RENDERED: JANUARY 29, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0786-MR

KELLY SHAY NEAL APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT

v. HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 18-CI-00330

KENTUCKY RETIREMENT SYSTEMS AND 

BOARD OF TRUSTEES OF KENTUCKY 

RETIREMENT SYSTEMS APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

JONES, JUDGE: The Appellant, Kelly Shay Neal, appeals a decision by the 

Franklin Circuit Court affirming a decision by the Kentucky Retirement Systems 

(“Retirement Systems”) to deny Neal’s application for disability retirement 

benefits. Having reviewed the record and being otherwise sufficiently advised, we 

likewise AFFIRM.
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I. BACKGROUND AND PROCEDURAL HISTORY

Neal was born on August 1, 1978. She was formerly employed as an 

Administrative Specialist II by the Energy and Environment Cabinet’s Department 

of Environmental Protection, Division of Waste Management, Hazardous Waste 

Branch (the “Branch”). Neal’s reemployment was November 1, 2002, and her last 

day of paid employment was December 31, 2013. As of her last day of paid 

employment, Neal was 35 years old and had 166 months (13.8 years) of 

accumulated service credit. 

As an Administrative Specialist II, Neal worked 37.5 hours a week. 

Neal’s job was classified as sedentary, and her duties consisted of preparing and 

copying public notices for mailing, preparing labels and envelopes, contacting the 

media, typing and writing standard operating procedures, electronically filing and 

scanning documents, serving as the Branch’s training coordinator, and handling all 

aspects of public notices for the Branch. Neal testified that she spent

approximately one and a half hours of her typical workday standing or walking, 

while the other six were spent sitting; however, her employer reported that Neal 

was seated the entire day. 

Neal requested a number of accommodations throughout the course of 

her employment due to her medical conditions: that another employee take the 

public notice administrative records to the library; to hang a curtain in her doorway 
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for privacy if she needed to lay down or needed more darkness; that she be allowed 

to bring in a mat or bean bag to lay on; taller cubicle walls; that the fluorescent 

lights in her office be turned off and to have dimmed lighting; a new ergonomic 

chair; no lifting greater than five pounds; and a wrist rest for typing. All of these 

requests were granted. 

Following her last day of paid employment, Neal applied for disability 

retirement benefits pursuant to KRS1 61.600. Neal initially alleged disability due 

to post-traumatic stress disorder (“PTSD”), fibromyalgia, chronic fatigue 

syndrome, anxiety disorder, depression, osteoarthritis, back surgery/spinal stenosis, 

degenerative disc disease, interstitial cystitis, chronic migraines, multiple dental 

surgeries and procedures, and carpal tunnel syndrome.2 When describing how 

these conditions were disabling, Neal wrote: “Unable to work regularly. Unable to 

function at full capacity, cognitive issues, sleep disorder, debilitating migraines and 

chronic pain, unable to perform basic daily task [sic].” Neal indicated that the 

onset of her musculoskeletal pain and migraines occurred in October 2007 as a 

result of low back injuries she sustained in a 2007 motor vehicle accident. Neal 

 

1 Kentucky Revised Statutes. 

2 Neal has since abandoned her disability claim with regards to her PTSD, anxiety disorder, and 

dental procedures.
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testified that her cystitis began prior to the accident and that she was treated with 

bladder surgery in 2006.

Upon initial review, a majority of the Medical Review Board denied

Neal’s application for benefits. The Medical Review Board was comprised of 

three physicians: Dr. William Keller, Dr. Donald Merz, and Dr. Nancy Mullen. 

Dr. Keller recommended a one (1) year approval of benefits because Neal’s 

psychological problems prevented her from functioning consistently in her job. 

Dr. Merz recommended denial of benefits because Neal’s repeated neurological 

exams were normal, repeated evaluations revealed no significant musculoskeletal 

impairment, and her cystitis, chronic migraines, and carpal tunnel syndrome were 

all treatable conditions that are not a basis for disability. Dr. Merz suggested that 

Neal should submit a functional capacity evaluation. Dr. Mullen also 

recommended denial of benefits because she found Neal’s pre-existing 

psychological conditions to be responsible for her disability. Dr. Mullen noted that 

a June 22, 2012, post-operative MRI of Neal’s lumbar spine showed no evidence

of disc protrusion, spinal stenosis, lateral recess stenosis, or abnormalities 

lateralizing to the symptomatic left side.

On September 28, 2015, Neal submitted another application for 

benefits to Retirement Systems, which she later supplemented with additional 

medical records and a list of her medications. Neal’s application was again
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reviewed by the Medical Review Board, this time consisting of three new doctors: 

Dr. William Duvall, Dr. John Albers, and Dr. Michael Growse. 

