SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the South Carolina Administrative Law Court (“ALC” or “Court”) pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2006) upon the request for a contested case hearing filed by Amy D. Martin (“Petitioner”). Petitioner contests the Final Agency Determination issued by Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems (“Respondent” or “Retirement Systems”), which denied her application for disability retirement benefits. After notice to all of the parties, a hearing was conducted on June 14, 2006, at the offices of the ALC in Columbia, South Carolina. Based on the testimony and evidence presented, this Court finds Petitioner is not entitled to disability retirement benefits because she is not permanently incapacitated from the further performance of her previous job duties as a Buyer II for Florence County.

ISSUES

The sole issue in this case is whether Petitioner is entitled to disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006). To decide this issue, the Court must determine: (1) whether Petitioner is mentally or physically incapacitated from the further performance of her job as a Buyer II for Florence County; (2) whether the incapacity is likely to be permanent; and (3) whether Petitioner should be retired. S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006).

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the court makes the following Findings of Fact by a preponderance of the evidence:

1.                  Notice of the date, time, place, and subject matter of the hearing was provided to all parties in a timely manner.

2.                  Petitioner, who was 36 years of age when she stopped working, is a member of the Retirement Systems with seven years and nine months of service in the South Carolina Retirement System (“SCRS”), which is the general retirement system.

3.                  On June 25, 2004, Petitioner was in an automobile accident. Petitioner continued to work as a Buyer II for Florence County until February 10, 2005 but complained of neck and shoulder pain radiating down her left arm. On February 11, 2005, Petitioner underwent a cervical epidural steroid injection and subsequently began complaining of pain in her right arm and leg. On March 9, 2005, Petitioner underwent surgery, which included an anterior cervical diskectomy and fusion at C5-6. In early May 2005, Petitioner began physical therapy to restore her loss of flexibility and strength. By May 16, 2005, Petitioner reported a significant reduction in signs and symptoms throughout her right upper quadrant and cervical spine.

4.                  Petitioner did not work at anytime after February 10, 2005. Despite having worked for Florence County since May 1997, Petitioner apparently had no leave accrued when she stopped working. As a result, Petitioner’s employment was terminated on May 13, 2005.

5.                  On May 18, 2005, Petitioner filed an application for disability retirement benefits alleging disability based on the adverse effects of the automobile accident of June 2004. Specifically, Petitioner alleged disability due to complications related to her cervical spine and adverse effects of an epidural steroid injection.

6.                  After Petitioner filed an application for disability retirement benefits, her file was sent to the South Carolina Vocational Rehabilitation Department. The Disability Examiner gathered medical documents and obtained a consultative opinion from Robert D. Kukla, M.D. Dr. Kukla concluded Petitioner could occasionally lift/carry fifty pounds, frequently lift/carry twenty-five pounds, stand and/or walk approximately six hours in an eight-hour day, sit for approximately six hours in an eight-hour day, and push and/or pull unlimited.

7.                  Based on the medical records and Dr. Kukla’s assessment, the Disability Examiner made a recommendation that the Medical Board deny Petitioner’s application for benefits on the basis that she retains the residual functional capacity to perform her job duties as a Buyer II for Florence County. On June 28, 2005, the Medical Board disapproved the disability as recommended by the Disability Examiner.

8.                  Petitioner requested a reconsideration of the Medical Board’s action. As a result, Petitioner’s file was sent to a second Disability Examiner at the Vocational Rehabilitation Department. That Disability Examiner gathered additional medical evidence and obtained an additional consultative opinion from Joyce B. Lewis, M.D. Dr. Lewis concluded Petitioner could occasionally lift/carry fifty pounds, frequently lift/carry twenty-five pounds, stand and/or walk approximately six hours in an eight-hour day, sit for approximately six hours in an eight-hour day, and push and/or pull unlimited.

