TAYLOR, Chief Judge.
Board of Trustees of Kentucky Retirement Systems (Board) brings this appeal from an April 8, 2010, Opinion and Order of the Franklin Circuit Court reversing the Board's decision to deny the application for retirement disability benefits for Helen Vanhoose. We affirm.
Throughout the record there are discrepancies in the spelling of Helen Vanhoose's last name. We have chosen to utilize the version of her last name as it appears in the Notice of Appeal — "Vanhoose."
Vanhoose was employed for some twenty-three years as a school bus driver for the Boyd County Board of Education. Vanhoose filed an application for retirement disability benefits with the Kentucky Retirement Systems (Retirement Systems) based upon her inability to perform the duties of her job. Vanhoose alleged disability based upon a plethora of physical ailments — hypertension, osteoarthritis, cardiomegaly, anemia, blood in stool, and spinal disease.
In support of her disability application, Vanhoose offered the expert opinion of her treating physician, Dr. Ray Kleykamp. Dr. Kleykamp opined that Vanhoose was unable to perform the essential job duties of a bus driver, thus rendering her disabled from employment. He stated that Vanhoose suffered from severe hypertension, moderate lumbar disc disease, irritable bowel, and bilateral joint pain in knees and elbows. Particularly, Dr. Kleykamp maintained that an MRI revealed that Vanhoose has spinal disc disease at the L4-L5 level and with anterolisthesis and central canal stenosis at the same level. Another MRI also revealed that Vanhoose suffered from painful and degenerative conditions in both her knees, including mucoid degeneration, small joint effusion, and myxoid degeneration of the medial meniscus. Due to Vanhoose's physical ailments, Dr. Kleykamp opined that Vanhoose could not lift, bend, stoop or crouch and could not sit or stand for prolonged periods.
A hearing officer for the Retirement Systems recommended that Vanhoose's application for retirement disability benefits be denied. The Board adopted the hearing officer's recommendation and denied Vanhoose's application. Thereupon, Vanhoose sought review with the Franklin Circuit Court. By an April 8, 2010, Opinion and Order, the circuit court reversed the Board's decision and concluded that Vanhoose was entitled to retirement disability benefits. This appeal follows.
The Board believes that the circuit court committed error and specifically raises six allegations:
I. Franklin Circuit Court erred when it gave the opinions of claimant's treating physicians more weight than the opinions of other physicians.
II. Franklin Circuit Court erred when it established a new disability standard for applicants that operate school buses.
III. Franklin Circuit Court erred when it improperly determined that appellant did not consider the medical records and testimony of Dr. Kleykamp as objective medical evidence.
IV. Franklin Circuit Court erred when it improperly shifted the burden of proof from the appellee to the appellant in contravention of KRS 13B.090.
V. Franklin Circuit Court erred when it determined that appellant did not consider the cumulative effect of all the appellee's conditions.
VI. Franklin Circuit Court improperly substituted its judgment for that of the Kentucky Retirement Systems when it improperly found that the decision of Kentucky Retirement Systems was not supported by substantial evidence in the administrative record as a whole.
Vanhoose's Brief at 2-3.
This Court is cognizant of the judiciary's limited role when reviewing an administrative agency's decision for arbitrariness. Kentucky Revised Statutes (KRS) 13B.150; see Am. Beauty Homes Corp. v. Louisville and Jefferson Co. Planning and Zoning Comm'n, 379 S.W.2d 450 (Ky. 1964). However, under these unique facts, we are constrained to agree with the circuit court and conclude that the Board's decision was arbitrary. In so concluding, we view the circuit court's opinion as representing a well-reasoned and proper statement of the law:
KRS 61.600 provides for disability retirement benefits to non-hazardous members of the KERS. It states, in pertinent part:
(1) Any person may qualify to retire on disability, subject to the following conditions:. . . .
(3) Upon the examination of the objective medical evidence by licensed physicians pursuant to KRS 61.655, it shall be determined that:
(a) The person, since his last day of paid employment, has been mentally or physically incapacitated to perform the job, or jobs of like duties, from which he received his last paid employment. In determining whether the person may return to a job of like duties, any reasonable accommodation by the employer . . . shall be considered;
(b) The incapacity is a result of bodily injury, mental illness, or disease. For purposes of this section, "injury" means any physical harm or damage to the human organism other than disease or mental illness;
(c) The incapacity is deemed to be permanent; and
(d) The 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.
The Hearing Officer's Recommended Order, which was adopted as the Final Order of the KERS, noted several of Ms. VanHoose's medical conditions that were supported by the record but concluded that none of the conditions were not totally and permanently disabling for her. It is apparent from the record that the KERS evaluate each medical problem separately, without considering the cumulative impact of her
multiple conditions. Ms. VanHoose argues in this appeal that it was erroneous for the KERS to view each of her medical conditions in isolation without giving appropriate weight to the cumulative effect of the conditions on her and her ability to work. The Court finds this argument to be persuasive, particularly in light of the recent Kentucky Supreme Court decision in
Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776 (Ky. 2009). There, the Supreme Court held that a cumulative effect standard, under which the combined effect of the public employee's injuries must be evaluated, is implicit, in order to determine whether the employee is permanently disabled and qualified for disability retirement benefits under the statute.
Id. at 783.
The claimant in
Bowens had been involved in a motor vehicle accident and had been diagnosed with breast cancer, thus leading her to present various medical conditions and injuries to the KERS when she applied for disability retirement benefits. Ms. Bowens was denied benefits on a basis similar to that upon which Ms. VanHoose's benefits have been denied, in that the hearing officer focused on the impact of each of her individual ailments in concluding that she "failed to provide objective evidence of
a condition that would permanently prevent her from performing her usual work activity."
Id. The court concluded that, "at a minimum, [Ms. Bowens] 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."
