RENDERED: SEPTEMBER 24, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2017-SC-0258-DG

EDWARD ELDER APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2015-CA-0916-MR

FRANKLIN CIRCUIT COURT NO. 14-CI-00468

KENTUCKY RETIREMENT SYSTEMS APPELLEE

OPINION OF THE COURT BY JUSTICE NICKELL

REVERSING AND REMANDING

Edward Elder appeals the decision of the Kentucky Court of Appeals 

affirming denial of disability retirement benefits by the Board of Trustees of the 

Kentucky Retirement Systems (Systems). In a matter of first impression, this 

appeal addresses the proof required of a public employee with less than sixteen 

years’ service credit1 to establish his genetic condition—present at conception 

but dormant until after a dozen years on the job—was not a “pre-existing” 

 

1 Kentucky Revised Statutes (KRS) 61.600(4)(b) exempts a public employee with 

sixteen years’ service credit from proving a disabling condition did not pre-exist 

employment.
2

condition, disqualifying him from receiving benefits under KRS 61.600(3)(d).2 

We reverse the Court of Appeals, reaffirm as controlling law the legal principles 

announced in Kentucky Retirement Systems v. Brown, 336 S.W.3d 8 (Ky. 2011), 

and remand to Systems for proceedings consistent with this Opinion. 

FACTUAL BACKGROUND

Elder was hired as a school custodian by the Graves County Board of 

Education in August 1995. Upon employment, he became a member of the 

County Employees Retirement System which is administered by Systems.3 

Elder worked regularly until 2007, performing heavy activities and receiving 

glowing evaluations. In 2007, he began accruing health-related absences, 

particularly due to the onset of chronic nosebleeds and gastrointestinal 

bleeding. He had previously enjoyed good health.4

Dr. Charles Winkler began treating Elder for colon cancer on October 24, 

2007. In reviewing notes from Dr. Jeff Carrico, a family practitioner in 

Mayfield, Kentucky, Dr. Winkler wrote in a letter he had learned Dr. Carrico 

had diagnosed Elder with Hereditary Hemorrhagic Telangiectasia (HHT) on 

 

2 In pertinent part, KRS 61.600(3)(d) establishes a public employee with less 

than sixteen years’ service credit may qualify for disability retirement benefits if 

objective medical evidence examined by licensed physicians establishes “[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.”

3 KRS 61.645(1).

4 Elder underwent successful back surgery in 1980, began medication for 

anemia and iron deficiency in 1997, and also received treatment for high blood 

pressure, an allergic reaction to a bee sting, and sleep apnea.
3

August 29, 2007. No basis for the diagnosis was provided. We located no 

notes from Dr. Carrico dated August 29, 2007, but a “patient abstract” of an 

office visit dated August 31, 2007, lists the diagnosis as “HEREDIT HEMORR 

TELANGIEC.”

On September 23, 2008, Elder received a definitive medical diagnosis of 

HHT from Dr. Chandra Prakash Gyawali, a gastroenterology specialist at the 

Washington University School of Medicine in St. Louis, Missouri, based on the 

Curaçao diagnostic criteria.5 Even with treatment, Elder’s condition continued 

to deteriorate, ultimately leading him to retire on September 1, 2011, with only 

180 months (15 years) total service credit.6 His last day of paid employment 

was May 3, 2011.

Though he experienced a single memorable nosebleed as a young adult,7

Elder first sought treatment for chronic and severe nosebleeds in 2007. Pre2007 medical records submitted by Elder contain no mention of long-term or 

severe nosebleeds, but erroneously noted he had been diagnosed with HHT in 

the 1980’s. Elder sought to correct the erroneous historical notations by filing 

 

5 The Curaçao diagnostic criteria were developed in 1999 and involve four 

diagnostic factors for the diagnosis of HHT. A definitive diagnosis of HHT is medicallyindicated if three of the four criteria are present. Dr. Gyawali diagnosed Elder’s HHT 

after establishing the co-existence of recurring and spontaneous epistaxis 

(nosebleeds), family history of HHT (mother and sister), and gastrointestinal 

telangiectasia. The fourth criteria is arteriorvenous malformations (AVMs). 

https://curehht.org/understanding-hht/diagnosis-treatment/diagnostic-criteria-hht/

6 According to Systems, Elder had not purchased seven summer months and 

did not earn service credit for October-December 2002 while on medical leave.

