SC Administrative Law Court Decisions

I. STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2007). Petitioner Thia Coleman-Brown (“Coleman-Brown”) challenges the decision of Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems (“SCRS” or “System”) denying her application for state disability retirement benefits based upon a determination that her application was not timely because Coleman-Brown did not file it within ninety days of the date she ceased being a member “in-service.” Coleman-Brown contends that her application was timely because SCRS should deem her application filed upon mailing, not upon receipt, and that her application was therefore filed within ninety days of her last date of service.

After notice to the parties, the court held a hearing on this matter on January 9, 2008. Upon carefully weighing all of the evidence and applying the applicable law, the court finds that Coleman-Brown’s application for disability retirement benefits was untimely.

II. ISSUES

1. Did Coleman-Brown file her application for disability retirement benefits while she was a member “in service” pursuant to S.C. Code Ann. § 9-1-1540 (Supp. 2007)?

2. If not, should the “in service” filing requirement be tolled based on Coleman-Brown’s alleged mental disability?

III. 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.

Coleman-Brown was last employed as a social worker with the Beaufort County School District (“the District”). She has twenty years, one month, and sixteen days of service in the System. Coleman-Brown has been experiencing depression and manic or bipolar episodes since 1985. When the episodes would occur, she would take leave until her condition stabilized and then return to work. Coleman-Brown testified that when she experienced these episodes or was “in crisis,” filling out the disability retirement application seemed “monumental” and even supplying basic information, such as her name, would be difficult.

In the fall of 2004, Coleman-Brown met with Rosella Robinson (“Robinson”), a benefits administration specialist with the District, and as a result began working a reduced work schedule for medical reasons. At that time, Robinson provided Coleman-Brown with a disability retirement application and submitted an Employer’s Disability Employment Status Report to SCRS. The last day that Coleman-Brown physically worked was December 17, 2004.

In January 2005, the District granted Coleman-Brown extended leave under the federal Family Medical Leave Act (“FMLA”) through April 7, 2005. Robinson provided Coleman-Brown with another disability retirement application and submitted a new status report to SCRS. Coleman-Brown was unable to return to work following her FMLA leave period. On March 22, 2005, the District paid Coleman-Brown for all accrued annual leave through March 31, 2005. Witnesses testified that it was necessary to terminate Coleman-Brown’s employment to “pay her out.” Coleman-Brown’s employment was therefore terminated on March 31, 2005.

The District’s leave policy provides that an employee with the District may request an additional thirty days of leave following the expiration of her FMLA period. This request has to be submitted in writing with medical certification. Dr. Otis Smith, the former superintendent of the District, stated that if Coleman-Brown had requested the additional thirty days, he would have been required to grant it under the District’s policy. Coleman-Brown did not request this extension.

Beginning in March 2005, Coleman-Brown began to call SCRS periodically with questions regarding disability retirement. SCRS mailed disability application packages to Coleman-Brown on at least three occasions. Further, Coleman-Brown conversed by phone with an SCRS representative on March 11, 2005; April 25, 2005; and July 1, 2005. Each time, the employee who spoke with Coleman-Brown stressed the urgency of completing the application as soon as possible. During the call in March, Coleman-Brown informed SCRS that she was being terminated soon and inquired as to what needed to be done to apply for disability benefits. During the July call, Coleman-Brown told the representative for SCRS that “she has mental problems” and has not been “very capable.” (Respt.’s Ex. 2). The representative noted that “she sounded as if this may be true” and urged Coleman-Brown to send at least the one-page disability application as soon as possible, informing her that she could send the additional forms in the packet later. (Id.)

Coleman-Brown mailed her application for disability retirement benefits to SCRS on June 29, 2005, which was exactly ninety days from March 31, 2005. However, SCRS did not receive her application until July 11, 2005, over ninety days from her date of termination.

IV. LAW

Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.

A. Jurisdiction

Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. §§ 1-23-310 et seq. (2005). The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

In presiding over this contested case, the court serves as the finder of fact and makes a de novo determination regarding the matters at issue. See S.C. Code Ann. § 1-23-600(B) (Supp. 2007); Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595 S.E.2d 851, 853-54 (Ct. App. 2004); Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).

B. Disability Retirement Benefits Eligibility Requirements

S.C. Code Ann. § 9-1-1540 (Supp. 2007) provides the requirements to be eligible for disability retirement benefits:

Upon the application of a member in service or of his employer, a member in service on or after July 1, 1970, who has had five or more years of earned service or a contributing member who is disabled as a result of an injury arising out of and in the course of the performance of his duties regardless of length of membership on or after July 1, 1985, may be retired by the board not less than thirty days and not more than nine months next following the date of filing the application on a disability retirement allowance if the system, after a medical examination of the member, certifies that the member is mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired.

