COPD not found to be pre-existing condition in claim for government disability retirement: KENTUCKY RETIREMENT SYSTEMS V. BROWN (COA 12/28/2007)

KENTUCKY RETIREMENT SYSTEMS V. BROWN
EMPLOYMENT:  Government disability retirement
2006-CA-000296
PUBLISHED: AFFIRMING
PANEL: ACCRESS PRESIDING; DISCON, KELLER CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 12/28/2007

In this appeal, the COA held that pre-employment smoking behavior was not a "condition" to deny disability for COPD.

Kentucky Retirement Systems (the Systems) appealed Franklin Circuit Court’s reversal of a decision of the Disability Appeals Committee of the Board of Trustees of the Kentucky Retirement Systems (the Board) that Barbara Brown did not qualify for disability retirement benefits under KRS1 61.600.  Mrs. Brown passed away from her disabling condition, chronic obstructive pulmonary disease or COPD, before the Franklin Circuit Court rendered its decision in this case. Her husband, Dillard Wayne Brown, chose to continue this action as executor of her estate.

Mrs. Brown had not been diagnosed prior to her employment with COPD, and although she had changes in her lungs suggestive of COPD, there was not yet a firm diagnosis and her diagnosis was  Mrs. Brown was suffering from “[a]cute bronchitis”. In 2001, she was first diagnosed with COPD and Mrs. Brown’s condition worsened to the point that she was in need of oxygen virtually around the clock. Her last date of paid employment May 31, 2003.

When Mrs. Brown subsequently filed for disability retirement benefits the two conditions  of particular relevance was whether her disabling condition resulted directly or indirectly from disease, or condition which pre-existed membership and ifshe were able to perform her job, or a “job of like duties,” taking into consideration “any reasonable accommodation by the employer. 

The Systems’ Medical Review Board examined Mrs. Brown’s application and denied her benefits, concluding that her 30-year smoking habit was a “condition which pre-existed membership.”

The COA did not interpret the word “condition” contained in KRS 61.600(3)(d) as broadly as does the Systems. The “conditions” of the claimants in all prior cases addressing the pre-existing condition issue were capable of medical or psychiatric diagnosis. See, e.g., McManus (diabetes); Lindall v. Kentucky Retirement Systems, 112 S.W.3d 391 (Ky.App. 2003)(bipolar disorder). The legislature specifically used the phrase “bodily injury, mental illness, disease, or condition” in KRS 61.600(3)(d) to indicate medically and psychiatrically diagnosable maladies only and  interpreting the word “condition” to include preemployment smoking behavior would run entirely contrary to the legislature’s policy prohibiting discrimination against employees merely “because the individual is a smoker[.]” KRS 344.040.

Although the COA found no reasonable accommodation available in this case, it did discuss the availability of leave without pay and sick leave, as well as other means, of reasonable accommodation.

Michael Stevens

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