SC Administrative Law Court Decisions

In the above-captioned matter, Petitioner Karen Shuler requested a contested case hearing to challenge the decision of Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems, to deny her application for disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1540 (Supp. 2006). By a Notice of Hearing dated January 31, 2007, this matter was scheduled to be heard before the Administrative Law Court on Thursday, April 5, 2007. However, as discussed below, the parties now come before the Court seeking to have this matter remanded to the South Carolina Retirement Systems for further proceedings.

BACKGROUND

On March 31, 2006, Petitioner Karen Shuler filed an application for disability retirement benefits with Respondent South Carolina Retirement Systems, in which she alleged that she was permanently disabled from her position as a school teacher with the Orangeburg County Consolidated School District #3 as a result of severe pain in her lower back, left hip, and left leg. After her application was initially denied by the Retirement Systems on April 10, 2006, Petitioner requested administrative review of her disability claim before the Director of the Retirement Systems, Peggy G. Boykin. Director Boykin appointed Robert E. Brabham, Ph.D., an independent vocational consultant, to conduct the administrative review of Petitioner’s disability claim, and, by a letter dated May 23, 2006, the Retirement Systems scheduled a conference for Petitioner with Dr. Brabham on June 28, 2006.

At the request of counsel for Petitioner in a June 26, 2006 telephone call, Petitioner’s administrative conference with Dr. Brabham was postponed until September 13, 2006, to allow counsel to secure additional medical evidence regarding Petitioner’s disability claim. However, because Petitioner’s counsel understood the September 13, 2006 date to only be a tentative date for the new hearing, and not a formally scheduled hearing date, Petitioner and her counsel did not appear at the rescheduled hearing on September 13, 2006. When the Retirement Systems did not receive a response to its September 28, 2006 letter seeking to reschedule the missed hearing, it requested that Dr. Brabham issue his recommendation based solely upon the medical records already held by the Retirement Systems regarding Petitioner’s alleged disability.[1] In his recommendation issued on October 10, 2006, Dr. Brabham found that “there is insufficient medical evidence to confirm that [Petitioner] is permanently unable to perform her job duties” and recommended that Petitioner’s application for disability retirement benefits be denied. On October 31, 2006, Director Boykin issued a Final Agency Determination adopting Dr. Brabham’s recommendation and denying Petitioner’s claim for disability retirement benefits. On November 30, 2006, Petitioner filed a request for a contested case hearing with the Administrative Law Court seeking review of the Final Agency Determination.

During the time Petitioner’s disability claim has been pending before the Retirement Systems and this Court, Petitioner has undergone additional medical treatment for her back pain. In particular, Petitioner had additional surgery on her back on May 1, 2006, and made several follow-up visits to her neurosurgeons at MUSC throughout the remainder of 2006. At the request of counsel for the Retirement Systems, counsel for Petitioner provided records for this additional treatment to the Retirement Systems on February 16, 2007.

DISCUSSION AND ORDER

Based upon the new medical records recently submitted by Petitioner—records that were not made available to Dr. Brabham at the time he made his recommendation in this matter—Respondent Retirement Systems finds that it would be appropriate to remand this matter to the Retirement Systems so that its vocational consultant can conduct an administrative conference with Petitioner, evaluate her updated medical records, and issue a new recommendation based upon all of the available evidence. Upon such a remand, Petitioner agrees to pay the Retirement Systems a one-hundred-and-thirty-dollar ($130.00) “no show” fee to reimburse the Retirement Systems for the vocational consultant’s time at the earlier missed conference and understands that a new administrative conference will not be scheduled and a new recommendation will not be issued until the fee is received by the Retirement Systems. Petitioner further agrees to attend the administrative conference scheduled pursuant to this remand and to provide the vocational consultant will all medical records that she deems relevant to her disability claim.

NOW, THEREFORE, upon the motion of the parties to the above-captioned matter,

IT IS HEREBY ORDERED that the hearing of this case scheduled for Thursday, April 5, 2007, is CANCELED and this matter is REMANDED to Respondent South Carolina Retirement Systems for further review of Petitioner’s application for disability retirement benefits.

IT IS FURTHER ORDERED that, as this remand extinguishes the instant contested case proceeding, this case is hereby DISMISSED. If Petitioner wishes to challenge a subsequent Final Agency Determination issued by the Retirement Systems pursuant to this remand, she will have to request a new contested case before this Court.

AND IT IS SO ORDERED.

____________________________

Honorable Ralph King Anderson, III

Administrative Law Judge

March 21, 2007

Columbia, South Carolina

WE CONSENT:

___________________________ ____________

Michael P. Hörger Date

Attorney for Petitioner

____________________________ ____________

Justin R. Werner Date

Attorney for Respondent