Edward Elder v. Kentucky Retirement Systems

MODIFIED: FEBRUARY 18, 2021
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-WC
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”
condition, disqualifying him from receiving benefits under KRS 61.600(3)(d).2
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.
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.”
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 appropriate administrative proceedings to correct
multiple errors identified in 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 (CERS) 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
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
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
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 1980s. Elder sought to correct the erroneous historical notations by filing
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
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
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 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
8
https://www.sciencedirect.com/science/article/abs/pii/0002934387901628
4
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 Panel, 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 Panel again found Elder permanently incapacitated. Once more, two
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
5
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].
...
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.
6
(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
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), originally rendered on August 19, 2013, but
pending in this Court on a petition for rehearing until becoming final on
7
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
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:
8
[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
until 2007, a dozen years after he had become a member of CERS.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
9 Not being part of the record certified to us, we cannot verify the content of the
proffered files.
9
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.
(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
10
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
had “misperceived” his burden as requiring that he only show the lack of
symptoms and the lack of an 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.
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
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.
This Court applied the compelling evidence standard in reviewing the
sufficiency of proof issues raised in Ashcraft and Bradley. Elder’s appeal,
however, raises a distinct legal issue. Here, Elder challenges Systems’
interpretation and application of our holding in West as requiring claimants
with less than sixteen years’ service credit to submit pre-employment medical
records—to disprove the pre-existence of a genetic condition. As with all pure
questions of law, our standard of review is de novo. Smith v. Fletcher, 613
S.W.3d 18 (Ky. 2020).
LEGAL ANALYSIS
Initially, from a legal perspective, a genetic disorder is not “pre-existing”
merely because it is medically present at conception. Consistent with 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
12
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.
However, a majority of physicians comprising two separate Medical
Review Panels erroneously 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 may have been correct from a medical standpoint, their
conclusions were contrary to the legal mandates announced in Brown.
Therefore, the conclusions drawn by the majority of each of the Medical Review
Panels were clearly based on the wrong legal standard.
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 Retirement
Systems, 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 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,
13
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 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
14
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
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
11 Chronic obstructive pulmonary disease.
15
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
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
16
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 due to his failure 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
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, and in
this case, 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
17
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 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
18
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
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’
19
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,
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 Based on the foregoing, any denial of Elder’s claim would require a
compelling explanation as to how his HHT was “objectively discoverable by a
reasonable person.” Brown, 336 S.W.3d at 14-15.
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/
20
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. KRS 13B.150(2)(d). 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 to meet the altered evidentiary requirements.
Id.
Systems created an impossible scenario. When Elder’s claim was filed,
Brown was controlling caselaw. Elder submitted proof consistent with Brown,
the administrative record was closed, and the Hearing Officer recommended an
award. Thereafter, West was rendered. Systems misinterpreted West, and
before it became final, sought rehearing of Elder’s claim based on that
misinterpretation. When Elder’s claim was remanded to the Hearing Officer for
reconsideration based on Systems’ misinterpretation of West, Elder was denied
any opportunity to file additional proof, even though he had acquired pre-
employment medical records in support of his claim. As a result, in presenting
proof to support his claim based on controlling statutory and legal authority,
Elder could not have foreseen any change in the standard of proof purportedly
resulting from West. In short, Systems misinterpreted the import of West,
incorrectly 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
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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, leading to a cascade of multiple errors. In this appeal, the
lack of proper consideration of Elder’s medical evidence by two Medical Review
Panels was merely the first in a series of missteps attributable to Systems and
those acting at its direction. Each error was arbitrary, capricious, and an
abuse of discretion under KRS 13B.150(2)(d). Any of those instances, standing
alone, would require reversal and remand. On remand, returning this matter
to a Medical Review Panel where the initial error occurred is required.
Additionally, Elder shall be permitted to submit any additional medical records,
if desired.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Donna Thornton-Green
Law Offices of Donna Thornton-Green
COUNSEL FOR APPELLEE:
Anne Caroline Bass
Kentucky Retirement Systems
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Supreme Court of Kentucky
2017-SC-000258-D
EDWARD ELDER APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO-2015-CA-000916-WC
V. FRANKLIN CIRCUIT COURT No.14-CI-00468
KENTUCKY RETIREMENT SYSTEMS APPELLEES
ORDER GRANTING EXTENSION
The Petition for Extension, filed by Appellee Kentucky Retirement
Systems, of the Opinion of the Court, rendered September 24, 2020 is hereby
granted and the attached opinion is substituted.
All sitting. All concur.
ENTERED: February 18, 2021.
_______________________________________
CHIEF JUSTICE
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