Edward Elder v. Kentucky Retirement Systems

RENDERED: SEPTEMBER 24, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2017-SC-0258-DG
EDWARD ELDER APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2015-CA-0916-MR
FRANKLIN CIRCUIT COURT NO. 14-CI-00468
KENTUCKY RETIREMENT SYSTEMS APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
REVERSING AND REMANDING
Edward Elder appeals the decision of the Kentucky Court of Appeals
affirming denial of disability retirement benefits by the Board of Trustees of the
Kentucky Retirement Systems (Systems). In a matter of first impression, this
appeal addresses the proof required of a public employee with less than sixteen
years’ service credit1 to establish his genetic condition—present at conception
but dormant until after a dozen years on the job—was not a “pre-existing”
1 Kentucky Revised Statutes (KRS) 61.600(4)(b) exempts a public employee with
sixteen years’ service credit from proving a disabling condition did not pre-exist
employment.
condition, disqualifying him from receiving benefits under KRS 61.600(3)(d).2
We reverse the Court of Appeals, reaffirm as controlling law the legal principles
announced in Kentucky Retirement Systems v. Brown, 336 S.W.3d 8 (Ky. 2011),
and remand to Systems for proceedings consistent with this Opinion.
FACTUAL BACKGROUND
Elder was hired as a school custodian by the Graves County Board of
Education in August 1995. Upon employment, he became a member of the
County Employees Retirement System which is administered by Systems.3
Elder worked regularly until 2007, performing heavy activities and receiving
glowing evaluations. In 2007, he began accruing health-related absences,
particularly due to the onset of chronic nosebleeds and gastrointestinal
bleeding. He had previously enjoyed good health.4
Dr. Charles Winkler began treating Elder for colon cancer on October 24,
2007. In reviewing notes from Dr. Jeff Carrico, a family practitioner in
Mayfield, Kentucky, Dr. Winkler wrote in a letter he had learned Dr. Carrico
had diagnosed Elder with Hereditary Hemorrhagic Telangiectasia (HHT) on
2 In pertinent part, KRS 61.600(3)(d) establishes a public employee with less
than sixteen years’ service credit may qualify for disability retirement benefits if
objective medical evidence examined by licensed physicians establishes “[t]he
incapacity does not result directly or indirectly from bodily injury, mental illness,
disease, or condition which pre-existed membership in the system or reemployment,
whichever is most recent.”
3 KRS 61.645(1).
4 Elder underwent successful back surgery in 1980, began medication for
anemia and iron deficiency in 1997, and also received treatment for high blood
pressure, an allergic reaction to a bee sting, and sleep apnea.
2
August 29, 2007. No basis for the diagnosis was provided. We located no
notes from Dr. Carrico dated August 29, 2007, but a “patient abstract” of an
office visit dated August 31, 2007, lists the diagnosis as “HEREDIT HEMORR
TELANGIEC.”
On September 23, 2008, Elder received a definitive medical diagnosis of
HHT from Dr. Chandra Prakash Gyawali, a gastroenterology specialist at the
Washington University School of Medicine in St. Louis, Missouri, based on the
Curaçao diagnostic criteria.5 Even with treatment, Elder’s condition continued
to deteriorate, ultimately leading him to retire on September 1, 2011, with only
180 months (15 years) total service credit.6 His last day of paid employment
was May 3, 2011.
Though he experienced a single memorable nosebleed as a young adult,7
Elder first sought treatment for chronic and severe nosebleeds in 2007. Pre-
2007 medical records submitted by Elder contain no mention of long-term or
severe nosebleeds, but erroneously noted he had been diagnosed with HHT in
the 1980’s. Elder sought to correct the erroneous historical notations by filing
5 The Curaçao diagnostic criteria were developed in 1999 and involve four
diagnostic factors for the diagnosis of HHT. A definitive diagnosis of HHT is medically-
indicated if three of the four criteria are present. Dr. Gyawali diagnosed Elder’s HHT
after establishing the co-existence of recurring and spontaneous epistaxis
(nosebleeds), family history of HHT (mother and sister), and gastrointestinal
telangiectasia. The fourth criteria is arteriorvenous malformations (AVMs).
https://curehht.org/understanding-hht/diagnosis-treatment/diagnostic-criteria-hht/
6 According to Systems, Elder had not purchased seven summer months and
did not earn service credit for October-December 2002 while on medical leave.
