SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned matter is before this Court on an administrative appeal pursuant to S.C. Code Ann. § 1-11-710(C) (2008) and S.C. Code Ann. §1-23-600(D) (2008). Appellant Claude Thomas (Thomas) seeks review of a decision by Respondent South Carolina Budget and Control Board, Employee Insurance Program (EIP) denying his claim for long-term disability (LTD) benefits under the State of South Carolina Basic Long Term Disability Income Benefit Plan (Plan). Specifically, by letter dated June 11, 2007, EIP’s Long Term Disability Appeals Committee informed Thomas that his medical conditions did not qualify for LTD benefits under the terms and conditions of the Plan.

STANDARD OF REVIEW

As set forth above, this case is before the Court as an appeal from a Final Order of EIP. The Plan provides that EIP has “full and exclusive authority to control and manage the Plan, to administer claims, and to interpret the Plan and resolve all questions arising in the administration, interpretation and application of the Plan. Our authority includes . . . the right to determine . . . entitlement to benefits.” The Plan further provides: “Any decision we make in the exercise of our authority is conclusive and binding, subject only to appellate judicial review consistent with the standards provided in Section 1-23-380, Code of Laws of South Carolina.”

In addition, the enabling legislation for the Plan provides as follows:

Notwithstanding Sections 1-23-310 and 1-23-320 or any other provision of law, claims for benefits under any self-insured plan of insurance offered by the State to state and public school district employees and other eligible individuals must be resolved by procedures established by the [State Budget and Control Board], which shall constitute the exclusive remedy for these claims, subject only to judicial review consistent with the standards provided in Section 1-23-380.

S.C. Code Ann. § 1-11-710(C) (2008).

Therefore, the Administrativ e Law Court’s review of this case is in an appellate capacity under the standards of S.C. Code Ann. §1-23-380 (as amended by 2008 S.C. Act No. 334), rather than as an independent finder of fact. Specifically, Section 1-23-380(5) sets forth:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(5) (as amended by 2008 S.C. Act No. 334).

A decision is supported by substantial evidence when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well settled case law in this state has also interpreted the substantial evidence rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s finding from being supported by substantial evidence. Waters v. S.C. Land. Res. Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996).

When applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C 348, 461 S.E.2d 388 (1995). Finally, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 467 S.E.2d at 913.

BACKGROUND

Procedural Background

Thomas was formerly employed by Greenwood County as a Deputy Director of Planning. As an employee of the State of South Carolina, he participated in the Plan. Thomas stopped working on December 15, 2005 and claimed total disability due to chronic renal failure, coronary artery disease, peripheral neuropathy, diabetes and hypertension. Notably, Thomas’ application for benefits did not mention any diagnosis or symptoms related to a possible mental disorder. After Thomas submitted his LTD claim, Standard Insurance Company (Standard), the third-party claims administrator for the Plan, considered his claim.

Based on its review of all the available medical information, Standard denied Thomas’ claim on April 4, 2006. Thomas requested a review of Standard’s decision. After reviewing additional medical records submitted by Thomas, Standard upheld the initial denial decision and informed him of its decision in a November 17, 2006 letter. Standard informed Thomas that its Administrative Review Unit (ARU) would conduct an independent review of his claim.

The ARU independently reviewed all of the medical records and information submitted by Thomas and his treating physicians. After considering all of the available information, the ARU denied Thomas’ claim. The ARU informed Thomas of its decision on January 29, 2007.

Thomas appealed Standard’s decision to the EIP Long Term Disability Appeals Committee (Committee) for a de novo review of the decision to deny his LTD claim. In that appeal, he also submitted additional information in support of his claim. As a result, Standard reconsidered its decision in light of the new information. After reviewing the additional information, Standard upheld the denial of Thomas’ claim and informed Thomas of its decision in a June 11, 2007 letter. The Committee then moved forward with its review.

The Committee determined that the medical evidence did not demonstrate that Thomas was unable to perform the duties of his occupation and denied his claim. On or about March 19, 2008, Thomas filed his Notice of Appeal with this Court. After timely notice to the parties, oral arguments were heard on December 4, 2008 at the South Carolina Administrative Law Court in Columbia, South Carolina.

Applicable Plan Terms

The Plan contains the following definition of disability:

Own Occupation Definition of Disability

During the Benefit Waiting Period and the Own Occupation Period you are required to be Disabled only from your Own Occupation.

You are Disabled from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of your Own Occupation.

Own Occupation means any employment, business, trade, profession, calling or vocation that involves Material Duties of the same general character as your regular and ordinary employment with the Employer. Your Own Occupation is not limited to your job with your Employer.

The Plan also contains the following provision:

Proof of Loss

Proof of Loss means written proof that you are Disabled and entitled to LTD Benefits. Proof of Loss must be provided at your expense.

