Kentucky Retirement Systems v. West , 2013 Ky. LEXIS 374 ( 2013 )

SCOTT, J.,

dissenting:

I must respectfully dissent from the majority’s opinion, for reasons that it unteth-ers “pre-existing diseases and conditions” from its intended foundation. Moreover, it implicitly, if not directly, overrules our own unanimous precedent from two years ago, Kentucky Ret. Sys. v. Brown, 336 S.W.3d 8, 15 (Ky.2011)(“We do not believe it the intent of the legislature in drafting KRS 61.600 to deny benefits to those individuals who suffer from unknown, dormant, asymptomatic diseases at the time of their employment-”). This untethering will hurt innocent working people who were otherwise honestly entitled to disability retirement under KRS 61.600 as envisioned by the Kentucky legislature.

In so dissenting, I must note that the Franklin Circuit Gourt, the Court of Appeals, and all .of my colleagues agree that the Appellee, West, is clearly disabled by his chronic obstructive pulmonary disease (COPD).¹ Only the hearing officer and the Board of Trustees of the Kentucky Retirement System (the Board), upon her recommendation, disagreed.

Their disagreement, however, was predicated upon an improper legal premise that “[c]learly, [West] has failed to meet his burden of proving COPD is not directly or indirectly caused by a condition [, smoking,] which pre-dates his membership in the Kentucky Retirement System.”² Hearing Officer’s recommendations and opinion at 9.

This assumption — that the underpinnings of COPD' began at some unknown time in this 28-year smoking history, but before West’s 15.5-year employment under the system, starting in January 1991 — is not only conjecture and speculation, but it also ignores our clear pronouncement in Brown, to wit:

[W]e ... believe it necessary in this case to note why the legislature chose to exclude disability retirement benefits to individuals who have “pre-existing” conditions. We believe it clear that the legislature’s intention was to prevent a fraud on the retirement systems, to prevent individuals from knowingly and intentionally filing for disability benefits based on conditions predating their enrollment. The Kentucky Retirement Systems was created to provide its employees with a safety net such that in the event they are injured or succumb to a disease while in the employment of the State, they are insured with disability retirement benefits.

Importantly, we do not believe it was the intent of the legislature to define as “pre-existing” those diseases and illnesses which lie dormant and are asymptomatic such that no reasonable person would have realized or known of their existence. ■ This is particularly so given the fact that some diseases are genetic and may not surface for many years. Indeed, were we to analyze whether a genetic condition pre-exists membership in the Kentucky Retirement Systems, our conclusion would always be “yes” given the fact that our genes are composed long before employment. However, our common sense approach guides us in the opposite direction and once again aligns this Court with the maxim that courts should construe a statute according to its plain meaning, unless that meaning leads to an absurd result which is contrary to the intent of our legislative authority. Johnson v. Branch Banking & Trust Co., 313 S.W.3d 557, 559 (Ky.2010). To allow the Kentucky Retirement Systems to deny disability retirement benefits based on the notion that a genetic disease, rooted in one’s DNA, is pre-existing regardless of whether that disease is symptomatic prior to enrollment certainly qualifies as an absurd conclusion and would clearly defy'the legislative intent of KRS 61.600.

We believe it the intent of our legislative authority to preclude from benefits those individuals who suffer from symptomatic diseases which are objectively discoverable by a reasonable person. We do not believe it the intent of the legislature in drafting KRS 61.600 to deny benefits to those individuals who suffer from unknown, dormant, asymptomatic diseases at the time of their employment, ailments which lie deep within our genetic make-up, some of which may not yet be known to exist.... Why else would the legislature have referred to “objective medical evidence” in KRS 61.600(3)? See KRS 446.015 (“All bills ... shall be written in nontechnical language and in a clear and coherent manner using words with common and everyday meaning.”).

Kentucky Ret. Sys. v. Brown, 336 S.W.3d 8, 15 (Ky.2011).

The term “pre-existing disease or condition” had its genesis in insurance disability issues of. earlier times. There, in an effort to prevent fraud by concealment,