7 Elder recalled his bride became upset when, as a newlywed, he suffered a 

nosebleed resulting in a bloodstained pillow.
4

an affidavit to clarify it was his mother who had been diagnosed with HHT in 

the 1980s, and he testified consistently. In contrast, Elder’s post-2007 medical 

records are replete with references to daily nosebleeds—sometimes five or six a 

day—along with other associated HHT symptoms. As his nosebleeds and other 

difficulties worsened, Elder became dependent on regular iron infusions and 

blood transfusions.

PROCEDURAL SUMMARY

Without counsel, Elder applied for disability retirement benefits in 

August 2011. Using Form 6000, Systems’ standard application, Elder 

attributed his disability to the 2007 onset and worsening of the debilitating 

symptoms of HHT, though he readily admitted the condition’s hereditary 

nature. Under “Members Statement of Disability,” Elder copied the following 

definition of HHT, obtained from the National Center for Biotechnology 

Information (NCBI) website8:

Hereditary hemorrhagic telangiectasia (Osler-WeberRendu disease) is an autosomal dominant, systemic 

fibrovascular dysplasia in which telangiectases, 

arteriovenous malformations, and aneurysms may be 

widely distributed throughout the body vasculature. 

Major clinical manifestations include: recurrent 

bleeding from mucosal telangiectases and 

arteriovenous malformations; hypoxemia, cerebral 

embolism, and brain abscess due to pulmonary 

arteriovenous fistulas; high-output congestive heart 

failure and portosystemic encephalopathy from hepatic 

arteriovenous malformations; and a variety of 

neurologic symptoms due to central nervous system 

angiodysplasia. Therapy is primarily supportive, 

consisting of iron supplementation and blood 

 

8 https://www.sciencedirect.com/science/article/abs/pii/0002934387901628
5

transfusion. Septal dermoplasty and oral estrogens

may allow prolonged remission of epistaxis, but 

permanent surgical cure of gastrointestinal bleeding is 

rarely feasible because of diffuse angiodysplasia of the 

alimentary tract. Ligation, resection, or embolization 

may be indicated for pulmonary arteriovenous fistulas. 

The prognosis and survival of patients with hereditary 

hemorrhagic telangiectasia are favorable, providing 

treatable complications are accurately diagnosed. 

Elder also described how HHT negatively impacted his health and physical 

abilities. In support of his application, Elder filed more than 2,000 pages of 

medical records, the earliest dating back to 2005. He had attempted to obtain 

earlier medical records, particularly pre-employment evaluations, but was told 

they were unavailable. Though a genetic mutation present at conception, 

Elder’s medical records demonstrated his HHT remained asymptomatic and 

nondisabling until 2007, when the onset of debilitating symptoms and negative 

physical impacts forced him to seek medical assessment and treatment.

Agency review began with a Medical Review Board, comprised of three 

physicians, unanimously determining Elder was permanently disabled. 

However, two of the physicians recommended denial of disability retirement 

benefits due to their conclusion the condition was “pre-existing” because it 

represented a genetic mutation present at conception. The third physician

recommended approval of benefits due to Elder’s HHT “causing anemia & 

requiring treatment,” but suggested review after one year.