7 Elder recalled his bride became upset when, as a newlywed, he suffered a
nosebleed resulting in a bloodstained pillow.
3
an affidavit to clarify it was his mother who had been diagnosed with HHT in
the 1980s, and he testified consistently. In contrast, Elder’s post-2007 medical
records are replete with references to daily nosebleeds—sometimes five or six a
day—along with other associated HHT symptoms. As his nosebleeds and other
difficulties worsened, Elder became dependent on regular iron infusions and
blood transfusions.
PROCEDURAL SUMMARY
Without counsel, Elder applied for disability retirement benefits in
August 2011. Using Form 6000, Systems’ standard application, Elder
attributed his disability to the 2007 onset and worsening of the debilitating
symptoms of HHT, though he readily admitted the condition’s hereditary
nature. Under “Members Statement of Disability,” Elder copied the following
definition of HHT, obtained from the National Center for Biotechnology
Information (NCBI) website8:
Hereditary hemorrhagic telangiectasia (Osler-Weber-
Rendu disease) is an autosomal dominant, systemic
fibrovascular dysplasia in which telangiectases,
arteriovenous malformations, and aneurysms may be
widely distributed throughout the body vasculature.
Major clinical manifestations include: recurrent
bleeding from mucosal telangiectases and
arteriovenous malformations; hypoxemia, cerebral
embolism, and brain abscess due to pulmonary
arteriovenous fistulas; high-output congestive heart
failure and portosystemic encephalopathy from hepatic
arteriovenous malformations; and a variety of
neurologic symptoms due to central nervous system
angiodysplasia. Therapy is primarily supportive,
consisting of iron supplementation and blood
8 https://www.sciencedirect.com/science/article/abs/pii/0002934387901628
4
transfusion. Septal dermoplasty and oral estrogens
may allow prolonged remission of epistaxis, but
permanent surgical cure of gastrointestinal bleeding is
rarely feasible because of diffuse angiodysplasia of the
alimentary tract. Ligation, resection, or embolization
may be indicated for pulmonary arteriovenous fistulas.
The prognosis and survival of patients with hereditary
hemorrhagic telangiectasia are favorable, providing
treatable complications are accurately diagnosed.
Elder also described how HHT negatively impacted his health and physical
abilities. In support of his application, Elder filed more than 2,000 pages of
medical records, the earliest dating back to 2005. He had attempted to obtain
earlier medical records, particularly pre-employment evaluations, but was told
they were unavailable. Though a genetic mutation present at conception,
Elder’s medical records demonstrated his HHT remained asymptomatic and
nondisabling until 2007, when the onset of debilitating symptoms and negative
physical impacts forced him to seek medical assessment and treatment.
Agency review began with a Medical Review Board, comprised of three
physicians, unanimously determining Elder was permanently disabled.
However, two of the physicians recommended denial of disability retirement
benefits due to their conclusion the condition was “pre-existing” because it
represented a genetic mutation present at conception. The third physician
recommended approval of benefits due to Elder’s HHT “causing anemia &
requiring treatment,” but suggested review after one year.
With assistance of counsel, Elder sought reconsideration. He submitted
additional medical records, but still none earlier than 2005. A second Medical
Review Board again found Elder permanently incapacitated. Once more, two
5
physicians determined Elder’s HHT was “pre-existing” because it is a genetic
disorder present at conception. However, the lone dissenting physician
considered the earlier HHT diagnosis of Elder’s mother and her warning that he
might have inherited the condition to be medically inconclusive. This
physician discounted any diagnostic significance attached to the mother’s
medical history, noting: the child of a parent with HHT has only a 50% chance
of inheriting the disorder; Elder’s mother had not exhibited an extreme
expression of HHT due to having lived 85 years; and Elder’s occasional
nosebleeds occurring prior to 2007 had resulted in no significant health
concerns, medical interventions, or restrictions on Elder’s activities of daily
living or employment.
Following the second denial, Elder requested an administrative hearing.
Elder was the sole witness, with Systems attending but offering no proof and
asking no questions. The hearing officer’s summary of Elder’s testimony
reflects he:
experienced a nose bleed [sic] in 1975 when he got
married. Prior to that; he has no memory of nose
bleeds. [sic] He sought medical treatment for nose
bleeds [sic] in late August 2007 (Dr. Carrico). He
was having nose bleeds [sic] about five to six times per
day, everyday. Clmt was aneamic [sic] at that time in
which he had blood transfusions. From August 2007;
he began having bleeding of his bowels along w/nose
bleeds [sic]. Dr’s @ School of Medicine in St. Louis
diagnosed the Clmt with HHT. Clmt became aware of
HHT a few years prior because his mother had been
diagnosed with the same condition.
