No. 115,120

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      JOHN HUDSON,
                                        Appellee,

                                               v.

                           BOARD OF DIRECTORS OF THE
                   KANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM,
                                    Appellant.


                              SYLLABUS BY THE COURT


1.
       We review decisions of the Kansas Public Employees Retirement System Board
(Board) pursuant to the Kansas Judicial Review Act.


2.
       K.S.A. 2015 Supp. 77-621(d) requires that the record as a whole must be
considered to determine whether the decision by the Board was supported by substantial
evidence.


3.
       Substantial evidence is defined as evidence that supports the material findings of
the Board in light of the record as a whole.


4.
       In making this analysis, we (1) review evidence both supporting and contradicting
the Board's finding, (2) examine the Board's credibility determinations, if any, and (3)
review the Board's explanation of why the evidence supports its findings. K.S.A. 2015
Supp. 77-621(d).

                                               1
5.
       It is an unreasonable and arbitrary act when uncontroverted evidence is not
considered by the Board.


6.
       When a factfinder has had the advantage of seeing the witnesses testify live and
the opportunity to view their demeanor, this allows the factfinder to better assess the
candor and credibility of the witnesses. Thus, when administrative law judges have an
opportunity to view the testimony of witnesses live, they have an advantage over
administrative law judges and Board members who must make their decision based upon
reading a transcript or deposition.


7.
       A physician testifying as an expert witness may not testify about the credibility of
other witnesses' testimony or the weight of disputed evidence.


8.
       Under facts such as those of this case, medical opinions of physicians who have
examined and/or treated their patients have a greater advantage over physicians who have
based their medical opinions on only a paper review of the patients' medical records,
unless there is some articulation in the record why their medical opinions are more
persuasive than the medical opinions of those physicians who have examined and/or
treated their patients. In this case, none of the four experts testified live before the
administrative law judge.


       Appeal from Shawnee District Court; LARRY D. HENDRICKS, judge. Opinion filed December 30,
2016. Affirmed.


       J. Phillip Gragson, of Henson, Hutton, Mudrick & Gragson, LLP, of Topeka, for appellant.



                                                 2
        Steve A.J. Bukaty and Matthew R. Huntsman, of Steve A.J. Bukaty, Chartered, of Overland Park,
for appellee.


Before SCHROEDER, P.J., GREEN, J., and STUTZMAN, S.J.


        SCHROEDER, J.: The Board of Directors of the Kansas Public Employees
Retirement System (KPERS) appeals the district court's decision finding John Hudson,
who was diagnosed with post-traumatic stress disorder (PTSD), was permanently
disabled, unable to serve as a police officer, and entitled to disability benefits. Our review
of this appeal is controlled by the Kansas Judicial Review Act, K.S.A. 2015 Supp. 77-601
et seq. (the KJRA). Under that standard of review, we find the district court's conclusion
was correct—the Board's decision was not supported by substantial competent evidence
and was arbitrary and capricious. We affirm.


                                               FACTS


        Hudson worked as a police officer for the Kansas City, Kansas, Police Department
(KCKPD) from November 1996 to December 2011. In 2007, Hudson became a detective
in the child sex abuse unit. He investigated hundreds of child sex abuse cases, often being
assigned a new case every other day. In order to investigate his cases, Hudson had to
"[go] down to [the suspect's] level" to build rapport during interrogations. Hudson's
health records reflect his work in the child sex abuse unit caused his mental and
emotional health to deteriorate. As the process was taking its emotional toll on him, he
tried to discuss the cases with his coworkers but they refused. The egregious facts of
some of the cases affected Hudson more than others.


        In March 2008, Hudson was assigned to investigate a report involving a 10-year-
old boy with mild autism who was allegedly sodomized by a 22-year-old male. This
investigation affected Hudson emotionally. The suspect admitted in great detail to
sodomizing the victim, and during the course of the interrogation, the suspect also
                                                  3
admitted to sodomizing eight other children. A few days after the interrogation, Hudson
experienced nightmares involving the suspect which continued to plague him. Some of
the nightmares involved Hudson's own son becoming one of the suspect's victims. He
often woke up from his nightmares in a sweat, unable to fall back asleep.


