Ky. Ret. Sys. v. (individually

• Decision Date: 24 March 2011
• Docket Number: Nos. 2008–SC–000326–DG,2008–SC–000898–DG,2009–SC–000174–DG.,s. 2008–SC–000326–DG
• Citation: 336 S.W.3d 8
• Parties: KENTUCKY RETIREMENT SYSTEMS, Appellant,v.Dillard Wayne BROWN (Individually and As Executor of the Estate of Barbara Faye Reed Brown, Deceased), Appellee.andKentucky Retirement Systems, Appellant/Cross–Appellee,v.Tammy Sizemore, Appellee/Cross–Appellant.
• Court: United States State Supreme Court — District of Kentucky

336 S.W.3d 8

KENTUCKY RETIREMENT SYSTEMS, Appellant,

v.Dillard Wayne BROWN (Individually and As Executor of the Estate of Barbara Faye Reed Brown, Deceased), Appellee.andKentucky Retirement Systems, Appellant/Cross–Appellee,

v.Tammy Sizemore, Appellee/Cross–Appellant.

Nos. 2008–SC–000326–DG

2008–SC–000898–DG

2009–SC–000174–DG.

Supreme Court of Kentucky.

March 24, 2011.

Jennifer A. Jones, James Eric Wampler, Michael Todd Butler, Katherine I. Rupinen, Leigh Ann Jordan, Brian C. Thomas, Amy O'Nan Peabody, Frankfort, KY, Counsel for Appellant/Cross–Appellee, Kentucky Retirement Systems.Joseph Hubert Mattingly, III, Mattingly, Nally–Martin, & Fowler, PLLC, Lebanon, KY, Counsel for Appellee, Dillard Wayne Brown.Cordell Graham Martin, Salyersville, KY, Arden Winter Robertson Huff, Law Offices of John G. Prather, PSC, Somerset, KY, Counsel for Appellee/Cross–Appellant, Tammy Sizemore.Opinion of the Court by Justice SCOTT.

This consolidated appeal primarily involves whether the Court of Appeals erred in holding that Appellee/Cross Appellant Tammy Sizemore (Sizemore) and Appellee, Barbara Faye Reed Brown ¹ (Brown) carried their burden to prove that their conditions did not pre-exist membership with the Kentucky Retirement Systems. Finding no error on this issue, we affirm. We likewise affirm the Court of Appeals on the issue regarding Sizemore's total and permanent incapacity.

I. Pre-existing Condition

A. Background

1. Kentucky Retirement Systems v. Brown

Barbara Brown became a member of the Kentucky Retirement Systems in March 1992, and approximately eleven years later, in 2003, filed for retirement benefits pursuant to KRS 61.600.² In her petition at the administrative level, Brown claimed total disability due to her diagnosis of Emphysema with Chronic Obstructive Pulmonary Disease (COPD).

As required by KRS 61.600, Brown offered evidence that her COPD did not pre-exist her membership, i.e., testimony from Dr. Mark Abram stating that: he specifically evaluated Brown's lungs on January 22, 1993 and that Brown did not exhibit “any indication that would provide any objective medical evidence that at that point in time [Brown] had COPD, emphysema, or any related condition”; in June 1993, there was no indication of COPD or emphysema; from 1993 until roughly 1995 or early 1996, he did not think that Brown had emphysema or COPD; in reviewing her file in 2003, he speculated that the approximate onset date for the emphysema and COPD was sometime in 1996.

In addition to Dr. Abram's testimony, Brown offered evidence showing that the first mention of her COPD or emphysema appeared in a medical report dated March 1998. Additionally, Brown offered records from Dr. Greg Walton, who, also in March 1998, noted that her x-rays indicated “changes suggesting chronic obstructive pulmonary disease with moderate ... emphysema.” However, Brown went further, and offered more evidence that in June 2000, Dr. Walton compared the x-rays taken in 1998 to new x-rays and remarked “lungs are clear ... no active disease.” Finally, Brown produced medical documents demonstrating that her first firm diagnosis of COPD did not occur until February 1, 2001.

In spite of this plethora of evidence produced by Brown, the Kentucky Retirement System's Medical Review Board denied her benefits, concluding, inter alia, that her thirty-year smoking habit was a “condition which preexisted membership.” In support of its decision, the Kentucky Retirement Systems relied on the recommendations of two physicians, Drs. Keller and McElwain, both of whom opined:

Dr. Keller:

The records do confirm that the claimant has smoked significantly for 30 years or more.... After reviewing all of the claimant's records it is clearly evident that this patient who is a 30 year smoker had long sense [sic] set the stage for ultimate pulmonary disease by virtue of her 3 decade smoking habit. On the bases [sic] of reasonable medical probability the claimant did have significant pulmonary disease at and prior to the onset of her employment in 1992.

Dr. McElwain: “[t]obacco abuse is noted to have been present for over 30 years. This would appear to establish the presence of obstructive pulmonary disease, at the time of her employment ...”

