RENDERED: NOVEMBER 1, 2018 TO BE PUBLISHED
2017-SC-000345-DG
KENTUCKY RETIREMENT SYSTEMS APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2016-CA-000114-MR FRANKLIN CIRCUIT COURT NO. 14-CI-00498
RONALD ASHCRAFT APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
REVERSING
An incapacitated member of the Kentucky Retirement Systems (KERS) 1
may apply for disability retirement pursuant to Kentucky Revised Statute (KRS)
61.600. If the statutorily-created medical review panel recommends that the
member’s disability retirement application be denied, the applicant may then
request a formal hearing before a hearing officer who will issue a recommended
order to the KERS Board of Trustees, the administrative body charged with
making the final decision. This case, initially brought by Ronald Ashcraft, a
former employee of the Grant County Board of Education,2 presents an oft-
1 We use the initials KERS rather than KRS to avoid confusion with initials used to designate the Kentucky Revised Statutes. 2 Ashcraft was a member of the County Employees Retirement System (CERS), which is administered by the Board of Trustees of the Kentucky Retirement Systems. KRS 78.780(1). Although CERS is created through KRS Chapter 78, KRS 78.545 specifically refers to and incorporates a number of administrative matters from KRS recurring issue regarding the role of the courts on judicial review of KERS’s
final decision as to a member’s entitlement to disability retirement. KRS
61.665(5). Having concluded that the Court of Appeals’ disposition of this case
is not consistent with the controlling statute and our stated standard of review
for disability retirement matters, we re verse. 3
RELEVANT FACTS
In September 2000, Ashcraft became a member of the County Employees
Retirement System, which is administered by KERS. The Grant County Board
of Education employed Ashcraft as an HVAC technician, a position classified as
“medium work.”4 As an HVAC technician, Ashcraft was responsible for
maintaining the HVAC systems in Grant County schools and carrying all tools
required to repair and install equipment. On August 1, 2011, Ashcraft
sustained a work-related injury to his neck, upper back, and shoulders when a
29-pound vacuum pump fell from above and struck him between the shoulder
blades.
In September 2011, Ashcraft was diagnosed with cervical and lumbar
strain and with tension headaches from muscle contractions. After seeking
Chapter 61, such as disability retirement conditions, medical examinations, and hearing procedures. KRS 78.545(10)-(14), (22); see also KRS 78.780(1) requiring the Board to “cany out the provisions of KRS 78.510 to 78.852 in the same manner in which it administers the Kentucky Employees Retirement System[].” 3 Another opinion issued today, Bradley v. Kentucky Retirement Systems, 2017- SC-000275-DG, also addresses the judicial review standard in KERS disability retirement cases. 4 See KRS 61.600(5)(c), which sets forth the standards for physical exertion requirements. treatment, Ashcraft was initially given work activity restrictions on lifting and
pulling. He was also placed on light and modified duty at work.
Ashcraft filed for disability benefits on June 8, 2012, and his application
was denied by a majority of the review panel on August 24, 2012. The
reviewing physicians noted a lack of objective medical evidence in the record.
Ashcraft again applied for disability benefits and supplemented the record with
a workers’ compensation examination performed by Dr. Vaughn on August 30,
2012. Dr. Vaughn reported his objective findings of pain in the cervical and
lumbar areas, but that the findings were due to degenerative changes
compatible with Ashcraft’s age. Dr. Vaughn believed that Ashcraft could return
to work with a 50-pound lifting restriction and that Ashcraft’s total impairment
was 10 percent, due to his cervical and lumbar impairments. Ashcraft also
tendered evidence from his orthopedist, indicating this physician placed him on
light duties without strenuous exertion, and the opinion of another physician
who stated that Ashcraft could not return to his previously-held position. The
medical review panel eventually denied his second application for benefits in a
2-1 decision rendered December 19, 2012.
Meanwhile, even though Ashcraft was permitted to perform modified
duty for some time, he was ultimately taken off work by one of his physicians.
After exhausting his Family and Medical Leave Act (FMLA) time and sick leave,
his last date of paid employment was October 18, 2012. In a letter dated
October 25, 2012, the Grant County Board of Education terminated Ashcraft
because no accommodations were available for light duty work in his job classification as an HVAC technician. His employer stated that even though
Ashcraft was given modified duties for five months, the job description for an
HVAC technician required the ability to lift up to 70 pounds.
