NOT TO BE PUBLISHED
OPINION
CLAYTON, JUDGE.
This is an appeal from a decision of the Franklin Circuit Court finding that the Hearing Officer failed to consider the cumulative effects of the condition and thus whether the Appellee, Christene Stewart, was entitled to disability benefits through the Appellant, the Kentucky Retirement Systems. Based upon the following, we affirm the decision of the circuit court. Therefore, the cross-appeal is moot.
BACKGROUND INFORMATION
Stewart enrolled in the County Employees Retirement System ("CERS") in August of 1987. She was employed as a kitchen manager with the Clay County Board of Education and was considered a light duty employee. Stewart's last date of paid employment was May 31, 2007, for a total of 222 months of service credit in CERS.
On May 7, 2007, Stewart made a claim for disability retirement claiming that the condition of her wrist as well as her arthritis/osteoarthritis made her unable to perform her job duties. She also asserted that she had lower back problems, knee problems, varicose veins, breast cancer and diabetes which contributed to her inability to perform her job.
Stewart's claim was heard before a Hearing Officer. In his Recommended Order and Recommended Order on Remand, the Hearing Officer found as follows:
7. There is no objective medical evidence in the record that the Claimant, as of her last day of paid employment, is totally and permanently disabled from being able to perform her job duties due to arthritis/osteoarthritis involving her wrists and lower back, knee problems, varicose veins, breast cancer, and diabetes.
In regards to Claimant's wrist conditions and the claim of arthritis/osteoarthritis, it appears from the medical records that she first fractured her right wrist in 1997. This fracture did not heal properly and resulted in a large dorsal tilt in the right wrist. Claimant then fractured both her wrists in 2005.
A radiology report from Cumberland Orthopedics & Sports Medicine dated August 31, 2005 found Claimant's right wrist had healed well from a recent fracture, however there was a large dorsal tilt from a previous fracture, with limited range of motion due to the previous fracture and decreased wrist strength. Claimant's left wrist appeared to have healed well from its recent fracture, with good range of motion but slightly decreased wrist strength.
In an evaluation of Claimant's wrists in 2007, Dr. Patrice Beliveau of Cumberland Orthopedics & Sports Medicine stated that Claimant presented with a right wrist deformity, and showed signs of the 2005 fracture on top of an older, displaced fracture. . . .
Claimant then worked for two (2) more years after the 2005 fractures before she filed for disability retirement. Claimant testified at the hearing that she could have other employees do heavy lifting for her, and that her wrists were not as much of a problem as other conditions (specifically her back)[.]
However, no objective medical testing to date has found that Claimant's wrist conditions prevent her from performing her job duties. Other than Claimant's testimony, there is no evidence in the Administrative Record as to how this condition would be totally and permanently disabling. Therefore, Claimant has failed to meet her burden of proof by a preponderance of the evidence that the condition of arthritis/osteoarthritis of the wrists is permanently disabling as of the last day of her paid employment.
In regard to Claimant's lower back condition, the medical evidence shows that Claimant has [been] treated for back pain for many years. . . .
There is no doubt from the medical records that Claimant suffers arthritis in her lower back. However, it is also clear that Claimant was able to work for several years while treating for her lower back condition. The problem is the records fail to indicate the extent or severity of said condition as of her last day of employment, and there is no objective medical evidence as to how this condition would affect Claimant's ability to perform her job. Therefore, Claimant has failed to meet her burden of proof by a preponderance of the evidence that the condition of her lower back condition, including arthritis/osteoarthritis, is totally and permanently disabling as of the last day of her paid employment.
In regard to Claimant's knee condition(s) the medical records indicate that Claimant has complaint of knee pain for several years[.]. . .
There is no objective medical evidence that the condition(s) concerning Claimant's knees are disabling or prevent her from performing her job duties of her last day of employment. Therefore, Claimant has failed to meet her burden of proof by a preponderance of the evidence that the condition of knee condition(s), including arthritis/osteoarthritis, is totally and permanently disabling as of the last day of her paid employment.
In regard to the claim of varicose veins, the medical records admitted in the Administrative Record indicate issues with this condition. Claimant testified that the condition causes her feet and ankles to swell and hurt. . . . Other than Claimant's testimony, there is no evidence in the Administrative Record as to how this condition would be totally and permanently disabling. Therefore, Claimant has failed to meet her burden of proof by a preponderance of the evidence that the condition of varicose veins is totally and permanently disabling as of the last day of her paid employment.