His mother’s symptoms were nose bleeds [sic].
...
6
Clmt had never sought treatment for HHT prior to
2007. When Clmt’s mother was diagnosed w/HHT; he
was not brought in and questionned [sic] nor tested for
this medical condition. He was devastated when he
found out that he had been diagnosed with HHT. His
mother passed away from HHT at the age of 85.
(Emphasis added). The administrative record was closed at the conclusion of
the hearing.
On October 8, 2013, the hearing officer issued a Recommended Order.
Finding Elder’s testimony credible, and applying principles set forth in Brown,
the hearing officer recommended approval of disability retirement benefits
based on the following:
[Elder] has less than sixteen years current or prior
service in the [Systems] and, as such, has the
burden of proving that his incapacity did not result,
directly or indirectly from bodily injury, mental
illness, or a disease or condition which pre-existed
his membership date in the [Systems]. KRS
13B.090(7); McManus v. Kentucky Retirement
Systems, Ky. App., 124 S.W.3d 454 (2004). [Elder]
has shown that his condition did not pre-exist
his membership in the Systems. Under the
standards set forth in Kentucky Retirement
Systems v. Brown, 336 S.W.3d 8 (Ky. 2011),
[Elder’s] condition, and his knowledge of said
condition, did not sufficiently manifest until he
was diagnosed in 2007.
(Emphasis added).
On October 9, 2013, Systems filed exceptions. It argued the hearing
officer’s recommendation had not been based on “objective medical evidence,”
as required by KRS 61.600(3) and defined in KRS 61.510(33). Instead,
Systems asserted the hearing officer’s recommendation had been erroneously
7
based “solely” on Elder’s affidavit. Thus, Systems urged rejection of the
hearing officer’s recommendation. Elder filed no exceptions.
On October 18, 2013, Systems sought remand to the hearing officer for
reconsideration of Elder’s claim citing Kentucky Retirement Systems v. West,
413 S.W.3d 578 (Ky. 2013), which had been pending in this Court on a petition
for rehearing prior to becoming final on December 9, 2013, when rehearing was
denied. Systems argued Elder’s claim should be denied because, like West, he
had provided no pre-employment medical records demonstrating his disabling
condition had not manifested itself prior to employment.
Elder opposed remand. He argued Systems had failed to cite statutory or
other legal authority, existent when his claim arose, requiring submission of
pre-employment medical records to establish the post-hire manifestation of a
disabling genetic condition. In particular, Elder argued remand of his claim for
reconsideration in accordance with West was inappropriate because West had
merely applied Brown, without changing a claimant’s burden of proof.
Despite Elder’s objections, on December 26, 2013, Systems remanded
the matter, directing the hearing officer to reconsider the recommendation
consistent with West. On January 27, 2014, with submission of no additional
proof, the hearing officer issued a revised Recommended Order. Once again,
Elder was found credible, and it was determined: Elder’s only pre-employment
medical procedure was a successful back surgery; no pre-employment
nosebleeds were attributed to HHT; when he was assessed for headaches and
fatigue in 2005, there was no indication of nosebleeds or gastrointestinal
8
bleeding, and HHT was neither mentioned nor treated; and, he worked without
interruption from 1995 until 2007 when he was first diagnosed with HHT. At
that point, the hearing officer diverged from her original recommendation,
making new findings and changing her recommendation to a denial of benefits
stating:
[Elder] failed to produce any records which
preexisted [sic] his membership date in the
Systems and the condition was objectively
discoverable by a reasonable person. He indisputably
suffered from some nose bleeds [sic] prior to his
membership in the Systems and he was aware of the
condition from his mother who told him he likely had
the condition. [Elder] was symptomatic and aware of
HHT, its symptoms and its prevalence in his family.
With a lack of any medical records prior to his
membership in conjunction with admittedly having
nosebleeds and knowing of the likelihood of him
having the condition, [Elder] has not met his burden.
(Emphasis added).