Id. (emphasis added). In Anderson v. S.C. Budget and Control Board, S.C. Retirement Systems, 06-ALJ-30-0008-CC (S.C. Admin. Law Ct., Aug. 21, 2006), this court, in an en banc decision,[1] interpreted § 9-1-1540’s language requiring that an application be filed by a member “in service” to include “a person having the status of an employee by virtue of a contract of employment that is in effect at the time the application for disability benefits is filed, specifically including those on accrued annual leave or sick leave.” Further, Anderson found that “in service” may include “employee[s] on [an] employer’s payroll in a paid or approved unpaid capacity.” Id.

The Petitioner bears the burden of establishing, by a preponderance of the evidence, that she is entitled to the disability retirement benefits that she seeks. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue). The South Carolina Supreme Court has held that “retirement statutes should be liberally construed in favor of those to be benefitted.” Stuckey v. State Budget & Control Bd., 339 S.C. 397, 401, 529 S.E.2d 706, 708 (2000) (citing King v. S.C. Ret. Sys., 319 S.C. 373, 461 S.E.2d 822 (1995)).

C. Conclusions

After carefully weighing the evidence and applying the law as discussed above, the court finds that Coleman-Brown’s application for disability retirement benefits was untimely.

To find Coleman-Brown eligible to apply for disability retirement benefits, this court must find that one of the following situations exists. In the first, the court must conclude: (1) that Coleman-Brown is entitled to the 90-day grace period typically applied by SCRS, and (2) that the filing of her application was effective upon mailing. Alternatively, Coleman-Brown’s application would be timely if (1) she is entitled to the 90-day grace period typically applied by SCRS, and (2) she was in service with the District until April 30, 2005. Should the court find that these prerequisites to eligibility are not met, it must determine whether § 9-1-1540’s requirement that a member file a disability application while “in service” can be tolled due to mental incompetence.

1. Eligibility Based on Timely Filing

a.                  90-Day Grace Period

SCRS has typically construed § 9-1-1540’s requirement that an application for disability retirement benefits be filed while the member is “in service” to permit its consideration of applications filed within ninety days of the member’s last day of service. (See, e.g., Respt.’s Pre-Hr’g Br.). However, as this court noted in the en banc decision in Anderson, the grace period has not been promulgated as a regulation and therefore does not have the force and effect of law. Anderson v. S.C. Budget & Control Board, S.C. Ret. Sys., 06-ALJ-30-0008-CC (S.C. Admin. Law Ct., Aug. 21, 2006). As further noted in Anderson, the plain language of the statute requires that the member be in service – “having the status of an employee by virtue of a contract of employment that is in effect at the time the application for disability benefits is filed, specifically including those on accrued annual leave or sick leave” – when the application is filed. Anderson, 06-ALJ-30-0008-CC at 12-13. While SCRS’s practice of accepting applications filed within ninety days of the member’s last day of service is laudable, there is simply no statutory or regulatory basis for it. Accordingly, despite SCRS’s concession that Coleman-Brown’s application would have been timely had it been received by SCRS within ninety days of her last day of service, Coleman-Brown is not entitled to have the grace period applied in this case.

b.                  Last Day of Service

The parties take diverging views as to Coleman-Brown’s last date of service, with Coleman-Brown contending that she was “in service” until at least April 7, 2005 (and also arguing that she was entitled to be in service until April 30, 2005 pursuant to the District’s leave policy), while SCRS argues that her last day of service was March 31, 2005.

As an initial matter, the court finds Coleman-Brown’s argument that she was entitled to stay in service under the FMLA until the end of April to be unavailing. Whether or not she could have extended her FMLA leave until April 30, the evidence uncontrovertibly shows that she did not do so.[2]

Further, whether Coleman-Brown’s last date of service was March 31 or April 7 makes no difference to this court’s analysis. Even if the court were to accept the April 7 date, Coleman-Brown would not meet all of the prerequisites for eligibility, since she is not entitled to the ninety-day grace period and, even if she were, SCRS did not receive her application until more than ninety days after April 7. See discussion infra part IV.C.1.c (Date of Filing). However, to the degree such a finding is necessary to the court’s decision, it finds, as discussed above, that Coleman-Brown’s last date of service was March 31, 2005, the effective date she was terminated from the payroll and compensated for all accrued paid leave.