For claims of Disability due to conditions other than Mental Disorders, we may require proof of physical impairment that results from anatomical or physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

Medical Evidence In The Record On Appeal

Thomas stopped working on December 15, 2005. However, there was no evidence that a physician recommended that he stop working at that time. Thomas supported his disability claim based primarily upon the medical evaluation of Dr. Kolb a physician with Family Medicine Associates in Abbeville, South Carolina. On March 21, 2007, Dr. Kolb wrote a “To Whom It May Concern” letter in which he stated, “it is my feeling that he is totally disabled.” Dr. Kolb listed various complaints and alleged symptoms referenced by Thomas. Dr. Kolb noted the last VA report noted a creatinine level of 3.1 and a GFR (glomerular filtration rate) of 24. Dr. Kolb concluded that Thomas “is totally disabled for anything other than periodic sedentary activity.”

However, the records reflect that Thomas received most of his medical care from the Augusta Veterans Administration Medical Clinic (VA). The medical records of the VA reflected that prior to ceasing work, Thomas had not reported any disabling medical complaints to his treating physicians. On September 29, 2005, he reported left foot pain at a level of 2 on a scale of 1-10. He also reported that he had not seen a nephrologist in two years and that he was not being routinely followed for his knee, for which he had arthroscopic surgery in the past.

In support of his LTD claim, Thomas also submitted an Attending Physician’s Statement (APS) from one of his VA physicians, Dr. McKnight. Dr. McKnight listed a primary diagnosis of diabetes mellitis and secondary diagnoses of renal failure and hypertension. When asked to list Thomas’ current symptoms, Dr. McKnight wrote “none.” Dr. McKnight concluded that Thomas could frequently lift up to 20 pounds, and that he could walk/stand up to 4 hours in a work day and sit for up to 4 hours in a work day. Dr. McKnight stated that Thomas had no cognitive limitations or restrictions. Dr. McKnight did not recommend that Thomas stop working.

In fact, on March 31, 2006, Thomas reported he felt “fairly well” and that he had “stopped checking his glucoses about 2 weeks after his last visit, states he has all the needed supplies but simply lost interest and ‘let it go.’” He further reported that his hypoglycemic episodes were “infrequent.” His physical examination evinced normal findings with the exception of “slightly diminished” sensation in his right foot.

On April 26, 2006, a podiatrist, Dr. Kean, recorded that Thomas had some diminished foot sensation, but that he was not having any foot or ankle problems. Dr. Kean instructed Thomas to return in one year or sooner if he developed a foot or ankle problem.

On May 1, 2006, Dr. Mulloy saw Thomas for a check up on his kidney disease. Dr. Mulloy noted Thomas has had chronic kidney disease since the early 90s. Thomas stated he felt fine and did not indicate any uremic symptoms or other problems.

In addition to the medical records of Thomas’ treating physicians, the Record on Appeal also contains detailed medical opinions from Dr. Fancher and Dr. Beeson, two board-certified internists from whom Standard obtained independent medical opinions regarding Thomas’ ability to continue working given his physical and alleged mental conditions.

Dr. Fancher acknowledged that Thomas had had diabetes mellitus for 9 years and hypertension for 16 years and also noted that Thomas had a history of coronary artery disease, but that a heart catheterization did not demonstrate any obstructive lesions. With respect to Thomas’ kidney disease, Dr. Fancher observed that Thomas did not have any uremic symptoms and made the following statement:

The claimant does have advanced renal disease. The medical record suggests the claimant is having no symptoms from his renal disease. I am aware that the Social Security Administration generally does not reward disability benefits for chronic renal failure unless the GFR is less than 20. This is a reasonable guideline, as the vast majority of patients will not have uremic symptoms if their GFR is greater than 20. The medical records clearly suggest the claimant is having no symptoms from his renal disease. His diabetes seems to be under reasonable control; although the claimant is not checking his blood sugars regularly.

Dr. Fancher then concluded as follows:

After reviewing the available medical records, I cannot identify any physical illness that would prevent the claimant from performing sedentary work . . . The claimant will likely have progressive deterioration of his renal function. It is quite likely the claimant will require dialysis in the next several years. However, at this time, the claimant would not be impaired from working due to his renal failure.

After reviewing additional information Thomas provided after Standard’s initial denial decision, Dr. Fancher again concluded that Thomas was capable of performing sedentary work. Subsequently, Dr. Fancher also reviewed the VA’s partial disability determination and provided the following comments regarding the VA determination:

· “[I]n regard to Mr. Thomas’ cardiac condition the medical records had not supported a condition of such severity to result in limitations to sedentary occupational activity . . . [his] ejection fraction of 60% is normal.

· “[H]ypoglycemic episodes twice weekly (which is not supported by the contemporaneous medical records) would not prevent sedentary occupational activity.

· Thomas’ “renal condition is documented as being asymptomatic and [his] creatinine levels do not support impairment.”

· “[W]hile ankle edema is noted in the VA rating decision this would not prevent the performance of sedentary occupational activity.”

· “Thomas’ visual acuity status is 20/25 corrected bilateral and . . . while he has very mild narrowing of his peripheral vision due to cataracts this would not prevent driving, reading reports, or working on a computer.