The Medical Review Board unanimously rejected Neal’s application 

for benefits. Dr. Duvall recommended denial of benefits based on his 

determinations that Neal’s PTSD, anxiety, and depression were preexisting 

conditions and that Neal’s fibromyalgia, fatigue, migraines, cystitis, carpal tunnel, 

and low back pain were not severe enough to support a disability claim. Dr. 

Growse recommended denial of benefits because he found no evidence that Neal’s 

orthopedic conditions had resulted in a functional capacity restriction that did not 

accommodate her sedentary position and because Neal had not submitted any 

functional capacity evaluations. Dr. Albers recommended denial of benefits 

because Neal had been accommodated to the extent that she was not totally 

disabled and incapacitated from performing her job or one of a similar nature. 

After her second denial, Neal requested an administrative hearing, at 

which time the parties filed additional employment and medical records, and 

Neal’s claim was assigned to a hearing officer. The administrative hearing was 

conducted on July 11, 2017, at which Neal was the only witness. On January 15, 

2018, the hearing officer issued his Findings of Fact, Conclusions of Law, and 

Recommended Order. The hearing officer explained that there were no functional 
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capacity evaluations

3

to show Neal’s inability to perform her sedentary job as 

accommodated by her employer and questioned Neal’s credibility. The hearing 

officer made the following specific findings:

10. . . . [Neal] has not shown by a preponderance of the 

objective medical evidence that her back surgery, spinal 

stenosis, and degenerative disc disease (DDD) 

permanently incapacitated her from doing a sedentary 

duty job or jobs of like duties since her LDOPE [last day 

of paid employment] and the twelve months immediately 

following. In 2007, [Neal] was involved in a [motor 

vehicle accident (“MVA”)]. X-rays showed pars defect 

present at L5-S1 without anterior slip of the discs and the 

disc were well maintained. In January [2009], Dr. 

Vascello administered lumbar facet injections. In 

February 2009, a CT scan of the lumbar spine showed 

minimal disk [sic] bulge, no canal stenosis or 

neuroforaminal stenosis and bilateral pars defects at L5 

without spondylolisthesis. In October 2009, [Neal] had 

lumbar fusion at L4-5 and L5-S1. Medical records 

following the surgery showed positive. In May 2010, Dr. 

Brown charted chronic back pain was much improved 

after the lumbar fusion. In 2012 and 2011, Dr. 

Wainwright noted improvement following the surgery. 

A June [2012] lumbar MRI showed normal other than 

postoperative changes. There was no evidence of disc 

protrusion, spinal stenosis or abnormalities to the 

symptomatic left side. Cervical spine x-rays in 2012 

showed unremarkable. Dr. Vascello noted excellent 

results in July 2012 and noted complete resolution of the 

previous severe lower extremity and lower back pain 

following the 2009 lumbar fusion. [Neal] testified that 

she was not advised to stop working due to the back 

condition.

 

3 The hearing officer noted that Neal did submit functional-capacity-evaluation-type statements 

for her hearing, but all three statements were completed in late 2015 or early 2016. Additionally, 

one of these evaluations was incomplete.
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[Neal] has not shown by a preponderance of the objective 

medical evidence that her osteoarthritis, fibromyalgia, 

[and] chronic fatigue syndrome conditions permanently 

incapacitated her from a sedentary duty job or job of like 

duties since her LDOPE and the twelve months 

immediately following. In November 2012, Dr. Brown’s 

[sic] performed a complete joint examination which 

showed full [range of motion] in shoulders, wrists, 

elbows, and hands, good flexion in the hips and normal 

strength testing. The DDD, low back pain and chronic 

fatigue all showed stable. The fibromyalgia condition 

also showed improved on medications in August 2012. 

In July 2013, medical records from Dr. Brown who 

diagnosed the osteoarthritis showed normal physical 

examinations, stable fibromyalgia, stable fatigue, stable 

DDD, and stable low back pain. Following the LDOPE 

in April 2014, Dr. Brown opined the fibromyalgia was 

stable and the low back was improved and more tolerable 

with medication. Dr. Brown noted in March 2014 that 

the fatigue had been stable. [Neal] was given work 

restrictions for the conditions and employer met all 

restrictions with reasonable accommodations. 

[Neal] has not shown by a preponderance of the objective 

medical evidence that her chronic migraines 

permanently incapacitated her . . . . [Neal] testified the 

first problem with the condition was in 2007. Dr. 

Robertson treated her after 2011 with occipital nerve 

blocks every three months which provided relief for 

about two months. Dr. Robertson opined [Neal] had 

“excellent benefits” from the nerve blocks. Prior to 2013 

[Neal] had one migraine per week which lasted one to 

three days. [Neal] had work restrictions of being off 

intermittently and no fluorescent lighting, but there was 

no recommendation to stop working. The medical testing 

showed a negative CT scan in 2011, cervical spine 

flexion-extension x-rays were negative in 2012, and a 

brain MRI in 2012 showed normal with no acute process. 