       In 2010, Hudson wanted to reduce his exposure to child sex abuse cases and ran
for the position of Chief Lodge Steward of the police officers' union. Typically, the
officer in that position focused exclusively on union business during duty hours. After
being elected, Hudson was assigned to the department's assault unit, then to the missing
persons unit, but he continued to receive child sex abuse cases to investigate.


       In May 2011, Hudson was assigned to investigate a case that traumatically
affected him. The case involved a report of a 12-year-old girl who had been sexually
abused by her father on numerous occasions. Her father would pull a stocking cap over
her eyes and allow other men to perform oral sex on her for $50. He also punished her for
talking to boys by forcefully inserting a flashlight into her vagina, resulting in fourth-
degree tears. As Hudson investigated the allegations, the father initially denied any
wrongdoing, attempted to blame his daughter, and claimed she inserted the flashlight
herself. Hudson arrested the father during the investigation. The father then told Hudson
he would "turn out" Hudson's daughter the same way he did his own and that he would be
out of jail in 15 minutes. The father promptly posted bond and was released.


       Shortly thereafter, Hudson began having nightmares involving his own 8-year-old
daughter. In those nightmares, the father of the 12-year-old girl would harm Hudson's
daughter while he was powerless to help. The nightmares caused Hudson to wake up and
be unable to fall back asleep.


       With these reoccurring nightmares, Hudson began to question his career as a
police officer. He started having homicidal ideations while interrogating suspects, often


                                              4
fantasizing about brutally beating and killing them. In the summer and fall of 2011,
Hudson began applying for positions outside of law enforcement.


       One of Hudson's supervisors, Major John Cosgrove, observed a marked change in
Hudson's behavior in 2011. Hudson told Cosgrove he would rather kill suspects than get
confessions from them. According to Cosgrove, Hudson had trouble concentrating on the
child sex abuse cases to which he was assigned and was not getting his work done.
Cosgrove noticed Hudson showed signs of paranoia. To keep from being assigned more
child sex abuse cases, Hudson avoided his duties as a detective. He covered his patrol
car's vehicle locator with foil to jam the signal so he could not be located, and he would
tell his supervisors he was performing union duties, when in reality, he would drive to his
home, to friends' houses, or to a friend's business to avoid work.


       By October 2011, Hudson's performance had declined so drastically the
department launched an internal affairs investigation into his work activities. The
investigation revealed Hudson was driving around town and not investigating his
assigned cases. As a result, he was given the option of retiring from the KCKPD or facing
criminal charges. Hudson retired from the KCKPD on December 1, 2011. At the time of
his retirement, Hudson had no idea his nightmares, desire to harm suspects, avoidance of
work activities, and emotional difficulties reflected he was suffering from PTSD, as he
thought PTSD was a condition that only affected war veterans.


       After his retirement, Hudson started teaching at a Kansas City school district;
however, Hudson's nightmares and other psychological issues continued. As the issues
continued to plague him, Hudson spoke with his friend, a KCKPD detective, about what
was happening. The detective told Hudson he had a problem and needed to find help.
Hudson then spoke with another friend, a former police officer, who suggested Hudson
consult with a psychiatrist, Dr. Fernando Rosso. Dr. Rosso interviewed and tested
Hudson. He diagnosed Hudson with PTSD, concluded Hudson needed therapy, and
referred him back to Dr. Kathleen King for additional treatment.
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       Beginning in 2005, Hudson attended therapy sessions with a psychologist, Dr.
King, for issues related to dealing with his divorce and being able to spend time with his
children. Hudson never discussed his work issues with Dr. King prior to ending his
employment with the KCKPD. During a 2009 therapy session, Hudson told Dr. King he
feared his new girlfriend would disappear with his children but refused to discuss any
issues he was facing outside of his personal relationships.


       Though his performance as a detective suffered, Hudson did not disclose his
symptoms to Dr. King or seek any type of treatment because he knew of two other
KCKPD officers whose careers were negatively affected after disclosing they were
experiencing psychological difficulties. Hudson worried disclosure of his psychological
problems would disqualify him from bidding into the fugitive apprehension unit, a
position which he believed would make it impossible for him to be assigned to future
child sex abuse cases.


