KENTUCKY RETIREMENT SYSTEMS VS. SIZEMORE (TAMMY)Annotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
KENTUCKY RETIREMENT SYSTEMS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 06-CI-00815
AFFIRMING IN PART,
VACATING, AND REMANDING IN PART
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
KELLER, JUDGE: Tammy Sizemore (Sizemore) applied for disability retirement
benefits through Kentucky Retirement Systems (KERS). The hearing officer
recommended denial of Sizemore’s application, and the KERS Board of Trustees
(the Board) adopted the hearing officer’s recommendation. The Franklin Circuit
Court reversed the Board’s order, and it is from the circuit court’s order that KERS
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
appeals. On appeal, KERS argues that Sizemore’s condition was pre-existing, she
was not totally and permanently incapacitated, and the Franklin Circuit Court
substituted its opinion of the evidence for that of the fact finder. For the reasons
set forth below, we affirm in part and vacate and remand in part.
Sizemore worked as a Family Support Specialist II for the Department
of Community Based Services (the Department). Sizemore’s initial membership
date in KERS was February 1, 2000, and her last date of paid employment in a
regular full-time position was February 28, 2005. She had sixty-one months of
As a Family Support Specialist II, her primary duties involved
interviewing clients to determine their eligibility for Food Stamps and Medicaid.
Sizemore on rare occasions had to lift or carry up to ten pounds. The job also
required Sizemore to handle/finger/feel and to reach/push/pull for two-thirds of the
day or more. Sizemore sat for six hours out of a seven and one-half hour work
Sizemore first experienced symptoms in May, 2000,2 at which time
she suffered lightheadedness and numbness on the entire right side of her body.
Her medical records, beginning on December 14, 2001, indicate she had
experienced episodic numbness on her right side for a year. When an episode
This was only three months after beginning her employment with the Department.
occurred, Sizemore reported numbness, reduced grip strength, and a feeling she
described “as foolish in the head.”
Initially, Sizemore sought treatment from her primary care physician,
Dr. Claudia Bocado. Pursuant to Dr. Bocado’s recommendation, Sizemore began
seeking treatment from a neurologist, Dr. Joseph Zerga. Dr. Zerga informed
Sizemore of his suspicion of multiple sclerosis in January, 2002. However, neither
Dr. Zerga nor Dr. David Blake, a neurologist from whom Sizemore sought a
second opinion, was able to definitively diagnose Sizemore with multiple sclerosis
until September 9, 2003. At that time, Dr. Zerga diagnosed Sizemore with
relapsing-remitting multiple sclerosis.
Throughout 2003, Dr. Zerga examined Sizemore multiple times. The
office notes indicate the exams were generally benign or unremarkable, and during
the last months of 2004 and the first months of 2005, Sizemore’s condition seemed
stable. For instance, Dr. Zerga’s November 5, 2004, office note states that
Sizemore had some tremulousness of her right arm, but otherwise was doing well.
That office note also documented that Sizemore had a normal gait and was sitting
In January 2005, an MRI revealed improvement in previously
discovered white matter lesions in Sizemore’s right frontoparietal region and left
subcortical parietal regions, but a new lesion in the right frontoparietal region.
Dr. Zerga noted Sizemore had complaints of fatigue and occasional numbness, but
he found no cranial nerve symptoms and no significant upper extremity symptoms.
He determined the examination to be benign other than old right arm tremors.
A January 17, 2005, nerve conduction study revealed very mild carpal
tunnel, with no evidence of major entrapment. Dr. Zerga noted in his office notes
that Sizemore’s condition was unchanged from her previous examination. He
altered her medication to see if he could improve her sleep and decrease her
fatigue. Dr. Zerga also stated Sizemore was toying with the idea of disability.
Sizemore’s last date of paid employment in a regular full-time
position was February 28, 2005.3 As of that time, Sizemore was on several
prescription and nonprescription medications for pain, depression, multiple
sclerosis, hypertension, high cholesterol, and a blood thinner. While still working,
Sizemore requested reasonable accommodations and was provided with a special
chair for her back4 and a large computer screen.
