NOT TO BE PUBLISHED
OPINION
DIXON, JUDGE.
Kentucky Retirement Systems ("KERS") appeals a decision of the Franklin Circuit Court reversing the KERS Board of Trustees' ("the Board") final order denying Ricky L. Sisk's application for disability retirement benefits. We affirm.
Sisk's membership in KERS began on August 11, 1991, when he began working as an energy management systems operator for Eastern Kentucky University. In 2004, Sisk's employment with EKU ended, and he became employed as a bus driver for the Hopkins County Board of Education. Sisk resigned from his employment in November 2006 and applied for disability retirement benefits. In his application, Sisk opined that he was an insulin-dependent diabetic, which rendered him unable to drive a school bus. Sisk also asserted he suffered from several other conditions, including arthritis, chronic back pain, sleep apnea, and neuropathy in his feet.
Sisk's medical records were reviewed on three different occasions by the KERS medical review physicians, Drs. Kimbel, Keller, and Strunk.1 With each review, Sisk tendered additional medical records; however, Sisk was unable to submit records from 1987-1998, because his physician during that time did not retain Sisk's records.
Dr. Kimbel recommended granting Sisk's application for disability benefits. Dr. Kimbel opined Sisk could not qualify for a commercial driver's license while on insulin therapy and that there was no evidence Sisk's diabetes pre-dated his membership in KERS. Drs. Keller and Strunk recommended denial of Sisk's application. Dr. Keller suspected Sisk's diabetes pre-existed his membership in KERS, noting the absence of medical records prior to 1998. Dr. Strunk opined that many of Sisk's complaints were related to a pre-existing history of obesity, rendering Sisk ineligible for disability retirement benefits.
On April 4, 2008, KERS notified Sisk that his application for disability retirement benefits was denied; thereafter, Sisk requested a formal administrative hearing to appeal the decision. An evidentiary hearing was held November 21, 2008. Sisk testified that Dr. Long diagnosed him with diabetes in 2000, and prior to that diagnosis, no physician had ever told him he was diabetic. Sisk explained his physician switched him to an insulin injection in 2006 in order to control his blood sugar; however, insulin therapy precluded him from renewing his CDL to drive the school bus. Sisk also testified that, during the last six months of his employment, the neuropathy in his feet made it difficult to drive the school bus and that driving was also complicated by increased shoulder and back pain. On cross-examination, Sisk acknowledged that his disability application stated he was diagnosed with diabetes in 1995, but he could not explain why he listed that date on the form. Sisk also admitted his weight had fluctuated over time, and he admitted his doctor told him in 2001 that he should lose weight.
The medical evidence submitted by Sisk included: 1) medical records chronicling his medical care since 1999, and 2) treatment notes and diagnostic tests from Sisk's family physician between 1985 and 1986. Notably, Sisk's evidence included diagnostic tests ordered by Dr. Long in March 1999 (when Sisk began seeing Dr. Long as a primary care physician), which indicated Sisk was not diabetic at that time. The records showed that Dr. Long diagnosed Sisk as borderline diabetic in November 2000; thereafter, Dr. Long diagnosed Sisk with Type II diabetes in May 2001. The record also included the medical reports of the KERS medical review physicians. KERS also tendered two articles from the Mayo Clinic's website regarding pre-diabetes and diabetes.
On April 1, 2009, the hearing officer rendered a report and recommended an order denying Sisk's request for disability benefits. The hearing officer found Sisk was incapable of continuing his employment as a bus driver because he was an insulin-dependent diabetic; however, the hearing officer concluded Sisk failed to prove his diabetes was not caused by his pre-existing condition of obesity. In his findings of fact, the hearing officer summarized the medical records, noting that Sisk's weight had increased from 207 pounds in 1986, to 256 pounds in 1999, and to 270 pounds by 2008. The hearing officer found as follows:
The causal link between obesity and Type 2 diabetes is clearly established by the medical information provided in Exhibit #27 [the Mayo Clinic articles]. The undersigned concludes that for most individuals who are diagnosed as both obese and as suffering from Type II diabetes, that obesity would be, at a minimum, an indirect cause of the diabetic condition, pursuant to KRS 61.600(3)(d).
On July 7, 2009, the KERS Board of Trustees adopted the recommended order and denied Sisk's claim for disability benefits.