[Neal] had bilateral nerve blocks in May 2011 with only 

1-2 migraines in the two months following; two 
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migraines per month lasting 1-2 days in May 2012; and 

reported good response to treatment with nerve blocks, 

trigger point injections and employer’s accommodations 

in March 2013. The 2013 opinion was only nine months 

prior to the LDOPE and noted about one migraine 

headache per month. The records showed only two nerve 

blocks in the year following her LDOPE. In March

2014, Dr. Robertson completed an FMLA [Family and 

Medical Leave Act, 29 United States Code (“U.S.C.”) § 

2601 et seq.] form for intermittent leave for debilitating 

migraine headaches. He noted the frequency at 1-3 times 

per months and 4 hours to 2 days in length. The request 

by [Neal] and supported by physician was only for 

intermittent leave and not a request for permanent leave. 

In addition, employer had granted all requested 

reasonable accommodations for the condition. [Neal] 

testified that she was not advised to stop working due to 

the condition. 

[Neal] has not shown by a preponderance of the objective 

medical evidence that her carpal tunnel (CTS) 

permanently incapacitated her . . . . [Neal] testified that 

the condition started after 2010 and her last treatment 

was in 2013. There was no surgery or planned surgery. 

There was no NVC study. Wrist splints were 

recommended and ergonomical desk and typing center 

were provided. There was no recommendation to stop 

working due to the condition. [Neal] testified that she 

was not advised to stop working due to the condition.

[Neal] has not shown by a preponderance of the objective 

medical evidence that her interstitial cystitis 

permanently incapacitated her . . . . [Neal] had surgery in 

September 2006 which helped the symptoms. The 

condition was episodic and intermittent. [Neal] had 

flareups [sic] about four times per year and employer 

allowed her intermittent time off due to the condition. 

The employer also allowed [Neal] constant [access] to a 

bathroom as required by the work restrictions. The 
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condition was accommodated and medically managed 

with medications managed diet [sic].

Record (“R.”) at 20-23 (emphasis in original).

Although Neal filed her exceptions to the recommended order on 

February 1, 2018, the hearing officer’s recommended order was ultimately adopted 

with one typographical correction by the Disability Appeals Committee of the 

Board of Trustees (“the Board”). Neal then filed a petition for judicial review of 

the Board’s final order with the Franklin Circuit Court pursuant to KRS 13B.140 

and KRS 61.665. On March 28, 2019, the circuit court affirmed the Board’s final 

order. The circuit court concluded that:

The Committee relied on substantial evidence in finding 

that [Neal] was not permanently mentally or physically 

disabled as of her last date of paid employment by her 

PTSD, fibromyalgia, chronic fatigue syndrome, anxiety 

and depression, osteoarthritis, back surgery, spinal 

stenosis, degenerative disc disease, interstitial cystitis, 

chronic migraines, . . . and carpal tunnel syndrome. Even 

considering the cumulative impact of those conditions, 

[Neal] did not carry her burden to show that she was 

unable to perform her sedentary job duties, with the 

accommodations made by the Cabinet. There is some 

evidence that [Neal] suffers from various conditions such 

as fibromyalgia, chronic fatigue syndrome, and 

migraines, and that she was treated for numerous 

conditions following a 2007 motor vehicle accident. 

Still, the Court finds that there is not evidence in the 

record “so compelling that a reasonable person could fail 

to be persuaded” that her conditions, either individually 

or cumulatively, are permanently disabling and not preexisting. McManus v. Kentucky Retirement Systems, 124 

S.W.3d 454, 458 (Ky. App. 2003); KRS 61.600. 
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Moreover, there is no substantial evidence that her preexisting conditions were substantially aggravated by an 

accident or injury arising out of the course of 

employment.

R. at 214.

This appeal followed. 

II. STANDARD OF REVIEW

The administrative review process terminates when the Board issues a 

final order, which “shall be based on substantial evidence appearing in the record 

as a whole and shall set forth the decision of the board and the facts and law upon 

which the decision is based.” KRS 61.665(3)(d). The McManus4standard, in 

conjunction with KRS 13B.150, provides the standard for judicial review of the 

Board’s decision. Kentucky Retirement Systems v. Ashcraft, 559 S.W.3d 812, 819 

(Ky. 2018).