9.                  Based on the previous information as well as any new medical records and Dr. Lewis’s opinion, the second Disability Examiner recommended that Petitioner’s application for benefits be denied on the basis that she retains the capacity to perform her job duties. On August 12, 2005, the Retirement Systems disapproved benefits as recommended.[1]

10.              Petitioner requested an administrative review of the denial of disability retirement benefits. Director Peggy G. Boykin appointed Joel D. Leonard, M.Ed., CRC, CVE, as the vocational consultant hired by the Retirement Systems to review Petitioner’s file.

11.              Mr. Leonard has a Masters in Rehabilitation Counseling. He is certified not only as a Rehabilitation Counselor but also as a Vocational Evaluation Specialist. Mr. Leonard has been providing vocational evaluation and rehabilitation services since May 1993. For four years, Mr. Leonard worked for the South Carolina Vocational Rehabilitation Department in this capacity. Since February 1997, Mr. Leonard has provided these services while self-employed. Mr. Leonard also has been recognized as a Vocational Expert by the Social Security Administration, Railroad Retirement Board, and this Court. Based on Mr. Leonard’s education and experience, this Court qualified him as a Vocational Expert in this case. As such, Mr. Leonard is qualified to provide expert testimony about a person’s ability to work in the face of various medical conditions. In particular, as a Vocational Expert, Mr. Leonard does not provide medical opinions but is qualified to provide a vocational opinion based on a person’s medical records.

12.              Mr. Leonard conducted an administrative conference on December 15, 2005, during which he heard testimony from Petitioner. Mr. Leonard reviewed the entire file, including all documents obtained by the Disability Examiners as well as all documents submitted by Petitioner, and issued a recommendation that Petitioner’s application for disability retirement benefits be denied.

13.              On January 5, 2006, Director Boykin issued a Final Agency Determination adopting Mr. Leonard’s recommendation and denying disability retirement benefits for Petitioner. On February 1, 2006, Petitioner filed a request for a contested case hearing at the Administrative Law Court seeking review of the Final Agency Determination.

14.              Petitioner testified at the hearing regarding her daily job duties, which included preparing purchase orders and preparing outgoing mail for the Florence County office building. Following the automobile accident, Petitioner experienced pain in her neck and her left arm but continued to work. Petitioner eventually saw Willie S. Edwards, Jr., M.D., an orthopedic surgeon in Florence, who recommended conservative treatment prior to surgery. On February 11, 2005, Petitioner underwent an epidural steroid injection at a surgery center in Florence. According to Petitioner, she experienced significant pain during the injection and visited the Emergency Room that night. Soon thereafter, Petitioner saw Dr. Edwards who decided to perform surgery “to get the pressure off of … the nerve.” After the surgery on March 9, 2005, Petitioner’s left arm improved but she continued to have pain in the right arm and chest area. Petitioner participated in physical therapy until her health insurance expired due to the termination of her employment. In July 2005, Petitioner started seeing Danny W. Nicholls, D.O. regarding her right arm. Dr. Nicholls performed an injection in Petitioner’s right shoulder but ultimately recommended surgery. Petitioner, however, refused to have the surgery without a second opinion. As of the date of the hearing, Petitioner had not seen a doctor since September 2005. Petitioner testified she continues to experience sharp pains, tingling, spasms, and swelling in her right arm.

15.              Mr. Leonard testified at the hearing about his experience at the South Carolina Vocational Rehabilitation Department first as a field counselor, then as an evaluator, and finally as a special services coordinator. During his experience working for the Vocational Rehabilitation Department, Mr. Leonard would consider whether a person required a medical service to remove a barrier to employment given the person’s transferable skills and whether that person was unable to afford such required medical service. Mr. Leonard was familiar with the practices and procedures of the Vocational Rehabilitation Department regarding the provision of medical services in an attempt to rehabilitate a person to perform gainful employment.

