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Wasson v. Kentucky State Police

Court of Appeals of Kentucky

February 9, 2018

BRENT WASSON APPELLANT
v.
KENTUCKY STATE POLICE APPELLEE

         APPEAL FROM WARREN CIRCUIT COURT HONORABLE STEVE A. WILSON, JUDGE ACTION NO. 12-CI-00515

          BRIEFS FOR APPELLANT: Christopher T. Davenport Kate E. Payton Bowling Green, Kentucky

          BRIEF FOR APPELLEE: Perry R. Arnold Frankfort, Kentucky

          BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE:

         Brent 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[1] 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.

         In 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.

         Pursuant 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.

         After a 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 at 456).

         A 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).

         KRS 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 ...

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