RENDERED: MAY 29, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0658-MR
KENTUCKY PUBLIC PENSIONS AUTHORITY ON BEHALF OF THE JOINT DISABILITY APPEALS COMMITTEE OF KENTUCKY RETIREMENT SYSTEMS AND COUNTY EMPLOYEES RETIREMENT SYSTEM APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 20-CI-00383
CLIFFORD GRINNINGER APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, ECKERLE, AND MOYNAHAN, JUDGES.
COMBS, JUDGE: This case involves a dispute about an award of retirement
disability benefits to a disabled retiree of the Newport Independent School District.
The Appellant is the Kentucky Public Pensions Authority on Behalf of the Joint
Disability Appeals Committee of Kentucky Retirement Systems and County Employees Retirement System (KPPA or Retirement System). The KPPA seeks to
reverse the Opinion and Order of the Franklin Circuit Court of April 28, 2025,
which reversed the decision of the Kentucky Retirement Systems Board of
Trustees (the Board). The Board had denied retirement disability benefits to the
Appellee, Clifford Grinninger (Grinninger). In its analysis of the Board’s decision,
the Franklin Circuit Court based its reversal on lack of substantial evidence to
support denial of benefits. We agree with the sound reasoning of the circuit court.
Therefore, we affirm.
I. Factual and Procedural History
Grinninger was employed as a custodian for the Newport Independent
School District for almost 22 years. His job was physically demanding, requiring
him to stand up to seven hours a day. Over the course of his employment,
Grinninger maintained the buildings and grounds of multiple schools. In order to
carry out his job properly, Grinninger was required to perform the following tasks:
handle, grab, and grasp items, tools, and machinery, including vibratory
equipment; climb and balance; lift and carry objects weighing between 25 and 50
pounds without assistance; reach overhead and in all other directions; and be
exposed to environmental elements, fumes, and dust. Administrative Record
(A.R.) at 8-11, 12-13.
-2- As an employee of a school board, Grinninger was a member of the
County Employees Retirement System (CERS) from April 30, 1996, until his last
date of paid employment (LDOPE) on March 5, 2018. A.R. at 7. He has not
worked since leaving his custodial position. At the age of 57, Grinninger applied
for and was awarded Social Security Disability benefits with a disability onset date
of April 4, 2018. On April 5, 2018, Grinninger applied to the Kentucky
Retirement Systems (Retirement System)1 for disability retirement benefits
pursuant to Kentucky Revised Statute (KRS) 61.600. A.R. at 2-7. Having more
than 16 years of participating service, Grinninger was not barred from receiving
disability benefits for a pre-existing condition. KRS. 61.600(4)(b).
In his Statement of Disability, Grinninger indicated that he suffers
from multiple conditions, including: degenerative disc disease; radicular
osteoarthritis of his lumbar, thoracic, and cervical spine; pain and numbness in his
right leg; chronic knee pain; sciatica and back spasms; deafness of the left ear;
fibromyalgia; gastroenteritis; anxiety, depression, and dysphoric mood;
hypothyroidism; low testosterone; fungal infection; chronic asthma and chronic
1 The CERS and the Retirement System administratively restructured in 2021. The CERS now has its own governance Board of Trustees and Disability Appeals Committee separate from the Retirement System, which governs the Kentucky Employees Retirement System and State Police Retirement System. The KPPA is now the title of the umbrella administrative agency for all the systems. However, when Grinninger’s disability claim was administratively adjudicated, the Retirement System was the name of the single agency, which had a single Board that governed all three retirement systems.
-3- obstructive pulmonary disease; high blood pressure; chest pain associated with
exertion; gout; myalgia; chronic fatigue syndrome; and a history of foot and ankle
surgery. A.R. at 24. He describes chronic back and radicular pain from spinal
conditions originating from an automobile accident in 1993 that were then
exacerbated over time by subsequent injury and repetitive work. Physicians
offered ongoing pain management through a combination of prescription
medication and frequent chiropractic care. As a result of these many conditions,
Grinninger asserts that he is incapacitated and unable to perform or sustain the
essential duties of a custodian. A.R. at 1711.
Pursuant to KRS 61.600(3)2 and KRS 61.665,3 the Retirement
System’s panel of three medical examiners evaluated Grinninger’s disability claim
and medical records, including Magnetic Resonance Imaging (MRI) of his lumbar
and cervical spine in 2015 and 2018, extensive chiropractic treatment notes,
emergency medical care summaries, other medical test results, and a list of his
prescribed medications. Two medical examiners recommended denial of disability
benefits based on the lack of a clear objective statement of disability indicating that
Grinninger was permanently disabled or unable to perform the duties of his
2 KRS 61.600 addresses Disability Retirement (eff. to 2021) (amended 2021). 3 KRS 61.665 refers to Medical Examiners; ruling on disability retirement; appeal; referral for evaluation and training (eff. to 2021) (amended 2021, 2022, and 2024).