16.              Regarding Petitioner’s particular circumstances, Mr. Leonard testified that Petitioner’s job was mostly sedentary given the clerical nature of her work but required some standing, moving, and occasional lifting up to twenty pounds. As a result, based on the job description provided by the employer as well as the descriptions provided by Petitioner both before and during the hearing, Mr. Leonard determined Petitioner’s job was classified as modified light rather than sedentary. Taking into consideration the classification of Petitioner’s job as modified light, Mr. Leonard reviewed Petitioner’s medical records to determine whether she suffered any medical conditions that reasonably would preclude her from performing that job. Based on Petitioner’s existing medical records through September 2005 and giving credibility to her assertions of her functional impairments, Mr. Leonard concluded that even though Petitioner’s medical records supported a finding that she suffered an incapacity, the incapacity was not likely to be permanent. After hearing Petitioner’s testimony during the hearing, however, Mr. Leonard questioned the extent of Petitioner’s asserted functional limitations. Nonetheless, Mr. Leonard testified that given her asserted functional limitations and her particular job duties, it would not “take much for her to physically remove the barrier” to perform her job as a Buyer II for Florence County. Mr. Leonard ultimately testified in his expert opinion that Petitioner’s circumstances did not meet the disability standard.

17.              At the hearing, Petitioner testified about a future appointment with someone at the South Carolina Vocational Rehabilitation Department. At the end of the hearing, the parties agreed to stay the final record in the case for one month in order to include the opinion of the Vocational Consultant regarding whether further treatment would resolve Petitioner’s medical issues and render her able to go back to her job as a Buyer II for Florence County. The Court also allowed the parties to conduct additional discovery during the month.

18.              Following the hearing, Petitioner met with Joni Williams of the South Carolina Vocation Rehabilitation Department. Initially, Ms. Williams informed Petitioner that the Vocational Rehabilitation Department could not provide services to her. It is unclear from the record whether the Department was unwilling to provide the services or simply believed the services to be unnecessary in Petitioner’s situation. Petitioner thereafter obtained a second opinion from David B. Fulton, M.D., an orthopedic surgeon agreed upon by both parties. George M. Pullie, Jr., the Area Supervisor for the Vocational Rehabilitation Department, indicated the Department would assess Petitioner for services depending on the results of Dr. Fulton’s orthopedic evaluation. Mr. Pullie emphasized that in order for the Department to provide its services, the applicant “must be able to benefit from our services that will lead to an employment outcome.”

19.              Dr. Fulton reviewed Petitioner’s Disability Report, job description, medication sheet dated 12/15/05, and all medical records entered into the record at the hearing of this case. Dr. Fulton also reviewed Petitioner’s most recent MRI of her right shoulder and indicated there “appeared to be some fairly mild inflammation in the subacromial space” but there were no signs of rotator cuff tearing. On September 21, 2006, Dr. Fulton examined Petitioner regarding the pain in her right arm. Dr. Fulton noted full passive range of motion in both shoulders and full active motion of both shoulders. Dr. Fulton also noted full strength (5/5) in the rotator cuff, biceps, triceps, and wrist extensors bilaterally. Dr. Fulton ultimately found Petitioner was experiencing chronic subjective pain in the right upper extremity, etiology uncertain. Dr. Fulton also found Petitioner’s clinical exam and MRI do not correlate with an impingement problem. Based on the examination, Dr. Fulton concluded Petitioner would not benefit from surgical intervention. Dr. Fulton also indicated “I do not suspect that [Petitioner]’s current arm pain is permanent” and “I see no evidence of definitive permanent partial impairment to her right upper extremity at this point in time.” Dr. Fulton also noted Petitioner is able to be gainfully employed. Dr. Fulton did recommend testing to rule out any neurologic injury.

20.              Upon reviewing Dr. Fulton’s report, Mr. Leonard issued a vocational opinion incorporating the medical opinions contained in the report. Mr. Leonard originally had determined Petitioner’s medical records supported a finding that Petitioner suffered an incapacity but the incapacity was not likely to be permanent. Based on Dr. Fulton’s medical opinion that Petitioner does not suffer an impairment of her right upper extremity, however, Mr. Leonard amended his vocational opinion and found Petitioner is not incapacitated from performing her previous job as a Buyer II for Florence County.

