KENTUCKY RETIREMENT SYSTEMS V. DILLARD WAYNE BROWN (INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF BARBARA FAYE REED BROWN, DECEASED)Annotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
,vuprrutr Courf of ~irnfurhv
KENTUCKY RETIREMENT SYSTEMS
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-000296-MR
FRANKLIN CIRCUIT COURT NO. 04-CI-01106
DILLARD WAYNE BROWN
(INDIVIDUALLY AND AS EXECUTOR OF THE
ESTATE OF BARBARA FAYE REED BROWN, DECEASED)
2008-SC-000898-DG ; 2009-SC-000174-DG
KENTUCKY RETIREMENT SYSTEMS
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2007-CA-002591-MR
FRANKLIN CIRCUIT COURT NO . 06-CI-00815
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 l (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
I. Pre_-existing; Condition
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
Appellee Brown is deceased and her claim is continued by her widower and
executor of her estate, Dillard Wayne Brown .
Although KRS 61 .600 contains several other requirements, we confine our
consideration to the following pertinent parts of that statute which provides :
(3) Upon the examination of the objective medical evidence by
licensed physicians pursuant to KRS 61 .665, it shall be
(b) The incapacity is a result of bodily injury, mental illness,
or disease . For purposes of this section, "injury" means any
physical harm or damage to the human organism other
than disease or mental illness ;
(c) The incapacity is deemed to be permanent ; and
(d) The incapacity does not result directly or indirectly from
bodily injury, mental illness, disease, or condition which
pre-existed membership in the system or reemployment,
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
whichever is most recent. For purposes of this subsection,
reemployment shall not mean a change of employment
between employers participating in the retirement systems
administered by the Kentucky Retirement Systems with no
loss of service credit .
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 pre-
existed 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 :
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
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 Sizmore'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 .
Based on these findings of facts and conclusions of law, the circuit court
reversed the administrative ruling on this issue. The Kentucky Retirement
Systems then sought review in the Court of Appeals.
The Court of Appeals affirmed the circuit court, but on different grounds.
In the court's opinion, the Kentucky Retirement Systems could not rely on any
of Dr. Zerga's statements regarding the progress of "some other patients [sic]
progress" as a basis for determining that Sizemore's condition pre-existed
membership because the "issue here is not `some other patients,' but this
patient." The court further stated that the medical treatises were likewise
insufficient for the same reason-essentially reasoning that the Kentucky
Retirement Systems did not link the article to Sizemore. As a result, the court
found no substantial evidence to support the notion that Sizemore's MS preexisted membership in the Kentucky Retirement Systems .
In addition to noting the inadequacies of the evidence offered by the
Kentucky Retirement Systems, the Court of Appeals further recognized that
Sizemore produced a preponderance of the evidence demonstrating that her MS
was not pre-existing via the testimony of Dr. Zerga, her long-time treating
neurologist. In the court's view, evidence showing "[t]he absence of any noted
symptom is sufficient to meet the minimal burden of proving a negative," as
was required by Sizemore's burden to prove that her condition was not preexisting .
We granted discretionary review and consolidated these cases, and now
A member of the Kentucky Retirement Systems may seek disability
benefits as a result of a total and permanent incapacitation via KRS 61 .600 .
That statute outlines, inter alia, timing requirements and certain administrative
procedures requisite to receive a disability retirement award. However, before
an award may be had, it must be determined that "[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 ." KRS 61 .600(3)(d) . And although the statute does
not explicitly allocate the legal burden of proving whether a condition preexisted membership, we agree that it should be construed with KRS
13B .090(7), which addresses burdens in administrative proceedings, i .e .,
In all administrative hearings, unless otherwise provided by
statute or federal law, the party proposing the agency take
action or grant a benefit has the burden to show the
propriety of the agency action or entitlement to the benefit
sought. . . . The party asserting an affirmative defense has
the burden to establish that defense. The party with the
burden of proof on any issue has the burden of going
forward and the ultimate burden of persuasion as to that
issue. The ultimate burden of persuasion in all
administrative hearings is met by a preponderance of
evidence, in the record. Failure to meet the burden of proof
is grounds for a recommended order from the hearing officer.
A plain reading of KRS 13B.090(7) clearly shows that the party seeking the
benefit bears the burden to show that he - or she is entitled to that benefit.
Moreover, the "placement of the pre-existing condition factor alongside and in
the same subsection [in KRS 61 .600(3)(d)J as other threshold factors such as
the existence of incapacity and permanency militates against treating it as a
full-scale affirmative defense ." McManus v. Kentucky Retirement Systems, 124
S .W.3d 454 (Ky. App. 2003) . And, as 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. Id. at 458 .
In reaching its determination whether a condition is pre-existing, the
Kentucky Retirement Systems must base its decision under the guidance of
KRS 61 .600(3), which requires the evaluation of "objective medical evidence."