-4- custodial job and the insufficiency of “other objective medical evidence.” A.R. at
1295-1303. They noted that the record, including his own application, indicated
that he had not requested accommodations. Id. One medical examiner advised
that he “would encourage [Grinninger] to confer with his health care providers and
request they provide [the Retirement System] with a clear objective statement of
disability,” upon which the medical examiner “would be willing to review [his]
claim again.” A.R. at 1297. The second medical examiner recommending denial
observed that Grinninger failed to submit “a functional capacity evaluation [FCE]
that would clearly outline his physical capabilities.” A.R. at 1303. The third
medical examiner recommended approval of disability benefits, finding that
Grinninger could not “continue his strenuous employment as a Custodian because
of degenerative disc disease of the neck and lumbar spine.” A.R. at 1300.
By letter dated November 26, 2018, the Retirement System denied
Grinninger’s application for disability benefits. A.R. at 1304-12. On April 8,
2019, Grinninger appealed the denial and requested a formal hearing.4 A.R. at
4 KRS 61.665(2)(f) (eff. to 2021) provided that:
If two (2) or more of the three (3) medical examiners recommend that the person be denied disability retirement, the system shall send notice of this recommendation by United States first-class mail to the person’s last address on file in the retirement office. The person shall have one hundred eighty (180) days from the day that the system mailed the notice to file at the retirement office additional supporting medical information and certify to the retirement office that the application for disability retirement and supporting medical information are ready to be evaluated by the medical examiners or to appeal his denial of disability retirement by filing at the retirement office a
-5- 1313-14. Grinninger did not seek a reevaluation of additional supporting medical
information by the medical panel prior to seeking a hearing.5 However, along with
his hearing request, Grinninger tendered nearly identical narrative statements from
his family medicine doctor and chiropractor definitively stating that Grinninger “is
permanently incapable of performing the essential functions and duties of a school
custodian.” A.R. at 1315, 1328.
On October 2, 2019, Grinninger submitted a Residual Functional
Capacity Evaluation (FCE) consisting of a checklist signed by his chiropractor and
indicating that during an eight-hour workday, Grinninger could: (1) sit, stand, and
walk no more than one hour at a time; (2) sit no more than three hours and stand or
walk no more than four hours without a break; and (3) lift and/or carry no more
than 25 pounds and only occasionally. A.R. at 1347-48. The FCE also reported
that Grinninger is unable “to engage in activities requiring frequently sustained
neck/head position,” unable to climb, and only occasionally able to bend, squat,
crawl, or reach. Id. The chiropractor noted that Grinninger’s functional capacity
request for a formal hearing. Any subsequent filing of an application for disability retirement or supporting medical information shall not be evaluated, except as provided in KRS 61.600(2).
(Emphasis added.) 5 See n.5.
-6- limitations were due to “back pain and cramps” and “right leg pain,” and that he
“experienced symptoms of polyneuropathy.” Id.
The Retirement System conducted a hearing on October 14, 2019.
The hearing officer entered into the administrative record Grinninger’s additional
exhibits with no objection by the Retirement System. Grinninger was the sole
witness. Video Record of Administrative Hearing (V.R.), 10/14/2019 at 00:03:00.
He testified that he was 57 years of age, that he had completed a high school
education through the 11th grade, and that he obtained his GED. Grinninger
described his former job duties as follows: maintaining school facilities, grounds,
and sports fields; standing longer than seven hours a day; medium to heavy lifting;
and using heavy machinery. He testified that he had made a verbal request for help
with heavy lifting but had not received a response and did not follow-up on his
request. V.R. at 00:31:30-00:32:05. Significantly, the two medical examiners who
had recommended denying his claim specifically and erroneously reported that he
had not requested accommodations -- an incorrect fact that was improperly
utilized against his claim.
Grinninger testified concerning his diagnosed conditions, surgeries,
medications, and treatment. He explained that his symptoms -- including chronic
back, neck, and leg pain, radiating pain, and numbness -- originated with the car
accident in 1993 but were greatly exacerbated after he pinched a nerve in his back
-7- in 2013. He testified that he experiences constant lower back pain, and that
although he can “knock it down” with medication, it never ceases. V.R. at
00:16:20-00:16:41. He described his functions of daily living, which are largely
limited to light household chores, grocery shopping, preparing meals, and mowing
the yard in shifts with a riding lawn mower. He no longer enjoys former hobbies
and does not attend social events or church. On cross-examination, he testified that
he provides care for his wife, who has experienced symptoms of dementia since
before he left work. However, he is not yet required to assist with her physical
care, which she is still able to perform for herself. V.R. at 00:58:50-00:59-45.