Judicial review begins within the framework of KRS 13B.150(2), 

which provides:

(2) The court shall not substitute its judgment for that of 

the agency as to the weight of the evidence on questions 

of fact. The court may affirm the final order or it may 

reverse the final order, in whole or in part, and remand 

the case for further proceedings if it finds the agency’s 

final order is:

(a) In violation of constitutional or statutory 

provisions;

 

4 McManus, 124 S.W.3d at 458.
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(b) In excess of the statutory authority of the 

agency;

(c) Without support of substantial evidence 

on the whole record;

(d) Arbitrary, capricious, or characterized by 

abuse of discretion;

(e) Based on an ex parte communication 

which substantially prejudiced the rights of 

any party and likely affected the outcome of 

the hearing;

(f) Prejudiced by a failure of the person 

conducting a proceeding to be disqualified 

pursuant to KRS 13B.040(2); or

(g) Deficient as otherwise provided by law.

Id. 

When an appellant alleges that the Board’s decision is not supported 

by sufficient evidence, the reviewing court must first consider whether the denial is 

supported by substantial evidence. If it is not so supported, the court is required to 

reverse pursuant to KRS 13B.150(2)(c) and KRS 61.665(3)(d) regardless of who 

bore the burden of proof before the Board. Bradley v. Kentucky Retirement 

Systems, 567 S.W.3d 114, 119 (Ky. 2018). 

If the reviewing court determines that there is some substantial 

evidence to support the decision, it then must apply the McManus standard, which 
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is predicated on which party bore the burden of proof at the administrative level. 

Ashcraft, 559 S.W.3d at 817.

Determination of the burden of proof also impacts the 

standard of review on appeal of an agency decision. 

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. See Bourbon County 

Bd. Of Adjustment v. Currans, Ky. App., 873 S.W.2d 

836, 838 (1994); Transportation Cabinet v. Poe, Ky., 69 

S.W.3d 60, 62 (2001) (workers’ compensation case); 

Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 

(1986). 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. See Currans, supra; 

Carnes v. Tremco Mfg. Co., Ky., 30 S.W.3d 172, 176 

(2000) (workers’ compensation case); Morgan v. Nat’l 

Resources & Environ. Protection Cabinet, Ky. App., 6 

S.W.3d 833, 837 (1999). 

McManus, 124 S.W.3d at 458. 

As the Bradley Court explained, the distinction McManus accounts for 

is the more deferential role that the appellate court should apply when reviewing 

and assessing the evidence. 

Preponderance of the evidence is the applicant’s burden 

of proof before the hearing officer and Board, while the 

“compelling evidence” standard in McManus is a judicial 

standard of review applied by the court after the 

administrative process has concluded. As noted 
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repeatedly, it is a high standard because of the deference 

owed the administrative fact-finder. If courts re-applied 

the preponderance of the evidence standard, they would 

be assessing the evidence and weighing it de novo, in 

direct violation of KRS 13B.150(2)’s directive that courts 

“shall not” substitute their judgment for the fact-finder on 

issues of fact.

Bradley, 567 S.W.3d at 120. 

III. ANALYSIS

Neal’s application for disability retirement benefits was predicated on 

numerous alleged conditions, including her PTSD, fibromyalgia, chronic fatigue 

syndrome, anxiety disorder, depression, osteoarthritis, back surgery/spinal stenosis, 

degenerative disc disease, interstitial cystitis, chronic migraines, multiple dental 

surgeries and procedures, and carpal tunnel syndrome. For the purposes of this 

appeal, Neal is no longer pursuing disability benefits for her PTSD, anxiety, and 

depression, and dental surgeries. As for her other conditions, Neal asserts that they 

did not arise until her motor vehicle accident in 2007 and therefore cannot be 

considered pre-existing. She also maintains that her health conditions are 

permanently disabling based upon their cumulative effect. 

“A member of the Kentucky Retirement Systems may seek disability 

benefits as a result of a total and permanent incapacitation via KRS 61.600.” 

Kentucky Ret. Sys. v. Brown, 336 S.W.3d 8, 13 (Ky. 2011). KRS 61.600(3)(d) 

provides that to be qualified for disability benefits, a claimant with less than 
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sixteen (16) years of service credit with employers participating in the retirement 

systems administered by Retirement Systems must show that her incapacity did not 

result directly or indirectly from bodily injury, mental illness, disease, or condition 

which pre-existed her membership in the system or reemployment, whichever is 

most recent. KRS 61.600(4)(b). A “pre-existing condition” is a bodily injury, 

disease, or illness that is “symptomatic and thus . . . known or reasonably 

discoverable” to an individual at the time of employment. Brown, 336 S.W.3d at 

15. Because Neal has less than sixteen (16) years of service credit, consideration 

of pre-existing conditions is required. 

KRS 13B.090(7) plainly states that the claimant bears the 

burden of proving his entitlement to a benefit by a 

preponderance of the evidence. In claims brought under 

KRS 61.600, this includes the burden of establishing that 

the condition did not exist at the time the claimant 

became a member of the Systems. There is nothing in 

either statute to support the conclusion that the claimant 

must only make a threshold showing. The Systems may 

or may not present evidence to rebut the claimant’s 

proof. Regardless, the burden does not shift to the 

Systems.