21.              Petitioner’s job as a Buyer II for Florence County was modified light and semi-skilled. Her job duties included preparing purchase orders, assisting in requests for proposals, maintaining inventory of department supplies, maintaining department fixed assets inventory, handling outgoing mail, and performing data entry. Petitioner’s job required her to stand for one hour, walk for two hours, sit for four hours, and bend/stoop for one hour. Petitioner was required to lift or carry less than ten pounds frequently and less than twenty pounds occasionally. Petitioner’s job required her to bend and reach frequently.

22.              Petitioner alleges disability solely due to the pain and swelling in her right upper extremity. There are no medical opinions contained in the evidence of record that indicate Petitioner is unable to perform her job. On March 3, 2005, Dr. Edwards indicated Petitioner was unable to return to work “until further notice.” On March 9, Dr. Edwards performed surgery on Petitioner’s neck. On March 10, Dr. Edwards wrote a note that Petitioner would be out of work for approximately four to six weeks due to surgery. At the follow-up appointment on March 22, Petitioner reportedly was pleased with the results of the surgery and was not experiencing radicular pain. Dr. Edwards wrote her out of work until her next appointment in April. At the appointment on April 21, Dr. Edwards indicated Petitioner was ready to begin physical therapy.

23.              The record contains notes regarding three physical therapy sessions. On May 16, 2005, during the last physical therapy session contained in the medical records, Petitioner reported “significant reduction in signs and symptoms noted throughout the [right upper extremity] quadrant and cervical spine.” During a follow-up visit, Dr. Edwards noted Petitioner’s “radicular pain has resolved though she has some right upper extremity symptoms that have been unresponsive to extensive therapeutic efforts by Mario in our therapy department.” Dr. Edwards concluded Petitioner’s complaints were not related to her cervical spine but instead were likely signs of impingement and rotator cuff tendonitis and bursitis related to her right shoulder. At that point, Dr. Edwards thought it was necessary to refer Petitioner to another doctor in his practice, Dr. Nicholls, because “as it relates to her neck there is nothing else that needs to be done at this time.”

24.              On July 19, 2005, Dr. Nicholls examined Petitioner and gave her an injection in her right shoulder. According to Dr. Nicholls’s records, Petitioner reported experiencing 100% resolution of her pain with full active range of motion, a negative impingement sign, no evidence of painful arc, and 5/5 strength. During the follow-up visit on September 1, 2005, however, Petitioner reported the relief lasted no longer than 48 hours. Dr. Nicholls recommended Petitioner follow-up with Dr. Edwards and also recommended she consider surgical intervention. Petitioner reported she would discuss the surgical intervention with her husband and would contact Dr. Nicholls if she wanted to schedule the surgery. This is the last medical report contained in the record. However, based on Petitioner’s testimony at the hearing, she never had the surgery.

25.              There is a an absence of medical records supporting a finding that Petitioner is incapacitated from performing her previous job due to pain and swelling in her right upper extremity. Furthermore, there is nothing in Petitioner’s medical records indicating her alleged incapacity is likely to be permanent.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, the court concludes the following as a matter of law:

1.                  The Court has jurisdiction to decide the issues in this case pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2006) of the South Carolina Retirement Systems Claims Procedures Act.

2.                  As the trier of fact, the Court must weigh and pass upon the credibility of the evidence presented. See South Carolina Cable Television Ass’n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

3.                  It is within the Court’s sound discretion whether to qualify a witness as an expert in a particular field. Smoak v. Liebherr-America, Inc., 281 S.C. 420, 315 S.E.2d 116 (1984). When the expert’s testimony is based on facts sufficient to form the basis of an opinion, the Court as the trier of fact determines the probative weight of the opinion. Berkeley Elec. Coop. v. S.C. Pub. Serv. Comm’n, 304 S.C. 15, 402 S.E.2d 674 (1991).