After the hearing, the parties submitted post-hearing briefs, and the
hearing officer entered his Recommended Order on February 19, 2020. A.R. at
1760-81. In his Recommended Order, the hearing officer summarized the medical
evidence, including medical test results, contemporaneous treatment
recommendations and notes, and the opinions of the medical examiners.
Grinninger’s MRI in 2018 and treatment notes just prior to his LDOPE indicated
that he was not a candidate for surgery as he continued to demonstrate minimal
radicular symptoms and maintained good strength and sensation in the bilateral
upper and lower extremities. A.R. at 1630-33. Additionally, comparisons of
Grinninger’s 2018 MRI to the prior 2015 MRI showed some regression of his
bulging disc and only moderate degenerative changes in his cervical spine. A.R. at
-8- 1630-33, 1769. The hearing officer summarized the additional evidence that
Grinninger submitted, including the statements from his family doctor and
chiropractor, as well as the FCE. The Recommended Order recited that the hearing
officer relied on “the entire administrative record . . . and the testimony” in making
his findings of fact and conclusions of law. A.R. at 1763.
The hearing officer made findings that Grinninger’s custodial position
was “best described as medium work,” and that Grinninger did not request
accommodations. A.R. at 1776. Again, that error was repeated to the detriment of
Grinninger’s claim. Concerning Grinninger’s degenerative disc disease, radicular
osteoarthritis, chronic pain, and related conditions, the hearing officer found that
Grinninger’s doctors: (1) had consistently treated his symptoms conservatively
with chiropractic care and prescribed medication; (2) had not recommended him as
a candidate for surgery; and (3) while recommending physical restrictions, had not
relieved him from work. A.R. at 1776. Therefore, the hearing officer opined:
For these reasons, Claimant has failed to prove by objective medical evidence that he is permanently incapacitated from his previous job or a job of like duties based on his degenerative disc disease, radicular osteoarthritis, pain and numbness in the left leg, arthralgia, chronic joint pain, myalgia, chronic pain, sciatica, and back spasms.
Id. Similarly, in addressing the other alleged conditions, the hearing officer
determined that Grinninger had failed to prove by a preponderance of objective
-9- medical evidence that he was permanently incapacitated as a result of each of them
individually. A.R. at 1777-79. Regarding the cumulative effect of these
conditions, the Recommended Order concluded:
Claimant has failed to meet his burden to establish disability based upon the cumulative effect of his conditions. Claimant has been treated conservatively for all of his conditions and has never been considered a candidate for surgical intervention. Some of the conditions for which Claimant has alleged disability significantly pre-date his membership date in the Systems, and while Claimant is not barred from receiving benefits for a pre-existing condition, this shows that Claimant has been able to work with these conditions for the entirety of his almost 22 year employment with the Newport Independent School District. For these reasons, Claimant has failed to meet his burden to establish disability based on the cumulative effect of his conditions.
A.R. at 1779.
On April 28, 2020, the Retirement Systems’ Board considered the
Recommended Order and, in accordance with KRS 13B.120, issued its final order
denying Grinninger’s application for disability benefits under KRS 61.600.
Record (R.) at 7-8. Pursuant to KRS 61.665(5), Grinninger appealed to the circuit
court, which reversed the Board’s final order.
II. STANDARD OF REVIEW
KRS 13B.150 establishes the standard for judicial review of a final
order by an administrative agency and states in pertinent part:
-10- (1) . . . [R]eview of a final order shall be conducted by the court without a jury and shall be confined to the record . . . .
(2) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency’s final order is . . . [w]ithout support of substantial evidence on the whole record; [a]rbitrary, capricious, or characterized by abuse of discretion . . . [or] [d]eficient as otherwise provided by law.
KRS 13B.150 (eff. to 2025) (amended Jun. 27, 2025). After the circuit court
entered its April 2025 Order, the General Assembly amended KRS 13B.150 as
follows:
(3) The court shall apply de novo review of the agency’s final order on questions of law. An agency’s interpretation of a statute or administrative regulation shall not be entitled to deference from a reviewing court.
Id. The General Assembly’s amendment has essentially codified relevant case law.