On March 4, 2005, approximately four days after Sizemore’s last date
of paid employment, Dr. Zerga noted that she was doing well; although she was
feeling a bit depressed and did not like her job. Dr. Zerga also documented he
found no evidence of any attacks and her examination was normal.
It is unclear to this Court whether Sizemore decided to quit working and Dr. Zerga later
authorized it or if Dr. Zerga told her to quit working. The records indicate Dr. Zerga took
Sizemore off work on March 4, 2005, four days after Sizemore stopped working. However, the
testimony of Sizemore is to the contrary, and Dr. Zerga testified that he believes he took her off
work in February 2005. Regardless, this is not a decisive factor in this Court’s opinion.
The parties disagree about whether the special chair was provided; however, both parties agree
the large computer screen was supplied as an accommodation for Sizemore.
Dr. Zerga’s April 15, 2005, office note revealed decreased flexion of
the lumbosacral spine and a tremor of Sizemore’s right arm while her hands were
outstretched. Dr. Zerga considered Sizemore to be stable; although he noted that
her fatigue was a limiting factor.
In September 2005, Sizemore’s test results showed prolonged
latencies in both of her eyes. Dr. Zerga noted in the September 7, 2005, office note
that “her examination is significant for a drift of the right arm,” but her “gait is
normal.” Dr. Zerga suggested there was evidence of a possible repeat multiple
sclerosis attack. Sizemore’s September 23, 2005, MRI exam confirmed a slight
worsening of abnormal T2 signal foci, which is consistent with worsening multiple
Dr. Zerga’s October 21, 2005, office note revealed continued fatigue
with a mild tremulousness of the right arm, but none of the previously noted
drifting. Dr. Zerga continued his diagnosis of multiple sclerosis and noted that
Sizemore suffered from “significant fatigue.”
Sizemore applied to KERS for disability benefits on January 11, 2005,
alleging disability on the basis of multiple sclerosis. KERS asked three physicians
to review Sizemore’s application. All three physicians, Dr. Esten Kimbel, Dr.
William McElwain, and Dr. William Keller, recommended denial of Sizemore’s
application on March 1, 2005, and again on July 1, 2005.
In his March 1, 2005, Disability Determination Report, Dr. Kimbel
stated that he found no objective evidence establishing any loss of cognitive
function, or any functional impairment as a result of multiple sclerosis, such as
weakness, extreme dizziness, visual impairment, or loss of function of the upper
and lower extremities. Additionally, Dr. Kimbel found no current medical
evidence that Sizemore’s multiple sclerosis caused symptoms severe enough to
preclude Sizemore from performing the type of work she had performed for the
Drs. McElwain and Keller stated that they did not recognize any
convincing objective evidence that Sizemore was disabled and unable to work at
that time. Dr. Keller acknowledged the difficulty of fatigue, but stated, “In the
event the claimant’s disease entity appears to be showing significant and objective
evidence of progression, I would be very willing to review the case again.”
The doctors reviewed Sizemore’s records a second time on July 1,
2005. Again, all three doctors found that Sizemore had not presented evidence of
any neurological impairment that would be disabling or any objective medical
evidence establishing a disability. Dr. Kimbel noted in his report that fatigue is a
largely subjective complaint and its severity is difficult to evaluate. Furthermore,
Dr. Kimbel stated:
[I]n reviewing the claimant’s previous job requirements
there is no evidence that she had to do any physical
exertion and there is no documentation from her normal
daily activities that would indicate that her fatigue is of
such severity that it would preclude doing this type of
In his December 6, 2005, deposition, Dr. Zerga testified that he found
no indication that Sizemore had multiple sclerosis prior to her qualified
employment. When asked about Sizemore’s ability to perform her job duties, Dr.
Zerga stated he believed she could work if she just sat and did not have to interact
with people, make cognizant processing decisions, fill out paperwork, or perform
repetitive data entry.
Sizemore requested an administrative hearing after being denied
disability retirement benefits by the medical examiners. At the hearing, Sizemore
testified that on an average day at the Department, she assisted ten to twelve
people. However, on the day of the hearing, Sizemore said that, with her fatigue,
she could have assisted only five. Sizemore also stated that, out of the preceding
five days, she could have worked only three to four days. In the course of a normal
eight hour work day, Sizemore testified she sleeps or is resting four to five hours.
