Request By:
Mr. Charles D. Duvall,
Secretary
Retirement Board
Municipal Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You state that the Retirement Board of the City of Frankfort wants an opinion on the legality of its actions of the March 4, 1977 meeting when it denied an occupational disability claim of Clifford West and also an opinion as to whether the board is required to reconsider his request dated March 18, 1977.
The applicant requested the board to reconsider its determination that he was not permanently and totally disabled and moves the board to appoint two physicians to examine him pursuant to KRS 95.864.
Thus, we see the issue as follows:
Is the Board required to appoint two physicians to examine the applicant?
Here, the applicant accompanied his initial report with medical reports of several physicians. One report dated in 1967 advised that because of a mid-back injury he had a functional impairment to the body of 15 - 20 percent. Another report indicated the applicant had a hearing loss of 30 decibels in the low tones and 80 decibels in the high tones and advised a hearing aid.
Another physician also advised about this hearing loss.
Apparently, the board with this information did not find that the applicant was totally and permanently disabled.
KRS 95.864 provides:
"For the purpose of KRS 95.851 to 95.885, a member shall be considered totally and permanently disabled after the Board shall have received written certification by at least two licensed and practicing physicians selected by the Board that the member is totally and likely to be permanently disabled for the further performance of the duties of any assigned position in the service of the department. If upon consideration of the report of such physicians and such other evidence as shall have been presented to it by the member or others interested therein, the Board finds the member to be totally and permanently disabled, it shall grant him a disability retirement annuity upon written certification that the member has been separated from the service of the city because of total disability of such nature as to reasonably prevent further service for the employer, and as a consequence is not entitled to compensation from the city."
We do not read that statute to require the board to appoint two examining physicians every time an applicant claims that he is totally disabled. We do read it to require that before the board determines that the applicant is totally disabled, it must utilize the procedure of KRS 95.864.
We believe that the board may utilize KRS 95.864, but, under the present situation is not required to do so, since the initial proof proferred by the applicant did not indicate total and permanent disability for the "further performance of the duties of any assigned position in the service of the department." (KRS 95.864).
Thus, in our opinion, the board took the proper action and is not required without further proof of total disability to incur the expense of appointing two physicians to examine the applicant.