The Retirement System argues that the circuit court “failed to give
deference to the fact-finder.” Appellant’s Brief, p. iii. However, in its recent
amendment of KRS 13B.150, the General Assembly unambiguously recognized
that an agency’s “interpretation “ of its own regulations is not entitled to a
deference by a reviewing court -- an indorsement of the reality that Section 115 of
our Constitution contemplates that an appeal as a matter of right must indeed be
-11- meaningful, independent, and insightful and not merely a sham or rubber-stamp of
the matter under review.
The Kentucky Supreme Court has interpreted KRS 13B.150 as the
following mandate:
[T]he legislative command that the courts “not substitute [their] judgment for that of the agency as to the weight of the evidence on questions of fact,” KRS 13B.150(2), while outlining an understandable test for determining if the fact-finder was “arbitrary, capricious or . . . abuse[d] [its] discretion” in violation of KRS 13B.150(2)(d) when assessing the evidence.
Bradley v. Kentucky Ret. Sys., 567 S.W.3d 114, 120 (Ky. 2018); see also 500
Assoc., Inc. v. Natural Resources and Envt’l Prot. Cabinet, 204 S.W.3d 121, 131
(Ky. App. 2006). In McManus v. Kentucky Retirement Systems, we explained:
“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.” Aubrey v. Office of Attorney General, Ky. App., 994 S.W.2d 516, 519 (1998) (citing Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 309 (1972)). . . . A reviewing court is not free to substitute its judgment for that of an agency on a factual issue unless the agency’s decision is arbitrary and capricious. See Johnson v. Galen Health Care, Inc., Ky. App., 39 S.W.3d 828, 832 (2001).
124 S.W.3d 454, 458-59 (Ky. App. 2003). Again, with its most recent amendment
to KRS 13B.150(3), the Kentucky legislature has refined its directive by requiring
a reviewing court to consider whether the agency’s factual findings are “without
-12- support of the substantial evidence” and review de novo “the agency’s final order
on questions of law.” KRS 13B.150(2)(c) and (3); see also 500 Assoc., Inc., 204
S.W.3d at 131.
III. ARGUMENTS AND ANALYSIS
The Retirement System appeals, arguing that the circuit court
impermissibly reweighed the evidence, considered facts not in the administrative
record, and failed to apply the proper test for judicial review. Additionally, it
argues that the court erred in its conclusion that the Retirement Systems’ findings
regarding Grinninger’s permanent incapacity and cumulative effect of his
conditions were not supported by substantial evidence of record. Finally, it
contends that the court erroneously reweighed the objective medical evidence to
conclude that it compelled a finding in Grinninger’s favor. Grinninger asks us to
affirm the circuit court’s order, arguing that the Board’s final order was not based
on substantial evidence and that the circuit court did not reweigh the evidence or
fail to apply the proper test for judicial review.
The circuit court held that the Retirement System incorrectly assessed
the physical exertion requirements of Grinninger’s former job as medium versus
heavy work as defined by KRS 61.600(5)(c). R. at 135. Further, it found that the
Board’s medical examiners and hearing officer improperly discounted the
statements from Grinninger’s treating physicians and failed to consider adequately
-13- the cumulative effect of Grinninger’s various conditions. R. at 135-36. Notably,
the circuit court opined that: “An appropriate review of the record would give more
weight to the opinions of Grinninger’s treating physicians,” and “[a]fter a complete
review of the record, no reasonable person would be unconvinced by the evidence
brought by Grinninger.” R. at 137. Moreover, the court stated that “[t]o hold
Grinninger’s ability for many years to work through pain or stall degeneration of
his various worsening ailments against him is improper, and to uphold such a
decision would be a miscarriage of justice.” R. at 136. Therefore, the circuit court
concluded that the Retirement System’s decision denying disability benefits was
arbitrary and not supported by substantial evidence, and that “the objective medical
evidence presented . . . was so compelling that no reasonable person could have
failed to be persuaded by it.” R. at 137.
The ultimate test for our review of the decision of an administrative
agency is McManus, supra, which dictates that its decision must be supported by
substantial evidence, 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.” Id. at 458.
The circuit court duly noted that “over 1,000 pages of records from
hospitals and physicians documenting his [Grinninger’s] health problems” had
been submitted. The court noted that the two examining physicians recommending
-14- denial of benefits “either failed to address this evidence or failed to give it any
weight.” R. at 134. Additionally, when one of those two physicians objected to
the lack of an FCE, Grinninger later cured this deficiency and supplied an FCE.
Nonetheless, “the hearing officer declined to include an analysis of the FCE in his
decision.” Id.