Dr. Beeson confirmed Dr. Fancher’s assessment and provided the following opinion:

This patient has a history of diabetes that appears to be relatively well controlled. He has chronic renal failure that appears to be asymptomatic. He apparently has a history of coronary disease; however, this is not detailed in the medical record available. There is clearly no evidence of ongoing angina or symptoms of myocardial dysfunction. I can find no reason why this patient could not continue to work in sedentary, and possibly even a light work occupation; medium work or greater would probably be contraindicated. The fact that he has significant renal insufficiency, in and of itself, is not reason for work cessation. There is no evidence that the patient was seen at or about the time that he ceased work. There is no evidence that the symptomatology worsened at that time. It appears the patient made a unilateral decision to cease working.

DISCUSSION

Thomas argues that EIP “abused its discretion” by ignoring the records and opinions of his treating physicians. In support of this argument, Thomas relies almost exclusively on Dr. Kolb’s disability determination after an examination in March 2007 and on the VA’s partial disability rating, particularly the VA’s findings regarding Thomas’ alleged mental condition. Nevertheless, as noted the above, appellate review of this case is made not from the perspective of what evidence supports Appellant’s view of the evidence, but whether there is evidence to support EIP’s decision to deny his LTD claim. I find that there is substantial evidence in the Record to support that decision.

Importantly, though Appellant places emphasis on the assertion that Dr. Kolb’s determination was one made by Appellant’s primary treating physician there is credible evidence to the contrary. The evidence reflected that Thomas infrequently received treatment from Family Medicine Associates in Abbeville, South Carolina.^[1] In fact, Thomas submitted only one medical record from Family Medicine Associates. The only contemporaneous record submitted by Family Medicine Associates is a May 21, 2007 note signed by Dr. Kolb in which Dr. Kolb notes that Thomas was “in today for evaluation regarding disability.”^[2] Furthermore, Dr. Kolb disability determination was submitted with no supporting documentation.

To the contrary, EIP based its determination on the medical opinions of Dr. Fancher and Dr. Beeson who determined that Appellant was not disabled. Dr. Fancher’s and Dr. Beeson’s opinions are supported by Appellant’s medical records. In particular, the medical records submitted by Appellant, including Dr. McKnight’s APS and the numerous medical records from the VA support Dr. Fancher’s and Dr. Beeson’s opinions. The medical records demonstrate that Thomas has very few, if any, symptoms due to his chronic kidney disease. While Thomas’ condition could deteriorate in the future, at the time Thomas stopped working, no physician had recommended that he stop working and Thomas was suffering no symptoms from his chronic kidney disease. The medical records also demonstrate that Thomas’ blood pressure was well controlled; that his diabetes was well controlled with only “very infrequent” hypoglycemic events; that his knee pain did not cause limitations or restrictions that would prevent sedentary work activity; and that his coronary artery disease caused very few, if any, physical limitations.

Additionally, there is no evidence that any physician observed Thomas having any symptoms related to any of his medical conditions. To the contrary, one month after Thomas voluntarily stopped working, Dr. McKnight stated that Thomas had no physical symptoms; that he could sit or stand 8 hours in a work day and lift up to 20 pounds frequently.^[3] The Record also reveals no evidence that any physician, treating or otherwise, established any limitations or restrictions, based on a physical or mental condition, which prevents Thomas from working in his occupation.

As a final matter, while Appellant argued in his Brief and at oral argument that EIP’s decision was arbitrary and capricious because EIP “ignored” Thomas’ mental condition, the Court finds no merit to Appellant’s assertion. The Plan places the burden of proving disability squarely on a claimant. In this case, Appellant has submitted no records of any mental status examination or other mental health treatment. The Court also notes that both Standard and EIP addressed Thomas’ mental condition on multiple occasions and pointed out that Thomas has never submitted any medical records that support a finding of disability based on any mental condition. Notably, not one of Thomas’ treating physicians has set forth any physical or mental restrictions or limitations regarding his ability to work in his sedentary occupation. To the contrary, the only treating physician who offered any opinion regarding physical or mental restrictions opined that Thomas had no mental or cognitive limitations or restrictions.

“Once admitted, expert testimony is to be considered just like any other testimony.” Tiller v. Nat’l Health Care Ctr. of Sumter, 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999). Therefore, “while medical testimony is entitled to great respect, the fact finder may disregard it if there is other competent evidence in the record.” 513 S.E.2d at 846.  Here, there clearly was other competent medical evidence supporting EPI’s conclusion. Thus, the substantial evidence in the Record on Appeal support a determination that Appellant failed to provide satisfactory proof of loss to support his claim.

ORDER

For the reasons set forth above,

IT IS HEREBY ORDERED that EIP’s final agency determination denying Appellant’s claim for LTD benefits is affirmed.

AND IT IS SO ORDERED.

__________________________

Ralph King Anderson, III

Administrative Law Judge

January 23, 2009

Columbia, South Carolina