       After consulting with Dr. Rosso, Hudson explained to Dr. King the mental and
emotional stress that started in 2008 from his child sex abuse investigations and how
those cases continued to torment him. Hudson detailed recurring nightmares, homicidal
and violent ideations, anxiety, hypervigilance, and flashbacks he experienced as a result
of his work as a detective in the child sex abuse unit. With these new disclosures by
Hudson, Dr. King also diagnosed him with PTSD. Several months after diagnosing
Hudson with PTSD, King drafted a 32-page report that included Hudson's description of
his mental and emotional difficulties. Hudson was also seen by Dr. Grace Ketterman, a
psychiatrist, who diagnosed him with PTSD and prescribed Xanax to treat his anxiety—
later prescribing Lexapro to treat his anxiety and Trazodone to treat his depression.


       On March 15, 2012, given the medical issues he was suffering and the diagnoses
from his three physicians, Hudson applied for disability through Kansas Police and
Firemen's Retirement System (KP&F), a division of KPERS. On his application, Hudson
described his disability as PTSD, explaining his work in the child sex abuse unit had
                                            6
adversely affected him. He listed the date he became disabled as March 24, 2008, since
the form required him to pick a date. Along with his application, Hudson submitted two
forms entitled "Physician's Report of Member's Condition." One of these forms was
jointly submitted by Drs. King and Ketterman and listed the date of Hudson's disability as
March 24, 2008. Dr. Rosso completed the second physician's report, listing Hudson's date
of disability as December 1, 2011. On April 9, 2012, KCKPD Chief of Police Ricky
Armstrong signed a form entitled "KP&F Employer's Report of Disability or On-The-Job
Accident," certifying that the KCKPD was aware Hudson's PTSD was related to his work
as a child sex abuse detective.


         Upon receipt of Hudson's application, KPERS sent the application, reports, and
supporting medical records to Dr. Guillermo Ibarra, its consulting physician for
psychiatric claims. Dr. Ibarra reviewed the materials and, in his report, concluded he did
not believe the experiences Hudson faced in the child sex crimes unit resulted in a
disabling case of PTSD. Afterward, Hudson submitted additional information from his
three treating physicians to KPERS. Dr. Ibarra conducted another review and concluded
Hudson did not have a disabling case of PTSD. KPERS subsequently denied Hudson's
claim.


         Hudson wrote a letter to KPERS asking it to reconsider its decision, and he
submitted additional information from his three treating physicians. Dr. Ibarra conducted
another review, again concluding Hudson did not have a disabling case of PTSD. KPERS
again denied Hudson's claim.


         In preparing all three reports, Dr. Ibarra did not perform a physical examination of
Hudson or provide any type of testing, nor did he speak to Hudson or any of his three
treating physicians. Rather, Dr. Ibarra formed his opinion solely on the paper records he
reviewed, concluding Hudson's claim lacked credibility. Dr. Ibarra correctly stated in one
of his reports that the test for benefits under the KP&F is "not whether he has PTSD. The
issue is, if [he] has it, if he is disabled because of it."
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       Dr. Ibarra's reports reflected Hudson was not disabled because he left the KCKPD
due to misconduct rather than incapacity. In his letters and reports to KPERS, Dr. Ibarra
never referenced or applied the diagnostic criteria for PTSD from the Diagnostic and
Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V), which all of Hudson's
physicians relied on in diagnosing him with disabling PTSD.


       On February 15, 2013, KPERS sent Hudson a letter stating he was not eligible for
benefits under KP&F. Hudson timely requested an administrative hearing regarding the
denial of KP&F benefits. An administrative hearing was held before the administrative
law judge (the ALJ). At the hearing, Hudson and Mary Beth Green, a member services
officer for KPERS, testified live. As Hudson's experts, Drs. King, Rosso, and Ketterman
testified by deposition as did Dr. Ibarra as KPERS's expert. The ALJ denied Hudson's
application for disability benefits. Hudson timely appealed the ALJ's decision to the
Board. The Board affirmed the ALJ's order in a one-page decision without receipt of any
additional evidence.