Kentucky Ret. Sys. v. West, 413 S.W.3d 578, 581 (Ky. 2013).

“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.’” Brown, 

336 S.W.3d at 14. Objective medical evidence is defined as:
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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 

psychological tests[.]

KRS 61.510(33).

Neal contends she has met her burden of proof because “none of [her] 

medical records prior, or even subsequent to [Neal’s 2002 reemployment] date so 

much as hint of any pre-employment condition that might have any causal 

relationship to any of the conditions responsible” for Neal’s medical state. 

Appellant’s Br. at 14. Neal claims without citation that “every provider of record 

established the date of Neal’s October 2007 auto accident as the onset of her 

fibromyalgia, osteoarthritis, and migraine headaches.”5 Id. Neal argues that her 

hearing testimony and her 2007 medical records show that her conditions began 

after her October 2007 accident. 

 

5 Additionally, there is no evidence to suggest that Neal’s examining physicians, Drs. Robertson, 

Brown, Kiefer, and Vascello, were provided with Neal’s medical records contemporaneous to 

and dated prior to her reemployment date. 
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Neal presented only one medical record pre-dating her November 1, 

2002, reemployment date. This record, dated July 18, 2001, from Frankfort 

Regional Hospital involved early labor. Upon review of Neal’s record, the hearing 

officer reasoned, “[t]he one record does not meet the burden of preponderance of 

the evidence in KRS 13B.090(7) or a ‘plethora of evidence’ referred to in Brown v. 

Retirement Systems, 336 S.W.3d [at 11.]” Hearing Officer’s Findings of Fact, 

Conclusions of Law, and Recommended Order at 14-15. As the circuit court 

noted:

In her exceptions to the Hearing Officer’s Recommended 

Order, [Neal] states that the Hearing Officer cannot 

identify any medical records related to many of her 

supposedly pre-existing conditions generated before 

August 2007. . . . However, the burden is on [Neal] to 

show that she did not know or have any reason to know 

that she had pre-existing, disabling conditions; such a 

burden is difficult to carry when she has submitted a 

dearth [of] medical records predating her employment. 

Because she bore the burden of proof and had the ability 

to obtain and submit her own medical records, a lack of 

older medical records demonstrating the earlier absence 

of these conditions falls against [Neal] rather than the 

Committee.

R. at 212.

Moreover, there is evidence to suggest that Neal’s musculoskeletal 

issues actually began prior to her October 19, 2007, auto accident. A treatment 

note from Women’s Care of the Bluegrass dated three (3) months prior to Neal’s 

accident indicates that Neal was symptomatic for sciatica, and a treatment note 
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from Dr. J. Rick Lyon dated August 27, 2007, recorded that Neal was assessed 

with lumbar disc disorder, contusion of the back, and backache unspecified. Neal 

reported to Dr. Lyon that her discomfort was a ten on a scale of one to ten with the 

symptoms aggravated by walking, activity in general, standing, running, and stairs. 

A September 12, 2007, physical therapy note indicates that Neal had been 

complaining of lower back pain since June 9, 2007. 

We agree with the circuit court that Neal failed to meet her burden of 

proof by a preponderance of the evidence by failing to submit the necessary premembership records. West, 413 S.W.3d at 582-83. Neal’s subjective testimony 

and contradictory records from 2007 cannot satisfy the West standard. The burden 

of proof cannot be relaxed based upon the nonexistence of the necessary medical 

records. Id. Neal has not sufficiently demonstrated that her conditions did not predate her enrollment in Retirement Systems. See Brown, 336 S.W.3d at 17. 

Neal maintains that the Board’s denial of her application for disability

benefits was not supported by substantial evidence and further that her evidence 

was so compelling that no reasonable person could fail to be persuaded. She

argues that she presented “uncontradicted” evidence proving her cumulative 

disability. We agree with the Franklin Circuit Court that the hearing officer 

addressed all medical records presented and based its decision upon the totality of 
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the evidence when considering the combined effect of Neal’s impairments as 

implicitly required by KRS 61.600.

KRS 61.600 requires Neal to “[bear] the burden to show that she was 

permanently incapacitated to perform her job or job like duties.” Brown, 336 

S.W.3d at 17. Neal must prove that the “cumulative effect” of all her medical 

problems render her totally and permanently disabled “based on objective medical 

evidence, as well as her ‘residual functional capacity and physical exertion 

requirements.’” Kentucky Ret. Sys. v. Bowens, 281 S.W.3d 776, 780 (Ky. 2009). 

