Kelly Shay Neal v. Kentucky Retirement Systems

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NOT TO BE PUBLISHED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.
 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 evaluations3 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 pre-
existing. 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 pre-
existing 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 McManus4 standard, 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 pre-

membership 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 pre-

date 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-capacity-

type 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

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 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

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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

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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

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

demonstrated how the omission of these records6 renders 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.

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 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,

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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: BRIEF FOR APPELLEES:

John Gray Carrie B. Slayton
Frankfort, Kentucky Frankfort, Kentucky

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