Elder v. Ky. Ret. Sys., 2017-SC-0258-DG

• Decision Date: 24 September 2020
• Docket Number: 2017-SC-0258-DG
• Citation: 617 S.W.3d 310
• Parties: Edward ELDER, Appellant v. KENTUCKY RETIREMENT SYSTEMS, Appellee
• Court: United States State Supreme Court — District of Kentucky

617 S.W.3d 310

Edward ELDER, Appellant

v.KENTUCKY RETIREMENT SYSTEMS, Appellee

2017-SC-0258-DG

Supreme Court of Kentucky.

SEPTEMBER 24, 2020

COUNSEL FOR APPELLANT: Donna Thornton-Green, Paducah.

COUNSEL FOR APPELLEE: Anne Caroline Bass.

OPINION OF THE COURT BY JUSTICE NICKELL

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 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 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 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 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 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].

...

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 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...