Based on the above evidence, the hearing officer recommended denial
of Sizemore’s claim. In doing so, the hearing officer noted Sizemore’s complaints
and the above listed medical records and reports. Specifically, the hearing officer
noted Sizemore did not meet her burden of proof that she did not have the
condition at the time her membership in KERS began.
Both parties timely filed exceptions to the hearing officer’s report and
recommended order. In her exceptions, Sizemore primarily complained that it was
error for the hearing officer to find that she had not met her burden of proof and
that a medical journal article should not have been admitted as evidence. KERS
also filed exceptions because the hearing officer failed to make a finding that
Sizemore had not met her burden to establish a total and permanent incapacity
from her job duties as of her last date of paid employment.
The Board adopted the hearing officer’s report and recommended
findings and denied Sizemore’s claim. The Board also found that Sizemore had
not met her burden of establishing total and permanent incapacity from her job
duties as of her last date of paid employment, February 28, 2005. The Board cited
Dr. Zerga’s January 10, 2005, and March 5, 2005, evaluation notes and January 17,
2005, nerve conduction study in support of its finding.
Sizemore appealed the Board’s denial to the Franklin Circuit Court.
The circuit court reversed the Board’s order, determining that none of the
reviewing physicians made a finding that Sizemore’s multiple sclerosis was preexisting and that the sole piece of evidence cited for that conclusion was an
inadmissible medical journal article. The court also found that incapacity, for
retirement disability benefits purposes, does not require “that the level of severity
of the symptoms of the disease remain constant.” Finally, the court found that the
evidence supports that relapsing-remitting multiple sclerosis has the constant
symptom of fatigue, which is disabling. KERS appeals this order.
STANDARD OF REVIEW
On appeal, this Court must determine if a circuit court’s findings
reversing an administrative decision are clearly erroneous. The circuit court is to
review the administrative decision, not reinterpret or reconsider the merits of the
case, nor substitute its judgment for that of the agency as to the weight of the
evidence. Johnson v. Galen Health Care, Inc., 39 S.W.3d 828, 833 (Ky. App.
2001); Kentucky Unemployment Insurance Commission v. King, 657 S.W.2d 250,
251 (Ky. App. 1983); and Kentucky Racing Commission v. Fuller, 481 S.W.2d
298, 309 (Ky. 1972). This Court, like the circuit court, is required to determine if
the hearing officer’s findings of fact, as adopted by the Board, are supported by
substantial evidence of probative value and if the Board applied the correct rule of
law to the facts. Southern Bell Telephone & Telegraph Co. v. Kentucky
Unemployment Insurance Commission, 437 S.W.2d 775, 778 (Ky. 1969);
Kentucky Board of Nursing v. Ward, 890 S.W.2d 641, 642-43 (Ky. App. 1994).
As long as there is substantial evidence in the record to support the Board’s
decision, this Court must defer to the Board, even if there is conflicting evidence.
Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky.
1981). Evidence is substantial if “it has sufficient probative value to induce
conviction in the minds of reasonable men.” Blankenship v. Lloyd Blankenship
Coal Co., Inc., 463 S.W.2d 62, 64 (Ky. 1970). With this standard in mind, we will
address the issues raised by KERS.
KERS argues that: (1) Sizemore’s condition was pre-existing; (2) she
was not totally and permanently incapacitated; and (3) the circuit court substituted
its opinion of the evidence for that of the factfinder. We will not separately
address this third argument as it is intertwined with the first two and disposed of in
their analysis of the same. Sizemore contends that her multiple sclerosis was not
pre-existing and her incapacity is total and permanent.
Given Sizemore’s membership in KERS,5 her claim for disability
retirement benefits is decided under KRS 61.600, which sets out the qualification
requirements for disability retirement benefits. The burden of proof in
administrative hearings is set out in KRS 13B.090(7), and a claimant must prove
her claim by a preponderance of evidence in the record. This Court has held that
KRS 61.600 and KRS 13B.090 should be read in conjunction with one another.
McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 457-58 (Ky. App.
2003). Therefore, Sizemore had the burden of proving her disability claim by a
preponderance of the evidence.