With assistance of counsel, Elder sought reconsideration. He submitted 

additional medical records, but still none earlier than 2005. A second Medical 

Review Board again found Elder permanently incapacitated. Once more, two 
6

physicians determined Elder’s HHT was “pre-existing” because it is a genetic 

disorder present at conception. However, the lone dissenting physician 

considered the earlier HHT diagnosis of Elder’s mother and her warning that he 

might have inherited the condition to be medically inconclusive. This

physician discounted any diagnostic significance attached to the mother’s 

medical history, noting: the child of a parent with HHT has only a 50% chance 

of inheriting the disorder; Elder’s mother had not exhibited an extreme 

expression of HHT due to having lived 85 years; and Elder’s occasional 

nosebleeds occurring prior to 2007 had resulted in no significant health 

concerns, medical interventions, or restrictions on Elder’s activities of daily 

living or employment.

Following the second denial, Elder requested an administrative hearing. 

Elder was the sole witness, with Systems attending but offering no proof and 

asking no questions. The hearing officer’s summary of Elder’s testimony 

reflects he:

experienced a nose bleed [sic] in 1975 when he got 

married. Prior to that; he has no memory of nose 

bleeds. [sic] He sought medical treatment for nose 

bleeds [sic] in late August 2007 (Dr. Carrico). He 

was having nose bleeds [sic] about five to six times per 

day, everyday. Clmt was aneamic [sic] at that time in 

which he had blood transfusions. From August 2007; 

he began having bleeding of his bowels along w/nose 

bleeds [sic]. Dr’s @ School of Medicine in St. Louis 

diagnosed the Clmt with HHT. Clmt became aware of 

HHT a few years prior because his mother had been 

diagnosed with the same condition.

His mother’s symptoms were nose bleeds [sic].

. . . 
7

Clmt had never sought treatment for HHT prior to 

2007. When Clmt’s mother was diagnosed w/HHT; he 

was not brought in and questionned [sic] nor tested for 

this medical condition. He was devastated when he 

found out that he had been diagnosed with HHT. His 

mother passed away from HHT at the age of 85. 

(Emphasis added). The administrative record was closed at the conclusion of 

the hearing.

On October 8, 2013, the hearing officer issued a Recommended Order. 

Finding Elder’s testimony credible, and applying principles set forth in Brown, 

the hearing officer recommended approval of disability retirement benefits 

based on the following:

[Elder] has less than sixteen years current or prior 

service in the [Systems] and, as such, has the 

burden of proving that his incapacity did not result, 

directly or indirectly from bodily injury, mental 

illness, or a disease or condition which pre-existed

his membership date in the [Systems]. KRS 

13B.090(7); McManus v. Kentucky Retirement 

Systems, Ky. App., 124 S.W.3d 454 (2004). [Elder] 

has shown that his condition did not pre-exist 

his membership in the Systems. Under the 

standards set forth in Kentucky Retirement 

Systems v. Brown, 336 S.W.3d 8 (Ky. 2011), 

[Elder’s] condition, and his knowledge of said 

condition, did not sufficiently manifest until he 

was diagnosed in 2007.

(Emphasis added).

On October 9, 2013, Systems filed exceptions. It argued the hearing 

officer’s recommendation had not been based on “objective medical evidence,” 

as required by KRS 61.600(3) and defined in KRS 61.510(33). Instead, 

Systems asserted the hearing officer’s recommendation had been erroneously 
8

based “solely” on Elder’s affidavit. Thus, Systems urged rejection of the 

hearing officer’s recommendation. Elder filed no exceptions.

On October 18, 2013, Systems sought remand to the hearing officer for 

reconsideration of Elder’s claim citing Kentucky Retirement Systems v. West, 

413 S.W.3d 578 (Ky. 2013), which had been pending in this Court on a petition 

for rehearing prior to becoming final on December 9, 2013, when rehearing was 

denied. Systems argued Elder’s claim should be denied because, like West, he 

had provided no pre-employment medical records demonstrating his disabling 

condition had not manifested itself prior to employment.

Elder opposed remand. He argued Systems had failed to cite statutory or 

other legal authority, existent when his claim arose, requiring submission of 

pre-employment medical records to establish the post-hire manifestation of a 

disabling genetic condition. In particular, Elder argued remand of his claim for 

reconsideration in accordance with West was inappropriate because West had 

merely applied Brown, without changing a claimant’s burden of proof.