An impairment is permanent “if it is expected to result in death or can be expected 

to last for a continuous period of not less than twelve (12) months from the 

person’s last day of paid employment in a regular full-time position.” KRS 

61.600(5)(a)(1) (emphasis added). “The determination of a permanent incapacity 

shall be based on the medical evidence contained in the member’s file and the 

member’s residual functional capacity and physical exertion requirements.” KRS 

61.600(5)(a)(2). KRS 61.600(5)(b) provides that a disability claimant’s residual 

functional capacity:

shall be the person’s capacity for work activity on a 

regular and continuing basis. The person’s physical 

ability shall be assessed in light of the severity of the 

person’s physical, mental, and other impairments. The 

person’s ability to walk, stand, carry, push, pull, reach, 

handle, and other physical functions shall be considered 

with regard to physical impairments. The person’s 

ability to understand, remember, and carry out 
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instructions and respond appropriately to supervision, 

coworkers, and work pressures in a work setting shall be 

considered with regard to mental impairments. Other 

impairments, including skin impairments, epilepsy, 

visual sensory impairments, postural and manipulative 

limitations, and environmental restrictions, shall be 

considered in conjunction with the person’s physical and 

mental impairments to determine residual functional 

capacity.

KRS 61.600(5)(b).

Although medical evidence exists to support Neal’s claims of 

permanent physical disability, five out of six medical examiners that reviewed her 

file recommended denial. To support their denial, the medical examiners noted the 

sedentary nature of Neal’s position, the extensive accommodations granted by 

Neal’s employer, and Neal’s numerous “normal” medical exam results. Further, 

Neal’s medical records indicated that the majority of Neal’s treating physicians 

were pleased with the treatment and the accommodations granted to manage her

conditions in 2013. 

Neal relies upon her medical records pre-dating her December 31, 

2013, last day of paid employment, FMLA forms for intermittent leave, Medical 

Source Statements, and attendance records to support her cumulative disability 

claim. Neal contends that the evidence supporting her permanent disability is 

“uncontroverted,” and yet she testified that she was not advised to stop working 

due to her back condition or migraines. On October 11, 2012, Neal informed Dr. 
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Vascello that her 2009 lumbar fusion almost completely resolved her previously 

severe low back pain. Just nine months prior to her last day of paid employment, 

Dr. Robertson noted that injections worked “wonderfully” for Neal’s migraines. 

Medical records from Dr. Brown dated August 24, 2012, November 20, 2012, 

April 22, 2013, and July 22, 2013, show normal physical examinations, stable 

fibromyalgia, stable fatigue, stable degenerative disc disease, and stable chronic 

low back pain. 

The FMLA forms completed by Drs. Robertson and Brown show that 

Neal’s migraines and musculoskeletal pain were intermittent and episodic in 

nature. All three of Neal’s FMLA forms were applications for intermittent leave, 

not continuous leave. Dr. Brown and Dr. Robertson noted that Neal’s 

musculoskeletal pain and migraines would cause episodic flare-ups that would 

periodically prevent Neal from performing her duties. Dr. Brown noted 

specifically:

[Neal] has severe debilitating migraines that make it 

difficult to function in any capacity on the job. These 

occur on average 1-2 per month and may last 1-3 days. 

She also has less severe migraines as well as tension 

headaches through which she is able to work. . . . 

Medically necessary for her to be absent from work 

during flare-ups.

R. at 510-12 (emphasis added). Drs. Brown and Robertson additionally noted that 

Neal would not be incapacitated for a continuous period of time. 
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Neal also submitted the 2015 and 2016 Medical Source Statements of 

Dr. Wainwright, Dr. Brown, and Dr. Robertson as residual functional-capacitytype statements. Dr. Wainwright noted that although Neal’s interstitial cystitis 

rendered her incapable of focusing for 25% of her workday or more and would 

likely require her to miss work approximately two days per month, Neal was 

capable of low-stress jobs. Dr. Robertson also determined Neal to be capable of 

low-stress work. Finally, Dr. Brown determined that Neal would have to miss 

more than four workdays per month and was incapable of working even low-stress 

jobs but refused to complete the functional capacity portion of his Medical Source 

Statement. These statements do not compel a finding in Neal’s favor. 

Neal additionally contends that her attendance records, in the form of 

a payroll reconciliation report, prove that she was permanently incapacitated based 

upon the cumulative effect of her conditions. However, employment records do 

not constitute objective medical evidence as defined by KRS 61.510(33). 

Kentucky Ret. Sys. v. Harris, No. 2015-CA-000437-MR, 2016 WL 354303, at *4 

(Ky. App. Jan. 29, 2016). Therefore, the payroll reconciliation report is not 

probative evidence as to whether Neal was permanently incapacitated based upon 

the cumulative effect of her conditions.