Based, in part, on the recommendations of Drs. Keller and McElwain, the hearing officer found that that Brown's impairments were “directly or indirectly caused by conditions pre-existing her membership ... and [could not] be a basis for her retirement on disability.” Following subsequent adverse administrative rulings affirming this decision, Brown sought review in the Franklin Circuit Court.

The Franklin Circuit Court reversed the Kentucky Retirement Systems, finding, in part, that Brown's COPD did not pre-exist her membership. In a well-reasoned opinion, the circuit court held:

The record is void of objective medical evidence to prove that Brown's COPD pre-existed her membership in the Kentucky Retirement Systems. The only objective medical evidence regarding the condition of Brown's lungs prior to her membership in Retirement Systems was gynecological records in 1976 and 1978 indicating that her lungs were clear and an x-ray from 1987 with the same indication. Retirement Systems respond that x-rays are a poor indicator of COPD but cannot point to objective medical evidence that Brown's condition actually existed prior to her membership.

The circuit court went on to reject the opinions of Drs. Keller and McElwain as “conjecture,” opining that Dr. McElwain's statements would lead to the conclusion “that every person that smoked prior to their state employment has COPD and cannot receive benefits.” The circuit court also rejected the notion that articles offered by the Kentucky Retirement Systems “on Postgraduate Medicine and the internet ... link[ing] smoking and COPD” were sufficient to demonstrate that COPD was pre-existing in this case. From that adverse ruling, the Kentucky Retirement Systems appealed to the Court of Appeals.

In affirming the Franklin Circuit, the Court of Appeals held that, as a matter of law, Brown proved that her COPD was not pre-existing. In reaching its decision the court held that the opinions of Drs. Keller and McElwain were “subjective retrospective diagnoses” and were not “couched in any degree of medical certainty.” Yet, more important to the Court of Appeals was the fact that these conclusions were “contradicted by the contemporary objective medical records, x-rays and diagnoses by [Brown's] attending physicians.” That court ultimately concluded that Dr. Keller's and Dr. McElwain's opinions were “based on nothing other than the fact that Mrs. Brown smoked before she started work....” The court likewise agreed with the Franklin Circuit's conclusion that the scholarly medical articles alone did not link smoking and COPD in this case. In its opinion, a Contrary holding would allow the denial of disability benefits “to every applicant whose disability could be linked to smoking simply by presenting evidence that [she] smoked prior to employment.”

2. Kentucky Retirement Systems v. Sizemore

Tammy Sizemore became a member in the Kentucky Retirement Systems in February 2000, and in January 2005, applied for disability retirement benefits pursuant to KRS 61.600. In her petition for disability, Sizemore claimed total and permanent disability as a result of her diagnosis of relapsing/remitting multiple sclerosis (MS).

As required by KRS 61.600, Sizemore offered evidence to show that her MS did not pre-exist her membership in the Kentucky Retirement Systems. Dr. Joseph Zerga, her treating neurologist, testified that he had “no indication in the medical records ... that [Sizemore] had any problems prior to May of 2000.” He further stated that in 2002, after a negative spinal tap, he ordered a MRI which was ultimately inconclusive of MS. And finally, when asked to reconstruct the progression of Sizemore's MS, he concluded that Sizemore's initial symptoms in May 2000 were “probably the primary attack.”

However, the Kentucky Retirement Systems countered Sizemore's evidence with a scholarly article taken from the New England Journal of Medicine which posited that the average time until onset of symptoms in a patient with relapsing/remitting MS is approximately eleven years. 343 New Eng. J. Med. 20, 1430–38 (2000). Based on this article, and after reciting Dr. Zerga's findings, the Kentucky Retirement Systems reasoned that, because Sizemore experienced symptoms just three months into her enrollment, it was “highly likely that the disease process pre-existed her membership,” and therefore denied Sizemore retirement benefits. Sizemore timely filed an action in Franklin Circuit Court seeking review of that decision.

The Franklin Circuit Court reversed the Kentucky Retirement Systems' determination that Sizemore's MS pre-existed her membership. In short, the circuit court held:

1. None of the reviewing physicians made a finding that Sizemore's MS was pre-existing.

2. The sole piece of evidence supporting the notion that Sizemore's MS was pre-existing came from a scholarly medical article.

3. Because the scholarly article was hearsay, and stood alone as the only evidence tending to show the pre-existing nature of Sizemore's condition, it must comply with KRS 13B.090(1), which states that, though hearsay evidence is admissible, “it shall not be sufficient in itself to support an agency's findings of facts unless it would be admissible over objections in civil actions.” (emphasis added).

4. The medical treatise introduced did not comply with KRE 803(18) which only permits the introduction of learned treatises by reading them into evidence by a qualified expert “but may not be received as exhibits,” and thus would have not been admitted over objection in a civil action.

5. The Kentucky Retirement Systems' finding that Sizemore's condition pre-existed her membership was a finding of fact and was not supported by substantial evidence.

...