Id. The Court finds that Ms. VanHoose was also entitled to such a determination.
KERS recognized that Ms. VanHoose presented sufficient evidence of several medical conditions, as the hearing officer noted that she has hypertension, a history of occasional gastrointestinal bleeds and anemia, a history of anxiety and migraine headaches and arthritis in her back and knees. The Court finds that it was error to find that she was not entitled to disability benefits based on the conclusion that each condition, when viewed in isolation, is not
totally and permanently disabling. By "fragmentizing" Ms. VanHoose's ailments, KERS did not adhere to the "residual function standard" of KRS 61.600(5)(a)(2) which, as the court noted in
Bowens, clearly supports an analysis based on the cumulative effects of one's medical conditions.
Id. It was erroneous as a matter of law for the KERS to fail to undertake a cumulative effects analysis with respect to Ms. VanHoose's conditions.
As noted above, the applicable standard in KRS 61.600(2) for a person to qualify to retire on disability is "objective medical evidence by licensed physicians." Ms. VanHoose argues to this Court that KERS did not afford enough weight to the testimony and records of her treating physician, Dr. Kleykamp, as he indeed rendered the opinion that her conditions were sufficiently disabling to render her unable to perform her duties as a bus driver. KERS responds to this assertion by emphasizing that an administrative agency is afforded great latitude in evaluating the evidence and the credibility of witnesses.
KERS also suggests that Dr. Kleykamp's findings do not constitute objective medical evidence because they are "heavily based upon the complaints" of Ms. VanHoose. Again, the
Bowens case is illustrative on this issue. The Court, in
Bowens, declined to adopt a doctrine applied in the Social Security disability context in reversing the Court of Appeals' conclusion that "the agency erred when it determined that the opinions of treating physicians are not entitled to more weight than the opinions of the non-examining physicians serving on the Medical Review Board."
Id. at 784 (referring to the logic of
Houston v. Secretary of Health Human Services, 736 F.2d 365 (6
th Cir. 1984)). The Court finds the reasoning utilized by the Court of Appeals in
Bowens to be applicable to the situation at bar. Here, it is not a question of the weight to be given the evidence from the treating physician, but rather that the treating physician's reports fall within the statutory definition of "objective medical evidence" while the KERS can point to no such "objective medical evidence"
that contradicts the finding of the treating physician. (Citation omitted.)
The Court finds that the opinions and conclusions of a treating physician must be considered objective medical evidence for purposes of KRS 61.600 and that it was erroneous as a matter of law for the KERS to assert that Dr. Kleykamp's findings did not meet the objective medical evidence standard. While the Social Security disability context is decidedly different, in that specific federal regulations apply that differ from the statutory scheme for disability retirement benefits in Kentucky, the Court finds the language of the Sixth Circuit in
Houston to be persuasive. In keeping with
20 C.F.R. § 404.1529, the court recognized that a treating physician's opinion may be given greater weight than that of the government's physician as long as that opinion is based on sufficient medical data.
Houston, 736 F.2d at 367. The Court finds this to be sound logic, particularly in a case such as that of Ms. VanHoose, where her treating physician of many years concluded, based on his examinations of her as well as the results of diagnostic tests, that she was unable to continue to perform her work-related duties. Dr. Kleykamp's findings certainly qualify as objective medical evidence under the applicable statutory definition set forth at KRS 61.510(33).
Had the testimony and records of Dr. Kleykamp been considered as objective medical evidence, it appears to the Court that it would have been clear that Ms. VanHoose met her burden of proof to show entitlement to benefits under KRS I 3B.090(7). Under the applicable statutory definition, Dr. Kleykamp's evaluation constitutes objective medical evidence because it consisted of "reports of examinations or treatments"; the evaluations of the KERS medical records examiners, by contrast, do not fall within the statutory definition of "objective medical evidence" because those physicians never examined or treated the claimant.
See KRS 61.510(33). Accordingly, the only "objective medical evidence" in the record supports a finding of permanent disability. This shifted the burden of proof
to the KERS to produce objective medical evidence to contradict Dr. Kleykamp's reports. No such evidence is in the record.
Moreover, the record is uncontested that Ms. VanHoose's medications cause her to become dizzy and lightheaded. The objective medical evidence from Ms. VanHoose's treating physician also indicated that she could not lift, could not sit or stand for prolonged periods, could not bend, stoop or crouch, and could not concentrate and had blurred vision due to her severe headaches, and that she suffers from back problems that are documented by radiographic studies. It is inconceivable to this Court that a state agency could find it is appropriate for a person who suffers from such medical conditions to drive a school bus with the responsibility for safety of dozens of children. There is no "objective medical evidence" in this record to contradict the evaluation of the treating physician that Ms. VanHoose is permanently disabled under the statutory standard, and that the cumulative effect of her medical conditions is such that she cannot perform her job duties as a school bus driver.
In reaching its decision, the circuit court neither established a new disability standard nor improperly shifted the burden of proof. To the contrary, the circuit court merely commented upon the great weight of evidence demonstrating Vanhoose's disability. And, the circuit court did not follow the "treating physician rule" applicable to social security disability cases. The plain language of the circuit court's decision demonstrates otherwise. Rather, the circuit court was correct that the Board erroneously failed to consider the cumulative effects of Vanhoose's physical ailments, but rather only considered the individual effect of each. The Board's failure to do so was clear error. See Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776 (Ky. 2009).
In sum, the medical evidence overwhelmingly demonstrated that Vanhoose was physically incapacitated from performing the duties of bus driver per KRS 61.600. We hold that the circuit court properly concluded that the Board's decision to contrary was arbitrary.
For the foregoing reasons, the Opinion and Order of the Franklin Circuit Court is affirmed.
ALL CONCUR.