Elder v. Ky. Ret. Sys.

Full title: EDWARD ELDER APPELLANT v. KENTUCKY RETIREMENT SYSTEMS APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Apr 28, 2017

NO. 2015-CA-000916-MR (Ky. Ct. App. Apr. 28, 2017)

Opinion

NO. 2015-CA-000916-MR

04-28-2017

EDWARD ELDER APPELLANT v. KENTUCKY RETIREMENT SYSTEMS APPELLEE

BRIEF FOR APPELLANT: Donna Thornton-Green Paducah, Kentucky BRIEFS FOR APPELLEE: Carrie Bass Frankfort, Kentucky

ACREE, JUDGE

NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 14-CI-00468 OPINION
AFFIRMING

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BEFORE: ACREE, STUMBO AND TAYLOR, JUDGES. ACREE, JUDGE: Appellant Edward Elder appeals the Franklin Circuit Court's May 22, 2015 Opinion and Order affirming the final order of the Board of Trustees of the Kentucky Retirement Systems denying Elder's application for disability retirement benefits. The issue before us is whether the Board wrongfully found that Elder's hereditary condition pre-existed his membership in the County Employees Retirement System (CERS). We affirm.

Elder was employed as a head custodian by the Graves County Board of Education. That position afforded Elder membership in CERS. His employment began on August 17, 1995. Elder's last day of paid employment was May 3, 2011. By that date, he had accrued 180 months of CERS service. Elder officially retired as of September 1, 2011.

In August 2011, Elder made a claim for disability retirement benefits, alleging he was disabled due to a hereditary condition known as Hereditary Hemorrhagic Telangiectasia (HHT), which causes his nose to bleed every day, fatigue, anemia, and other issues. His application was twice denied, each time by a medical examiners' panel vote of 2-1. Elder invoked his right to an administrative hearing under Kentucky Revised Statutes (KRS) Chapter 13B.

Elder compiled his medical evidence and submitted it to the hearing officer. We have recounted only the salient parts of those records. Elder also testified at the hearing.

As head custodian, Elder performed many custodial and maintenance tasks. He landscaped, cleaned floors, mowed lawns, cared for sick children, handled plumbing and electrical issues, and performed other general custodial work. Elder frequently lifted up to 100 pounds. Much of Elder's eight hours of daily work required him to be standing or walking.

Elder excelled at his job. He was reliable and hardworking. That all changed in 2007. Elder experienced severe and frequent nosebleeds, with persistent weakness, fatigue, and loss of stamina. He was officially diagnosed with HHT in late 2007. By 2011, Elder had difficulty standing and walking without assistance. Even minor tasks caused his nose to bleed. He required assistance from co-workers and students to complete his job. At the hearing, Elder testified his condition prevents him from performing normal daily activities, such as grocery shopping, laundry, cooking, and cleaning.

Elder has been treated by several doctors since 2007. He has had numerous time-consuming blood transfusions and intravenous iron supplementation; he is now transfusion and infusion dependent. Elder has also experienced gastro-intestinal bleeds, chest pain, dehydration, chronic anemia, obstructive sleep apnea, dizziness, and other severe symptoms. He has undergone numerous surgeries related to his hereditary condition.

Dr. Charles Winkler, an oncologist with the Purchase Cancer Group, began treating Elder in October 2007. Dr. Winkler, by letter dated February 2, 2012, explained HHT is a genetic disorder. Its manifestations are not present at birth, but increase with age. Epistaxis, known in laymen's terms as bleeding from the nose, is usually the earliest sign of the disease, often in childhood. Other manifestations can appear in the lungs, liver, and cerebral circulation. Dr. Winkler stated it is not uncommon for a HHT diagnosis to be delayed until the phenotypic manifestations of the disease raised particular awareness of the disorder.