Neal believes that the hearing officer and Board gave more weight to 

the opinions of the Medical Review Board physicians than those of Neal’s treating 
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physicians. Contrary to Neal’s assertion, however, it does not appear that the 

hearing officer determined that the reports of Neal’s treating physicians were less 

credible than other evidence or the opinions of the medical examiners and should 

therefore be given less weight. Rather, as noted by the circuit court, the Board and 

hearing officer took into account the conflicting statements of Neal’s own doctors 

and medical records. Thus, it is based upon Neal’s own objective medical 

evidence and her own physicians’ statements that Neal was denied an award of 

disability benefits. As the circuit court explained:

[Neal] argues vigorously that [Retirement Systems] did 

not contradict her objective medical evidence 

demonstrating permanent disability. To support a claim 

for disability, however, the burden was on [Neal] to 

demonstrate via objective medical evidence that she is 

permanently disabled from performing her job due to her 

conditions. When the record contains contradictory 

statements regarding the severity of [Neal’s] allegedly 

disabling conditions, or only contains qualified 

statements from physicians to the effect that [Neal’s]

conditions may occasionally result in an absence from 

work, the Committee may rely on the dearth of objective 

medical evidence to support a decision denying benefits. 

This is particularly true in cases concerning conditions 

such as fibromyalgia and chronic fatigue syndrome for 

which objective medical testing is often lacking; the only 

evidence establishing the existence and disabling 

character of such conditions is a physician’s report 

repeating [Neal’s] subjective statements pertaining to 

pain and fatigue. When these physicians likewise report 

that the conditions are manageable with medication and 

that such conditions may only result in intermittent 

absences from work, the Committee is well within its 

discretion to identify such as insufficient to show 
-23-

permanent disability and entitlement to disability 

benefits.

R. at 213-14. 

“The presence of conflicting evidence alone is not enough to reverse 

the Board’s decision. As previously stated, we must only question whether that 

evidence was so compelling that a reasonable person could not arrive at the same 

conclusion.” Hoskins v. Kentucky Ret. Sys., No. 2009-CA-000905-MR, 2011 WL 

112147, at *3 (Ky. App. Jan. 14, 2011). Neal has not shown that the evidence in 

her favor was “so compelling that no reasonable person could have failed to be 

persuaded by it.” Brown, 336 S.W.3d at 14-15 (quoting McManus, 124 S.W.3d 

458). Given the conflicting medical opinions on Neal’s disability, we cannot say 

that the circuit court erred in affirming the Board.

Finally, Neal makes several complaints regarding the administrative 

review process. Neal’s predominant argument is that the opinions and 

recommendations of the medical examiners cannot be considered objective 

medical evidence because (1) they did not actually examine or treat Neal; and (2) 

they only examined the initial medical evidence that Neal submitted along with her 

application for retirement benefits. She additionally argues that “the hearing 

officer’s findings of facts or conclusions [are not] objective medical evidence 

because the hearing officer was not only not a licensed physician, he otherwise had 

no medical training, education, experience or expertise and was thus unqualified to 
-24-

evaluate the complex nature of Ms. Neal’s various disabling conditions.” 

Appellant’s Br. at 12. In response, the Franklin Circuit Court stated:

[Neal] also states that the opinion of the medical review 

panel physicians does not constitute objective medical 

evidence serving as the basis for the final order. While 

the opinions of the panel are not themselves objective 

medical evidence, the Hearing Officer and Disability 

Appeals Committee can certainly take note of the panel’s 

findings and analysis regarding cited objective medical 

evidence. In any case, both entities primarily relied on 

the medical records themselves rather than the context 

and analysis provided by the medical review panel 

physicians.

Next, [Neal] claims that the Hearing Officer was not a 

physician and not capable of interpreting her medical 

records. The Hearing Officer is, of course, not required 

to be a physician. Moreover, the Hearing Officer is only 

one person in the administrative process. The Medical 

Review Panel, the Hearing Officer, and the Disability 

Appeals Committee all had access to the administrative 

record as it had then developed, and the Disability 

Committee was free to accept or reject the Hearing 

Officer’s recommendations. 

R. at 212-13.

“KRS 61.600(3) requires that an application for disability retirement 

benefits be supported by ‘objective medical evidence by licensed physicians[.]’” 

Kentucky Ret. Sys. v. Lowe, 343 S.W.3d 642, 647 (Ky. App. 2011). “Treating 

physicians’ reports are clearly objective medical evidence” even when based on a 

petitioner’s “subjective complaints of pain.” Id. Neal is correct that her 

physicians’ reports are objective medical evidence, while the opinions of the 
-25-

Retirement Systems’ non-examining physicians are not; however, as the circuit 

court pointed out, the hearing officer, Disability Appeals Committee, and courts 

are all permitted to consider the opinions and recommendations of both treating 

and non-treating physicians based upon the objective medical evidence a claimant 

has submitted. See Brown, 336 S.W.3d at 18-19 (Ky. 2011). There is no rule 

“authorizing greater weight to be given to the opinions of the treating physician” 

than those of non-treating physicians. Bowens, 281 S.W.3d at 784. 