c. Date of Filing

To determine whether Coleman-Brown’s application was timely filed, the court must also determine the effective date of its filing with SCRS. The South Carolina Supreme Court has held that “[i]t is clear under South Carolina law that mailing does not constitute filing. When a statute requires the filing of a paper or document, it is filed when delivered to and received by the proper officer.” Gary v. State, 347 S.C. 627, 557 S.E.2d 662 (2001). The Court further noted that a statute or rule may define “filing” otherwise. Id. at n.1.[3] However, neither § 9-1-1540 nor any SCRS regulation alters the general rule that filing requires delivery and receipt. Therefore, Coleman-Brown’s application for disability retirement benefits was filed on the date SCRS received it, which was July 11, 2005, and not on the date that Coleman-Brown deposited it in the mail. Accordingly, Coleman-Brown’s application was not timely filed, even if the ninety-day grace period could be enforced.

2. Eligibility Based on Tolling

Having determined that Coleman-Brown’s application was not timely filed, the court must turn to the question of whether her alleged mental incompetence during her last months of employment with the School District tolls the statutory requirement that the application be filed by a member “in service.” Coleman-Brown acknowledges that she did not file her application while she remained in service. However, she argues that she was incapable of doing so due to her disabling bipolar disorder. For Coleman-Brown to prevail on this argument, the court must find: (1) that the statutory requirement that a member file for disability retirement benefits while in service can be tolled on the basis of a disability such as mental incapacity; and (2) that Coleman-Brown proved by a preponderance of the evidence that she meets the legal standard for such tolling to apply.

a. Applicability of Tolling

The law of South Carolina recognizes that certain statutory deadlines can be tolled due to disability. For example, pursuant to S.C. Code Ann. § 15-3-40, statutes of limitation may be tolled for certain civil actions if the person is insane. However, § 15-3-40 unquestionably does not apply to Coleman-Brown’s claim for retirement disability benefits. See § 15-3-40 (tolling the statute of limitations for a person “entitled to bring an action mentioned in Article 5 of this chapter [Actions Other than for Recovery of Real Property] or an action under Chapter 78 of this title [the South Carolina Tort Claims Act]”).

Furthermore, our Supreme Court has suggested that in the absence of a statutory provision expressly tolling a limitations period because of a disability (such as insanity), the limitations period is not tolled on that basis. See Norris v. State, 335 S.C. 30, 515 S.E.2d 523 (1999); Carter v. State, 337 S.C. 17, 522 S.E.2d 342 (1999).[4] Such a rule would be consistent with federal law on this issue. See, e.g., Vogel v. Linde, 23 F.3d 78, 79 (4th Cir. 1994) (affirming the district court’s refusal to toll the statute of limitations found in the federal Emergency Medical Treatment and Active Labor Act due to the plaintiff’s infancy and incompetency because the statute did not expressly provide for such exceptions). In Vogel, the United States Court of Appeals for the Fourth Circuit stated: “The blackletter rule, recognized by the [United States] Supreme Court since at least 1883, is that a statute of limitations runs against all persons, even those under a disability, unless the statute expressly provides otherwise.” Id. at 79 (citing Vance v. Vance, 108 U.S. 514, 521 (1883) (noting that the exceptions from the operation of statutes of limitation usually accorded to infants and married women do not rest upon any general doctrine of the law but upon express statutory language)).

Further, viewing the issue from a different vantage point, the Retirement Code’s requirement that a member file while “in service” is not a statute of limitations as that term is used for civil actions. The New York Supreme Court,[5] in a case indistinguishable from the case at bar, has squarely addressed this issue and found that the “in service” requirement in its retirement code was not a statute of limitations but rather a condition precedent that could not be tolled. Callace v. New York State Employees’ Ret. Sys., 528 N.Y.S.2d 175, 176 (N.Y. App. Div. 1988) (“[T]he statutory requirement that an applicant must be in service or discontinued from service for not more than 90 days is not a Statute of Limitations, but is a condition precedent to the existence of a substantive right to ordinary disability retirement.”). In Callace, the court specifically rejected the petitioner’s argument that an exception to the “in service” filing requirement should be recognized where, as in the case at bar, the disability which gives rise to the petitioner’s claim has also rendered her allegedly incapable of asserting that claim in a timely fashion. Id. at 176. While recognizing the injustice of its decision, the Callace court found that any remedy to the situation must rest with the legislature. Id. at 177.