Counsel for Elder filed exceptions, emphasizing the record established
Elder had suffered few childhood nosebleeds and did not become HHT-
symptomatic until 2007. Accompanying the exceptions was a notice of filing,
listing newly-acquired medical records, including: results from a physical
exam performed two months before Elder was hired in 1995; a 1999
recertification exam; files from an on-the-job injury in 2002; and pharmacy
records from 1998 through 2011. Counsel asserted the newly-acquired
medical records provided additional proof Elder was asymptomatic for HHT
9
until 2007, a dozen years after he had become a member of Systems.9 Counsel
further asserted the 2002 exam referenced Elder’s mother having HHT, but did
not link HHT to Elder.
In its final order, the Disability Appeals Committee of Systems’ Board of
Trustees granted Systems’ motion to strike Elder’s newly-acquired medical
records because the administrative record had officially closed; denied Elder’s
exceptions; denied Elder’s subsequent motion for rehearing; and adopted as its
own the hearing officer’s revised factual findings and recommendation to deny
benefits. In denying Elder’s request for rehearing, Systems explained,
the hearing officer has now rendered a Recommended
Order on Remand based on the totality of the evidence
and the correct application of the law to that
evidence.
(Emphasis added).
Elder appealed to the Franklin Circuit Court. In affirming Systems’
denial of benefits, the circuit court held Systems had reasonably concluded
Elder’s HHT pre-existed his 1995 employment because
Elder did not provide any medical records prior to
2005. The failure to produce medical records does
not satisfy the burden of proving the absence of a
pre-existing condition. Because Elder was unable to
demonstrate through a preponderance of the evidence
an absence of a preexisting [sic] condition, the Hearing
Officer correctly determined that the preexisting [sic]
condition precludes Elder from receiving disability
retirement benefits under the circumstances.
9 Not being part of the record certified to us, we cannot verify the content of the
proffered files.
10
(Emphasis added). In reaching its decision, the circuit court correctly read
Brown to hold a claimant bears the burden of persuasion by submitting
objective medical evidence proving disability and disproving pre-existence of
the disabling condition; that is, demonstrating the disabling condition was
neither symptomatic nor “objectively discoverable by a reasonable person” prior
to employment. Brown, 336 S.W.3d at 14-15. The circuit court also correctly
understood West to have reaffirmed the claimant’s burden of persuasion, while
establishing the claimant’s burden never shifts to Systems and confirming
Systems is not required to counter the claimant’s proof. West, 413 S.W.3d at
581 (citing KRS 13B.090(7)). However, the circuit court further read West to
require submission of pre-employment medical records to prove a disabling
condition was asymptomatic and reasonably undiscoverable prior to hiring.
Thus, because, like West, Elder had submitted no pre-employment medical
records, the circuit court found he had failed to meet his burden of proving the
legal compensability of his disabling genetic condition.
On appeal, a divided panel10 of the Court of Appeals affirmed the circuit
court’s reading of West and its denial of Elder’s claim for disability retirement
benefits. In particular, the Court of Appeals affirmed the circuit court’s
understanding that pre-employment medical records are required to meet a
claimant’s burden of proof under KRS 61.600. The Court of Appeals held Elder
10 At page 19 of its brief, Systems asserts, “[t]his Honorable Court should not
disturb the unanimous, well-reasoned decisions of the Agency and the lower courts.”
However, the Court of Appeals’ decision in this case was not unanimous. One judge
dissented without writing and the third concurred in result only.
11
had “misperceived” his burden as requiring that he only show the lack of
symptoms and the lack of a HHT medical diagnosis prior to his 1995
employment; and, citing West, noted pre-employment medical records could be
determinative in establishing whether his condition was, in fact, asymptomatic
and reasonably undiscoverable at the time of his hiring. Moreover, the Court of
Appeals expressed doubt regarding the non-existence of any pre-employment
medical records, ignoring Elder’s failed attempts to obtain and submit such
records in support of his application.
STANDARD OF REVIEW
We abated consideration of Elder’s motion for discretionary review
pending resolution of Kentucky Retirement Systems v. Ashcraft, 559 S.W.3d
812 (Ky. 2018), and Bradley v. Kentucky Retirement Systems, 567 S.W.3d 114
(Ky. 2018). In those cases, this Court addressed sufficiency of proof issues
related to the quality, credibility, or consistency of evidence submitted by the
claimants, while endorsing McManus as the applicable standard for analyzing
Systems’ denial of a disability retirement benefits claim. We granted review
following endorsement of finality in Ashcraft and Bradley.