In regard to Claimant's breast cancer, the record is clear that Claimant was diagnosed with breast cancer and underwent a partial mastectomy of her right breast on March 30, 2007. She then endured a course of adjuvant breast conservative radiation therapy which was completed on June 29, 2007. It appears from the Administrative Record that this treatment was successful as there is no indication in the medical records of a recurrence or of additional treatment. There is no objective medical evidence demonstrating a total and permanent disability from this condition. Therefore, Claimant has failed to meet her burden of proof by a preponderance of the evidence that the condition of breast cancer is totally and permanently disabling as to the last day of her paid employment.
In regard to Claimant's diabetes, the evidence in the record does not indicate, and Claimant has not met her burden of proving she is permanently disabled due to this condition as of her last day of paid employment. The record indicates she had been treating this problem with diet and medication for at [least] several years, but there is no objective medical evidence in the record of Claimant suffering any disabling affects from this condition. In fact, it is not clear from the records how or when she was diagnosed with diabetes. Claimant testified at the hearing that her diabetes was under control and did not interfere with her job duties. Therefore, Claimant has failed to meet her burden of proof by a preponderance of the evidence that the condition of diabetes is totally and permanently disabling as of the last day of her paid employment.
Findings of Fact, Conclusions of Law and Recommended Order entered January 6, 2009, at 14-19.
The matter was then remanded to the Hearing Officer and on February 8, 2010, the Hearing Officer stated the following:
8. Claimant has failed to prove by a preponderance of the evidence that she suffers a total and permanent disability based on the cumulative effects of any combination of conditions that is expected to last for a continuous period of not less than twelve months from Claimant's last day of paid employment. KRS 61.600, Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776 (Ky. 2009).
Findings of Fact, Conclusions of Law and Recommended Order on Remand at 4.
The Hearing Officer, therefore, found that Stewart had failed to meet her burden of proof as to each of the medical conditions and recommended she be denied benefits. The Board of Trustees adopted the Hearing Officer's report. Stewart then appealed to the Franklin Circuit Court. The Franklin Circuit Court found that the Hearing Officer and the Board of Trustees had failed to consider the cumulative effects of Stewart's ailments in determining whether or not she was eligible for benefits. This appeal followed.
STANDARD OF REVIEW
Kentucky Revised Statutes (KRS) 13B.090(7) provides "that the party seeking the benefit bears the burden to show that he or she is entitled to that benefit." Kentucky Retirement Systems v. Brown, 336 S.W.3d 8, 14 (Ky. 2011). As set forth in McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, (Ky. App. 2003):
When the decision of the fact-finder is in favor of the party with the burden of proof or persuasion, the issue on appeal is whether the agency's decision is supported by substantial evidence, which is defined as evidence of substance and consequence when taken alone or in light of all the evidence that is sufficient to induce conviction in the minds of reasonable people. 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 the party's favor is so compelling that no reasonable person could have failed to be persuaded by it.
Id. at 458 (internal citations omitted).
In the present case, the Hearing Officer denied Stewart benefits; thus, we must determine whether the circuit court was correct in finding that the evidence in her favor was so compelling that no reasonable person could have failed to have been persuaded that she was entitled to benefits.
DISCUSSION
Kentucky Retirement Systems first contends that Stewart's appeal should not have been heard by the Franklin Circuit Court on the issue of the cumulative effect of her injuries because she did not raise the issue in her exceptions to the Hearing Officer's Report and Recommendations. KRS 13B.110(4) provides that a party has the right to file exceptions to the recommended order to the agency head. Pursuant to KRS 13B.140(1) and 13B.140(2), a party has the right to appeal the final order of the Kentucky Retirement Systems to the circuit court "after the party has exhausted all administrative remedies available within the agency whose action is being challenged, and within any other agency authorized to exercise administrative review." KRS 23A.010(4) provides that "[s]uch review shall not constitute an appeal but an original action." Furthermore, while Appellee did not explicitly state that the cumulative effect of her injuries resulted in disability, the manner in which the exceptions were phrased made clear her argument for application of the doctrine. Thus, the appeal Stewart filed with the Franklin Circuit Court was an original action.
Kentucky Retirement Systems relies on the case of Rapier v. Philpot, 130 S.W.3d 560 (Ky. 2004), in support of its argument that Stewart's failure to raise this issue in her exceptions precludes her from arguing it before the circuit court. The only requirement set forth by the above statutes, however, is that she exhausted her administrative remedies, which she did. The Rapier case dealt with a situation where no exceptions had been filed, not one where exceptions had been filed but an issue had not been raised. Since the circuit court is hearing an original action, there is no requirement that issues be preserved for appeal. Thus, we will review the Franklin Circuit Court's decision.