insurers formerly excluded coverage for sickness or illness originating or commencing before the effective date of the policy. However, they failed to expressly define the term, preexisting condition. This resulted in judicial determinations throughout the United States that this terminology was ambiguous and strictly construing it against insurers by adopting the general rule a sickness or “illness is deemed to have its .inception when it first becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the illness.” (Annot., Health Policy — Exclusion of Prior Illness (1979) 94 A.L.R.3d 990, 998; Meyer, Life and Health Insurance Law (1972) § 17:4, p. 551; see Rozek v. American Family Mut. Ins. Co. (Ind.Ct.App.1987) 512 N.E.2d 232, 236; American Family Ins. Group v. Blake (Ind.Ct.App.1982) 439 N.E.2d 1170, 1173-1174; Mutual Hospital Insurance, Inc. v. Klapper (1972) 153 Ind.App. 555 [288 N.E.2d 279, 281-282]; Dirgo v. Associated Hospitals Service, Inc. (Iowa 1973) 210 N.W.2d 647, 650 (emphasizing third alternative); State (Comp. Health Plan) v. Carper (Miss.1989) 545 So.2d 1, 2-3; Doe v. Northwestern Nat. Life Ins. Co. (1987) 292 S.C. 241 [355 S.E.2d 867, 869].) It has been said this majority rule “serves the dual purpose of protecting insurers from fraudulent applicants seeking coverage for known diseases while protecting innocent premium-paying insureds from being deprived of benefits for pre-exist-ing conditions of which they have no knowledge.” (Mutual Hospital Insurance, Inc. v. Klapper, supra, 288 N.E.2d at p. 282.) However, it is in the disjunctive, setting forth at least three alternative standards for defining when a sickness exists, the latter two of which may not involve the insured’s “subjective” awareness, to wit: when it is active or displays sufficient symptoms from which a physician could make an accurate diagnosis. (American Family Ins. Group v. Blake, supra, 439 N.E.2d at p. 1172; Hannum v. General Life and Acc. Ins. Co. (Tex.Ct.App.1988) 745 S.W.2d 500, 501-502.) In any event, “[m]ost cases have adopted the majority rule apparently on the basis that while insurance companies need protection from unscrupulous applicants who would fraudulently attempt to gain coverage for an illness of which they are already aware, such protection need not go so far as to consider a disease to exist at the time of its medical inception. Furthermore, to consider a disease to exist at a time when the victim is blissfully unaware of the medical ‘seeds’ visited upon his body, is to set a trap for the unwary purchaser of health insurance policies.” (Mutual Hospital Insurance, Inc. v. Klapper, supra, 288 N.E.2d at p. 282.)

Mogil v. California Physicians Corp., 218 Cal.App.3d 1030, 1037-38, 267 Cal.Rptr. 487 (1990) (footnote omitted).

A subsidiary rule also arose, to wit: “A condition, not otherwise diagnosed, is manifest when the insured knew or should have known of the existence of his illness because he was experiencing symptoms that would lead a reasonable person to seek a medical diagnosis.” Am. Sun Life Ins. Co. v. Remig, 482 So.2d 435, 436 (Fla.Dist.Ct.App.1985).

As noted in Brown, supra, the application of like concepts to disability determinations is mandated by the legislature’s instruction that such determinations be made only from “the examination of the objective medical evidence....” Brown, 336 S.W.3d at 10 n. 2; KRS 61.600(3).³ This directive is likewise applicable to the determination of a pre-existing disease or condition. KRS 61.600(3)(d).

Moreover, such determinations must be based on “substantial evidence.”⁴ KRS 61.665(3)(d) (“A final order of the .board shall be based on substantial evidence appearing in the record as a whole and shall set forth the decision of the board and the facts and law upon which the decision is based.”).

The error the majority perpetuates is the presumption that the minute daily (and annual) damage from smoking (and/or any other behavior) constitutes a “pre-existing condition” even when the effects of such are unquantifiable to the recipient, unknown at the time, and undiagnosable via objective medical evidence to the medical practitioner; i.e., the end result mandates a beginning degeneration which constitutes the disqualifying “pre-existing condition.”⁵

COPD refers to a group of diseases that cause airflow blockage and breathing-related problems. It includes emphysema, chronic bronchitis, and, in some cases, asthma. In its clinical evaluation and diagnosis, the volume of air exhaled in a pulmonary function test by a person in a one-second forced exhalation is called the forced expiratory volume (FEVi), measured in liters. The total exhaled breath is called the forced total capacity (FVC) and is also measured in liters. “Because of lung damage, people with COPD take longer to blow air out. This impairment is called obstruction or airflow limitation. An FEVX less than 70% of FVC ban make the diagnosis of COPD in someone with compatible symptoms and history.” Web MD, http://www.webmd.com/lung/copd/ gold-criteria-for-copd/ (last visited July 31, 2013). Depending on the FEW result (from 80% of normal FVC down to less than 30% of normal), it can be classified as Stage I on down to the most severe category, Stage IV. Id. “Fifteen million Americans report they have been diagnosed with COPD. Yet, more than 50% of adults with low pulmonary function were not aware that they had COPD; therefore, the actual number [is] higher.” Centers for Disease Control, http://cdc.gov/copd/ (last visited July 31, 2013) (footnotes omitted) (emphasis added).