It appears, however, the sufficiency of proof issue presented in Elder’s
case relates to Systems’ misapprehension that West moved the evidentiary line
to require submission of pre-employment medical records to disprove pre-
existence of a genetic condition, rather than the quality, credibility, or
consistency of the evidence, as addressed in Ashcraft and Bradley. Therefore,
we need not employ the “compelling evidence” standard applied in Ashcraft and
12
Bradley. As a pure question of law, our standard of review in this case is de
novo. Brown, 336 S.W.3d at 16.
LEGAL ANALYSIS
Initially, from a legal perspective, a genetic disorder is not “pre-existing”
merely because it is medically present at conception. Pursuant to KRS
61.600(3)(d), a genetic condition existent at conception is legally pre-existing
only if symptomatic and “objectively discoverable by a reasonable person” prior
to employment. Brown, 336 S.W.3d at 15. As noted in Brown, any other
understanding would be “absurd” and “contrary” to legislative intent. Id. Yet,
the majority of physicians comprising two separate medical review panels
concluded Elder should be denied disability retirement benefits simply because
his disabling condition was a genetic disorder—that is, inherited and
scientifically existent at conception. While these physicians were correct from
a medical standpoint, their conclusions were contrary to the legal mandates
announced in Brown. Further, Systems’ denial of disability retirement benefits
because Elder submitted no pre-employment medical records misinterpreted
our holding in West and is contrary to the policy and purpose of the legislative
enactment.
Disability retirement benefits awarded under KRS 61.600 are intended
“to provide security for those who are unable to continue working until normal
retirement age due to injury or disease.” Roland v. Kentucky Ret. Sys., 52
S.W.3d 579, 583 (Ky. App. 2000) (citing Maybury v. Coyne, 312 S.W.2d 455
(Ky. 1958)). KRS 446.080(1) mandates “[a]ll statutes of this state shall be
13
liberally construed with a view to promote their objects and carry out the intent
of the legislature[.]” Regarding statutory construction and interpretation, this
Court has held “[a]ll presumptions will be indulged in favor of those for whose
protection the enactment was made.” Livingood v. Transfreight, LLC, 467
S.W.3d 249, 256 (Ky. 2015) (citing Firestone Textile Co. Div., Firestone Tire &
Rubber Co. v. Meadows, 666 S.W.2d 730, 732 (Ky. 1983)).
As this Court unanimously wrote in Brown,
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.
336 S.W.3d at 15. Elder was born with HHT, a latent genetic disorder making
him susceptible to symptoms which did not awaken for decades according to
Dr. Winkler. This conclusion is entirely consistent with the hearing officer’s
original findings in correctly applying Brown, which remains controlling case
law. In interpreting KRS 61.600, we recognized,
[i]ndeed, 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
14
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. Rather, we believe the
legislature intended to deny benefits to individuals
whose diseases are symptomatic and thus were known
or reasonably discoverable. 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.”).
Brown, 336 S.W.3d at 15. We did not retreat from this position in West, and
we reaffirm Brown today.
The narrow question in this appeal is whether Elder’s HHT was
“asymptomatic such that no reasonable person would have realized or known
of [its] existence” when he was hired in August 1995. Id. Our analysis draws
heavily on Brown, but we are mindful of West. Brown held: the appellate
standard of review for Systems’ denial of a benefits claim is “whether the
evidence in the [claimant’s] favor is so compelling that no reasonable person
could have failed to be persuaded by it,” id. at 14-15 (quoting McManus, 124
S.W.3d at 458); KRS 61.600 benefits are unavailable for “symptomatic diseases
15
which are objectively discoverable by a reasonable person” at the time of her
hiring, id. at 15; a member satisfies her burden by proving her disabling
condition did not pre-exist her employment, id. at 16; and, smoking is a
“behavior” not a “condition.” Id.
Building on Brown’s approval of a claim, in West we affirmed denial of
benefits to a man who admitted he smoked long before being hired but failed to
prove his COPD11 developed after he began working at a municipal water
treatment facility. West serves three limited purposes. First, it reaffirms
Brown’s directive that a claimant seeking disability benefits under KRS
61.600(3)(d) must prove his disabling condition was asymptomatic and not
objectively discoverable by a reasonable person when he was hired. Brown,
336 S.W.3d at 15. West affirms, based on a “plain reading” of KRS 13B.090(7),
the claimant bears the burden of proof alone and must prove his claim by a
preponderance of evidence. Brown, 336 S.W.3d at 14-15; West, 413 S.W.3d at
580-81. Second, West corrects the Court of Appeals’ misunderstanding about
burden shifting. Based on KRS 13B.090(7) and KRS 61.600, West establishes
the burden never shifts to Systems in a retirement disability benefits claim.