Objective evidence, as defined by our legislature, means:
reports of examinations or treatments ; medical signs which
are anatomical, physiological, or psychological abnormalities
that can be observed; psychiatric signs 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
KRS 61 .510(33) . And where the Kentucky Retirement Systems, in its role as a
finder of fact, makes a factual determination based upon objective medical
evidence, it must be afforded "great latitude in its evaluation of the evidence
heard and the credibility of witnesses . . ." including its findings and
conclusions of fact. Kentucky State Racing Comm'n v. Fuller, 481 S.W .2d 298,
308 (Ky. 1972) .
In addition to the great deference given to the fact finder in this case, we
note that, on appellate review, the "[d]etermination of the burden of proof also
impacts the standard of review on appeal." McManus, 124 S.W .3d 454. We
find the Court of Appeals decision in McManus v. Kentucky Retirement Systems
best describes the appellate standard, and thus is worthy of our adoption, to
When the decision of the fact-finder is in favor of the
party with the burden of proof or persuasion, the issue
on appeal is whether the agency's decision is
supported by substantial evidence, which is defined as
evidence of substance and consequence when taken
alone or in light of all the evidence that is sufficient to
induce conviction in the minds of reasonable people .
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 the party's favor
is so compelling that no reasonable person could have
failed to be persuaded by it.
Id. (citations omitted).
Notwithstanding the great deference given to the administrative fact
finder, as we have here, we also believe it necessary in this case to note why
the legislature chose to exclude disability retirement benefits to individuals
who have "pre-existing" conditions. We believe it clear that the legislature's
intention was to prevent a fraud on the retirement systems, to prevent
individuals from knowingly and intentionally filing for disability benefits based
on conditions predating their enrollment . The Kentucky Retirement Systems
was created to provide its employees with a safety net such that in the event
they are injured or succumb to a disease while in the employment of the State,
they are insured with disability retirement benefits .
Importantly, 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. Indeed, 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 8a 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 refered to "objective medical evidence" in KRS 61 .600(3)? See KRS
446.015 ("All bills . . . shall be written in nontechnical language and in a clear
and coherent manner using words with common and everyday meaning.") .
With these guiding principles, we turn to the case at bar and agree that
Brown and Sizemore provided sufficient evidence to prove their conditions did
not predate enrollment in the Kentucky Retirement Systems . We further hold
that no reasonable trier of fact could have failed to have been persuaded by
that evidence .
1. Kentucky .
Retirement Systems v.. Brown
As noted above, Brown produced a voluminous medical record replete
with evidence that she did not have COPD prior to her enrollment in the
Kentucky Retirement Systems . The only contrary medical evidence produced
came in the form of two reviewing physicians, both of whom posited that her
COPD was the result of her smoking habit. As such, the Kentucky Retirement
Systems construed those medical opinions and found that, because Brown
smoked prior to her enrollment and because her COPD was the result of
smoking, her "condition" was one that pre-existed her membership . We
In light of the evidence produced in this case, we believe Brown has more
than adequately satisfied her burden to show that her COPD did not predate
her membership with the Kentucky Retirement Systems. We do not belabor
the issue by reciting the plethora of evidence outlined above ; suffice it to say
the evidence is more than compelling and no reasonable trier of fact could have
reached an opposite conclusion . Rather, we turn to the question of why the
Kentucky Retirement Systems denied her. claim, a ruling it based on an
interpretation of the word "condition" as used in KRS 61 .600 .
In rejecting Brown's disability retirement benefits, the Kentucky
Retirement Systems held that Brown's smoking was a pre--existing condition,
and thus ruled that she was not entitled to benefits under KRS 61 .600 . We
reject that notion .
The term "condition" and its use in KRS 61 .600, is a matter of law, a
question this court may answer de novo. We hold that smoking is not a
condition as it is used under this statute, but rather a behavior. Revenue
Cabinet v. Hubbard, 37 S .W.3d 717 (Ky. 2000) . Our conclusion finds support
in the venerable doctrine of ejusdem generis, which we explained in Steinfeld v.
Jefferson County Fiscal Court, 229 S.W .2d 319, 320 (Ky. 1950) :
[W]here, in a statute, general words follow or precede a
designation of particular subjects or classes of persons, the
meaning of the general words ordinarily will be presumed to
be restricted by the particular designation, and to include
only things or persons of the same kind, class, or nature as
those specifically enumerated, unless there is a clear
manifestation of a contrary purpose.