       Hudson timely filed a petition for judicial review in the Shawnee County District
Court. The district court reversed the Board's decision adopting the ALJ's decision to
deny disability benefits under KP&F. The district court found the Board's decision was
unsupported by substantial evidence and was arbitrary and capricious, in violation of
K.S.A. 2015 Supp. 77-621(c)(7) and (8). For simplicity, we will refer to the order finding
Hudson did not qualify for benefits by the ALJ and the Board collectively as the Board
since the Board made the final order subject to appeal.


       KPERS timely appealed. Additional facts are set forth herein as necessary.




                                            8
                                               ANALYSIS


The KJRA controls our review.


       Standard of Review


       "We exercise the same statutorily limited review of the Board's action as does the
district court, '"as though the appeal had been made directly to this court."' [Citations
omitted.]" Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
This court's review of the district court's decision is bifurcated. First, we must determine
whether the district court followed the requirements and restrictions of the KJRA.
Second, we conduct the same review of the Board's actions as is required of the district
court. Sheldon v. KPERS, 40 Kan. App. 2d 75, 79, 189 P.3d 554 (2008) (citing Jones v.
Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 [2005]).


       Discussion


       When analyzing the Board's decision, we must follow K.S.A. 2015 Supp. 77-
621(d), which provides:


       "[T]he adequacy of the evidence in the record before the court to support a particular
       finding of fact shall be judged in light of all the relevant evidence in the record cited by
       any party that detracts from such finding as well as all of the relevant evidence in the
       record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party
       that supports such finding, including any determinations of veracity by the [Board] who
       personally observed the demeanor of the witness and the [Board's] explanation of why
       the relevant evidence in the record supports its material findings of fact. In reviewing the
       evidence in light of the record as a whole, the court shall not reweigh the evidence or
       engage in de novo review."




                                                     9
       "This analysis requires the court to (1) review evidence both supporting and contradicting
       the [Board's] findings; (2) examine the [Board's] credibility determination, if any; and (3)
       review the [Board's] explanation as to why the evidence supports its findings. K.S.A.
       2013 Supp. 77-621(d); Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66
       (2010). The court does not reweigh the evidence or engage in de novo review. K.S.A.
       2013 Supp. 77-621(d)." Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d
1057 (2014).


       In order to grant relief, the district court must find one or more of the eight
circumstances in K.S.A. 2015 Supp. 77-621(c) are present. Here, the district court found
K.S.A. 2015 Supp. 77-621(c)(7) and (8) applied, which provide:


               "(7) [T]he agency action is based on a determination of fact, made or implied by
       the agency, that is not supported to the appropriate standard of proof by evidence that is
       substantial when viewed in light of the record as a whole, which includes the agency
       record for judicial review, supplemented by any additional evidence received by the court
       under this act; or
               "(8) the agency action is otherwise unreasonable, arbitrary or capricious."


       At the center of our analysis is our conclusion the Board's reliance on the
deposition testimony of Dr. Ibarra was flawed. The district court acknowledged the
Board's credibility determinations could not be reweighed but examined the record to see
whether the reasons given for accepting Dr. Ibarra's opinion and then discounting the
sworn deposition testimony from Hudson's three treating physicians were supported by
the evidence. The district court found the Board's credibility determinations were not
supported by the evidence because they were based solely on the deposition testimony of
Dr. Ibarra who attacked the credibility of both Hudson and his treating physicians. The
Board did not hear any live testimony from Drs. King, Ketterman, Rosso, or Ibarra.
Without live testimony, the Board was not in a position to observe the demeanor of the
doctors or assess their credibility. See Giblin v. Giblin, 253 Kan. 240, 253, 854 P.2d 816
(1993). The district court found that when the Board did not observe testimony of


                                                   10
Hudson's treating physicians or Dr. Ibarra, it was near impossible for the Board to make
valid credibility determinations solely on the basis of deposition testimony.