Based on the statutory language of KRS 61.600, we agree with KERS
that the issues are: (1) whether Sizemore’s condition was pre-existing; and (2)
whether there was any objective evidence that Sizemore’s condition was
permanently and totally disabling. While we determine that the circuit court
improperly disturbed the Board’s finding that Sizemore was not totally and
permanently incapacitated from her job duties as of her last day of paid
employment, we hold that the circuit court was correct in its finding that
Sizemore’s multiple sclerosis was not a pre-existing condition. We will address
each issue below.
Member is defined as any employee who is included in the membership of the system or any
former employee whose membership has not been terminated under Kentucky Revised Statute
(KRS) 61.535. KRS 61.510(8).
After finding that Sizemore is qualified for benefits under KRS
61.600(1),6 the first step in determining whether Sizemore is entitled to retirement
disability benefits is establishing with objective medical evidence that since her
last day of paid employment, she has been mentally or physically incapacitated to
perform her job. KRS 61.600(3)(a). The incapacity must be deemed permanent
and cannot result from a disease or condition pre-existing membership in the
system. KRS 61.600(3)(c)-(d).
To determine whether Sizemore is entitled to retirement disability
benefits, medical examiners must examine the objective medical evidence to
decide if the above factors have been met. Objective medical evidence is defined
in KRS 61.510(33) as
reports of examinations or treatments; medical signs
which are anatomical, physiological, or psychological
abnormalities that can be observed; psychiatric signs
To qualify for benefits, the following conditions must be met:
(a) The person shall have sixty (60) months of service, twelve (12)
of which shall be current service credited under KRS 16.543(1),
61.543(1), or 78.615(1);
(b) For a person whose membership date is prior to August 1,
2004, the person shall not be eligible for an unreduced retirement
(c) The person's application shall be on file in the retirement office
no later than twenty-four (24) months after the person's last day of
paid employment, as defined in KRS 61.510, in a regular full-time
position, as defined in KRS 61.510 or 78.510; and
(d) The person shall receive a satisfactory determination pursuant
to KRS 61.665.
KRS 61.600(1). Sizemore qualified to receive benefits as long as she met the remaining
requirements of total and permanent incapacitation.
which are medically demonstrable phenomena indicating
specific abnormalities of behavior, affect, thought,
memory, orientation, or contact with reality; or
laboratory findings which are anatomical, physiological,
or psychological phenomena that can be shown by
medically acceptable laboratory diagnostic techniques,
including but not limited to chemical tests,
electrocardiograms, electroencephalograms, X-rays, and
psychological tests. . . .
Incapacity is deemed permanent if it is expected to result in death or
can be expected to last for a period of not less than twelve months from the
person’s last date of paid employment. KRS 61.600(5)(a)(1). In addition to the
medical evidence in the file, the determination of permanent incapacity must also
be based upon the member’s ability to perform work activity on a regular and
continuing basis and the member’s ability to stand, sit, walk, lift, and carry various
weights. See KRS 61.600(5)(a)(2), (b), and (c).
1. Total and Permanent Incapacitation to Perform Job Duties
Sizemore failed to prove by a preponderance of the evidence that she
was totally and permanently incapacitated and unable to perform her job or job like
duties as of her last day of paid employment.7 The incapacity is deemed permanent
if it is expected to result in death or last for a period of not less than twelve months
from the person’s last date of paid employment. While Sizemore produced Dr.
Zerga’s deposition testimony as evidence of her incapacity and its permanency, Dr.
Zerga’s records and the reviewing physicians’ opinions of the records indicate
Sizemore was not totally and permanently incapacitated. In fact, Dr. Zerga noted
While the Board found that Sizemore was not totally and permanently incapacitated, it used the
hearing officer’s findings in her recommendations to support its own finding of fact on this issue.
in his records approximately four days after Sizemore’s last date of paid
employment, that Sizemore was doing well, although she was feeling a bit
depressed and did not like her job. In addition, Dr. Zerga found no evidence of any
attacks and noted that Sizemore’s examination was normal. In January 2005,
approximately one month before Sizemore stopped working, Dr. Zerga stated that
she was fatigued but had no cranial nerve symptoms or significant upper extremity
symptoms and her examination was benign other than right arm tremors. Dr.