The Retirement System contends that the court “impermissibly re-
weighed evidence” or considered facts not on the record. On the contrary, the
court did its job in reviewing all of the evidence -- especially evidence improperly
ignored or unaddressed by the hearing officer/agency. The Retirement System
contends that there was a lack of objective medical evidence and denigrates the
opinions of Grinninger’s treating physicians as unreliable. However, the court
correctly observed that objective medical evidence includes such reports.
“Treating physicians’ reports are clearly objective medical evidence.” R. at 135
(citing Kentucky Ret. Sys. v. Lowe, 343 S.W. 3d 642, 647 (Ky. App. 2011)). It
acknowledges that the Retirement System may elect to give greater weight to the
physicians that it has selected, but “it may not discount treating physicians’ reports
as failing the standard of objective medical evidence.” Id.
In assessing the issue of whether Grinninger’s custodial duties
constituted medium or heavy labor, the Retirement System determined that his
duties required merely medium labor. The court again cited a contradiction: that
-15- the Custodian Job Description itself set forth in writing that the position required
“the ability to perform heavy physical labor.” As the court recited, “This
description contradicts the hearing officer’s finding that the position is medium
work and supports a finding that the job is heavy work according to KRS
61.600(5).” R. at 136.
In addition to these errors and omissions on the part of the Retirement
System, it wholly ignored or neglected to consider the cumulative effect of
Grinninger’s numerous ailments. Citing Kentucky Retirement Systems v. Bowens,
281 S.W.3d 776 (Ky. 2009), the court correctly observed that the cumulative effect
of a claimant’s various condition must be addressed. And they must be analyzed in
toto rather than singularly so as to “fragmentize” the combined effect on the
person. Id. at 783.
In the course of its assessment of Grinninger, the Retirement System
drew attention to the fact that he had continued to work even though afflicted with
so many ailments -- as if that fact were proof that in effect he was malingering.
Instead of being rewarded or appreciated for his dedication to work despite his
pain, he was effectively punished by his endurance of that pain as proof of
adequate stamina -- not even receiving an acknowledgment that it was real. The
court ably observed:
To hold Grinninger’s ability for many years to work through pain or stall degeneration of his various
-16- worsening ailments against him is improper, and to uphold such a decision would be a miscarriage of justice. It ignores the obvious problem that the ability of a person who works through pain will inevitably decline with age and physical stress; the Plaintiff cannot be penalized for his long history of working through pain and other adverse physical symptoms that over time caused him to be unable to perform his job duties. R. at 137.
The court was also cognizant of the fact that Grinninger had indeed
made a verbal request for accommodations that was ignored. It was not only
ignored by his employer, but even more significantly at this juncture, it was denied
by the hearing officer. The hearing officer actually -- erroneously and improperly
-- found specifically that Grinninger never requested accommodations.
After our review of this record, we conclude that there was a fatal lack
of substantial evidence to support the Retirement System’s denial of disability
benefits. Therefore, we affirm the soundly reasoned Opinion and Order of the
Franklin Circuit Court.
MOYNAHAN, JUDGE, CONCURS.
ECKERLE, JUDGE, DISSENTS, AND FILES SEPARATE OPINION.
ECKERLE, JUDGE, DISSENTING: Respectfully, I dissent from the Majority and
would reverse and remand the April 28, 2025, Opinion and Order of the Franklin
Circuit Court granting disability benefits to Grinninger.
-17- As the majority decision states, McManus and KRS 13B.150 establish
the appropriate test for our review. 124 S.W.3d 454, 458-59 (Ky. App. 2003). As
amended, KRS 13B.150(3) provides: “The court shall apply de novo review of the
agency’s final order on questions of law. An agency’s interpretation of a statute
or administrative regulation shall not be entitled to deference from a reviewing
court.” (Emphasis added.) It did not change the statutory requirement under KRS
13B.150(2) that “[t]he court shall not substitute its judgment for that of the agency
as to the weight of the evidence on questions of fact.”
While recognizing that the General Assembly’s 2025 amendment to
KRS 13B.150 is significant, the amendment codifies rather than upends the
relevant caselaw. The Kentucky Supreme Court has interpreted KRS 13B.150 as:
[T]he legislative command that the courts “not substitute [their] judgment for that of the agency as to the weight of the evidence on questions of fact,” KRS 13B.150(2), while outlining an understandable test for determining if the fact-finder was “arbitrary, capricious or . . . abuse[d] [its] discretion” in violation of KRS 13B.150(2)(d) when assessing the evidence.