       Here, the Board accepted, without explanation, Dr. Ibarra's medical opinion on
Hudson's condition over the opinion of Hudson's three treating physicians. Moreover, Dr.
Ibarra never tested or interviewed Hudson and never spoke with any of the treating
physicians to discuss the basis of each one's diagnosis of PTSD.


       We "must consider the credibility determination that the hearing officer made 'who
personally observed the demeanor of the witness.'" Kotnour v. City of Overland Park, 43
Kan. App. 2d 833, 837, 233 P.3d 299 (2010). Personal observation is important because
the statute specifically notes the value of actual observation of the witness when
credibility determinations are made. There cannot be an "'apples to apples'" comparison
of witness credibility where the Board reviews deposition testimony rather than
observing live testimony. See Rausch v. Sears Roebuck & Co., 46 Kan. App. 2d 338, 345,
263 P.3d 194 (2011). When a factfinder has had the advantage of seeing the witnesses
testify live and the opportunity to view their demeanor, this allows the factfinder to better
assess the candor and credibility of the witnesses. Thus, when administrative law judges
have an opportunity to view the testimony of witnesses live, they have an advantage over
administrative law judges and Board members who must make their decision based upon
reading a transcript or deposition.


       As we continue this thought, we see Dr. Ibarra's deposition testimony repeatedly
attacked the credibility of Hudson and the three examining and treating physicians. The
Board then used Dr. Ibarra's testimony attacking the credibility of Hudson and his three
examining and treating physicians to find Hudson and the three physicians' diagnoses
lacked credibility. The Board found Hudson's claim that he concealed his problems
starting in 2008 from everyone, including his doctors, was not believable. It also found
his intentional work avoidance, deception about his whereabouts—covering up his GPS
locator with aluminum foil—and the type of treatment his doctors were providing was
                                         11
not sufficient to support his claim of being permanently disabled. The record reflects all
three of these attacks on Hudson's claim come from Dr. Ibarra's deposition testimony as
he attacked the credibility of Hudson and the doctors who diagnosed his condition and
treated him.


       Additionally, the Board found Hudson's legal issues over his resignation from the
KCKPD, his incarceration for 119 days for an unrelated matter, and the potential
financial reward he would receive if the disability was approved discredited his claim.
The first of these findings may have some merit since the record clearly reflects he retired
from the KCKPD to avoid further legal issues. The next two findings lack support in the
record. No physician testified Hudson's incarceration affected the validity of his claim
for disability. While in jail, Hudson was never called upon to perform any duties of a
policeman or interact with other inmates to find out why they were in jail.


       Finally, the Board made a finding Hudson was seeking a "financial reward." We
find nothing in the record supporting that finding except where Dr. Ibarra testified about
the potential for financial gain and admits he is speculating as he knows nothing about
Hudson's financial situation. The reality is all claims for disability have a financial tie to
them. Here, the Board failed to use its own judgment to make its determination of
Hudson's credibility; it unduly relied on the opinion of Dr. Ibarra. Dr. Ibarra's deposition
should have been limited to his opinions about how Hudson's medical records failed to
support a finding of permanent disability.


       An "expert's opinion . . . is admissible up to the point where an expression of
opinion would require the expert to pass upon the credibility of witnesses or the weight of
disputed evidence. [Citation omitted.]" State v. Lumbrera, 257 Kan. 144, 157, 891 P.2d
1096 (1995). Here, the Board repeatedly relied on Dr. Ibarra's deposition testimony to
find Hudson and his treating physicians lacked credibility. The Board failed to explain
why Dr. Ibarra's deposition testimony was more persuasive than the three physicians'
deposition testimony that Hudson suffered from a disabling case of PTSD. We recognize
                                           12
the ALJ had the opportunity to personally observe Hudson and found his testimony
lacked credibility, but that finding lacks support in the record. Though Hudson testified
live, the record reflects the Board relied on Dr. Ibarra's deposition testimony attacking
Hudson's credibility and the merit of his claim. How can Dr. Ibarra's opinion be more
persuasive than the three treating physicians when he never personally examined
Hudson? The Board's reliance on Dr. Ibarra's deposition testimony to discredit Hudson
and his treating physicians is not supported by the record as a whole.