Despite Elder’s objections, on December 26, 2013, Systems remanded 

the matter, directing the hearing officer to reconsider the recommendation 

consistent with West. On January 27, 2014, with submission of no additional 

proof, the hearing officer issued a revised Recommended Order. Once again, 

Elder was found credible, and it was determined: Elder’s only pre-employment 

medical procedure was a successful back surgery; no pre-employment 

nosebleeds were attributed to HHT; when he was assessed for headaches and 

fatigue in 2005, there was no indication of nosebleeds or gastrointestinal 
9

bleeding, and HHT was neither mentioned nor treated; and, he worked without 

interruption from 1995 until 2007 when he was first diagnosed with HHT. At 

that point, the hearing officer diverged from her original recommendation, 

making new findings and changing her recommendation to a denial of benefits

stating:

[Elder] failed to produce any records which 

preexisted [sic] his membership date in the 

Systems and the condition was objectively 

discoverable by a reasonable person. He indisputably 

suffered from some nose bleeds [sic] prior to his 

membership in the Systems and he was aware of the 

condition from his mother who told him he likely had 

the condition. [Elder] was symptomatic and aware of 

HHT, its symptoms and its prevalence in his family. 

With a lack of any medical records prior to his 

membership in conjunction with admittedly having 

nosebleeds and knowing of the likelihood of him 

having the condition, [Elder] has not met his burden.

(Emphasis added). 

Counsel for Elder filed exceptions, emphasizing the record established 

Elder had suffered few childhood nosebleeds and did not become HHTsymptomatic until 2007. Accompanying the exceptions was a notice of filing, 

listing newly-acquired medical records, including: results from a physical 

exam performed two months before Elder was hired in 1995; a 1999 

recertification exam; files from an on-the-job injury in 2002; and pharmacy 

records from 1998 through 2011. Counsel asserted the newly-acquired 

medical records provided additional proof Elder was asymptomatic for HHT 
10

until 2007, a dozen years after he had become a member of Systems.9 Counsel 

further asserted the 2002 exam referenced Elder’s mother having HHT, but did 

not link HHT to Elder.

In its final order, the Disability Appeals Committee of Systems’ Board of 

Trustees granted Systems’ motion to strike Elder’s newly-acquired medical 

records because the administrative record had officially closed; denied Elder’s 

exceptions; denied Elder’s subsequent motion for rehearing; and adopted as its 

own the hearing officer’s revised factual findings and recommendation to deny 

benefits. In denying Elder’s request for rehearing, Systems explained,

the hearing officer has now rendered a Recommended 

Order on Remand based on the totality of the evidence 

and the correct application of the law to that 

evidence.

(Emphasis added).

Elder appealed to the Franklin Circuit Court. In affirming Systems’ 

denial of benefits, the circuit court held Systems had reasonably concluded 

Elder’s HHT pre-existed his 1995 employment because

Elder did not provide any medical records prior to 

2005. The failure to produce medical records does 

not satisfy the burden of proving the absence of a 

pre-existing condition. Because Elder was unable to 

demonstrate through a preponderance of the evidence 

an absence of a preexisting [sic] condition, the Hearing 

Officer correctly determined that the preexisting [sic] 

condition precludes Elder from receiving disability 

retirement benefits under the circumstances.

 

9 Not being part of the record certified to us, we cannot verify the content of the 

proffered files. 
11

(Emphasis added). In reaching its decision, the circuit court correctly read 

Brown to hold a claimant bears the burden of persuasion by submitting 

objective medical evidence proving disability and disproving pre-existence of 

the disabling condition; that is, demonstrating the disabling condition was 

neither symptomatic nor “objectively discoverable by a reasonable person” prior 

to employment. Brown, 336 S.W.3d at 14-15. The circuit court also correctly 

understood West to have reaffirmed the claimant’s burden of persuasion, while 

establishing the claimant’s burden never shifts to Systems and confirming 

Systems is not required to counter the claimant’s proof. West, 413 S.W.3d at 

581 (citing KRS 13B.090(7)). However, the circuit court further read West to 

require submission of pre-employment medical records to prove a disabling 

condition was asymptomatic and reasonably undiscoverable prior to hiring. 