Bradley v. Kentucky Ret. Sys., 567 S.W.3d 114, 120 (Ky. 2018); see also 500
Assoc., Inc. v. Natural Resources and Envt’l Prot. Cabinet, 204 S.W.3d 121, 131
(Ky. App. 2006). In McManus, the Court also explained:
“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.” Aubrey v. Office of
-18- Attorney General, Ky. App., 994 S.W.2d 516, 519 (1998) (citing Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 309 (1972)). . . . A reviewing court is not free to substitute its judgment for that of an agency on a factual issue unless the agency’s decision is arbitrary and capricious. See Johnson v. Galen Health Care, Inc., Ky. App., 39 S.W.3d 828, 832 (2001).
124 S.W.3d at 458-59. With its most recent amendment to KRS 13B.150(3), the
Kentucky legislature has refined its directive by requiring a reviewing Court to
consider whether the agency’s factual findings are “without support of the
substantial evidence” and review de novo “the agency’s final order on questions of
law.” KRS 13B.150(2)(c) and (3); see also 500 Assoc., Inc., 204 S.W.3d at 131.
The “[d]etermination of the burden of proof also impacts the standard
of review on appeal of an agency decision.” McManus, 124 S.W.3d at 458. In a
case, such as the one sub judice, where an agency denies relief to the party with the
burden of proof, “the issue on appeal [before the Trial Court] is whether the
evidence in that party’s favor is so compelling that no reasonable person could
have failed to be persuaded by it.” Id. While affirming this compelling evidence
standard for administrative decisions denying relief, the Kentucky Supreme Court
has clarified McManus. In Kentucky Retirement Systems v. Ashcraft, the Court
imposed a two-step review, first considering whether the administrative order is
properly supported by substantial evidence. 559 S.W.3d 812, 819 (Ky. 2018); see
also Bradley, 567 S.W.3d at 119. If the record contains substantial evidence for
-19- both sides, i.e., the evidence is in “equipoise,” the McManus compelling evidence
standard “properly breaks the tie.” Bradley, 567 S.W.3d at 120.
Following Ashcraft and Bradley, the Supreme Court addressed the
manner in which the compelling evidence standard should apply to particular types
of evidence. In Kentucky Retirement Systems v. Bowens, the Supreme Court
agreed with our application of the “cumulative effect rule.” 281 S.W.3d 776, 778
(Ky. 2009) (citing Dillon v. Celebrezze, 345 F.2d 753, 757 (4th Cir. 1965)). Under
circumstances where a claimant presents a series of multiple ailments, the
provisions of KRS 61.600(5) require an analysis of the person’s “residual
functional capacity,” necessitating that the fact-finder “evaluate the cumulative
effect of [a claimant’s] multiple ailments on the ‘whole person.’” Id. at 783.
However, the Supreme Court rejected the view that “the opinions of treating
physicians are entitled to more weight than the opinions of the non-examining
physicians, i.e., the treating physician rule.” Id. The Supreme Court concluded
that it was inappropriate to apply the “treating physician rule,” previously adopted
from Social Security Disability cases, as it is well-settled that, under Kentucky
administrative law, “the trier of fact may evaluate the evidence presented and give
the evidence the weight the fact-finder deems appropriate.” Id. at 784 (citing
McManus, 124 S.W.3d at 457-58).
-20- Under KRS 61.600(3), Grinninger bore the burden to prove by a
preponderance of “the objective medical evidence” that he is permanently and
continuously incapacitated from performing “the job, or jobs of like duties, from
which he received his last paid employment.” A determination of incapacity “shall
be based on the medical evidence contained in the member’s file and the member’s
residual functional capacity and physical exertion requirements.” KRS
61.600(5)(a)2. Further, “[t]he person’s residual functional capacity shall be the
person’s capacity for work activity on a regular and continuing basis . . . assessed
in light of the severity of the person’s physical, mental, and other impairments.”
KRS 61.600(5)(b). Finally, KRS 61.600(5)(c) details whether the physical
exertion requirements of the person’s job constitute sedentary, light, medium,
heavy, or very heavy work to which a claimant’s “residual functional capacity”
shall be compared.
