Leo Sandmann v. Kentucky Transportation Cabinet Department of Highways

RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1506-MR
LEO SANDMANN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 19-CI-000298
KENTUCKY TRANSPORTATION
CABINET DEPARTMENT OF
HIGHWAYS AND KENTUCKY
CLAIMS COMMISSION APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
ACREE, JUDGE: Leo Sandmann appeals from the Jefferson Circuit Court’s
September 9, 2019 order upholding the Kentucky Claims Commission’s decision
to deny Sandmann future lost wages. Sandmann believes the circuit court erred
because there was substantial evidence that he had a permanent disability. Finding
no error, we affirm.
BACKGROUND
On October 17, 2015, Sandmann was riding his motorcycle on the on-
ramp from Dixie Highway to I-264 West in Louisville, Kentucky, when he hit a
pothole in the pavement. An ambulance took him to the hospital where he was
treated for injuries sustained from the accident. He suffered a dislocated left hip,
with a fracture to the left femoral head, and road rash. Sandmann underwent
surgery to fix the break, followed by five months of physical therapy.
During this time, Sandmann drew short-term disability. Fortunately,
his health insurance paid the majority of his medical bills, but he still was
responsible for $7,271.68. Additionally, he accumulated $7,784.28 in lost wages.
On January 4, 2016, Sandmann sought relief in an administrative
action before the Kentucky Claims Commission against the Kentucky
Transportation Cabinet, Department of Highways, for its negligent roadway
maintenance. He demanded medical expenses, lost wages, and future lost wages.
Both parties produced several witnesses at the evidentiary hearing.
Pertinent to this appeal was the testimony of Sandmann’s expert—Sara Ford. Ford
is a vocational economist who testified concerning Sandmann’s future lost
earnings. She concluded Sandmann’s injuries made his job more difficult and
lowered his work life expectancy by three years. She estimated the accident
caused him to lose future earnings between $204,380 to $238,559. However, her
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testimony was not based on medical records or the opinions of medical or
occupational therapy specialists.
Following the hearing, the Claims Commission re-assigned the matter
to a different hearing officer, who issued the findings of facts, conclusions of law,
and recommended order. In that order, the hearing officer determined the
Transportation Cabinet failed to follow a “‘known rule’ as set out in its own
manual regarding inspections.” However, the hearing officer did not grant
Sandmann the full measure of damages sought. Instead, the hearing officer
awarded $7,271.68 for medical expenses and $7,784.28 in uncompensated lost
wages.
Sandmann took written exception to the findings, alleging the
Commission erred in failing to award damages on lost future earnings. On
December 18, 2018, the Claims Commission issued a final order adopting the
hearing officer’s findings of fact and conclusions of law.
Thereafter, Sandmann appealed to the Jefferson Circuit Court.
Ultimately, the circuit court upheld the Claims Commission’s decision, stating the
Commission acted within its authority and based its ruling on substantial evidence
presented at the administrative hearing. This appeal followed.
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STANDARD OF REVIEW
A board’s findings may not be overturned by a court when the
findings of fact are supported by substantial evidence. Department for Human
Resources v. Redmon, 599 S.W.2d 474, 476 (Ky. App. 1980). A court may not
substitute its own judgment for that of the Board when the findings and
conclusions are not clearly erroneous. KRS1 49.150(2); Commonwealth,
Department of Parks v. Bergee Bros., Inc., 480 S.W.2d 158 (Ky. 1972).
ANALYSIS
Sandmann argues the Claim Commission should have granted his
exceptions and the circuit court should have reversed the Commission for failing to
do so. We disagree.
It is well-established that administrative rulings may not be
overturned where the findings are supported by substantial evidence, and not
clearly erroneous. Redmon, 599 S.W.2d at 476. The trier of fact in an
administrative agency “is afforded great latitude in its evaluation of the evidence
heard and the credibility of witnesses appearing before it.” Bowling v. Natural
Resources and Evtl. Protection Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1994).
However, according to Kentucky Retirement Systems v. Ashcraft, a reviewing court
may overturn an agency’s decision if the evidence in the party’s favor holding the
1
Kentucky Revised Statutes.
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burden of proof “is so compelling no reasonable person could have failed to be
persuaded by it.” 559 S.W.3d 812, 816 (Ky. 2018) (citing McManus v. Ky.
Retirement Sys., 124 S.W.3d 454, 458 (Ky. App. 2003)).
In this case, the Claims Commission explained its decision based on
the testimony of Sandmann’s own testimony and that of Ford.
Sandmann testified that even though he was somewhat limited in how
long he could walk, stand, drive, or sit, he still returned to his previous
employment as an IT programmer for FedEx. He worked the same job, the same
hours, and received the same pay—with regular annual increases. Sandmann also
admitted he did not expect to retire early.
Additionally, the Claims Commission did not find Ford’s testimony
persuasive. It took issue with the lack of underlying support for Ford’s opinion.
She did not identify any work Sandmann would be unable to do in the future. She
did not explain how she arrived at her figures, only that she estimated his work life
expectancy. And, she did not refer to any medical opinions or records to document
any of Sandmann’s limitations.
We echo the same concerns as the circuit court and the Claims
Commission: (1) there is no medical documentation detailing a relevant long-term
prognosis; (2) no qualified physician to discuss Sandmann’s prognosis; and (3) no
testimony regarding how his injuries will impact his life. Instead, the courts are
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left with Sandmann’s own testimony that he went back to work, in the same
position, and intended to work until the age of 65. Somewhat in passing,
Sandmann points out that his medical records would show his accident left him
with an infirmity, irrespective of expert testimony. However, the medical records
were never introduced during the evidentiary hearing, but only filed in the record.
More importantly, there is no evidence, by expert testimony or otherwise, that any
infirmity he experiences translates into an occupational impairment. The evidence
in the hearing record constitutes substantial evidence that it does not.
We reiterate that administrative agencies are afforded great deference
and their decisions upheld if there is substantial evidentiary justification. It was
entirely reasonable for the Claims Commission to determine there was insufficient
evidence to support Sandmann’s position regarding lost future wages.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court’s
September 9, 2019 order affirming the Kentucky Claims Commission’s decision.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Josephine Buckner Marlin A. Jones
Louisville, Kentucky Frankfort, Kentucky
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