Thus, because, like West, Elder had submitted no pre-employment medical 

records, the circuit court found he had failed to meet his burden of proving the 

legal compensability of his disabling genetic condition.

On appeal, a divided panel10 of the Court of Appeals affirmed the circuit 

court’s reading of West and its denial of Elder’s claim for disability retirement 

benefits. In particular, the Court of Appeals affirmed the circuit court’s 

understanding that pre-employment medical records are required to meet a 

claimant’s burden of proof under KRS 61.600. The Court of Appeals held Elder 

 

10 At page 19 of its brief, Systems asserts, “[t]his Honorable Court should not 

disturb the unanimous, well-reasoned decisions of the Agency and the lower courts.” 

However, the Court of Appeals’ decision in this case was not unanimous. One judge 

dissented without writing and the third concurred in result only.
12

had “misperceived” his burden as requiring that he only show the lack of 

symptoms and the lack of a HHT medical diagnosis prior to his 1995 

employment; and, citing West, noted pre-employment medical records could be 

determinative in establishing whether his condition was, in fact, asymptomatic 

and reasonably undiscoverable at the time of his hiring. Moreover, the Court of 

Appeals expressed doubt regarding the non-existence of any pre-employment 

medical records, ignoring Elder’s failed attempts to obtain and submit such 

records in support of his application.

STANDARD OF REVIEW

We abated consideration of Elder’s motion for discretionary review 

pending resolution of Kentucky Retirement Systems v. Ashcraft, 559 S.W.3d 

812 (Ky. 2018), and Bradley v. Kentucky Retirement Systems, 567 S.W.3d 114 

(Ky. 2018). In those cases, this Court addressed sufficiency of proof issues 

related to the quality, credibility, or consistency of evidence submitted by the 

claimants, while endorsing McManus as the applicable standard for analyzing

Systems’ denial of a disability retirement benefits claim. We granted review 

following endorsement of finality in Ashcraft and Bradley. 

It appears, however, the sufficiency of proof issue presented in Elder’s 

case relates to Systems’ misapprehension that West moved the evidentiary line 

to require submission of pre-employment medical records to disprove preexistence of a genetic condition, rather than the quality, credibility, or 

consistency of the evidence, as addressed in Ashcraft and Bradley. Therefore, 

we need not employ the “compelling evidence” standard applied in Ashcraft and 
13

Bradley. As a pure question of law, our standard of review in this case is de

novo. Brown, 336 S.W.3d at 16. 

LEGAL ANALYSIS

Initially, from a legal perspective, a genetic disorder is not “pre-existing” 

merely because it is medically present at conception. Pursuant to KRS 

61.600(3)(d), a genetic condition existent at conception is legally pre-existing 

only if symptomatic and “objectively discoverable by a reasonable person” prior 

to employment. Brown, 336 S.W.3d at 15. As noted in Brown, any other 

understanding would be “absurd” and “contrary” to legislative intent. Id. Yet, 

the majority of physicians comprising two separate medical review panels 

concluded Elder should be denied disability retirement benefits simply because 

his disabling condition was a genetic disorder—that is, inherited and 

scientifically existent at conception. While these physicians were correct from 

a medical standpoint, their conclusions were contrary to the legal mandates 

announced in Brown. Further, Systems’ denial of disability retirement benefits

because Elder submitted no pre-employment medical records misinterpreted 

our holding in West and is contrary to the policy and purpose of the legislative 

enactment.