4.                  The standard of proof in an administrative proceeding is a preponderance of the evidence. Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998). Petitioner, therefore, must prove by a preponderance of the evidence that she is entitled to the disability retirement benefits for which she has applied.

5.                  The Retirement Systems provides lifetime disability retirement benefits to its members who file a timely application and meet the disability standard provided by statute. See S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006).

6.                  According to S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006), Petitioner is entitled to disability retirement benefits if:

a.                   She is mentally or physically incapacitated from the further performance of her job as a Buyer II for Florence County;

b.                  The incapacity is likely to be permanent; and

c.                   She should be retired.

To determine if Petitioner is mentally or physically incapacitated from performing her job duties and whether that incapacity is likely to be permanent, the Court should examine whether there is: (1) a medical diagnosis; (2) a mental or physical impairment; (3) a vocational limitation; (4) incapacitation; and (5) permanency. First, a medical diagnosis exists if sufficient medical records indicate that an individual suffers from a particular physical or mental medical condition. Second, a mental or physical impairment exists if the diagnosed medical condition interferes with a person’s ability to perform certain tasks. Third, a vocational limitation exists if the impairment is job related and the tasks that cannot be performed interfere with a person’s ability to do her job. Fourth, a person is incapacitated if the vocational limitations prevent a person from doing her job. Fifth, the impairment that incapacitates a person from doing the job must be permanent in nature.

Finally, once a determination is made about whether Petitioner is mentally or physically incapacitated from performing her job duties and whether the incapacity is likely to be permanent, the Court must make the additional determination regarding whether Petitioner should be retired. The statute requires an analysis of whether an award of disability retirement benefits would be proper based on the particular facts of the case.

7.                  The Vocational Expert, and ultimately this Court, must base its opinion on the subjective claims asserted by Petitioner as well as the objective evidence contained in Petitioner’s medical records. With respect to the subjective claims of the member, the credibility of the member who is claiming disability is an important aspect in assessing the claims asserted.

8.                  There were several instances during the hearing when Petitioner contradicted the reports contained in her medical records, even though the records were made at the time of the appointment and, therefore, were more likely to be accurate than distant memory. According to Dr. Nicholls’s records, as a result of the shoulder injection on July 19, 2005, Petitioner reported experiencing 100% resolution of her pain with full active range of motion, a negative impingement sign, no evidence of painful arc, and 5/5 strength. According to Dr. Nicholls’s records from the follow-up visit on September 1, 2005, Petitioner reported the relief lasted 24-48 hours. Contrary to Dr. Nicholls’s records, however, Petitioner testified at the hearing that she called Dr. Nicholls’s office the afternoon of the injection and reported that the numbness had worn off and the pain was returning only a few hours after the injection. There is no record of this phone call and Petitioner’s testimony directly contradicts the statements that are contained in Dr. Nicholls’s records. Petitioner also testified she experienced no relief as a result of the physical therapy sessions she attended. The records of the occupational therapist, however, indicate “Patient reports that she is able to do all the exercises in routine as she has been instructed in and she states that she is doing better” after only four visits. The records of this visit also indicate “Significant reduction in signs and symptoms noted throughout the RUE [right upper extremity] quadrant and cervical spine on this date. Decreased tenderness of trigger points was noted in the anterior, lateral and posterior musculature of the cervical spine and RUE.” This is contrary to Petitioner’s testimony as well. These two examples are not allegations that Petitioner’s doctor and therapist merely left statements out of their records. Instead, the allegations are that the doctor and therapist included reports that Petitioner alleges she did not make. Given that the records were made at the time of the appointments and that Petitioner insists that statements contained in the records of not one but two separate individuals are patently false, the Court believes the records are the accurate reports of what occurred. The Court also must take this into consideration when determining whether Petitioner met her burden in this case.