Elder consulted with Dr. Jay Piccirillo at Washington University in September 2008. Elder informed Dr. Piccirillo he has had epistaxis (nosebleeds) since young adulthood. (R. 2280). Dr. Piccirillo charted in a July 2010 post-operative report that Elder "has had a longstanding history of hereditary hemorrhagic telangiectasia's associated with epistaxis." (R. 2286). Dr. Piccirillo supported Elder's application for disability retirement benefits. Due to Elder's condition, Dr. Piccirillo considered future gainful employment by Elder unlikely.

In a letter dated September 23, 2008, Dr. Chandra Prakash Gyawali addressed Elder's regular physician as to the status of Elder's condition: "[Elder] has a sister and a mother with HHT. . . . The patient reports episodic epistaxis for a number of years, but worse for the past year." (R. 2290). Elder began active treatment for HHT in August 2007. Another medical note from the Washington University School of Medicine Lung Center charted: "Patient states HHT was diagnosed approximately 20 years ago with a triad of recurrent epistaxis, facial telangiectasias, and a positive family history. Patient states that his mother had HHT and exhibited recurrent nosebleeds and recurrent brain abscesses." (R. 2295).

Elder reported in his application for benefits that, "H.H.T. is hereditary, I have always bleed [sic], but the worst started in 2007." (R. 4). He testified at the hearing that he remembers having a nosebleed for the first time in 1975 and he first learned of HHT around that same time. His nosebleeds became progressively worse until he was diagnosed with HHT in 2007. Elder clarified - through testimony and by affidavit - that his mother, not Elder, was diagnosed with HHT in the 1980s. Elder's sister had HHT as well. After Elder's mother was diagnosed, she suggested Elder could also suffer from the hereditary disease.

After considering the evidence, the hearing officer, relying upon Kentucky Retirement Systems v. Brown, 336 S.W.3d 815 (Ky. 2011), found Elder's condition did not pre-exist his employment in CERS and issued an order recommending the Board approve Elder's application. Upon motion by the Kentucky Retirement Systems, the Board remanded the matter back to the hearing officer for further consideration because of the Kentucky Supreme Court's recent decision in Kentucky Retirement Systems v. West, 413 S.W.3d 578 (Ky. 2013).

On January 27, 2014, the hearing officer issued a second order, this time recommending Elder's request for benefits be denied. The hearing officer found, while Elder is permanently incapacitated by his hereditary condition, he failed to prove by a preponderance of the evidence that his condition did not pre-exist his membership in CERS. She reasoned:

[Elder] has failed to prove his hereditary hemorrhagic telangiectasia did not pre-exist his membership in the Systems. A medical record indicated [Elder] stated he was diagnosed in the 1980's. [Elder] has since clarified, by means of an affidavit and credible testimony[,] that his mother was diagnosed in the 1980's. After she was diagnosed, she suggested that [Elder] could also suffer from the hereditary disease. Dr. Rigby, of the Medical Review Board, opined that [Elder's] condition was not pre-existing because hereditary hemorrhagic telangiectasia is an autosominal dominant disorder that only has a 50 percent chance of passing to [Elder]. Per the medical records, [Elder] was first diagnosed with anemia in 1997 and hereditary hemorrhagic telangiectasia in 2007. Prior to [Elder's] employment he

only experienced occasional nosebleeds that were not attributed to his condition or diagnosis. At a 2005 appointment, [Elder] was assessed for headaches and fatigue. [Elder's] current condition was not mentioned or treated and [Elder] reported no symptoms such as nosebleeds or gastrointestinal bleeding. [Elder's] medical history was consistently reported on various medical examination forms. [Elder's] only prior medical treatment or operation per his report prior to his employment was a back surgery. Dr. Winkler observed that [Elder] worked uninterrupted from 1995 until 2007 when he was diagnosed with hereditary hemorrhagic telangiectasia. However, [Elder] failed to produce any records which preexisted his membership date in the Systems and the condition was objectively discoverable by a reasonable person. He indisputably suffered from some nosebleeds 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 HTT, 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.

(R. 2837-38).

The Board adopted the hearing officer's recommended order in its entirety. Elder appealed to the Franklin Circuit Court. The circuit court, by order entered May 22, 2015, affirmed the Board's decision. This appeal followed.

