David Burks v. Board of Trustees of the Lexington-Fayette Urban County Government's Police and Firefighter's Retirement Fund

• Court: Court of Appeals of Kentucky
• Decided: March 16, 2023
• Docket: 2022 CA 000370
• Status: Unknown

Opinion

RENDERED: MARCH 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0370-MR

DAVID BURKS APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 21-CI-01593

BOARD OF TRUSTEES OF THE LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT’S POLICE AND FIREFIGHTER’S RETIREMENT FUND APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE, JUDGES.

GOODWINE, JUDGE: David Burks (“Burks”) appeals from an opinion and order

of the Fayette Circuit Court affirming the denial of his petition for disability

benefits by the Board of Trustees of the Lexington-Fayette Urban County Government Policemen’s and Firefighter’s Retirement Fund (“Board”). After

careful review, finding no error, we affirm.

Burks was hired by the Lexington-Fayette Urban County Government

(“LFUCG”) Division of Police as a police officer in 2006. On April 22, 2020,

Burks applied for total and permanent occupational disability. In his application,

Burks claimed he had cumulative back trauma dating back to December 27, 2008,

when he suffered an injury to his back when he fell to the ground while escorting a

handcuffed suspect who attempted to pull away. Burks did not seek any medical

treatment for that injury.

However, about ten years after the 2008 injury, Burks sought workers’

compensation benefits for back pain. He attributed the pain to wearing a duty belt

that holds the tools police officers must carry each day. For nearly a year, from

2018-2019, Burks did not wear a duty belt. LFUCG settled the workers’

compensation claim, and he was moved to a modified duty position in 2019 to

accommodate his doctor’s restrictions related to his back pain.

On April 22, 2020, Burks applied to the Board seeking occupational

disability retirement benefits. He claimed working as a police officer caused

cumulative trauma to his back that started when he was injured in December 2008

and continued with the daily wearing of the duty belt.

-2- After Burks submitted his application, the Board voted to send Burks

to two orthopedic surgeons to determine if he qualified for benefits for his back

pain under KRS1 67A.480(1). First, Dr. Gary T. Bray evaluated Burks and

determined he was totally and permanently disabled from performing his duties as

a police officer and assigned a disability rating of two percent of the whole body.

However, Dr. Bray found his disability attributable to two non-occupational

conditions, ulcerative colitis and seronegative spondylitic arthropathy. Second, Dr.

Gregory Grau evaluated Burks and determined he met the criteria for total and

permanent occupational disability due to L4-5 stenosis related to his 2008 work-

related back injury. Dr. Grau assigned a twelve percent impairment rating.

Because Dr. Bray and Dr. Grau provided conflicting evaluations of

Burks’ condition, the Board voted to send Burks to a third doctor. Dr. Michael

Best evaluated Burks and concluded he did not have a disability and was

physically capable of performing the duties of a police officer.

Because the Board did not have a consensus from its selected

physicians as to whether Burks was disabled, the Board denied Burks’ application

of occupational disability benefits.

Burks moved for rehearing. During Burks’ counsel’s opening

statement, he conceded that Burks had a pre-existing degenerative disc disease,

1 Kentucky Revised Statutes.

-3- which was congenital in nature and predated his employment. Burks presented

reports from four doctors in support of his position that he suffered from duty-

prohibiting cumulative trauma to his back. First, Dr. David Burke, an orthopedist,

determined Burks had a “cumulative trauma condition of the back which is

attributable to wearing his gun belt combined with prolonged sitting and

entering/existing [sic] a police cruiser repeatedly during his employment.” Board’s

May 12, 2021 Order at 2. Dr. Burke concluded Burks could safely perform his

duties as a police officer and assigned an impairment rating of 7%. However, on

remand from the circuit court, the Board entered supplemental findings referencing

Dr. Burke’s supplemental report concluding Burks was unable to safely return to

the physical duties of a police officer.

Second, Dr. Anthony J. McEldowney, Burks’ treating physician,

determined Burks suffered “from cumulative back trauma related to his police

duties that are not attributable to spondyloarthropathy, and that he cannot safely

perform the physical duties of a police officer.” Id.

Third, Dr. Thomas Howard, Burks’ treating rheumatologist, opined

Burks’ “back pain is likely mechanical in nature and not attributable to

inflammatory change.” Id.