Here, it is uncontradicted that the Ap-pellee, West, was treated by primary care physician, Dr. Robert Matheny, prior to the doctor’s retirement. In Kentucky, a retired physician has to bear the burden and expense of retaining adult patient records for a period of ten years following retirement. Thus, Appellee submitted a letter at the hearing from Dr. Matheny stating “[m]y office has been closed for 10 years. All those records that were not picked up were destroyed in 2004.”⁶ He was then followed by primary care physician, Dr. Moore, beginning in 1998. Dr. Moore’s office notes reflect his diagnosis of Appellee’s COPD in 1998.⁷

To put this in' perspective, Appellee started his employment under the system in January 1991 and worked his last day as such on December 18, 2005. He then filed his application for disability benefits — 15.5 years after he started work. To me, it just seems “kinda edgy” to assume one would — or could — work as a plant operator in a waste water plant for 15.5 years with active COPD.

My view aside, the only physician that directly addressed the issue of the onset of West’s COPD was Dr. Westerfield in 2007. He opined that West was totally disabled due to his severe COPD. Moreover, when asked “[i]s it unlikely that he would have had that degree of-pulmonary impairment when he started working [in 1991?],” he specifically responded, “I think it would be very unlikely that he would have had this pulmonary impairment in 1991.” (Emphasis added.) The majority recites this answer using the wording “this level of pulmonary impairment.” (Emphasis added.) However, his precise answer was “this pulmonary impairment.” Of course, doctors do not always answer the precise question asked, and given the exact wording of his answer along with knowledge of the findings necessary to diagnose COPD,⁸ I read this answer as pointing out it would be very unlikely he had COPD in 1991.

In summary, the evidence considered on the issue of the pre-existence of West’s COPD was essentially the following:

1. West worked under KERS from January 1991 until late-December 2005.

2. He had a smoking history of 28 years.

3. The record supports that he was diagnosed with COPD by his primary care physician, Dr. Moore, in 1998.

4. All the physicians, except possibly Dr. Strunk,⁹ opined he was totally disabled by his COPD which was caused by his smoking.

5. West testified he experienced breathing difficulties a year or two before his last day of work.

6. West’s treating physician prior to Dr. Moore, was Dr. Matheny. Dr. Mathen/s remaining records had been destroyed in 2004, following Dr. Matheny’s earlier retirement. Thus, they were not available for review, and his letter so stated.

7.Dr. Westerfield testified in 2007 that “it would be very unlikely that [West] would have had this pulmonary impairment in 1991.”

In this instance then, the Appellee, West, established that he was totally disabled by COPD, that it was caused by his 28 years of smoking, that he was diagnosed with it in 1998, seven years after he started working, and that it “was very unlikely that he had this pulmonary impairment in 1991.”

Given our pronouncement in Brown that smoking is a behavior rather than a condition (or a disease), Brown, 336 S.W.3d at 16, proof only of smoking prior to employment is not proper proof of the pre-exis-tence of a disease or condition at any particular time prior to one’s employment. There was no other evidence of consequence.

Admittedly,

the party proposing the agency take action or grant a benefit has the burden to show the propriety of the agency action or entitlement to the benefit sought.... The party asserting an affirmative defense has the burden to establish that defense. ' The party with the burden of proof on any issue has the burden of going forward and the ultimate burden of persuasion as to that issue. The ultimate burden of persuasion in all administrative hearings is met by a preponderance of evidence in the record. Failure to meet the burden of proof is grounds for a recommended order from the hearing officer.

KRS 13B .090(7).

And, we have also noted:

“[w]hen the decision of the fact-finder is in favor of the party with the burden of proof or persuasion, the issue on appeal is whether the agency’s decision is supported by substantial evidence, which is defined as evidence of substance and consequence when taken alone or in light of all the evidence that is sufficient to induce conviction in the. minds of reasonable people. Where the factfin-der’s decision is to deny relief to the party with the burden of proof or persuasion, the issue on appeal is whether the evidence in the party’s favor is so compelling that no reasonable person could have failed to be persuaded by it.”

Brown, 336 S.W.3d at 14-15 (quoting McManus v. Kentucky Ret. Sys., 124 S.W.3d 454, 458 (Ky.Ct.App.2003)). And where the Kentucky Retirement Systems, in its role as a finder of fact, makes a factual determination based upon objective medical evidence, it must be afforded “great latitude in its evaluation of the evidence heard and the credibility of witnesses ...” including its findings and conclusions of fact. Brown, 336 S.W.3d at 14 (quoting Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972)).

Yet, in these analyses, we cannot ignore that “[a] final order of the board shall be based on substantial evidence appearing in the record....” KRS 61.665(3)(d). “The search for substantial evidence is thus a qualitative exercise without which our review of ... disability cases ceases to be merely deferential and becomes instead a sham.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983).