A member of the Kentucky Retirement Systems may receive disability retirement benefits upon a showing that he is permanently incapacitated to perform his job duties by a "bodily injury, mental illness, or disease[]" which "does not result directly or indirectly from bodily injury, mental illness, disease or condition which pre-existed membership in the system[.]" KRS 61.600(3)(a)-(d). The burden of proof lies with the claimant. KRS 13B.090(7). The claimant "must satisfy this burden by a preponderance of the evidence." West, 413 S.W.3d at 580. This "includes the burden of establishing that the condition did not exist at the time the claimant became a member of the Systems." Id. at 581. A threshold showing is not enough. Id.; Brown, 336 S.W.3d at 14 ("[A]s with all the other threshold factors in KRS 61.600, the person seeking the entitlement determination must prove to the trier of fact that his or her condition was not pre-existing membership by a preponderance of the evidence."). "The Systems may or may not present evidence to rebut the claimant's proof. Regardless, the burden does not shift to the Systems." West, 413 S.W.3d at 581.

The Retirement Systems does not challenge the Board's finding that Elder is permanently incapacitated by his hereditary disease. Those threshold issues have been met. The issue raised by Elder on appeal is narrow: whether his condition - HHT - pre-existed his membership in CERS. Elder argues the evidence of record shows it was not. He claims there is absolutely no evidence that his hereditary condition was symptomatic, disabling, or even diagnosed until 2007, twelve years after his employment began. Elder argues childhood nosebleeds do not rise to the level of symptomatic HHT.

Our task is to determine whether Elder satisfied his burden of proving, by a preponderance of the evidence, that his hereditary condition did not preexist his membership in CERS. "Where the fact-finder'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 that party's favor is so compelling that no reasonable person could have failed to be persuaded by it." McManus, 124 S.W.3d at 458. Great deference is afforded the determinations made by the administrative factfinder. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).

Elder argues, to sustain his burden of proving his condition was not pre-existing, he need only prove that he had not been diagnosed with HHT and that he was not symptomatic for HHT before his membership in the system. Elder misperceives his burden.

In Brown, supra, the Kentucky Supreme Court discussed at length the legislative policy to exclude disability retirement benefits to individuals who suffer from pre-existing conditions, and identified the pre-existing standard to be applied. That discussion is relevant here.

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.

Brown, 336 S.W.3d at 15. We deduce from Brown that a condition or disease is preexisting if it is symptomatic and known or reasonably discoverable by the claimant. See id. A condition is not pre-existing if it is "unknown, dormant, [or] asymptomatic" at the time of the worker's employment, including genetic disease that "may not surface for many years." Id.

Applying these standards to the case before us, we agree with the Board that there was evidence of record indicating Elder's condition was symptomatic and reasonably discoverable prior to 1995 when his membership in CERS began. HHT was known to Elder to be hereditary, afflicted multiple members of his family, and in the 1980s Elder was specifically told that he, too, likely had HHT. Elder confirmed he learned of HHT when his mother was diagnosed with the same condition in the 1980s. He also conceded he had been having nosebleeds since 1975, and that his mother had the same symptom (nosebleeds) leading to her HHT diagnosis. Dr. Winkler confirmed that epistaxis, or nosebleeds, is usually the earliest sign, and a symptom, of HHT. Other medical evidence indicated Elder had been having nosebleeds since young adulthood. Elder admitted himself that "I have always bleed [sic]."

Summarizing, the evidence of record reveals nosebleeds are a known symptom of HHT; Elder had recurrent nosebleeds as far back as 1975; and that Elder learned of HHT in the 1980s due to his family history, mother's diagnosis, and the fact that he was specifically told at that time that he likely suffered from the same condition. From this evidence it was reasonable for the hearing officer to conclude that Elder's condition was symptomatic (nosebleeds) and reasonably discoverable by him prior to his membership in CERS. Notwithstanding Elder's argument to the contrary, nothing in KRS 61.600, Brown, or West requires an official medical diagnosis before a condition may be classified pre-existing.