The hearing officer determined that the physical exertion requirements
for Grinninger’s custodial job were “best described as medium work.” A.R. at
1776. KRS 61.600(5)(c)3. defines “[m]edium work” as “work that involves lifting
no more than fifty (50) pounds at a time with frequent lifting or carrying of objects
weighing up to twenty-five (25) pounds.” The Circuit Court held that this finding
was simply “wrong.” R. at 135. Grinninger argues that his former job consisted of
“[h]eavy work . . . that involv[ed] lifting no more than one hundred (100) pounds
-21- at a time with frequent lifting or carrying of objects weighing up to fifty (50)
pounds.” KRS 61.600(5)(c)4. However, both the school district’s description of
the job duties and much of Grinninger’s testimony – in other words, the facts
submitted at the hearing – conflict with the Circuit Court’s assessment; they
describe medium work, such as taking out the garbage, cleaning, restocking
supplies, and maintaining outdoor facilities. While Grinninger claimed that he was
required to lift, carry, and push items weighing over 50 pounds, he testified under
oath that he only occasionally had to reach such a level of physical exertion. For
example, he sometimes pushed a floor buffer weighing almost 100 pounds and, in
the winter, lifted bags of sand or salt used to treat walkways. He also worked with
other custodians from whom he could seek assistance. Although he testified that
he had verbally requested assistance with lifting heavy items, his claim is not
supported by other evidence or satisfactorily characterized as a “reasonable
accommodation by the employer as provided in 42 U.S.C.[6] sec. 12111(9) and 29
C.F.R.[7] Part 1630.” KRS 61.600(3)(a).
Moreover, during the administrative process, in lieu of the definitions
provided by KRS 61.600(5)(c)3., Grinninger asked the hearing officer to apply the
Social Security Administration’s medical-vocational guidelines, also known as the
6 United States Code. 7 Code of Federal Regulations.
-22- “grid rules,” which “consider the vocational factors of age, education, and work
experience[.]” 20 C.F.R. § 404.1501(g). Grinninger claimed that “based upon his
age, education, [and] relevant work history, [he] is unable to perform or sustain the
duties of a Custodian and is entitled to Kentucky Retirement Disability.” A.R. at
1711. Similarly, Grinninger cited the federal physical exertion requirements, under
which “medium work” is characterized as “[e]xerting 20 to 50 pounds of force
occasionally, and/or greater than negligible 10 to 25 pounds of force frequently,
and/or up to 10 pounds constantly to move objects.” A.R. at 1713 (quoting the
United States Department of Labor’s Dictionary of Occupational Titles).
However, the grid rules and federal, physical-demand definitions conflict with and
are inapposite to the definitions of KRS 61.600(5)(c). Additionally, KRS
61.600(3) requires an individualized assessment of whether Grinninger is
permanently mentally or physically incapacitated since his LDOPE so as to prevent
him from performing his former job, or jobs of like duties. This is an entirely
different standard of disability than the one used by the Social Security
Administration, which highlights the dangers of using the terminology of each
program interchangeably. Therefore, the Circuit Court clearly erred by not
affording deference to the hearing officer’s finding of fact that most of
Grinninger’s job duties constituted “medium work” pursuant to KRS 61.600(5)(c).
-23- The Circuit Court also erred in its findings that the hearing officer (1)
improperly ignored or discounted objective medical evidence from Grinninger’s
treating physicians and (2) failed to consider adequately the cumulative effect of
Grinninger’s various conditions. The Supreme Court’s opinion in Bowens should
guide an analysis of both of these issues. 281 S.W.3d 776. Bowens explicitly
rejected the treating physician rule, which, once again, has been applied only in a
Social Security Disability context and provides that the opinions of treating
physicians are entitled to greater weight that other objective medical evidence. Id.
at 783. The Supreme Court specifically held that the treating physician rule was
outside Kentucky’ statutory scheme. Id. at 784. Pursuant to this binding
precedent, as “fact-finder,” the hearing officer had the discretion to evaluate all the
evidence presented, including MRIs, surgical intervention assessments, treatment
notes, the FCE, the statements by Grinninger’s treating physicians, and the
opinions of the medical examiners, and, thereafter, assign the weight that he
deemed appropriate. Id. “Further, a reviewing appellate court cannot substitute its
judgment for that of the fact-finder regarding evaluations of evidence or questions
of fact.” Id.
Similarly, Bowens properly establishes the cumulative-effect
requirement. This rule provides that a hearing officer must evaluate the
“cumulative effect” of a claimant’s medical conditions and cannot conduct a
-24- “fragmentized” evaluation, considering “the effect of each insular injury on [a
claimant’s] ability to perform [his] job duties.” Id. at 783 (citing Dillon, 345 F.2d
at 757). In this instance, after conducting an evaluation of each condition, the
hearing officer explicitly found that Grinninger “failed to meet his burden to
establish disability based upon the cumulative effect of his conditions.” A.R. at
1779. This finding is supported by the record. Grinninger’s physicians managed
his cumulative conditions with conservative treatment, including medication and
chiropractic treatment. His cumulative conditions remained largely unchanged
between 2015 and 2018. He was not a candidate for surgical intervention due to
his cumulative conditions being less than severe. Finally, he was able to continue
active employment as a custodian well past the dates of his cumulative injuries.
