FROM WARREN CIRCUIT COURT HONORABLE STEVE A. WILSON, JUDGE
ACTION NO. 12-CI-00515
FOR APPELLANT: Christopher T. Davenport Kate E. Payton
Bowling Green, Kentucky
FOR APPELLEE: Perry R. Arnold Frankfort, Kentucky
BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.
Wasson appeals from a Warren Circuit Court order upholding
Kentucky State Police (KSP) Commissioner Rodney Brewer's
decision to transfer Wasson from injured status to limited
duty pursuant to KRS 16.165(2). Wasson asserts the decision was
arbitrary, unsupported by substantial evidence, and made
without affording him procedural due process. Following a
careful review, we affirm.
1999, Wasson, a KSP Trooper, was shot multiple times in the
line of duty and thereafter placed on injured status. KSP
requires officers on injured status to submit annual reports
from their physician(s) updating the Commissioner on the
status of their physical condition. In accordance with this
requirement, work status/treatment update forms were
completed by Wasson's physician, Dr. Joseph E. Kutz, and
submitted to the Commissioner. Forms completed and submitted
by Dr. Kutz in 2010 and 2011 indicated Wasson may return to
alternative duty with restrictions. In March 2012, the
Commissioner informed Wasson of his decision to return Wasson
to limited duty effective April 15, 2012. The
Commissioner's letter included Dr. Kutz's
restrictions and information on how to appeal the decision.
to KRS 16.165(2), Wasson appealed the Commissioner's
decision to the Warren Circuit Court. Wasson asserted the
Commissioner's decision was arbitrary, unsupported by
substantial evidence, and made without affording him
procedural due process in the form of a hearing.
three-day bench trial, post-trial briefs were filed. In his
post-trial brief, Wasson urged the trial court to conduct
de novo review of the Commissioner's decision
due to the absence of any findings of fact. The trial court
affirmed the Commissioner's decision. This appeal
followed. Wasson raises the same issues on appeal.
The standard of review, when addressing an appeal from an
administrative decision, "is limited to determining
whether the decision was erroneous as a matter of law."
McNutt Construction v. Scott, 40 S.W.3d 854, 861
(Ky. 2001). Kentucky Courts have long held that
"judicial review of administrative action is concerned
with the question of arbitrariness . . . . Unless
action taken by an administrative agency is supported by
substantial evidence it is arbitrary." American
Beauty Homes Corp. v. Louisville and Jefferson County
Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky.
1964) (emphasis in original).
Bd. of Comm'rs of City of Danville v. Davis, 238
S.W.3d 132, 135 (Ky. App. 2007). Arbitrariness arises when an
agency: (1) exceeds granted powers, (2) fails to afford
procedural due process, or, (3) makes a determination
unsupported by substantial evidence. Hilltop Basic
Resources, Inc. v. County of Boone, 180 S.W.3d 464, 467
(Ky. 2005) (citing American Beauty Homes, 379 S.W.2d
reviewing court may not substitute its own judgment on a
factual issue "unless the agency's decision is
arbitrary and capricious." McManus v.
Kentucky Retirement Systems, 124 S.W.3d 454, 458
(Ky. App. 2003). Once a reviewing court has determined an
agency's decision is supported by substantial evidence,
the court must then determine if the agency applied the
correct rule of law to the factual findings in making its
determination. If so, the agency's final order is upheld.
Bowling v. Natural Resources and Environmental
Protection Cabinet, 891 S.W.2d 406, 410 (Ky.
App. 1994). However, matters of statutory construction and
interpretation are matters of law subject to de novo
review. Halls Hardwood Floor Co. v.
Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000).
16.165 states, in relevant part:
Any Department of Kentucky State Police officer, as defined
in KRS 16.010, who becomes disabled after July 1, 1977, as a
direct result of an injury or disease arising out of the
performance of a hazardous duty in the course of employment
with the department may elect to be ...