Further, the Board, and the circuit court, made much of the fact that Elder submitted no medical records prior to 2005, much less 1995. West suggests that medical records pre-dating membership are useful to establish the lack of a pre-existing condition. 413 S.W.3d at 582-83. Elder argues it was impossible for him to present any medicals prior to 2007 because there were no medical records of his treatment for HHT to present; requiring no medical treatment is evidence in itself, Elder argues, that his condition was not symptomatic prior to his employment. Elder claims West places him, and future claimants, in a catch-22: "In order to prove your condition did not pre-exist your membership date, you must have medical records from that time. However, if you required medical treatment for your condition, your condition would be pre-existing." (Appellant's Brief, p. 14).

Elder misunderstands West. West does not require a claimant to submit pre-membership medical records revealing treatment for the specific condition at issue, particularly when the claimant is arguing the condition was dormant or asymptomatic. That would be absurd. The point is to submit pre-membership medical records to show no prior treatment for or evidence of the specific condition claimant deems not to be pre-existing. Or, perhaps in Elder's case, medical records showing a different cause of pre-employment nose bleeds such as trauma. In our view, this information would most likely be found in the "patient history" section of the claimant's prior medical records. The lack of any reference to the condition at issue, or symptoms of that condition, in the patient's medical history is evidence that the claimant was not symptomatic pre-membership. We think it rare that a person would lack any prior medical records for any illness, disease, or surgery prior to membership, but even if that were the case a claimant might submit an affidavit affirming absolutely no pre-membership medical records exist.

Here, Elder need not present medical records from 1995 or earlier indicating treatment for HHT or a bleeding disorder. Any medical records before 1995 that lack reference to HHT or symptoms of that condition would have advised the hearing officer that Elder had indeed not been treated for or exhibited symptoms of HHT pre-membership. The lack of pre-membership medical records weighed against Elder.

We admit this case is a close call. Elder is permanently incapacitated by his hereditary condition, and there is no dispute his condition significantly worsened in 2007. Ultimately, we cannot say the evidence offered by Elder was so persuasive that no reasonable trier of fact could have failed to have been persuaded by that evidence. Elder arguably made a threshold showing that his hereditary condition did not predate enrollment in CERS. But there was other evidence, outlined previously, from which a reasonable trier of fact could have reached an opposite conclusion. See Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 643 (Ky. App. 1994) (In determining the persuasiveness of evidence, it is necessary to take into account whatever in the record fairly detracts from its weight.). Weighing the evidence as a whole, the Board was not persuaded by a preponderance of the evidence that Elder's hereditary condition did not exist when he became a member of CERS. Elder failed to sustain his burden of proof.

Finally, Elder argues the Board lacked the authority to remand the matter back to the hearing officer for reconsideration in light of West. Elder contends because the hearing officer found in his favor in her first recommended order and because the evidence did not change upon remand, the hearing officer's second recommended order is legally deficient and must be reversed as a matter of law.

KRS 13B.120 authorizes the Board, as the agency head, to "accept the recommended order of the hearing officer and adopt it as the agency's final order, or [to] reject or modify, in whole or in part, the recommended order, or [to] remand the matter , in whole or in part , to the hearing officer for further proceedings as appropriate ." KRS 13B.120(2) (emphasis added). It is certainly appropriate for an agency head to remand to the hearing officer because of new, controlling authority on the very matter at issue. West clarified the burden of proof standards related to pre-existing conditions. It is certainly of import. We see nothing wrong with the Board's decision to remand this matter for further consideration in light of West. And, we know of no authority prohibiting the trier of fact from reaching a different conclusion upon reconsideration.

For the foregoing reasons, we affirm the Franklin Circuit Court's May 22, 2015 Opinion and Order affirming the Board's decision to deny Elder's application for disability retirement benefits.

STUMBO, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Donna Thornton-Green
Paducah, Kentucky BRIEFS FOR APPELLEE: Carrie Bass
Frankfort, Kentucky