Kimbel, a reviewing physician, determined “no evidence objectively existed
proving any loss of cognitive function, any functional impairment imposed by
multiple sclerosis consisting of any weakness, extreme dizziness, visual
impairment, or loss of function of her upper and lower extremities.”
Since there was conflicting evidence, the trier of fact determined
which evidence she found more credible. An administrative agency is afforded
great latitude in its evaluation of the evidence heard and the credibility of
witnesses. Although a reviewing court may have arrived at a different conclusion
than the trier of fact, this does not negate the agency’s decision if it is supported by
substantial evidence. Bowling v. Natural Resources & Environmental Protection
Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1995). As a reviewing Court, we can
only decide whether the trier of fact had substantial evidence to determine whether
Sizemore is permanently incapacitated or not. We are not permitted to substitute
our judgment for that of the trier of fact.
In addition to the medical evidence in the file, the determination of
permanent incapacity must also be based upon the member’s ability to perform
work activity on a regular and continuing basis and the physical requirements of
the member’s job. See KRS 61.600(5)(a)(2), (b), and (c). Based on Sizemore’s
testimony, her work activity would fall into the sedentary work category as defined
by KRS 61.600(5)(c).8 The hearing officer and Board had substantial evidence to
find that Sizemore retained the residual functional capacity to work. Supporting
this is the determination by Dr. Kimbel that multiple sclerosis did not preclude
Sizemore from performing her duties.
While we may have found differently than the hearing officer and
Board, the evidence is not so overwhelming that their conclusions were
unreasonable. The hearing officer’s recommendation is supported by Dr. Zerga’s
medical notes, namely the January 17, 2005, January 10, 2005, and March 4, 2008
records. In addition, the reviewing physicians twice issued declarations explaining
why they recommended denial of Sizemore’s claim. The hearing officer’s findings
of fact, as adopted by the Board, are supported by substantial evidence of probative
value and the Board applied the correct rule of law to the facts. Therefore, the
Franklin Circuit Court’s order pertaining to Sizemore’s incapacity is vacated and
remanded for reinstatement of that portion of the Board’s order.
2. Pre-existing Condition
Sedentary work shall be work that involves lifting no more than ten (10) pounds at a time and
occasionally lifting or carrying articles such as large files, ledgers, and small tools. Although a
sedentary job primarily involves sitting, occasional walking and standing may also be required in
the performance of duties. . . .
KERS argues the Franklin Circuit Court erred in finding Sizemore did
not have a pre-existing condition. This issue is important because, if Sizemore
suffered from a pre-existing condition, she would be ineligible for benefits since
she had fewer than sixteen years of service credit. See KRS 61.600(4)(b). In order
to be eligible for retirement disability benefits, an individual’s incapacity must not
result directly or indirectly from bodily injury, mental illness, disease, or condition
which pre-existed membership in the system. KRS 61.600(3)(d). The
determination of when and under what conditions a claimant’s disability arises is a
factual one and agency factual determinations are given a high degree of deference
by the Court. Caudill v. Commonwealth, 240 S.W.3d 662, 665 (Ky. App. 2007).
Here, the hearing officer and Board determined Sizemore’s multiple
sclerosis was a pre-existing condition because, within all reasonable medical
probability, Sizemore suffered from multiple sclerosis prior to her membership in
KERS. Sizemore counters that multiple sclerosis cannot be a pre-existing
condition because she did not have symptoms until three months after becoming a
member of KERS and was not diagnosed until approximately three years after
becoming a member.
In Caudill, the Court held that, where it is clearly possible the injury
arose from previous employment and/or work at home, it could not overturn a
KERS decision. However, Caudill is distinguishable from the case at hand. In
Caudill, office notes from two physicians indicated that Caudill’s injury preexisted his membership in KERS. Furthermore, Caudill testified that his injury
occurred prior to his membership in KERS. There is no such clear cut evidence
here. In fact, the only proof KERS can present to support its position is the treatise
it submitted and Dr. Zerga’s testimony.