Here, the word "condition" follows the words bodily injury, mental illness, and
disease. KRS 61 .600(3)(d) . Thus, interpreting "condition" as of the same kind
or nature as the terms "bodily injury," "mental illness," and "disease," we
cannot conclude that the word "condition" encompasses "behavior." 3
Therefore, because Brown sufficiently demonstrated that her condition
did not pre-date enrollment in the Kentucky Retirement Systems and because
the Kentucky Retirement Systems misconstrued the term condition to
In an alternative reasoning, the Court of Appeals, citing KRS 344 .040, held that, by
defining "condition" to include behavior, the Kentucky Retirement Systems ran awry
of "the legislative policy prohibiting discrimination against employees merely
"because the individual is a smoker." While we agree that the legislature did not
intend "condition" to encompass "behavior" and we agree that there is an intent to
protect smokers with regard to employment in KRS 344 .040, we find it unnecessary
to strain such a public policy holding in this case .
encompass behavior, we hold that it erroneously denied her benefits and affirm
the Court of Appeals in this regard .
2. KentuckxvRetirement Systems v. Sizemore
Like Brown, Sizemore provided evidence to prove that her Multiple
Sclerosis did not pre-date her membership in the Kentucky Retirement
Systems. The only counter evidence offered by the Kentucky Retirement
Systems came in the form of a learned, scholarly treatise which was introduced
unaided by explanation of a medical expert.
We again find it unnecessary to reiterate the medical evidence produced
by Sizemore, which tended to show that her MS was not pre-existing. It too
was enough to carry the burden of a preponderance of evidence in this case
and we believe no reasonable trier of fact could have rejected this evidence
standing alone .
We do, however, find it necessary to address the correctness of the
Kentucky Retirement Systems' decision to deny benefits to Sizemore based
upon a scholarly medical article, and consequently the Court of Appeals
decision in this regard .
A medical treatise or article alone, written in the abstract or concerning
another patient, is never sufficient to qualify as objective medical evidence .
KRS 13B .090(1) ; KRE 803(18) . Its authority may, however, be pertinent to an
administrative trier of fact to the extent that it helps to understand medical
concepts, terminology, or theories, but only to the extent to which they apply to
the present case. As is pertinent here, a medical treatise relied on by a
reviewing physician may have been properly reliable where that medical expert
links the article to the physician's review of the objective evidence. Where that
link is absent, the treatise is irrelevant, as it neither proves nor disproves
anything with regard to the case/patient at hand; rather it deals with statistics
or methodologies on a larger scale .
Here, no physician but Dr. Zerga passed on whether Sizemore's condition
pre-existed her membership, and he testified that he thought it did not. The
only authority for which the Kentucky Retirement Systems relied on in
reaching the opposite conclusion came in the form of a medical treatise which
theorized the normal development of MS is approximately eleven years. Given
its bald admission into evidence, and the fact that no medical authority linked
the article's conclusions or theories to Sizemore, it was wholly insufficient to
demonstrate that Sizemore's MS pre-existed membership or that she knew of
or should reasonable have known it. We therefore hold that it was error for the
Kentucky Retirement Systems to rely on the medical treatise as counter
evidence regarding whether Sizemore's MS pre-existed membership .
Therefore, because we hold that Sizemore properly carried her burden,
and because the Kentucky Retirement Systems improperly relied on the
medical article in this case, we affirm the Court of Appeals on this issue .
Having determined the issues common among Brown and Sizemore, we
now turn to the question unique to Sizemore's appeal .
II. Sizemore's Total and Permanent Incapacitation
As also required by KRS 61 .600, Sizemore bore the burden to show that
she was permanently incapacitated to perform her job or job like duties . And
as part of her efforts to do so, Sizemore again offered the testimony of Dr.
Zerga, who stated in part:
My opinion is I think she could sit if she didn't have to do
anything else; if she didn't have to interact with people, if
she didn't have to make cognitive processing decisions, if she
didn't have to fill out paperwork, if she didn't have to do
repetitive data entry. . . . But, as far as being able to
perform the functions of her job, no, sir.
Dr. Zerga based his opinion regarding total disability, in part, on his
conclusion that Sizemore suffered from chronic fatigue, a condition he testified
frequents patients with MS . What is more, Dr. Zerga, relying on
article from the National MS Society, noted that fatigue is the most common
reason for MS patients to depart the work force . He further testified that
fatigue with MS patients is a "rather constant symptom," and is different from
normal fatigue, which normally may be resolved by taking a nap or sitting
However, the Kentucky Retirement Systems interpreted Sizemore's
medical records differently, and held that she was not entitled to benefits
because she was not totally and permanently disabled . In its view, Dr. Zerga's
notes demonstrated Sizmore's lack of total and permanent disability, i.e. :
(1) a report from Dr. Zerga dated March 5, 2005 (days after Sizemore's last pay
period) indicating that Sizemore was doing well, with "no evidence of any
attacks," and her examination was normal; (2) a report from Zerga on January
10, 2005 where Dr. Zerga noted complaints of fatigue and numbness, but no
cranial nerve symptoms and no significant upper extremity symptoms and
ultimate impression as stable ; (3) an MRI dated January 10, 2005, revealing
some white matter, "some just seen," but not definitely active; (4) a nerve
conduction study dated January 17, 2005 showing very mild bilateral carpal
tunnel, with no evidence of major entrapment and notes from Zerga stating
that he was going to alter her medication to see if he could improve her sleep
and decrease her fatigue. Based on this alone, the Retirement Systems' Board
of Trustees adopted the reasoning of the hearing officer (concluding that
Sizemore's MS was pre-existing) and added a finding of fact that she was not
permanently and totally unable to work.