West, 413 S.W.3d at 581. Third and finally, contrary to the Court of Appeals’
understanding, West holds Systems: “may choose not to challenge evidence it
deems unconvincing[;]” whether the claimant meets his burden is independent
of whether Systems introduces any proof; and, the hearing officer may reject
11 Chronic obstructive pulmonary disease.
16
uncontested proof. Id. These three points are the full extent of any
“clarification” to be gleaned from West.
Here, Systems, the Franklin Circuit Court, and the Court of Appeals read
West as requiring denial of Elder’s claim because he submitted no pre-
employment medical records to disprove the pre-existence of HHT. However,
our holding in West imposed no such requirement, and the facts of West are
clearly distinguishable from those presented in Elder’s claim.
In West, the claimant alleged his non-genetic disabling condition, COPD,
had not manifested in 1991 when he was hired, and claimed his symptoms did
not become problematic until about two years immediately preceding his 2005
retirement. Contrary to his statements, however, medical records indicated
West had been diagnosed with COPD as early as 1998. Moreover, all
examining physicians agreed West’s COPD was directly caused by his tobacco
use, and West admitted he had smoked at least three packs a day for 12 years
prior to his employment. Pre-employment medical records might have been
dispositive of West’s claim, but all his pre-1998 medical records had been
destroyed. The scant and conflicting proof—including the unfortunate
unavailability of any pre-employment medical records—led our Court to
conclude there was “simply no way to determine whether West suffered from
some level of COPD in 1991.” West, 413 S.W.3d at 582.
Denial of West’s claim because he failed to submit pre-employment
medical records should not be interpreted to mean every claim unsupported by
similar health records must be denied. Medical records predating employment
17
can be dispositive of many disability retirement claims, but not all. Post-
employment medical records can also offer compelling proof to disprove pre-
existence of a disabling condition as required by KRS 61.600(3)(b).
Absence or inclusion of symptoms or treatment reported in any medical
record—pre-hire or post-employment—may be probative. As in West, a
claimant’s pre-employment medical records may not always be available—
assuming, of course, the claimant has had access to regular medical care—and
claimants should not be precluded from submitting other medical proof
deemed equally convincing. Thus, we reject Systems’ argument that West
requires a member to submit “medical records dated prior to and immediately
subsequent to the disability retirement claimant’s membership and/or expert
testimony explaining the onset of a condition[.]”
The Court of Appeals correctly stressed pre-employment medical records
can be helpful in excluding the pre-existence of a disabling condition by
demonstrating lack of treatment, or by establishing an alternative medical
cause for nonspecific symptoms. The Court of Appeals erred, however, in
reading West to require pre-employment medical records in every case.
The facts presented in Brown are much more akin to those presented in
Elder’s claim. As acknowledged in West,
Brown offered a “plethora of evidence” that, while her
smoking habit pre-existed her membership in the
Systems, her COPD did not. Brown, 336 S.W.3d at 11.
Medical records indicated that she showed no signs
of COPD during an evaluation conducted one year
after her employment date. Further, a medical
expert opined that onset occurred approximately
18
four years after her membership date. Finally, she
presented medical records demonstrating that her
first firm diagnosis of COPD occurred nine years
after her membership date.
West, 413 S.W.3d at 582 (emphasis added). Though precluded from offering
newly-obtained pre-employment medical records on remand, Elder had already
submitted extensive post-employment medical records, in addition to his
affidavit and testimony, cumulatively disclosing: Elder enjoyed good health,
with no symptoms or work interruptions until 2007 when he developed chronic
nosebleeds or other HHT symptoms; Elder was treated for various ailments
between 2005 and 2007 with no recorded history or complaints of nosebleeds
or other HHT symptoms; Elder’s first definitive diagnosis for HHT—based on
the Curaçao criteria—came in 2008 from Dr. Gyawali, a medical specialist to
whom he had been referred; and, an earlier diagnosis of Elder’s mother with
HHT in the 1980s was deemed to be inconclusive regarding whether he had
inherited the disorder because he remained asymptomatic until 2007, his
mother lived to age 85 with no extreme expression of HHT, the child of an HHT
parent has only a 50% chance of inheriting the disorder, and, not all of Elder’s
siblings were diagnosed with the disorder.