Given that the bare behavior of smoking is simply not appropriate proof of the existence of a particular measureable condition or disease existing on any specific date, Brown, 336 S.W.3d at 15, there is simply no evidence, other than sheer speculation, that West’s COPD pre-existed his employment date. Thus, the only preponderance of evidence was that shown by West.- His being the only evidence adduced on the subject, it must necessarily be compelling based on the absence of any countervailing evidence.

Thus, I strongly dissent, and would uphold Broum and affirm the opinion of the Court of Appeals. Hopefully, we have not yet reached the point in law when we let unknown and unascertainable predictions of science turn honest human behavior and life-long retirement expectations into scientific fraud.

KELLER and NOBLE, JJ., join.

1 . The majority acknowledge that "all examining physicians agreed that West’s COPD is severe.” Op. at 582. In another instance, they acknowledge, "[fjurther, the physicians agreed that West is 100% disabled as a result of severe COPD,” but go on to assert, illogi-chlly, "though not permanently because he would experience relief of symptoms were he to cease smoking,”, a statement contrary to medical science. In fact, once you have it, ”[t]here is no cure for COPD.” National Institutes of Health, http://www.ncbi.nlm.nih.gov/ pubmedhealth/pmhOOOl 153/ (last visited July 30, 2013). COPD has no cure yet, and doctors do not know how to reverse the damage to the airways and lungs. However, treatments and lifestyle changes can help you feel better [in whatever stage you are in], stay more active, and slow the progress of the disease. National Institutes of Health, http:// www.nhlbi.nih.gov/health/health-topics/ topics/copd/treatment.html/ (last accessed July 30, 2013).

2 . It should be noted that the hearing officer made this finding in 2007, four years before Brown. Notably, however, Appellant, KERS, makes my point very well on page 8 of its brief, to wit:

Appellee has a long history of 30 years of significant tobacco abuse that pre-exists his reemployment date and directly resulted in his COPD, as his own doctors stated. Notably, all of the medical evidence indicated that this was the cause of his complaints and no provider opined that the COPD was caused by anything else.

As diagnosed by Dr. Moore, tobacco abuse is a known disease, which is distinguishable from Ms. Brown’s history of the behavior of smoking. This Honorable Court’s decision in Brown focused on the term "condition” in the statute, not any of the other terms contained in KRS 61.600(3)(d). Tobacco abuse is not merely a condition; it is a diagnosable disease, causing a physical injury, not simply a behavior. ■

3 . It is important to one's understanding of the process' and the claimant's circumstances here to note that the legislature saw fit to relieve claimants from the onus of pre-exist-ing disabilities and conditions upon the attainment of sixteen years' service. KRS 61.600(4)(b). West had 15.5 .years’ service.

4 . Substantial evidence is defined as "being evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men.” Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972) (quoting O’Nan v. Ecklar Moore Exp., Inc., 339 S.W.2d 466, 468 (Ky.1960)). "The test of substantiality of [the] evidence is whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men.” Fuller, 481 S.W.2d at 308 (citing Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62 (Ky.1970)).

5 . That one beginning is good, i.e., running for better health, which, of course, leads ultimately to disabling joint injuries, and others, i.e., drinking, overeating, or smoking, are bad, but also lead to disabling conditions, should be irrelevant to this logic, one would think.

6 . This loss of records due to Dr. Matheny's retirement long before the ultimate diagnosis of COPD seems to be fueling an undercurrent of suspicion that Appellee was withholding, or had managed the loss of supposedly damaging medical records from earlier years. However, an analysis of the fact that the Appellee filed his claim many, many years following Dr. Matheny’s retirement along with the additional fact that, were he truly concerned about any allegedly non-existent earlier diagnoses being discovered (as you would think they would), he could have just worked six more months and been- totally relieved of the "pre-existing condition" limitations, KRS 61.600(4)(b), should put such unfounded suspicions to rest.

7 . The parties strongly disagree as to whether these records do reflect any diagnosis of COPD. Yet, its notation is there, possibly as a differential diagnosis or suspicion. This, of course, was seven years after West’s beginning employment date. At any rate, how many employees think to save their prior medical records years before they get sick and retire?

8 . A diagnosis of COPD, however, generally requires pulmonary function testing by spiro-metry and/or arterial blood gas analysis. At times, it can be done by x-ray or CT scan. Mayo Clinic, http://www.mayoclinic.com/ health/copd/ds00916/dsection=tests-and-diagnosis/ (last visited July 31, 2013). Generally, these tests are performed outside the primary care physician’s office and their existence — if not kept by the institution performing them — could be documented by insurance payments. Of course, if they were not done, no such records would exist.

9 . Dr. Strunk thought his pulmonary problem could possibly be due to acute pneumonia.