Sisk appealed the Board's decision to Franklin Circuit Court. On January 7, 2011, the circuit court reversed the Board, concluding that the medical evidence compelled a finding that Sisk did not have a pre-existing condition that directly or indirectly caused his disabling diabetic condition. The circuit court specifically found the Mayo Clinic articles did not constitute objective medical evidence to support the hearing officer's finding as to a pre-existing condition. KERS now appeals the circuit court's order.
"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. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003). As Sisk was unsuccessful before the Board, he is entitled to prevail on appeal only if the evidence in his 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 the claimant has been permanently incapacitated by injury or disease from performing his prior job. 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).
It is uncontested that Sisk is permanently incapacitated from performing his former employment due to his condition as an insulin-dependent diabetic. The primary issue on appeal relates to whether the trial court erred by concluding the evidence compelled a finding that Sisk's diabetes did not result directly or indirectly from his pre-existing obesity. On this issue, KERS contends the circuit court impermissibly re-weighed the evidence and substituted its judgment for that of the fact-finder. KERS also opines the court improperly shifted the burden of proof and erroneously set forth alternative grounds for reversal.
At the outset of our review, we note that KERS concedes the circuit court's conclusion as to the Mayo Clinic articles is supported by the recent Kentucky Supreme Court case Kentucky Retirement Systems v. Brown, 336 S.W.3d 8 (Ky. 2011). In Brown, the Court held, "A medical treatise or article alone, written in the abstract or concerning another patient, is never sufficient to qualify as objective medical evidence." Id. at 17. Nevertheless, despite the specific language in the hearing officer's findings of fact citing the Mayo Clinic articles on the issue of causation, KERS opines the reports of Drs. Keller and Strunk constituted objective medical evidence to establish a causal link between Sisk's obesity and subsequent diabetes. KERS relies on the review physicians' reports and characterizes Sisk's pre-employment obesity as "a known, symptomatic, medically-recognized" condition, which directly or indirectly caused him to develop diabetes. We disagree.
KRS 61.510(33) defines "objective medical evidence" as:
reports of examinations or treatments; medical signs which are anatomical, physiological, or psychological abnormalities that can be observed; psychiatric signs which are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings which are anatomical, physiological, or psychological phenomena that can be shown by medically acceptable laboratory diagnostic techniques, including but not limited to chemical tests, electrocardiograms, electroencephalograms, X-rays, and psychological tests[.]
The reports of Dr. Keller and Dr. Strunk did not identify any objective medical evidence in Sisk's record to establish a causal connection between Sisk's weight prior to his membership and the onset of diabetes in 2000-01. Dr. Strunk's report summarized Sisk's health complaints and recommended denial of benefits because he believed Sisk was not permanently disabled from employment and "[m]any of these [problems] are related to his preexisting history of obesity . . . ." Dr. Keller's report speculated that Sisk actually had diabetes at the time his membership began in 1991, "by virtue of his peripheral neuropathy, his exogenous obesity, etc." In Brown, supra, the Court interpreted the meaning of the pre-existing condition statutory provision as follows:
We believe it the intent of our legislative authority to preclude from benefits those individuals who suffer from symptomatic diseases which are objectively discoverable by a reasonable person. We do not believe it the intent of the legislature in drafting KRS 61.600 to deny benefits to those individuals who suffer from unknown, dormant, asymptomatic diseases at the time of their employment, ailments which lie deep within our genetic make-up, some of which may not yet be known to exist. Rather, we believe the legislature intended to deny benefits to individuals whose diseases are symptomatic and thus were known or reasonably discoverable. Why else would the legislature have referred to "objective medical evidence" in KRS 61.600(3)?
The record shows that Sisk was first diagnosed as borderline diabetic in November 2000, approximately nine years after he began his membership in KERS. At the hearing, Sisk acknowledged that his weight had fluctuated over time, and he conceded that Dr. Long had advised him to lose weight and watch his diet. Although two of the medical review physicians noted Sisk was obese prior to his employment, in the absence of any objective medical evidence as to causation, we are not persuaded that Sisk's obesity constituted a pre-existing condition that resulted in his eventual physical incapacity from work pursuant to KRS 61.600(3)(d).
Our review indicates there was no objective medical evidence to support the hearing officer's conclusion that Sisk's disabling diabetic condition resulted directly or indirectly from a pre-existing condition; consequently, the circuit court correctly found the medical evidence compelled a finding in Sisk's favor. In light of our conclusion, we decline to address the additional arguments raised by KERS on appeal.
For the reasons stated herein, we affirm the decision of the Franklin Circuit Court.
ALL CONCUR.