In particular, Dr. Winkler indicated the most common symptom of HHT
is recurring nosebleeds. He also verified the 2007 onset of Elder’s HHT
symptoms. In a letter, dated February 2, 2012, Dr. Winkler wrote
Mr. Elder does have hereditary bleeding disorder,
namely [HHT] which apparently was relatively
asymptomatic before he presented to Dr. Carrico in
2007. From 1995 to 2007 the patient continued his
duties at Graves County School System apparently
19
uninterrupted. From 2007 forward he continued to
work while being treated for this chronic medical
condition.
While not in the form of an affidavit, deposition, or hearing testimony, Dr.
Winkler’s letter and medical notations are consistent with Elder’s other medical
proof and testimony. Taken as a whole, the evidence submitted by Elder
transcends Systems’ additional criticism that his claim should also be denied
because he “provided no medical expert opinion on when his HHT onset.”
Though Elder was not permitted to file more-recently obtained pre-
employment medical records on remand, the hearing officer’s original
recommendation—correctly based on Brown—found the foregoing post-
employment medical proof, alone, established Elder’s disabling HHT had
remained asymptomatic and reasonably undiscoverable until 2007, thereby
allowing an award of disability retirement benefits. Contrary to Systems’
criticism, Elder was not required to submit his own contemporaneous medical
records to prove it was his mother, and not himself, who had been diagnosed
with HHT in the 1980s. His affidavit and testimony, along with a reasoned
reading of his post-employment medical records, was sufficient to allow the
hearing officer to make an informed determination.
As with many symptoms, occasional nosebleeds—as opposed to recurring
nosebleeds which Dr. Winkler identified as the most common indicator of
HHT—are nonspecific, arising due to diverse medical conditions or trauma, and
typically do not cause a reasonable person to suspect the onset of a rare and
severe genetic condition. During the course of his fifteen-year employment,
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Elder was seen by numerous physicians, but remained undiagnosed as having
HHT until 2007-2008.12 If medical professionals did not immediately, or more
quickly, suspect and uncover Elder’s unique genetic condition, it would
certainly be unreasonable to expect a medically-untrained person to self-
diagnose.13
Finally, because we have held West did not replace the law established in
Brown regarding the burden of proof under KRS 13B.090(7), we also hold
Systems erred in remanding the hearing officer’s original recommendation for
reconsideration. Moreover, if West had been “on point” by requiring pre-
employment medical records—as Systems incorrectly asserted—Systems
abused its discretion in denying Elder an opportunity to procure and present
additional medical proof.
While Systems is correct in asserting a need for finality, that need must
be balanced against an equally compelling need for fundamental fairness.
Elder could not have predicted West’s outcome, nor its purported alteration of
required proof. Here, Systems misinterpreted the import of West, incorrectly
12 We cannot confirm when the HHT diagnosis actually occurred. References to
the condition begin with Dr. Carrico’s patient abstract in August 2007, but the first
definitive diagnosis of which we are aware was made by Dr. Gyawali in 2008.
13 Difficulty in medically diagnosing HHT is not surprising given that many of
its symptoms “disguise as anemia, migraine, asthma, stroke, congestive heart failure,
or liver cirrhosis.” Notably, before being diagnosed with HHT, Elder was treated for
anemia, iron deficiency, hypertension and sleep apnea. As a result of HHT mimicking
other conditions, diagnosis of HHT may be delayed for decades, causing many to call it
“the Great Masquerader.” See generally, https://curehht.org/understanding-hht/
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ordered remand based on its mistaken belief, and compounded its error by
refusing to reopen proof to allow Elder a fair opportunity to submit the very
type of pre-employment medical records it erroneously maintained West now
requires. The equities of Elder’s claim are compelling and overcome the need
for finality. Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985), overruled on other
grounds by Smith v. McGill, 556 S.W.3d 552 (Ky. 2018).
CONCLUSION
Systems, the circuit court and the Court of Appeals misinterpreted our
holding in West. Thus, we reverse the Court of Appeals and remand Elder’s
claim to Systems for further proceedings consistent with this Opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Donna Thornton-Green
COUNSEL FOR APPELLEE:
Anne Caroline Bass
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