Next, Neal argues that, under the logic of Cepero v. Fabricated 

Metals Corporation, a workers’ compensation case, the medical examiners’

opinions cannot be taken into account by either the Board or the courts because 

they are based upon “largely incomplete” information. 132 S.W.3d 839, 842 (Ky. 

2004) (“[W]here it is irrefutable that a physician’s history regarding work-related 

causation is corrupt due to it being substantially inaccurate or largely incomplete, 

any opinion generated by that physician on the issue of causation cannot constitute 

substantial evidence.”). While our courts have previously relied upon the logic in 

workers’ compensation cases to guide retirement disability cases, we do not find 

Neal’s reasoning persuasive in this instance. See McManus, 124 S.W.3d at 458. 

According to Neal, the additional records that she submitted at her 

administrative hearing render the medical examiners’ opinions incomplete. Neal

had the ability to obtain and submit her own medical records to the Medical 
-26-

Review Panels and bore the burden of proving her disability. She has not 

demonstrated how the omission of these records6renders the medical examiners’

medical histories “substantially inaccurate or incomplete.” Moreover, Neal cannot 

depend on her own failure to submit a complete medical history and functional 

capacity evaluations to invalidate medical opinions with which she does not agree. 

Finally, Neal alleges that the hearing officer “may not inject its own 

unqualified medical opinion to draw a conclusion from evidence[,]” citing to 

Corgatelli v. Steel West, Inc., 335 P.3d 1150, 1160 (Idaho 2014) and Koch v. 

Dyson, 448 N.Y.S.2d 698, 729 (N.Y. App. Div. 1982). Neal cites to an 

unpublished case, Kentucky Ret. Sys. v. Rose, No. 2010-CA-002193-MR, 2012 WL 

512587, at *5 (Ky. App. Feb. 17, 2012), in objecting to the hearing officer’s 

qualifications to evaluate Neal’s various conditions. 

There is no statutory or regulatory requirement that hearing officers 

presiding over hearings at Retirement Systems be a licensed physician. Moreover, 

in Hoskins v. Kentucky Retirement Systems, a case cited by Neal herself, our Court 

stated that hearing officers overseeing administrative hearings are capable of 

interpreting medical records:

Medical records are often relied upon by hearing 

officers in administrative proceedings. KRS 13B.090 (2) 

 

6

It is unclear which records exactly Neal refers to, but based on the record and procedural 

history, we will presume that the additional records Neal submitted were the Medical Source 

Statements completed in 2015 and 2016.
-27-

specifically permits “the submission of evidence in 

written form if doing so will expedite the hearing without 

substantial prejudice to any party. KRS 13B.090 (1) 

states that hearsay evidence is admissible if it is the type 

of evidence that reasonable and prudent persons would 

rely on in their daily affairs.” McManus, 124 S.W.3d at 

459.

While the records appear to contain test results and 

x-rays, they also contain notes written during the course 

of treatment from physicians. Hoskins failed to articulate 

why the evidence in this case required a degree or 

specialized knowledge. Nothing indicates that the 

hearing officer interpreted evidence that a reasonable 

person could not understand and rely upon.

No. 2009-CA-000905-MR, 2011 WL 112147, at *4 (Ky. App. Jan. 14, 2011). 

Like Hoskins, Neal has failed to articulate any reasoning as to why the hearing 

officer in her case could not interpret the evidence and medical reports submitted. 

While a hearing officer may not second-guess medical experts or substitute his 

own judgment for that of medical professionals, he may make recommendations 

based upon the evidence presented regarding whether to reject a disability claim, 

which may be accepted or rejected by the Board. 

Neal has not shown that the hearing officer substituted his judgment 

for the opinions of her doctors. Rather, the hearing officer weighed the medical 

opinions and objective medical evidence before him in a 19-page Findings of Fact, 

Conclusions of Law, and Recommended Order, considering Neal’s own testimony, 
-28-

the recommendations of the six medical review panel physicians, and the reports of 

Neal’s treating physicians. 

Our Supreme Court has previously addressed complaints that “the 

Disability Review Committee of the Board is comprised of individuals who are 

untrained in medicine[,]” providing that “the authority to dictate the ‘arrangement’

for processing disability retirement claims clearly belongs to the legislature, not 

this Court.” Bradley, 567 S.W.3d at 121. Any dissatisfaction with the 

administrative process is a matter for the General Assembly rather than the courts.

IV. CONCLUSION

In light of the foregoing, we AFFIRM the March 28, 2019, order of 

the Franklin Circuit Court. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

John Gray

Frankfort, Kentucky 

BRIEF FOR APPELLEES:

Carrie B. Slayton

Frankfort, Kentucky