       How does one evaluate the professional opinion of an expert who actually
examines and tests the patient versus the expert whose only participation with the patient
involved a paper review of the medical records? Is the examining or treating physician's
testimony entitled to more weight than the physician who derives an opinion from a paper
review? We believe it should be, unless the factfinder clearly states why the physician
who performed the paper review is more persuasive.


       The lack of direct contact by Dr. Ibarra with Hudson should have been considered
by the Board when it evaluated his deposition testimony against the deposition testimony
of his examining and treating physicians and the live testimony given by Hudson. The
Board failed to specify any facts supporting its finding that Dr. Ibarra's deposition
testimony was more persuasive than the testimony of all of the other witnesses. The
reliance by the Board upon Dr. Ibarra's deposition testimony, without explanation, was
based on a determination of fact that is not supported by the record as a whole in
violation of K.S.A. 2015 Supp. 77-621(c)(7).


       The district court did not reweigh the evidence or make its own credibility
determinations; rather, the district court found the Board's determination without
explanation of how the examining and treating physicians' diagnoses lacked credibility
was unsupported in the record. The record also reflects the Board relied on Dr. Ibarra's
credibility attacks on Hudson to support its finding Hudson was not a credible witness.


                                             13
Thus, we find the district court's analysis, when considering the record as a whole,
followed the constraints of the KJRA.


Hudson's claim was improperly denied.


       Standard of Review


       Next, given our standard of review pursuant to the KJRA, we move on to
determine whether the district court's reversal of the Board's denial of Hudson's claim
was proper. Sheldon, 40 Kan. App. 2d at 79.


       Discussion


       In relying on the ALJ's decision, the Board found Hudson was ineligible for
disability benefits under KP&F because "at no point in time was he totally unable to
perform permanently the duties of the position of policeman." The Board also found
Hudson "may very well have [PTSD]," but having PTSD does not necessarily make
someone disabled.


       The Board entirely ignored a sworn affidavit.


       The Board specifically acknowledged the question at issue is not whether Hudson
had PTSD, but whether Hudson was permanently unable to perform the duties of a police
officer. The Board found Hudson's treating physicians were unaware of the legal
definition of disability as applied to KP&F. However, the Board failed to acknowledge
one of Hudson's direct supervisors from the KCKPD provided a sworn affidavit
indicating Hudson was totally and permanently unable to perform the duties of a police
officer. Major Cosgrove's affidavit detailed his observations of debilitating changes in
Hudson's mood and work performance. Major Cosgrove had concerns about the number
of cases Hudson was handling and spoke to Chief Armstrong about the matter. It was
                                         14
obvious to Major Cosgrove that Hudson could not get his work done, and his assignment
to work child sex abuse cases was having a heavy and negative impact on his demeanor,
emotional state, and ability to serve as a police officer. The record contains substantial
evidence showing Hudson is permanently unable to work as a police officer. Major
Cosgrove expressed: "Hudson can no longer, now or in the future, perform the duties
required of a Police Officer," which is the standard for disability under KP&F. See
K.S.A. 2015 Supp. 74-4960a(2) ("disabled" means total inability to perform permanently
the duties of the position of policeman).


       While Hudson's treating physicians may not have specifically known the legal
definition of disabled under KP&F, they each understood the definition of PTSD as
described in the DSM-V manual. Additionally, Major Cosgrove's statement (which
clearly indicated he understood the meaning of being able to perform the duties of a
police officer), is direct, undisputed, relevant evidence showing Hudson is unable to
serve as a police officer now or in the future. The Board ignored the uncontested affidavit
by Major Cosgrove, and its failure to address and consider Major Cosgrove's uncontested
affidavit was an unreasonable and arbitrary disregard of relevant evidence.


       Hudson cannot return to work as a police officer.