Ashcraft requested an administrative hearing, which was held on
October 1, 2013. The hearing officer determined that Ashcraft submitted
sufficient objective medical evidence to support his assertion that the
cumulative effect of his neck, upper back, and lower back pain, and pain in his
left hip and leg physically incapacitated him on a permanent basis. In the
report dated December 18, 2013, the hearing officer recommended granting
Ashcraft’s disability benefits application, with review in two years. KERS filed
exceptions to the hearing officer’s recommendation.
The Disability Appeals Committee (DAC) of the Board of Trustees of the
Kentucky Retirement Systems (Board) met on February 21, 2014, and on
March 27, 2014,5 to consider the hearing officer’s recommendation. After fully
considering the administrative record, the DAC denied Ashcraft’s application
for disability benefits. In its findings, the DAC noted that two physicians
(Vaughn, Lyon), a vocational consultant (Crystal) and an exercise physiologist
(Pounds) determined that Ashcraft could lift up to 50 pounds, which is the
5 The online Minutes of the Disability Appeals Committee for February 21, 2014, reflect that the Ashcraft case was raised at that meeting. The members unanimously voted to reject the Hearing Officer’s Report and to issue an order denying the application. The order was not issued until the following month, when the Appeals Committee met on March 27, 2014. Minutes of Disability Appeals Committee - February 21, 2014, Kentucky Retirement Systems, https://kyret.ky.gov/About/ Board-of-Trustees/Committee%20Minutes/February212014DACMinutes.pdf. stated requirement for “medium duty work” as outlined in KRS 61.600(5)(c).
The DAC found that Ashcraft did not prove by a preponderance of objective
medical evidence that he was functionally incapacitated from performing the
HVAC technician job or a job of like duties. Additionally, the DAC pointed out
that Ashcraft himself stated that he would still be able to do many jobs that did
not require bending over or kneeling down to work, as the HVAC technician
position did.
After the DAC denied his claim, Ashcraft appealed to the Franklin Circuit
Court. In an order entered December 28, 2015, the trial court affirmed the
final order of the Board. The trial court concluded that the Board’s decision
was supported by substantial evidence and that, upon judicial review, Ashcraft
had failed to show that the evidence was so overwhelming as to compel a
finding in his favor. The trial court cited the McManus standard, which
provides that “[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. Ky. Retirement Sys., 124
S.W.3d 454, 458 (Ky. App. 2003). As the trial court noted, Ashcraft had the
burden of proof in making his claim for KERS disability benefits. On appeal to the Court of Appeals, that court reversed, having concluded
that substantial evidence compelled a finding in Ashcraft’s favor.6 The
appellate court remanded the case to the trial court with instructions that that
court order the Board to reinstate the hearing officer’s recommendation.
We granted discretionary review to reexamine the appropriate standard
for judicial review of denials of applications for state permanent disability
retirement benefits, and to address the deference accorded to the fact-finding
agency pursuant to KRS 13B.150. Additional facts relevant to the specific
issues presented are discussed below.
ANALYSIS
1. The KERS Board Is the Fact-Finder and Its Final Decision Must Be Supported by Substantial Evidence A person whose retirement is administered by KERS may seek disability
retirement when he or she is physically or mentally incapacitated to perform
his or her job, or jobs of like duties. KRS 61.600(3).7 A medical review panel
6 The three-judge appellate panel issued a divided opinion, with the dissenting judge opining that the McManus standard required the court to affirm the trial court and Board. 7 KRS 61.600(3) provides: Upon the examination of the objective medical evidence by licensed physicians pursuant to KRS 61.665, 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 as provided in 42 U.S.C. sec. 12111(9) and 29 C.F.R. Part 1630 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;
6 consisting of three physicians appointed by the KERS Board evaluates the
medical evidence submitted in support of the application and recommends
either approval or denial. KRS 61.665. If two or more examiners recommend
approval, “the system [KERS] shall make retirement payments in accordance
with the retirement plan selected by the person.” KRS 61.665(2)(e). If two or
more examiners recommend denial, the applicant may file additional
supporting medical information for further consideration or file a request for a
formal hearing. KRS 61.665(2)(f). If a formal hearing is requested, KERS may
require the applicant to submit to one or more medical or psychological
examinations. KRS 61.665(3)(c).