In the present case, the court observes that the Retirement Code contains no provision for tolling based upon a disability such as mental incompetence. Like the Callace court, this court is aware of the irony and potential injustice that a statute conferring a right to disability retirement
benefits does not contain a tolling provision for members who suffer from a disability.[6] However, it must agree with the Callace and Vogel courts that it cannot carve out an exception to the statute where the legislature did not provide one. See 51 Am. Jur. 2d § 219 at 591 (2000). As the Fourth Circuit commented in Vogel, “It is our duty to apply, rather than attempt to improve upon, the clear commands of [the legislature].” Vogel, 23 F.3d at 80.

b. Standard for Tolling Based Upon Mental Incapacity

Even if § 9-1-1540’s time limit could be tolled due to disability, Coleman-Brown has not proven by a preponderance of the evidence that it should be. Applying § 15-3-40, the South Carolina Supreme Court has stated:

The general rule as to the standard for insanity under tolling statutes is that:

Insanity or mental incompetency that tolls the statute of limitations consists of a mental condition which precludes understanding the nature or effects of one’s acts, an incapacity to manage one’s affairs, an inability to understand or protect one’s rights, because of an over-all inability to function in society, or the mental condition is such as to require care in a hospital.

Wiggins v. Edwards, 314 S.C. 126, 129, 442 S.E.2d 169, 170 (1994) (quoting 54 C.J.S. § 117 at 159-69). “To be ‘insane,’ within the meaning of a tolling provision applicable to a person suffering from such a disability, the [person] must suffer from such a condition of mental derangement as actually prevents the sufferer from understanding his or her legal rights or instituting a legal action.” 54 C.J.S. § 149 at 201 (2005). The disability must be such that the person is unable to manage her business affairs, or to comprehend her legal rights. 51 Am. Jur. 2d § 230 at 597-98 (2000). It is well settled that a formal adjudication of incompetence is not necessary. Id. at 597. However, where one is capable of managing one’s own affairs, the mere psychiatric inability to bring suit is not alone sufficient to establish mental impairment for purposes of tolling a filing deadline. See, e.g., Parks v. Kownacki, 737 N.E.2d 287, 295 (Ill. 2000). Courts have found other conditions similarly insufficient, including: a condition that makes a person stay in her room and be unable to concentrate; impaired judgment alone; post-traumatic stress disorder or major depression; alcohol or drug abuse; and confusion and disorientation. 51 Am. Jur. 2d § 231 at 599 (2000). Further, courts have found cursory allegations and unsupported assertions that a bipolar disorder prevented a litigant from filing a claim to be insufficient for tolling. See, e.g., Ellis v. Stephens, 2006 WL 871125, *5 (M.D. Ga. 2006) (unreported) (“Petitioner has [not] presented any legal authority that a bipolar disorder is recognized as a condition which significantly affects his competence or capacity to act in his own interest regarding matters of importance . . . .”); Price v. Jamrog, 2003 WL 22435645 (6th Cir. 2003) (unreported).

Against this legal framework, the court turns to the evidence presented at trial. As noted above, at the contested case hearing Coleman-Brown testified that she did not remember much from 2005, but that she could not complete the application for disability retirement benefits due to her mental state at that time. She further testified that she could not have completed any form even if all that was required was to fill in her name. However, other witnesses testified that she came into the District office more than once during the time she was on leave and did not request any assistance in completing the application on any of those occasions. Moreover, Coleman-Brown requested and was provided copies of the disability retirement benefits application form on numerous occasions. While still in service with the School District, or during the ninety-day period following her termination from service, she called SCRS at least three times regarding her application, although she never completed one. Thus, although the evidence demonstrates some confusion on Coleman-Brown’s part during this timeframe, it nevertheless shows that she was aware of and able to appreciate her potential right to disability retirement benefits and the requirement to file an application to secure them. Moreover, Coleman-Brown did not produce any evidence that she was hospitalized during that period. Nor did she present any admissible medical expert testimony that she was incapable of understanding the nature or effects of her acts, managing her own affairs, protecting her rights, or functioning in society.[7] Accordingly, even if the “in service” requirement could be tolled, Coleman-Brown has not proven by preponderance of the evidence that her condition met the requisite legal standard.

V. ORDER

Coleman-Brown has not established by a preponderance of the evidence that her application was timely or that, alternatively, the time requirement should be tolled. Accordingly, based upon the Findings of Fact and Conclusions of Law stated above, it is hereby

ORDERED that SCRS’s decision to deny Coleman-Brown’s application for disability retirement benefits on the ground that it was untimely is upheld.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

February 11, 2008

Columbia, South Carolina