Kentucky Retirement Systems v. Wimberly

495 S.W.3d 141, 2016 Ky. LEXIS 323, 2016 WL 4488310
CourtKentucky Supreme Court
DecidedAugust 25, 2016
Docket2015-SC-000159-DG
StatusPublished
Cited by5 cases

This text of 495 S.W.3d 141 (Kentucky Retirement Systems v. Wimberly) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kentucky Retirement Systems v. Wimberly, 495 S.W.3d 141, 2016 Ky. LEXIS 323, 2016 WL 4488310 (Ky. 2016).

Opinion

OPINION OF THE COURT BY

JUSTICE KELLER

Charles Wimberly filed an application for disability retirement benefits with the Kentucky Retirement Systems (KERS),1 A hearing officer recommended that Wim-berly’s application be.denied and, before KERS could render a final decision, Wim-berly filed a second application- pursuant to Kentucky Revised Statute (KRS) 61.600(2). Following the recommendation of another hearing officer, KERS denied that application. Wimberly sought re view by the Franklin Circuit Court ■ which reversed KERS, and KERS appealed to the Court of Appeals, which affirmed the circuit court. We granted discretionary review to address the parties’ arguments regarding the application of the doctrine of res judi-cata and to determine whether the consumption of alcohol is or can be a preexisting condition. Having reviewed the record and the arguments of the parties, we affirm.

I. BACKGROUND.

Wimberly, who worked as a bus driver for the Transit Authority of River City (TARC), became a KERS covered employee in 1991. As part of his job, Wimberly drove various buses, which required him to occasionally assist disabled passengers with their packages and wheelchairs. In October 2001, Wimberly suffered a concussion when he was involved in a work-related motor vehicle accident. Because of post-concussion symptoms, Wimberly was taken off work. In March of 2002, while he was still off work, Wimberly went to the Caritas Medical Center emergency room complaining of chest pain and shortness of breath. Dr. Kenny, who treated Wimberly at Caritas, noted that Wimbérly admitted “to heavy alcohol abuse in the past” and that “he still drinks at least a cáse of beer a week.” Based on this history and his examination of Wimberly,"Dr. Kenny made a diagnosis of severe biventricular failure of unknown etiology with differential diagnoses of ischemic or metabolic cardiomyo-pathy, possibly ássociated with alcoholism or diabetes. Dr. Kenny and one of his partners, Dr. Schoen, continued to treat Wimberly for his heart condition, noting at various times that the condition was idiopathic, possibly alcohol induced, or possibly related to Wimberly’s Type 2 diabetes.

On February 7, 2003, Wimberly filed his first of two applications for disability-retirement benefits. In that application he listed his disabling conditions as heart failure, diabetes, headaches, itching, foot numbness, dizziness, and vision problems. KERS submitted Wimberly’s application and medical records to Drs. Keller2 and McElwain for review, and both recommended that Wimberly’s claim be denied. Based on the recommendations of Drs. Keller and MeEÍwain, KERS "denied Wim-berly’s application. Wimberly submitted additional medical records and Drs. Keller and McElwain conducted a second review, both again concluding .that the claim should be denied. KERS again followed the physicians’ recommendations and de[144]*144nied Wimberly’s claim. Wimberly then asked for a hearing.

Prior to the hearing, Wimberly filed numerous medical records. The most significant of those records were: a statement from Dr. Scheon in May 2003 indicating that Wimberly could drive his own car but would probably never be able to drive commercially again; a statement from Dr. Kenny indicating that Wimberly should not drive a bus or do any other dangerous occupational activities; several statements regarding Wimberly’s alcohol consumption or lack thereof; and at least one hospital admission for treatment of an episode of syncope (fainting).

On December 12, 2003, Wimberly testified before a hearing officer that: his job was stressful; he worked in extreme weather conditions; he began treating for his diabetes in 1998 or 1999; he had undergone laser surgery on both eyes; he started drinking in 1972 but does not consider himself to be a heavy drinker, drinking one to three beers a week; and he has an irregular heartbeat, shortness of breath, and dizziness. Based on Wimberly’s testimony and the medical records, the hearing officer recommended that Wimberly’s claim be denied. In doing so, the hearing officer made two relevant findings: Wim-berly’s diabetes and cardiac conditions predated his membership in KERS; and Wim-berly was not totally and permanently incapacitated from his job duties. We note that, while the hearing officer mentioned Wimberly’s alcohol consumption, he did not maké any specific findings regarding its relationship to Wimberly’s medical conditions. Wimberly filed exceptions, arguing in pertinent part that the hearing officer erred because there was no evidence that Wimberly’s cardiomyopathy and diabetes pre-existed his covered employment and that “alcohol use does not rise to the level of a ‘bodily injury, mental illness, disease, or condition’ as required by statute-_”

Approximately a month after filing his exceptions, and nearly two months before KERS issued a final order. denying his first application, Wimberly filed his second application. In support of his second application, Wimberly filed additional medical records showing that he continued to receive treatment for cardiomyopathy and diabetes. The records also indicate that Wimberly: underwent eye surgeries for diabetic macular edema in 2004; was hospitalized for treatment of chest pain and shortness of breath in 2004; and had undergone carpal and cubital tunnel release surgeries in 2004. At KERS’s request, Drs. Keller and McElwain again reviewed Wim-berly’s medical records and again recommended denial. Based on those recommendations, KERS denied Wimberly’s second application, and Wimberly requested a hearing.

Prior to the second hearing, Wimberly filed additional evidence. In an October 26, 2004 letter, Dr. Schoen stated that Wim-berly could continue driving his personal car but that he was not able to drive commercially. Dr. Schoen also stated that, although records indicated Wimberly was a heavy drinker, Wimberly denied being an alcoholic and stated that family members would support that assessment. Finally, Dr. Schoen stated that there could be other causes for Wimberly’s cardiomyopa-thy, including hypertension and diabetes, and he concluded that the etiology of that condition was unclear. Dr. Kenny stated that Wimberly and family members stated that Wimberly never drank to excess and that Wimberly had never had any problems with alcohol abuse. As did Dr. Schoen, Dr. Kenny stated that there are multiple possible causes for Wimberly’s cardiomyopathy, and he could not “say that alcohol consumption directly caused [145]*145any of this presentation that ‘ [Wimberly] had in the past.” Wimberly also filed a statement from the benefits coordinator at TARC, indicating that Wimberly had never tested positive for alcohol or drugs while employed there.

Drs. Keller and McElwain reviewed this additional evidence and again recommended denial. Based on those physicians’ reports, KERS denied Wimberly’s claim.

Wimberly then requested a second hearing and introduced one additional pertinent medical record. Dr. Arnett, Wim-berly’s general practitioner, stated that Wimberly’s 1990 liver function test was normal and his 1998 abdominal CT scan showed no liver abnormalities. These findings suggested that Wimberly was not a heavy drinker. They also suggested that a 1990 gallbladder ultrasound that showed evidence of either cirrhosis or hepatocellu-lar disease “had [probably] been ... misinterpreted as suggesting cirrhosis.”

At the second hearing, Wimberly again testified about his job duties, noting that the job was often stressful.

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Cite This Page — Counsel Stack

Bluebook (online)
495 S.W.3d 141, 2016 Ky. LEXIS 323, 2016 WL 4488310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kentucky-retirement-systems-v-wimberly-ky-2016.