The hearing is conducted by a hearing officer in accordance with KRS
Chapter 13B. KRS 61.665(3). The applicant has the burden of proof, with the
burden of persuasion being “met by a preponderance of the evidence in the
record.” KRS 13B.090(7). Pursuant to statute and regulations, the hearing
officer is required to make a report and recommended order containing findings
of fact and conclusions of law, and the parties are allowed to file exceptions.
KRS 13B.110; 105 Ky. Admin. Reg. 1:215, § 5.
(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. For purposes of this subsection, reemployment shall not mean a change of employment between employers participating in the retirement systems administered by the Kentucky Retirement Systems with no loss of service credit.
7 The hearing officer’s report and recommended order and any exceptions
are submitted to the KERS Board, which is authorized to establish an appeals
committee “to act upon the recommendations and reports of the hearing officer
. . . .” KRS 61.665(4). The Board’s final order “shall be based on substantial
evidence appearing in the record as a whole and shall set forth the decision of
the board and the facts and law upon which the decision is based.” KRS
61.665(3)(d).
Judicial review of the KERS disability retirement decision is controlled by
KRS 13B.150, with subsection (2) setting forth the standard of review.
The Court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions offact. 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:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law. (Emphasis supplied.) Importantly, the first sentence of this subsection
mandates that the courts not substitute their judgment “for that of the
8 agency,” which in KERS cases is the Board. Ky. Retirement Sys. v. Brown, 336
S.W.3d 8, 13-14 (Ky. 2011) (discussing role of KERS as “finder of fact”).
Recognizing the deference to be accorded the KERS Board, this Court
has adopted then-Judge, later Justice, McAnulty’s statement in McManus as
an accurate statement of the appropriate standard of review. McManus stated:
Determination of the burden of proof also impacts the standard of review on appeal of an agency decision. 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. See Bourbon County Bd. of Adjustment v. Currans, Ky. App., 873 S.W.2d 836, 838 (1994); Transportation Cabinet v. Poe, Ky., 69 S.W.3d 60, 62 (2001) (workers’compensation case); Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986). 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 that party’s favor is so compelling that no reasonable person could have failed to be persuaded by it. See Currans, supra; Carnes v. Tremco Mfg. Co., Ky., 30 S.W.3d 172, 176 (2000) (workers’compensation case); Morgan v. Nat’I Resources & Environ. Protection Cabinet, Ky. App., 6 S.W.3d 833, 837 (1999). “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)).
124 S.W.3d at 458. See Brown, 336 S.W.3d at 14 [McManus “best describes
the appellate standard, and thus is worthy of our adoption.”). Accord Ky.
Retirement Sys. v. Wimberly, 495 S.W.3d 141 (Ky. 2016).
In this case, KERS rejected the hearing officer’s report recommending
disability retirement benefits and, in so doing, focused on four factual findings. First, although the hearing officer found Ashcraft’s credibility to be “good” and
“consistent with medical records,” the KERS Board deemed his credibility “fair”
stating:
[H]is assertions that his pain level is always 8/10 (and sometimes even 10/10) are suspect in light of the fact that he only takes over the counter pain relievers. While it is certainly true that someone on blood thinners should be cautious about adding medications, there are analgesics available that are safe to use with blood thinners. It’s unlikely the Claimant’s physicians would not offer him such relief if he was truly experiencing pain at the levels he alleges.
Next, the Board considered the objective medical evidence relevant to Ashcraft’s
ability to lift objects. The Board identified two physicians, Drs. Vaughn and
Lyon, who opined that Ashcraft retained the ability to lift up to 50 pounds and
a vocational consultant. Dr. Crystal, who reached a similar conclusion, i.e.,
that Ashcraft could perform medium duty jobs. A fourth person, Mr. Pounds,
an exercise physiologist, performed an evaluation of Ashcraft requested by Dr.