On review, the Franklin Circuit Court reversed the administrative ruling,
holding the Board of Trustees' assessment of Sizemore's total and permanent
"a misinterpretation of KRS 61 .600 or a misunderstanding
regarding the nature of relapsing/ remitting MS." The circuit court reasoned
that Dr. Zerga's reports constituted objective medical evidence supporting
Sizemore's total and permanent incapacitation and that "[s]o long as a doctor
bases those judgment calls on observable facts, and the doctor is trained to
make such judgments, the Board cannot disregard those judgments on the
grounds that they are `subjective .' In contrast, the circuit court considered
the reports of Drs . McElwain and Keller as unsupported by "objective medical
evidence" and further found that their opinions, which countered Zerga's
conclusions, contained "absolutely no medical or factual basis ." As a result,
the circuit court concluded "[t]he record compels a finding that Tammy
Sizemore is totally and permanently disabled, and thus entitled to disability
benefits ." From that adverse decision, the Kentucky Retirement Systems
sought review in the Court of Appeals.
The Court of Appeals reversed the circuit court, reasoning that there was
evidence to support the notion that Sizemore was not permanently and totally
incapacitated. The court relied on Dr. Kimbel's determination that "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." And although not directly correlating the
objective medical evidence to Dr. Kimbel's conclusions, the court referenced Dr.
Zerga's notes, recorded approximately four days after Sizemore's last date of
paid employment, which stated that Sizemore was "doing well, although she
was feeling a bit depressed and did not like her job" and "no evidence of any
attacks ." Furthermore, the court noted that in January 2005, approximately
one month before she stopped working, Dr. Zerga stated that Sizemore "was
fatigued but had no cranial nerve symptoms or significant upper extremity
symptoms and her examination was benign other than right arm tremors."
And while the Court of Appeals recognized that there was contrary testimony
from Dr. Zerga, it ultimately held that where a conflicts exists the
administrative body's ruling should be given deference, unless the evidence "is
so overwhelming that their conclusions are unreasonable."
Given the conflicting medical opinions on this issue, we cannot say that
the Kentucky Retirement Systems acted erroneously. As noted above, we give
great latitude in its evaluation of the evidence heard and the credibility of
witnesses, including its findings and conclusion of fact." Kentucky State
Racing Comm'n v. Fuller, 481 S .W.2d 298 (Ky. 1972) . Unlike the issue of pre-
existing condition, the Kentucky Retirement Systems had reason to find that
Sizemore was not totally disabled, e .g., the conflicting medical testimony.
Kentucky Comm'n On Human Rights v. Fraser, 625 S.W.2d 852 (Ky. 1981) .
While this Court may have come to a different conclusion, we are constrained
not to substitute our judgment for the fact finder unless we can determine that
no reasonable trier of fact could have made the same conclusion. R. R. Comm'n
v. Chesapeake & Ohio R.R., 490 S.W .2d 763 (Ky. 1973) . We cannot agree that
no reasonable trier of fact could have reached the Kentucky Retirement
System's conclusion . We therefore affirm the Court of Appeals on this issue as
For the foregoing reasons, we affirm the Court of Appeals in both of these
consolidated cases .
All sitting. Minton, C.J. ; Abramson, Cunningham, Schroder, and
Venters, JJ ., concur. Noble, J ., concurs in' result only.
COUNSEL FOR APPELLANT/ CROSS-APPELLEE, KENTUCKY RETIREMENT
Jennifer A. Jones
James Eric Wampler
Michael Todd Butler
Katherine I. Rupinen
Leigh Ann Jordan
Brian C . Thomas
Amy O'Nan Peabody
Perimeter Park West
1260 Louisville Road
Frankfort, KY 40601
COUNSEL FOR APPELLEE, DILLARD WAYNE BROWN:
Joseph Hubert Mattingly, III
Mattingly, Nally-Martin, & Fowler, PLLC
104 West Main Street
P.O . Box 678
Lebanon, KY 40033
COUNSEL FOR APPELLEE/ CROSS-APPELLANT, TAMMY SIZEMORE :
Cordell Graham Martin
P.O . Box 790
Salyersville, KY 41465
Arden Winter Robertson Huff
Law Offices of John G. Prather, PSC
P.O. Box 616
Somerset, KY 42502-0616