9.                  As a Vocational Expert, Mr. Leonard must issue a vocational opinion based on the medical records provided to him. As the medical records change, it only follows that his vocational opinion would change as well. When Mr. Leonard issued his original recommendation, he based it on the medical records provided to him, which included everything provided to this Court as of the date of the hearing. Mr. Leonard reviewed the medical records taking into consideration all of the medical opinions contained therein. After having a conference with Petitioner, Mr. Leonard considered those medical opinions in light of Petitioner’s statements at the conference and concluded that although Petitioner may not have been able to perform her job at that time, Petitioner’s medical records did not support a finding of permanence. After hearing Petitioner’s testimony at the hearing, Mr. Leonard began to question the extent of Petitioner’s asserted functional limitations. After Dr. Fulton issued his report, Mr. Leonard issued a modified recommendation to deny Petitioner’s application for disability on the basis that Dr. Fulton indicated an absence of any impairment relevant to Petitioner’s right upper extremity. Without evidence of functional limitations, it is impossible for Petitioner to prove incapacitation that is likely to be permanent. As such, there was a legitimate basis for Mr. Leonard to modify his original recommendation given that he must assess and rely on the medical opinions provided to him. Furthermore, this Court agrees that Dr. Fulton’s report removes any doubt about whether Petitioner actually could perform her previous modified-light job.

10.              Even without Dr. Fulton’s report, Petitioner failed to meet her burden. If Petitioner’s medical records could support a finding of incapacity, Petitioner cannot prove that she suffers an incapacity that is “likely to be permanent.” The term “likely” means “possessing or displaying the qualities or characteristics that make something probable.” The American Heritage College Dictionary, Third Edition. The term “likely” should be used to mean “probable” or “expected.” Roget’s New Millennium Thesaurus, First Edition (v 1.3.1) (http://thesaurus.reference.com/browse/likely). In the context of the disability standard provided by statute, Petitioner has the burden of proving that she suffers an incapacity and it is expected that the incapacity will be permanent. In this case, Petitioner did not see a doctor between September 2005 and the hearing in June 2006; not surprisingly, Petitioner testified her condition had not changed. Petitioner now asserts the Court should assume that regardless of any future treatment she may or may not choose to undergo, she will not see any medical improvement. Although “retirement statutes should be liberally construed in favor of those to be benefited and the objectives sought to be accomplished,” Stuckey v. State Budget and Control Board, 339 S.C. 397, 529 S.E.2d 706 (2000), the statutes should not be contorted to pay a 36-year-old person lifetime disability benefits based on unsubstantiated complaints that may or may not impair her from performing her previous job, even without further treatment. Petitioner essentially argues that rather than imposing the burden on her of proving an incapacity is expected to be permanent that should be the Court’s default assumption. That is not the standard provided by law.

11.              Petitioner has provided no medical records or doctor’s reports or letters wherein her treating physicians have indicated her condition is likely to be permanent. Petitioner has not provided any evidence that her doctors believe her functional limitations, if any, could not be removed with proper treatment. In the last report from Dr. Edwards, he indicates that any pain she may be experiencing has nothing to do with her neck. In the last report from Dr. Nicholls, he indicates there may be a problem with her shoulder but given her most recent complaints is “not sure what to make of it.” After reviewing those records and performing an examination, Dr. Fulton reports “chronic subjective pain in the right upper extremity, etiology uncertain” and recommends testing to make sure the alleged problem is not neurological. (Dr. Fulton’s Report). As a result of the medical opinions available to this Court, there is no objective medical evidence to support Petitioner’s subjective allegations of pain and functional limitations. This Court, therefore, must conclude that Petitioner failed to prove her incapacity, if any, is expected to be permanent.

12.              This Court is not issuing a medical opinion regarding Petitioner’s alleged medical conditions. Instead, this Court is concluding Petitioner has not met her burden of proving that she meets the disability standard provided by § 9-1-1540.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that Petitioner is not entitled to disability retirement benefits and the Retirement Systems determination denying Petitioner’s application for disability retirement benefits is affirmed.

AND IT IS SO ORDERED.