Lyon and concluded that Ashcraft could lift up to 50 pounds, while noting his
“numerous performance inconsistencies and self-limiting effort.” Third, the
Board emphasized that even a lifting restriction that was lower than what was
required for the specific Grant County Board of Education job8 was not
determinative of the alleged permanent disability because the statute required
the applicant to show incapacity to perform that job or a “job of like duties.” As
to the latter, vocational consultant Dr. Crystal noted that with or without
8 The HVAC technician job required the ability to lift objects weighing up to 70 pounds according to the October 25, 2012 letter from the Superintendent of the Grant County Schools.
10 additional education or training Ashcraft “is capable of returning to a wide
range of the type of work he has done in the past.” Finally, the Board noted
that Ashcraft’s position statement acknowledged that he did not consider
himself totally disabled but rather that he needed a position that did not
require the bending, kneeling or lifting that the HVAC technician job required.
The Board concluded that Ashcraft had “not provided a preponderance of
objective medical evidence that he is functionally physically incapacitated from
performing the job of a HVAC Technician or a job of like duties” (emphasis in
original).
On its face and in light of the record as a whole, the Board’s final order is
both based on substantial evidence and it reflects the facts and law upon
which the decision is based. KRS 61.665(3)(d). To address the appropriate
judicial review of this order, we begin with the circuit court’s opinion and order.
IL The McManus Standard, in Conjunction with KRS 13B.150, Provides the Proper Standard for Judicial Review of KERS Disability Retirement Decisions The Franklin Circuit Court concluded that substantial evidence
supported the Board’s decision, and that Ashcraft’s argument that the
testimony of his treating physicians was improperly discounted failed to
acknowledge this Court’s holding in Kentucky Retirement Systems v. Bowens
that treating physicians are not to be afforded greater deference than other
medical providers. Indeed, in that KERS case we clarified that whatever the
rule in Social Security proceedings or other arenas “there is no . . . Kentucky
statute authorizing greater weight to be given to the opinions of the treating
11 physician.” 281 S.W.3d 776, 784 (Ky. 2009). After finding substantial
evidence, the circuit court, quoting the McManus standard, ultimately found
that Ashcraft had not proffered evidence that was so overwhelming that it
compelled a ruling in his favor. The McManus standard is the appropriate lens
through which the trial court, and subsequent courts, should review a final
order from KERS.
Under the McManus standard, a reviewing court considers whether the
party who had the burden of proof, here Ashcraft, met that burden before the
fact-finder, here the Board. Because the Board in this case did not find that
Ashcraft had met his burden, the second sentence of the McManus test —
“whether the evidence in that party’s favor is so compelling that no reasonable
person could have failed to be persuaded by it” — is the operative standard for
judicial review. Nevertheless, the trial court took a two-step approach by first
considering whether the Board had issued a final order properly supported by
substantial evidence; KRS 61.665(3)(d). We find this two-step approach
appropriate because it hews to the language of KRS 13B.150, which identifies
seven potential grounds for reversal including that the Board’s order is
“[w]ithout support of substantial evidence on the whole record.” KRS
13B. 150(2)(c). It also reinforces the mandate of KRS 61.665(3)(d) which
requires the Board’s order to be based “on substantial evidence appearing in
the record as a whole . . . .” If there had been an absence of substantial
evidence supporting the Board’s opinion, that alone would have required
reversal under the statutory standard. So, the Franklin Circuit Court properly
12 made that threshold determination and, having found substantial evidence,
turned to the inquiry applicable because the Board found Ashcraft had not met
his burden of proof: Was the evidence in Ashcraft’s favor so compelling that no
reasonable person could have failed to be persuaded by it?
We reaffirm the wisdom and applicability of the McManus statement
because it properly reflects the deference to be given to the fact-finder. See
KRS 13B. 150(2) (“The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact.” (emphasis
supplied)). Realistically, there are cases where the record can fairly be read as
containing substantial evidence in favor of both sides. However, Kentucky law
is clear that the fact-finding agency is charged with making the “call” in those
difficult cases and outlining the grounds for the result reached. Simply put,
the agency is the decider on issues of fact. Thus, under the McManus
standard, a court cannot substitute its judgment on those contested issues of
fact but if the appealing party has not met his burden of proof with the fact
finder, the court can properly, indeed must, consider whether that party’s proof
was so compelling that no reasonable person could have failed to be
persuaded. If this high standard is met, so is KRS 13B. 150(2)(d) which allows
for reversal when a final order is “[a]rbitrary, capricious, or characterized by an
abuse of discretion.”
