deference is afforded the determinations made by the administrative factfinder. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972).

The record is unclear as to the onset of West's COPD. West stated that he first experienced breathing problems a year or two before his last date of employment, December 31, 2005. Yet, medical records indicate that West was diagnosed with COPD as early as 1998. Those medical records, however, do not contain the results of the exams supporting this diagnosis.

West did not present any medical records pre-dating 1998. This is because his primary care physician retired and all medical records that went unclaimed after 2004 were destroyed. Dr. Westerfield examined West in 2006 concerning his respiratory injury claims and concluded that he suffered from severe COPD caused by tobacco use. Evaluations by three other physicians in 2006 confirmed the severe and advanced nature of West's COPD.

Page 582

During the only portion of his testimony directly related to the onset of West's COPD, Dr. Westerfield explained that the injuries to West's lungs have been accumulating over a thirty-year period. When directly asked about a possible onset date of COPD, Dr. Westerfield provided the limited opinion that West did not suffer from the same level of pulmonary impairment in 1991 that he did in 2007. The relevant portion of Dr. Westerfield's testimony is as follows:

Q: Doctor, the type of pulmonary disability that he has, is that based on ...

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