It would have been improper simply to begrudge Grinninger’s “ability
to . . . work through pain or stall degeneration of his various worsening ailments.”
R. at 136. However, the substantial, objective, medical evidence, including MRIs
and treatment notes, refuted Grinninger’s claims of constant and unrelenting pain
that could not be managed with medication and conservative treatment. And it is
co-existentially wrong to suggest that the Retirement System is punishing rather
than properly appreciating and rewarding Grinninger’s dedication to his work
despite his endurance of his health conditions. Like other local government
employees, Grinninger is entitled to the benefits provided under an inviolable
-25- contract as defined by KRS 78.510 to 78.852.8 The Retirement System’s award
(opposed to reward) of disability benefits is subject to statutory and regulatory
requirements, which Grinninger did not meet. Further, although not applicable to
the review of his disability status, Grinninger is eligible for a reduced retirement
and health benefits commensurate with his age and years of service. Therefore, the
Retirement System’s proper denial of disability benefits will not result in a
manifest injustice as the Circuit Court and majority suggest.
Finally, the Circuit Court’s admonishment that the Retirement System
should have rebutted the treating physicians’ opinions by requiring Grinninger to
undergo another physical examination is misplaced and amounts to burden-
shifting. R. at 134; see Kentucky Ret. Sys. v. West, 413 S.W.3d 578, 581 (Ky.
2013). While KRS 61.665 permits the Retirement System to require a claimant to
undergo additional physical examinations at the Retirement System’s cost, it is not
required to do so. Id. “The Systems may or may not present evidence to rebut the
claimant’s proof. Regardless, the burden does not shift to the Systems.” Id.
Similarly, KRS 61.665 does not compel Grinninger to submit additional supporting
medical information for reevaluation by the medical examiners prior to requesting
8 KRS 78.852(1) provides: “For members who begin participating in the County Employees Retirement System prior to January 1, 2014, it is hereby declared that in consideration of the contributions by the members and in further consideration of benefits received by the county from the member’s employment, KRS 78.510 to 78.852 shall, except as provided in KRS 6.696, constitute an inviolable contract of the Commonwealth, and the benefits provided therein shall not be subject to reduction or impairment by alteration, amendment, or repeal.”
-26- a formal hearing. However, without such a reevaluation, Grinninger’s later claim
that the hearing officer erred by relying on the medical examiners’ original
opinions is unconvincing. Without the benefit of a medical review of the
additional evidence Grinninger submitted, we would be purely speculating if we
surmised that one or both of the medical examiners who found against him would
have been persuaded to change their opinion(s).
Significantly, the Circuit Court erred in its chronology of this
procedural history. The Trial Court’s criticism of the medical examiners for
ignoring the treating physicians’ statements and FCE is misplaced, as those
exhibits were not tendered until after Grinninger’s request for a formal hearing.
We, too, do not have the luxury of knowing the manner in which the parties would
have proceeded had the Circuit Court chosen to remand the administrative case for
the medical examiners to review those records. Instead, the Circuit Court
reweighed the evidence in favor of Grinninger, redistributed the burden of proof,
and granted Grinninger disability benefits that a majority of the medical examiners,
the hearing officer, and Board had all denied.
In sum, the Circuit Court erred by substituting its judgment for that of
the Board. The Board’s decision to deny Grinninger retirement disability benefits
under KRS 61.600 was supported by the substantial, objective, medical evidence.
The treating physicians’ opinions and FCE favoring Grinninger were no more
-27- persuasive than the other, and larger amount of, objective medical evidence
disfavoring a determination that Grinninger was permanently incapacitated from
the duties of his former job or a job of like kind pursuant to KRS 61.600. The
evidence in Grinninger’s favor was not so compelling as to persuade all reasonable
persons that he is entitled to disability benefits. Pursuant to KRS 13B.150 and
relevant case law, the Board’s evaluation of the evidence is entitled to deference,
as it was not violative of or in excess of statutory authority, arbitrary, capricious,
characterized by an abuse of its discretion, or otherwise deficient under the law.
Based on the foregoing reasons, I would reverse and remand the
Opinion and Order of the Franklin Circuit Court with instructions to affirm the
Board’s order.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kevin Edelman Emily A. Brown Kentucky Public Pensions Authority Edgewood, Kentucky Frankfort, Kentucky
-28-