Simply put, the second part of the McManus standard allows for court
intervention, reversal, where the evidence favoring the party with the burden of
proof is so compelling that the agency’s decision is properly seen as arbitrary or
13 capricious or reflecting an abuse of discretion. Stated differently, the McManus
standard captures how courts properly assess arbitrariness, capriciousness or
abuse of discretion by the agency fact-finder in cases where the party with the
burden of proof has lost.9 Before applying that standard to the case before us,
we address a specific issue Ashcraft has raised regarding the determination of
witness credibility.
III. The Hearing Officer’s Credibility Determinations Are Not Binding on the Board As noted, the hearing officer found Ashcraft’s credibility to be “good”
while the Board deemed it only “fair,” citing his claim of pain at a level of 8 on a
scale of 1-10 as “suspect in light of the fact that he only takes over the counter
pain relievers.” Ashcraft insists that the hearing officer is entitled to deference
on matters of credibility, a concept the Court of Appeals gave credence to when
it compared the Board’s conclusion to the hearing officer’s assessment “based
upon her first-hand observation of his demeanor” and then relied on an
unpublished Court of Appeals opinion. Baker v. Commonwealth, 2005-CA-
001588-MR, 2007 WL 3037718, at *24-25 (Ky. App. Oct. 19, 2007). In dicta,
the Baker court cited federal case law for the proposition that absent clear
error an agency should be reluctant to disturb the findings of a hearing officer
who “having heard the evidence and seen the witnesses, is best qualified to
9 Obviously, other circumstances could give rise to a finding of arbitrary or capricious conduct, such as an agency rule that anyone submitting more than five physicians’ reports is automatically denied benefits or every application filed on Tuesday is denied. In those rather absurd cases, the KRS 13B. 150(2)(d) standard is clearly met and the “compelling evidence” standard need not be reached.
14 decide . . . Id. (citing Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 494
(1951)). Ashcraft continues to advance this argument in this Court.
Kentucky law does not require an agency to defer to the credibility
determinations of its hearing officer. In fact, our law underscores the agency’s
superior role in all factual determinations by expressly providing that the
agency may accept the hearing officer’s recommended order as its own “or it
may reject or modify, in whole or in part, the recommended order, or it may
remand the matter, in whole or in part, to the hearing officer for further
proceedings as appropriate.” KRS 136.120(2). Neither this Court nor the
Court of Appeals in a published decision has adopted the position that the
hearing officer has greater authority in credibility determinations, and to do so
would be counter to the plain language of the statute.
An analogous situation arose in Bowens, wherein this Court held that
the Court of Appeals could not adopt a new evidentiary doctrine that conflicts
with the statutory scheme controlling administrative matters. In that case, the
appellate court had looked to federal law to conclude that treating physicians’
opinions should be accorded more weight than the opinions of non-treating
physicians. 281 S.W.3d at 784. In reversing, this Court unanimously
concluded that administrative triers of fact in Kentucky are required to
evaluate the evidence and give it the weight the fact-finder deems appropriate.
Id. (citing McManus, 124 S.W.3d at 457-58 and Bowling v. Nat. Res. and
Environ. Protection Cab., 891 S.W.2d 406 (Ky. App. 1994)). No Kentucky
statute authorizes giving greater weight to treating physicians’ opinions and
15 “[a]s administrative agencies are creatures of statute, such a rule is
inappropriate.” Bowens, 281 S.W.3d at 784 (citing Dept. of Nat. Res. and
Environ. Protection Cab. v. Steams Coal and Lumber Co., 563 S.W.2d 471 (Ky.
1978)).
The same can be said here; a rule giving the hearing officer greater
authority in determining witness credibility than the Board is inappropriate.