Fourth, Dr. James Owen, an occupational medicine physician who

first evaluated Burks after his workers’ compensation application, opined Burks

-4- had a permanent occupational disability caused by his occupation. Additionally,

Burks submitted “materials addressing low back pain in police officers and

correlation to the wearing of a patrol duty belt.” Id. Following the rehearing, the

Board entered a final order denying Burks’ application for total and permanent

disability.

Burks then filed a petition for judicial review with the Fayette Circuit

Court. The circuit court heard Burks’ petition and partially remanded the case for

the Board to clarify what evidence it considered.

After filing his petition for judicial review, Burks applied for non-

occupational disability retirement benefits. The Board granted his application on

July 14, 2021.

On remand, the Board issued supplemental findings of fact explaining

it considered all evidence Burks offered. After a rehearing, the circuit court

affirmed the Board’s decision, and this appeal followed.

On appeal, Burks argues: (1) substantial evidence does not support

the Board’s denial of his application for occupational disability retirement; and (2)

the Board’s findings of fact failed to consider the evidence he presented,

specifically Dr. Howard’s opinion.

“Typically, judicial review of an administrative action is concerned

with whether the agency action was arbitrary.” Smith v. Teachers’ Ret. Sys. of

-5- Kentucky, 515 S.W.3d 672, 675 (Ky. App. 2017) (citation omitted). “Arbitrariness

may arise when an agency: (1) takes an action in excess of granted powers, (2)

fails to afford a party procedural due process, or (3) makes a determination not

supported by substantial evidence.” Id. (citation omitted). “A reviewing court

assesses whether the agency correctly applied the law under a de novo standard of

review. If the court finds that the agency applied the correct rule of law to facts

supported by substantial evidence, the court must affirm the agency’s final

order.” Id. (internal citations omitted). Additionally, “[w]here 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 that party’s favor is so compelling that

no reasonable person could have failed to be persuaded by it.” McManus v.

Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003) (citation

omitted).

Burks argues substantial evidence does not support the Board’s

decision to deny Burks’ occupational disability retirement, and the Board ignored

his evidence, specifically the opinion of Dr. Howard. As both of these arguments

are evidentiary issues, we address them in tandem. Burks asserts five of the seven

doctors who gave reports on his condition opined that he suffered from a

permanent disability due to his work-related activities. He argues the Board’s two

doctors whose opinions did not support a finding of an occupational disability were

-6- conflicting. Dr. Bray determined Burks was disabled, but he attributed the

disability to non-work-related events, while Dr. Best determined Burks was not

disabled. He briefly attacks the opinions of the physicians selected by the Board,

but he does not explain why his higher quantity of medical evidence is more

credible than opinions of the doctors selected by the Board. In sum, Burks argues

his position is supported by a greater number of doctors, and the Board ignored the

evidence he presented.

The Board points out that Burks misstates the relevant considerations

for us to consider on appeal. Instead of focusing on the sufficiency and accuracy

of the Board’s evidence, Burks attempts to attack the credibility of the physicians

as witnesses while ignoring the flaws in his own evidence.

“The test of substantiality of evidence is whether when taken alone or

in the light of all the evidence it has sufficient probative value to induce conviction

in the minds of reasonable men.” Kentucky State Racing Commission v. Fuller,

481 S.W.2d 298, 308 (Ky. 1972) (citation omitted). “The rule in Kentucky is that

if there is substantial evidence in the record to support an agency’s findings, the

findings will be upheld, even though there may be conflicting evidence in the

record.” Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856

(Ky. 1981) (citation omitted). “In its role as a finder of fact, an administrative

agency is afforded great latitude in its evaluation of the evidence heard and the

-7- credibility of witnesses, including its findings and conclusions of fact.” Aubrey v.

Office of Attorney General, 994 S.W.2d 516, 519 (Ky. App. 1998) (citation

We give great deference to the Board in its fact-finding role. Contrary

to Burks’ assertion, the Board did consider “other evidence as shall have been

presented to it by the member” under KRS 67A.480(3). The findings of fact in the

Board’s final order includes a summary of the evidence Burks presented on

rehearing. On remand from the circuit court, the Board supplemented its findings

of fact with Dr. Burke’s supplemental report and concluded its decision to deny

Burks’ application for occupational disability was unchanged. The Board clearly

considered Burks’ evidence and determined his evidence was less credible than the

reports of the physicians selected by the Board.