Disability retirement benefits awarded under KRS 61.600 are intended 

“to provide security for those who are unable to continue working until normal 

retirement age due to injury or disease.” Roland v. Kentucky Ret. Sys., 52 

S.W.3d 579, 583 (Ky. App. 2000) (citing Maybury v. Coyne, 312 S.W.2d 455 

(Ky. 1958)). KRS 446.080(1) mandates “[a]ll statutes of this state shall be 
14

liberally construed with a view to promote their objects and carry out the intent 

of the legislature[.]” Regarding statutory construction and interpretation, this 

Court has held “[a]ll presumptions will be indulged in favor of those for whose 

protection the enactment was made.” Livingood v. Transfreight, LLC, 467 

S.W.3d 249, 256 (Ky. 2015) (citing Firestone Textile Co. Div., Firestone Tire & 

Rubber Co. v. Meadows, 666 S.W.2d 730, 732 (Ky. 1983)).

As this Court unanimously wrote in Brown,

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.

336 S.W.3d at 15. Elder was born with HHT, a latent genetic disorder making 

him susceptible to symptoms which did not awaken for decades according to 

Dr. Winkler. This conclusion is entirely consistent with the hearing officer’s 

original findings in correctly applying Brown, which remains controlling case 

law. In interpreting KRS 61.600, we recognized, 

[i]ndeed, 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 & Trust Co., 

313 S.W.3d 557, 559 (Ky. 2010). To allow the 

Kentucky Retirement Systems to deny disability 
15

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 referred 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.”).

Brown, 336 S.W.3d at 15. We did not retreat from this position in West, and 

we reaffirm Brown today.

The narrow question in this appeal is whether Elder’s HHT was 

“asymptomatic such that no reasonable person would have realized or known 

of [its] existence” when he was hired in August 1995. Id. Our analysis draws 

heavily on Brown, but we are mindful of West. Brown held: the appellate 

standard of review for Systems’ denial of a benefits claim is “whether the 

evidence in the [claimant’s] favor is so compelling that no reasonable person 

could have failed to be persuaded by it,” id. at 14-15 (quoting McManus, 124 

S.W.3d at 458); KRS 61.600 benefits are unavailable for “symptomatic diseases 
16

which are objectively discoverable by a reasonable person” at the time of her 

hiring, id. at 15; a member satisfies her burden by proving her disabling 

condition did not pre-exist her employment, id. at 16; and, smoking is a 

“behavior” not a “condition.” Id. 

Building on Brown’s approval of a claim, in West we affirmed denial of 

benefits to a man who admitted he smoked long before being hired but failed to 

prove his COPD11 developed after he began working at a municipal water 

treatment facility. West serves three limited purposes. First, it reaffirms 

Brown’s directive that a claimant seeking disability benefits under KRS 

61.600(3)(d) must prove his disabling condition was asymptomatic and not 

objectively discoverable by a reasonable person when he was hired. Brown, 

336 S.W.3d at 15. West affirms, based on a “plain reading” of KRS 13B.090(7), 

the claimant bears the burden of proof alone and must prove his claim by a 

preponderance of evidence. Brown, 336 S.W.3d at 14-15; West, 413 S.W.3d at 

580-81. Second, West corrects the Court of Appeals’ misunderstanding about 

burden shifting. Based on KRS 13B.090(7) and KRS 61.600, West establishes 

the burden never shifts to Systems in a retirement disability benefits claim. 

West, 413 S.W.3d at 581. Third and finally, contrary to the Court of Appeals’ 

understanding, West holds Systems: “may choose not to challenge evidence it 

deems unconvincing[;]” whether the claimant meets his burden is independent 

of whether Systems introduces any proof; and, the hearing officer may reject 

 

11 Chronic obstructive pulmonary disease.
17

uncontested proof. Id. These three points are the full extent of any 

“clarification” to be gleaned from West.

Here, Systems, the Franklin Circuit Court, and the Court of Appeals read 

West as requiring denial of Elder’s claim because he submitted no preemployment medical records to disprove the pre-existence of HHT. However,

our holding in West imposed no such requirement, and the facts of West are 

clearly distinguishable from those presented in Elder’s claim.