       Drs. King, Ketterman, and Rosso all shared the opinion Hudson could not return to
work as a police officer, and they all personally observed Hudson in diagnosing him with
PTSD and evaluating the severity of his condition. Likewise, Major Cosgrove had known
and observed Hudson for years as a policeman. He personally knew Hudson's ability to
serve as a policeman before and after he began deteriorating to the extent he could no
longer serve as a policeman. In contrast, Dr. Ibarra never personally met with, examined,
or even spoke with Hudson in determining he did not meet the definition of permanently
disabled, nor did Dr. Ibarra speak with Hudson's three physicians. Dr. Ibarra's deposition
testimony is the only evidence in the record suggesting Hudson is not permanently
disabled. Here, KPERS needed to do more than just have a paper review of Hudson's
                                         15
medical records to support denial of the claim. A full, independent medical examination
would have been far more beneficial and provided greater weight in challenging the
validity of Hudson's claim. KPERS' decision to rely on a paper review of Hudson's
medical records was insufficient, when considered with the record as a whole, to deny
Hudson's claim given all of the other medical testimony and the affidavit of Major
Cosgrove.


         Kansas caselaw recognizes that credibility determinations cannot be readily made
where the factfinder does not hear live testimony and have the opportunity to observe the
demeanor of the witness. See Giblin, 253 Kan. at 253. Similarly, the 10th Circuit has held
the opinions of physicians who have never seen a patient should be given less weight
than physicians who have examined or treated the patient. See generally Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (holding in the context of a social
security disability claim, "the opinion of an agency physician who has never seen the
claimant is entitled to the least weight of all"). We also note another panel of this court
recently found in Buchanan v. JM Staffing, 52 Kan. App. 2d 943, 953-56, 379 P.3d 428
(2016), that Dr. Do's opinion on Buchanan's medical condition involving her hip and
back injury was entitled to less weight than Dr. Murati's opinion. Dr. Murati had actually
examined Buchanan's hip and back injury while Dr. Do had not personally examined her.


         As previously stated, a factfinder who has heard live testimony and observed the
demeanor of a witness is in a better position to make credibility determinations. Under
facts such as those of this case, medical opinions of physicians who have examined
and/or treated their patients have a greater advantage over physicians who have based
their medical opinions on only a paper review of the patients' medical records, unless
there is some articulation in the record why their medical opinions are more persuasive
than the medical opinions of those physicians who have examined and/or treated their
patients. In this case, none of the four experts testified live before the administrative law
judge.


                                              16
                                       CONCLUSION


         There is substantial evidence in the record Hudson was permanently unable to
perform the duties of a police officer as a result of his PTSD. The only contradictory
evidence was Dr. Ibarra's deposition testimony. Dr. Ibarra relied only on a paper review
of the medical records in assessing the credibility of Hudson, his examining and treating
physicians, and the treatment plan they had developed. The Board's reliance on Dr.
Ibarra's paper review undermines the validity of the Board's decision. We recognize we
do not make credibility determinations, but we are required to review the credibility
determinations made by the Board as we determine whether substantial evidence supports
the Board's decision. See K.S.A. 2015 Supp. 77-621(c)(7) and (d); Redd v. Kansas Truck
Center, 291 Kan. 176, 183-84, 239 P.3d 66 (2010); Buchanan, 52 Kan. App. 2d 943, Syl.
¶ 2. The Board unreasonably relied on Dr. Ibarra's testimony against all the other
evidence in the record as a whole to deny Hudson's claim.


         When reviewing an administrative decision under the KJRA, an appellate court
must consider all the relevant evidence in the record, including evidence that detracts
from the Board's findings. See K.S.A. 2015 Supp. 77-621(d); Sheldon, 40 Kan. App. 2d
at 79. Where the Board's action is based on a determination of fact that is not supported
by substantial evidence when viewed in light of the record as a whole, the administrative
decision must be reversed by the reviewing court. K.S.A. 2015 Supp. 77-621(c)(7). The
reviewing court may also reverse the Board's action when such action is otherwise
unreasonable, arbitrary, or capricious. K.S.A. 2015 Supp. 77-621(c)(8). Here, the Board's
decision was not supported by substantial evidence when viewed in light of the record as
a whole. The Board made factual determinations in error resulting in an unreasonable,
arbitrary, and capricious decision. We affirm the district court's decision to reverse the
Board.


         Affirmed.


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