Failure to preserve issue in disability benefits appeal: CAUDILL V. KENTUCKY RETIREMENT SYSTEMS (COA 11/9/2007)

CAUDILL V. KENTUCKY RETIREMENT SYSTEMS
EMPLOYMENT LAW:  FAILURE TO PRESERVE ISSUE ON APPEAL

2006-CA-000461
PUBLISHED: AFFIRMING
ACREE PRESIDING; CIXON AND KELLER CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 11/09/2007

Judge Acree writing for the COA affirmed circuit court order affirming the decision of the Disability Appeals Committee of the Kentucky Employee Retirement Systems (KERS) which denied Caudill’s request for disability benefits.  Caudill argued that KERS incorrectly construed statutory law to exclude cumulative trauma from the definition of injury. The circuit court affirmed the Disability Appeals Committee’s decision because Caudill failed to prove that his injury did not predate his membership in the retirement systems.

KRS 61.600(3)(d) prohibits benefits from being awarded for an injury which results directly or indirectly from bodily injury, mental illness, disease, or condition which pre-existed membership in the system or reemployment, whichever is most recent. Caudill argued that his back injury was compensable because it was substantially aggravated by an injury or accident arising out of or in the course of employment.  KRS 61.600(4)(a). The hearing officer, noting that Caudill had never filed a workers’ compensation claim or otherwise reported any work-related injury to KCRD, found that Caudill did not suffer an injury, within the definition of KRS 61.600(3)(b), during his employment by KRCD and commended that Caudill was not entitled to disability benefits from KERS.

The hearing officer found, as a matter of law, that Caudill did not meet his burden of proof by preponderance of the evidence that his back condition came into being
after his membership in the retirement systems.  Caudill failed to preserve this issue in earlier proceedings precludes its consideration in the present appeal.  Where “no request was made for such findings. . .  [COA does] not consider the issue on appeal.” Whicker v. Whicker, 711 S.W.2d 857, 860 (Ky.App. 1986).

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