In West, the claimant alleged his non-genetic disabling condition, COPD, 

had not manifested in 1991 when he was hired, and claimed his symptoms did 

not become problematic until about two years immediately preceding his 2005 

retirement. Contrary to his statements, however, medical records indicated 

West had been diagnosed with COPD as early as 1998. Moreover, all 

examining physicians agreed West’s COPD was directly caused by his tobacco 

use, and West admitted he had smoked at least three packs a day for 12 years 

prior to his employment. Pre-employment medical records might have been 

dispositive of West’s claim, but all his pre-1998 medical records had been 

destroyed. The scant and conflicting proof—including the unfortunate 

unavailability of any pre-employment medical records—led our Court to 

conclude there was “simply no way to determine whether West suffered from 

some level of COPD in 1991.” West, 413 S.W.3d at 582.

Denial of West’s claim because he failed to submit pre-employment 

medical records should not be interpreted to mean every claim unsupported by 

similar health records must be denied. Medical records predating employment 
18

can be dispositive of many disability retirement claims, but not all. Postemployment medical records can also offer compelling proof to disprove preexistence of a disabling condition as required by KRS 61.600(3)(b). 

Absence or inclusion of symptoms or treatment reported in any medical 

record—pre-hire or post-employment—may be probative. As in West, a 

claimant’s pre-employment medical records may not always be available—

assuming, of course, the claimant has had access to regular medical care—and

claimants should not be precluded from submitting other medical proof 

deemed equally convincing. Thus, we reject Systems’ argument that West

requires a member to submit “medical records dated prior to and immediately 

subsequent to the disability retirement claimant’s membership and/or expert 

testimony explaining the onset of a condition[.]” 

The Court of Appeals correctly stressed pre-employment medical records 

can be helpful in excluding the pre-existence of a disabling condition by 

demonstrating lack of treatment, or by establishing an alternative medical 

cause for nonspecific symptoms. The Court of Appeals erred, however, in 

reading West to require pre-employment medical records in every case. 

The facts presented in Brown are much more akin to those presented in 

Elder’s claim. As acknowledged in West, 

Brown offered a “plethora of evidence” that, while her 

smoking habit pre-existed her membership in the 

Systems, her COPD did not. Brown, 336 S.W.3d at 11. 

Medical records indicated that she showed no signs 

of COPD during an evaluation conducted one year 

after her employment date. Further, a medical 

expert opined that onset occurred approximately 
19

four years after her membership date. Finally, she 

presented medical records demonstrating that her 

first firm diagnosis of COPD occurred nine years 

after her membership date.

West, 413 S.W.3d at 582 (emphasis added). Though precluded from offering 

newly-obtained pre-employment medical records on remand, Elder had already 

submitted extensive post-employment medical records, in addition to his 

affidavit and testimony, cumulatively disclosing: Elder enjoyed good health, 

with no symptoms or work interruptions until 2007 when he developed chronic 

nosebleeds or other HHT symptoms; Elder was treated for various ailments 

between 2005 and 2007 with no recorded history or complaints of nosebleeds 

or other HHT symptoms; Elder’s first definitive diagnosis for HHT—based on 

the Curaçao criteria—came in 2008 from Dr. Gyawali, a medical specialist to 

whom he had been referred; and, an earlier diagnosis of Elder’s mother with 

HHT in the 1980s was deemed to be inconclusive regarding whether he had 

inherited the disorder because he remained asymptomatic until 2007, his 

mother lived to age 85 with no extreme expression of HHT, the child of an HHT 

parent has only a 50% chance of inheriting the disorder, and, not all of Elder’s 

siblings were diagnosed with the disorder. 

In particular, Dr. Winkler indicated the most common symptom of HHT 

is recurring nosebleeds. He also verified the 2007 onset of Elder’s HHT 

symptoms. In a letter, dated February 2, 2012, Dr. Winkler wrote

Mr. Elder does have hereditary bleeding disorder, 

namely [HHT] which apparently was relatively 

asymptomatic before he presented to Dr. Carrico in 

2007. From 1995 to 2007 the patient continued his 

duties at Graves County School System apparently 
20

uninterrupted. From 2007 forward he continued to 

work while being treated for this chronic medical 

condition.