We hold both Dr. Zerga’s testimony and the treatise are not
substantial evidence because the issue is Sizemore’s condition, not other patients’
conditions. Dr. Zerga testified in his deposition that Sizemore had not progressed
as severely as he had seen some other patients progress, noting that the destruction
of myelin is a long developing process. However, the issue here is not “some other
patients,” but this patient. No evidence was presented at the hearing that Sizemore
had symptoms of or was diagnosed with multiple sclerosis prior to her membership
in KERS. Sizemore’s first documented symptoms were three months after her
membership began. In those infrequent circumstances in which we impose upon a
party the burden of proving a negative, the quantum of evidence necessary to meet
that burden is minimal. See Dowell v. Safe Auto Ins. Co., 208 S.W.3d 872, 878
(Ky. 2006). Sizemore met the burden by providing her medical records. The
absence of any noted symptom is sufficient to meet the minimal burden of proving
If we were to follow KERS’s position to its logical conclusion that
Sizemore must have had multiple sclerosis prior to her membership because of the
progressive nature of the disease, then any degenerative condition that arises out of
repetitive motion or any degenerative genetic condition would be barred. Clearly,
this is neither the intent nor the purpose of the statute.
While we agree that agency factual determinations are given a high
degree of deference, we believe Sizemore proved by a preponderance of the
evidence that her multiple sclerosis was not a pre-existing condition. Furthermore,
the factual determinations of the hearing officer and the Board were not supported
by substantial evidence as there is no objective medical evidence in the record
establishing that Sizemore’s condition pre-existed her membership. Therefore, we
affirm the Franklin Circuit Court’s order insofar as it determined that Sizemore’s
condition was not pre-existing.
Sizemore claims the only proof KERS provided was a treatise that
was improperly admitted into evidence.
Hearsay evidence may be admissible, if it is the type of
evidence that reasonable and prudent persons would rely
on in their daily affairs, but 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.
KRS 13B.090(1). At the beginning of the administrative hearing Sizemore’s
counsel had the opportunity to object to the admission of the treatise as evidence
and failed to do so. In our opinion, this form of hearsay evidence which is not
objected to, does not rise to palpable error and is admissible. Regardless, the
treatise is not the only evidence upon which KERS relied in that it also used Dr.
Zerga’s deposition testimony as support for its position. However, this is a moot
issue as we have determined Sizemore’s condition was not pre-existing.
Based on the foregoing we vacate the circuit court’s finding and
remand to the circuit court for reinstatement of the Board’s finding to the extent
Sizemore was not totally and permanently incapacitated from her job duties as of
her last day of paid employment. We affirm the circuit court’s finding on the issue
of pre-existing condition.
WINE, JUDGE, CONCURS.
LAMBERT, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
LAMBERT, SENIOR JUDGE, DISSENTING: I respectfully dissent
from the majority opinion as to total and permanent incapacity.
In my view, the Franklin Circuit Court properly determined that the
final decision of the KERS Board of Trustees was unsupported by substantial
evidence. Despite acknowledging that Ms. Sizemore suffered from multiple
sclerosis, the Board held that she was capable of performing her job and was not
disabled within the meaning of the Act.
The circuit court properly analyzed Ms. Sizemore’s acknowledged
incapacity against the correct legal standard. The court believed the Board had
erroneously required constant symptoms and failed to acknowledge that on
occasions, symptoms would be dormant. Rather, the circuit court relied on
evidence from Dr. Zerga that Ms. Sizemore’ s fatigue rendered her completely
disabled. In summary, the trial court said:
Dr. Zerga observed fatigue in his patient and included it
in his diagnosis and his report. These observations
constitute objective medical evidence. While the
reviewing physicians discounted this objective medical
evidence of fatigue resulting from MS, they offered
absolutely no medical or factual basis for concluding that
Dr. Zerga’s medical diagnosis of fatigue was erroneous.
Moreover, it now appears to be undisputed that the
petitioner in fact suffers from MS, which all the
physicians’ testimony indicates is a degenerative disease.
The Court finds that the conclusions of the Board both
lack the support of substantial evidence and are based on
an incorrect interpretation of KRS 61.600. The record
compels a finding that Tammy Sizemore is totally and
permanently disabled, and thus entitled to disability
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Leigh A. Jordan
Winter R. Huff
C. Graham Martin