Kentucky Retirement Systems next contends that its decision to deny Stewart's application for disability retirement benefits was supported by substantial evidence of record. In finding that Stewart was not entitled to benefits, the Hearing Officer went through each of her singular disabilities and found that none of them, on its own, was sufficient for disability retirement benefits.
In finding that the Hearing Officer was incorrect, the circuit court found that while the Hearing Officer's conclusions may have been correct on each ailment individually, the cumulative effect of the conditions impacted her ability to work.
In Kentucky, the cumulative effect rule is explained as follows:
[I]n considering Appellee's claim for disability benefits, the hearing officer evaluated the effect of each insular injury on Appellee's ability to perform her job duties and determined that no one injury rose to the level of disabling Appellee. He did not evaluate the cumulative effect of Appellee's multiple ailments on the "whole person." At a minimum, Appellee produced sufficient evidence of disability due to her various ailments that she was entitled to a determination of whether the cumulative effect of her ailments rendered her unable to work. However, analyzing each ailment singularly, the hearing officer "so fragmentized [Appellee's] several ailments and the medical opinions regarding each of them that he failed to properly evaluate their effect in combination upon this claimant." The hearing officer's review and findings regarding Appellee's injuries thus failed to consider her multiple ailments in accordance with the "residual functional capacity" standard in KRS 61.600(5)(a)(2)[.]
. . . Appellant exceeded the constraints of its statutory powers and arbitrarily denied Appellee's disability claim. Given Appellee's evidence in this case, a "cumulative effects" analysis is mandated. Accordingly, we affirm the Court of Appeals on this issue."
Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776, 783 (Ky. 2009) (internal citations omitted). Stewart contends that the circuit court was correct and that the cumulative effect of her injuries made her permanently disabled and entitled to benefits. Kentucky Retirement Systems asserts that there was substantial evidence presented before the Hearing Officer that Stewart was not suffering any injury, illness or disease which would allow for her disability retirement. It also argues that the Franklin Circuit Court erred in its determination that Stewart provided objective medical evidence of her permanent disability.
KRS 61.600(3)(a) provides that in order to be deemed permanently incapacitated, one must show that "[t]he person, since his last day of paid employment, has been mentally or physically incapacitated to perform his job[.]" Kentucky Retirement Systems argues that in order for Stewart to prove she was totally incapacitated, she must prove that she was actually disabled by a condition or combination of conditions as of her last day of paid employment and that this alleged disability existed for a continuous period of twelve months. It bases this argument on the language of KRS 61.600(5)(a)(1), which provides that, "[a]n incapacity shall be deemed to be permanent if it is expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months from the person's last day of paid employment in a regular full-time position."
In rejecting the Hearing Officer's decision, the Franklin Circuit Court held as follows:
From the Administrative Record provided to the Court, it is undeniable that the Hearing Officer failed to consider, not once but twice, the cumulative effects of Ms. Stewart's many and various ailments. The Hearing Officer's recommended order clearly lists each claimed condition and analyzes its effect on Ms. Stewart's ability to work. While it may be argued that her osteoarthritis, or diabetes, or hypertension, or breast cancer, or depression may not individually prevent her from performing her previous job duties, the Retirement Systems ignored the cumulative impact of her medical conditions.
The Retirement Systems notes that Ms. Stewart submitted medical records from well after her last date of paid employment, and that the record does not contain sufficient evidence of her condition at the time of her retirement. The Court does not agree. A review of the record indicates that Ms. Stewart has submitted medical records that date back at least as far as 2002, some 5 years before her last date of paid employment. Ms. Stewart's conditions are well-documented. The Court notes that because Ms. Stewart has 222 months of service and thus the pre-existing condition requirement is inapplicable, it is not required for her to submit records from prior to her employment, and she has submitted nearly 100 pages of documentation of her various conditions over a substantial period prior to her departure. Further, Ms. Stewart is required to show that her incapacity is either permanent or will last for more than twelve months, pursuant to KRS 61.600(5)(a)(1), and has provided records from after her last date of paid employment to aid the Hearing Officer in that determination.
Franklin Circuit Court Opinion and Order entered July 8, 2011, at 5-6.
We agree with the decision of the Franklin Circuit Court. Even the Hearing Officer found that Stewart's individual diagnoses were well documented. The only problem the Hearing Officer had with her individual disabilities was that each one of them, when taken individually, was not sufficient to prove a total permanent incapacitation. The Franklin Circuit Court, however, is correctly interpreting Kentucky law in setting forth its findings that the myriad of individual diagnoses was sufficient to cumulatively allow for total disability. Thus, we affirm the decision of the Franklin Circuit Court.
ALL CONCUR.