While not in the form of an affidavit, deposition, or hearing testimony, Dr. 

Winkler’s letter and medical notations are consistent with Elder’s other medical 

proof and testimony. Taken as a whole, the evidence submitted by Elder 

transcends Systems’ additional criticism that his claim should also be denied 

because he “provided no medical expert opinion on when his HHT onset.” 

Though Elder was not permitted to file more-recently obtained preemployment medical records on remand, the hearing officer’s original 

recommendation—correctly based on Brown—found the foregoing postemployment medical proof, alone, established Elder’s disabling HHT had 

remained asymptomatic and reasonably undiscoverable until 2007, thereby 

allowing an award of disability retirement benefits. Contrary to Systems’ 

criticism, Elder was not required to submit his own contemporaneous medical 

records to prove it was his mother, and not himself, who had been diagnosed 

with HHT in the 1980s. His affidavit and testimony, along with a reasoned 

reading of his post-employment medical records, was sufficient to allow the 

hearing officer to make an informed determination. 

As with many symptoms, occasional nosebleeds—as opposed to recurring 

nosebleeds which Dr. Winkler identified as the most common indicator of 

HHT—are nonspecific, arising due to diverse medical conditions or trauma, and 

typically do not cause a reasonable person to suspect the onset of a rare and 

severe genetic condition. During the course of his fifteen-year employment, 
21

Elder was seen by numerous physicians, but remained undiagnosed as having 

HHT until 2007-2008.12 If medical professionals did not immediately, or more 

quickly, suspect and uncover Elder’s unique genetic condition, it would 

certainly be unreasonable to expect a medically-untrained person to selfdiagnose.13 

Finally, because we have held West did not replace the law established in 

Brown regarding the burden of proof under KRS 13B.090(7), we also hold 

Systems erred in remanding the hearing officer’s original recommendation for 

reconsideration. Moreover, if West had been “on point” by requiring preemployment medical records—as Systems incorrectly asserted—Systems

abused its discretion in denying Elder an opportunity to procure and present 

additional medical proof.

While Systems is correct in asserting a need for finality, that need must 

be balanced against an equally compelling need for fundamental fairness. 

Elder could not have predicted West’s outcome, nor its purported alteration of

required proof. Here, Systems misinterpreted the import of West, incorrectly 

 

12 We cannot confirm when the HHT diagnosis actually occurred. References to 

the condition begin with Dr. Carrico’s patient abstract in August 2007, but the first 

definitive diagnosis of which we are aware was made by Dr. Gyawali in 2008.

13 Difficulty in medically diagnosing HHT is not surprising given that many of 

its symptoms “disguise as anemia, migraine, asthma, stroke, congestive heart failure, 

or liver cirrhosis.” Notably, before being diagnosed with HHT, Elder was treated for 

anemia, iron deficiency, hypertension and sleep apnea. As a result of HHT mimicking 

other conditions, diagnosis of HHT may be delayed for decades, causing many to call it 

“the Great Masquerader.” See generally, https://curehht.org/understanding-hht/
22

ordered remand based on its mistaken belief, and compounded its error by 

refusing to reopen proof to allow Elder a fair opportunity to submit the very 

type of pre-employment medical records it erroneously maintained West now

requires. The equities of Elder’s claim are compelling and overcome the need 

for finality. Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985), overruled on other 

grounds by Smith v. McGill, 556 S.W.3d 552 (Ky. 2018). 

CONCLUSION

Systems, the circuit court and the Court of Appeals misinterpreted our 

holding in West. Thus, we reverse the Court of Appeals and remand Elder’s 

claim to Systems for further proceedings consistent with this Opinion. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Donna Thornton-Green

COUNSEL FOR APPELLEE:

Anne Caroline Bass