Additionally, Burks’ evidence was not so compelling to persuade any

reasonable person. McManus, 124 S.W.3d at 458. Burks argues his evidence was

sufficiently compelling to persuade any reasonable person because the number of

medical opinions he presented that he has a work-related disability outweighs the

number of opinions that he does not have a work-related disability. However, the

relevant consideration is the quality of the evidence presented and not the quantity.

In its Appellee Brief, the Board addresses Burks’ evidence at his

rehearing in four categories: (1) updated opinions from physicians he retained to

-8- support his 2019 workers’ compensation application; (2) opinions from his treating

physicians; (3) academic sources; and (4) medical records from his treating

physicians. The Board points out that Burks’ evidence omitted critical facts,

contained inconsistencies, and lacked objective medical support.

First, Dr. Burke and Dr. Owen first examined Burks in 2019 to

support his workers’ compensation application and produced supplemental reports

for his 2021 disability application. Burks moved to a modified duty position after

each doctor gave their initial opinions. In 2019, they both found Burks’ occupation

caused his disability. However, neither doctor commented on the change in his job

conditions or how the modification of duty should have affected the progress of his

Second, opinions from Burks’ treating physicians were inconsistent,

lacked objective medical support, or failed to address key facts for the Board. Dr.

McEldowney, an orthopedic surgeon, testified at the rehearing. Dr. McEldowney

admitted that Burks has a rheumatological condition that could potentially damage

the spine. Dr. McEldowney criticized Dr. Bray, also an orthopedist, for giving an

opinion about rheumatological conditions. However, Dr. McEldowney gave a

conflicting medical opinion that the disability was not caused by the same

rheumatological condition. Furthermore, Dr. McEldowney provided no objective

-9- medical evidence linking Burks’ disability to his occupational duties and instead

relied on Burks’ self-reporting.

Dr. Howard opined Burks’ rheumatological condition did not cause

his back pain, but he did not determine what caused Burks’ disability.

None of Burks’ evidence addressed why his condition worsened

despite not wearing a gun belt for approximately a year and his placement on

modified duty in 2019.

Third, academic sources did not provide objective medical support.

Though academic sources provide theories for why officers who wear duty belts

could experience pain, they do not objectively link Burks’ back pain to his

occupational duties.

Fourth, Burks’ medical records were inconsistent. Dr. Best reviewed

Burks’ medical records in his independent medical evaluation. Specifically, Dr.

Best noted that records of Gregory Snider, M.D. from 2019 stated Burks’ low back

pain was consistent with what would be expected with natural aging. The medical

records from Dr. Snider clearly contradict Dr. McEldowney’s and Dr. Howard’s

opinions. Thus, based on our review of the record, the Board’s opinion is

supported by substantial evidence, the Board clearly considered Burks’ evidence,

and Burks failed to prove his burden on appeal that his evidence “is so compelling

-10- that no reasonable person could have failed to be persuaded by it.” McManus, 124

S.W.3d at 458.

In its Appellee Brief, the Board argues Burks’ acceptance of non-

occupational disability retirement bars this action under the election of remedies

doctrine. There is no clear Kentucky case law addressing this issue. In a 1995

unpublished opinion, this Court “held that a retired police officer who was

receiving a pension based on age and seniority was not precluded from seeking a

disability benefit if there was a delayed manifestation of a job-related injury.”

Spears v. Board of Trustees of Lexington-Fayette Urban Cnty. Government

Policemen’s and Firefighters’ Retirement Fund, 583 S.W.3d 37, 41 (Ky. App.

2018) (discussing Board of Trustees of Policemens’ and Firefighters’ Retirement

Fund of Lexington-Fayette Urban Cnty. Government v. Karle W. Franklin, No. 94-

CA-001147-MR, 1995 WL 385148 (Ky. App. Jun. 30, 1995)). In Spears, this

Court declined to apply Franklin because it has no precedential or persuasive value

and was factually distinguishable. Burks’ case is also factually distinguishable

from Franklin and Spears. Though we understand the Board’s interest in a ruling

on this issue, Burks’ appeal fails on the merits of his arguments. Thus, we decline

to determine whether Burks’ acceptance of non-occupational disability retirement

after occupational disability retirement was denied bars him from seeking to

change the type of disability retirement he receives.

-11- For the foregoing reasons, we affirm the order of the Fayette Circuit

Court affirming the Board’s decision.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Donald R. Todd Brittany Griffin Smith Lexington, Kentucky Lexington, Kentucky

-12-