Although only the hearing officer hears the testimony first-hand, the DAC of
the Board has a full video recording of the testimony for review, allowing
committee members to observe a witness’s demeanor. In any event, credibility
also extends beyond demeanor in the course of providing testimony to include
statements such as those made by Ashcraft in his position statement and cited
by the Board in its opinion. Credibility may also be broadly considered to
include evidence such as Mr. Pounds’s observations that during testing
Ashcraft’s results reflected “numerous performance inconsistencies and self
limiting effort.” In sum, our statutes and caselaw leave the weighing of the
evidence to the fact-finder — here the KERS Board — and that weighing
includes credibility determinations.
IV. Substantial Evidence Supports the Board’s Decision and the Evidence of Record in Favor of Ashcraft Is Not So Compelling That No Reasonable Person Could Have Failed to Be Persuaded by It The Court of Appeals concluded that substantial evidence existed to
support Ashcraft’s disability retirement application and that it compelled a
finding in his favor. The appellate court highlighted the medical evidence from
three of Ashcraft’s treating physicians, all of whom did not think Ashcraft could 16 perform his former job and/or issued lower lifting restrictions. Noting that the
Board had “discounted Ashcraft’s credibility,” the appellate court found it
unsurprising that the Board was not persuaded by these treating physicians’
opinions, which the court found persuasive. While that is certainly a valid
observation, it also reflects a reweighing of the evidence and substitution of
judicial judgment for an agency’s factual determination, something courts are
prohibited from doing by KRS 13B. 150(2). (“The court shall not substitute its
judgment for that of the agency as to the weight of the evidence on questions of
fact.”). And although the appellate court proffers a different reading of the
evidence which it finds compelling, we cannot say on our review that the
evidence favoring Ashcraft is “so compelling that no reasonable person could
have failed to be persuaded by it.” McManus, 124 S.W.Sd at 458.
In assessing whether Ashcraft’s proof is such that it reaches the high
“compelling evidence” bar articulated in McManus, we must necessarily
consider the countervailing evidence. If a given applicant’s evidence was
considered in a vacuum, it might be thought to meet the high standard but
that evidence must always be viewed in context. To state the obvious, the
compelling evidence standard is only relevant in the first instance because the
agency has outlined what it believes is substantial evidence supporting a final
decision denying the applicant’s requested disability retirement benefit. For
that reason, we believe the two-step approach taken by the trial court in this
case is the best approach. Even in those cases where the applicant has failed
to meet his or her burden of proof (the Board’s decision is adverse), a reviewing
17 court should first consider whether substantial evidence supports the Board’s
decision. If there is not substantial evidence, reversal is appropriate under
KRS 13B. 150(2)(c). If there is substantial evidence, the court must further
consider whether the applicant’s proof was so compelling that no reasonable
person could have failed to be persuaded.
Applying this approach, we first find substantial evidence supports the
Board’s decision. The Board was allowed to assess Ashcraft’s credibility, and
its assessment is supported by the record. The two physicians, vocational
consultant and exercise physiologist provided credible and convincing evidence
that Ashcraft was capable of performing medium-duty work. Ashcraft himself
lent credence to this conclusion. Collectively, the evidence relied on by the
Board was substantial.
Next, we cannot say that Ashcraft’s proof, his physicians’ evidence and
other evidence supportive of his application, is so compelling that no
reasonable person could fail to be persuaded by it. The compelling evidence
bar is purposefully high because the fact-finding function has been committed
to the Board by our General Assembly. Here, there are no grounds for reversal
of that administrative decision on judicial review.10
CONCLUSION
The Board met its statutory obligation pursuant to KRS 61.665(3)(d) by
issuing an order “based on substantial evidence appearing in the record as a
10 Given our disposition of this case, KERS’s argument regarding later- discovered evidence pertaining to Ashcraft need not be addressed.
18 whole . . . Because the Board found that Ronald Ashcraft had failed to meet
his burden of proving his permanent disability by a preponderance of the
evidence, the Court must further consider whether Ashcraft’s proof was so
compelling that no reasonable person could fail to be persuaded by it. Having
considered the record, we conclude that it was not.
For the foregoing reasons, we reverse the Court of Appeals and reinstate
the final decision of the Kentucky Retirement Systems Board of Trustees.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Katherine I. Rupinen Leigh Davis Carrie Slayton Jillian Leigh Hall Anne Caroline Bass
COUNSEL FOR APPELLEE:
Charles Ed Massey