SC Administrative Law Court Decisions

This case is before the Court pursuant to a request for contested case hearing filed by Sharon Neals on May 25, 2005. Ms. Neals sought review of a Final Agency Determination denying her application for disability retirement benefits. Respondent South Carolina Retirement Systems (“Retirement Systems” or SCRS) asserts Ms. Neals is not entitled to disability retirement benefits because she is not permanently incapacitated from performing her previous job duties as a Trades Specialist for South Carolina Department of Transportation. A hearing was held on November 16, 2005 at the Administrative Law Court with the parties present as indicated. Based on the evidence presented at trial and the presentations by the parties, I conclude by a preponderance of the evidence that Ms. Neals is not permanently incapacitated and not entitled to disability retirement benefits.

FACTUAL BACKGROUND AND FINDINGS OF FACT

In 2004, Sharon Neals was a member of the general retirement system, SCRS, and was employed as a Trades Specialist II for South Carolina Department of Transportation. On April 7, 2004, Ms. Neals was involved in a work-related injury. As she was lifting bags of trash off the highway and tossing them in the back of a truck, a piece of metal fell out of the bag. Ms. Neals jumped out of the way of the metal and felt a “pop” in her left neck and back. Ms. Neals sought medical treatment from her family physician. Following several visits with her family physician and a physical therapist, Ms. Neals was referred to an orthopaedic specialist in July 2004. On July 29, 2004, Ms. Neals applied for disability retirement benefits from the Retirement Systems.

Ms. Neals’ file was sent to a Disability Examiner with the South Carolina Vocational Rehabilitation Department. The Disability Examiner reviewed medical documents and recommended that the Medical Board deny Ms. Neals’ application for disability benefits on the basis that she has a normal gait, motor examination, sensory examination and reflexes. The examiner concluded that the petitioner’s back condition should not prevent her from continuing her job as a Trades Specialist II. (Resp. Exh. 1, p. 9). As recommended by the Disability Examiner, the Medical Board disapproved the disability claim on October 5, 2004. (Resp. Exh. 1, p. 10).

Ms. Neals requested a reconsideration of the Medical Board’s action. (Resp. Exh. 1, pp. 15--16). Her file was sent to a second Disability Examiner at the Vocational Rehabilitation Department. That Disability Examiner requested that Ms. Neals complete a questionnaire which described her daily activities. Ms. Neals indicated that she cooks, shops for the household, attends church, sings in the choir, and does light housework, such as sweeping and mopping. (Resp. Exh. 1, pp.19--22). Ms. Neals stated in this questionnaire that she frequently needed assistance with these tasks from her son or daughter. She has pain in her back daily and must sit on a stool to prepare meals. Her daughter assists with the shopping and will come over to mop the floors at Ms. Neals’ home.

Based on the medical documents, the Disability Examiner recommended that the Medical Board deny Ms. Neals’ application for continuation of benefits on the basis that the orthopaedic specialist had indicated that she had reached maximum medical improvement. (Resp. Exh. 1, p.107). The Medical Board again disapproved the disability claim as recommended by the Disability Examiner. (Resp. Exh. 1, p.027).

Ms. Neals requested an administrative review of the Medical Board’s action. (Resp. Exh. 1, pp.034--035). Director Peggy G. Boykin appointed Joel D. Leonard, CRC, CVE, as the vocational consultant hired by the South Carolina Retirement Systems to review Ms. Neals’ file. (Resp. Exh. 1, p. 033). Mr. Leonard conducted an administrative conference and reviewed the file, including all documents obtained by the Disability Examiners, in addition to all documents submitted by Ms. Neals.

Mr. Leonard recommended that Ms. Neals’ application for continuation of disability retirement benefits be denied. (Resp. Exh. 1, pp.047--051). Mr. Leonard addressed the conditions alleged by Ms. Neals during the Administrative Conference which she claims preclude her from performing her previous job as a Trades Specialist II. He reviewed the medical records provided and noted that Dr. Jones, the orthopaedic specialist, had found that although Ms. Neals had reached maximum medical improvement that she was also likely to continue to suffer from recurrences of her back pain. Mr. Leonard found that Ms. Neals’ current medical records did not support the presence of any significant impairments as a result of the alleged back trouble. As a result, Mr. Leonard concluded Ms. Neals’ claim for disability retirement benefits did not satisfy the standard set forth in statute.

On April 28, 2005, Director Boykin issued a Final Agency Determination adopting Mr. Leonard’s recommendation and denying continuation of Ms. Neals’ disability retirement benefits. (Resp. Exh. 1, pp. 042-046). On May 25, 2005, Ms. Neals filed a request for a contested case hearing at the Administrative Law Court seeking review of the Final Agency Determination.

DISCUSSION

The South Carolina Administrative Law Court has original jurisdiction over this case pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2004) of the South Carolina Retirement Systems Claims Procedures Act. The sole issue in this case is whether Ms. Neals is entitled to disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2004). To decide this issue, the Court must determine: (1) whether Ms. Neals is mentally or physically incapacitated from the performance of her job as a Trades Specialist II; (2) whether the incapacity is likely to be permanent; and (3) whether Ms. Neals should be retired. S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2004).

I. Job Duties

Ms. Neals was employed as a Trades Specialist II for South Carolina Department of Transportation. According to the Petitioner’s Retirement Systems Disability Report, Ms. Neals’ job duties include bending and lifting 10 pounds or more, operating a truck hauling debris, standing to flag traffic, and using rakes and shovels to place asphalt. (Resp. Exh. 1, p. 004). According to the Job Description provided by Ms. Neals’ employer in the Employer’s Description of Disability Applicant’s Job (Resp. Exh. 1, p. 007), Ms. Neals’ job required her to walk and stand for three hours per day and sit for two hours per day. The job also required Ms. Neals to bend and reach frequently and to lift and/or carry ten pounds. Mr. Locklair, the Resident Maintenance Engineer who completed the job description, concurred in Ms. Neals’ assessment of her duties. Mr. Leonard found that this level of exertion would classify Ms. Neals’ job as a “medium” exertion level. (Resp. Exh. 1, p. 048).

II. Statutory Requirements

To determine if Ms. Neals meets the statutory requirements that she is mentally or physically incapacitated from performing her job duties and that the 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 “likely to be permanent” in nature.

During the Administrative Conference on February 4, 2005, Ms. Neals alleged an inability to perform her previous job as a result of a back injury and subsequent recurring, radiating back pain. Ms. Neals alleged that this radiating back pain makes it difficult for her to walk, stand, or sit. The medical record supports a diagnosis of pain. She has had numerous facet block injections which provide some relief. She has been on pain medication on an “as needed” basis since the injury. Pain in the back, leg, and hip, all conditions alleged by Ms. Neals, can cause difficulty walking, standing, or sitting. Ms. Neals’ particular job as a Trades Specialist II could be physically demanding at times and required her to perform these tasks as she collected trash bags at the side of the road, stood to flag traffic, drove the truck to collect trash, or helped spread asphalt.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. This court has jurisdiction over this matter pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).

2. S.C. Code Ann. § 9-1-1540 (Supp. 2004) provides that qualifying members of the South Carolina Retirement System

may be retired by the [State Budget and Control] [B]oard 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 medical board, 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).

3. In the case at hand, Petitioner claims that the permanent physical effects following her accident on the job render her physically unable to perform her job as a Trades Specialist II with the Department of Transportation, and that she should be entitled to disability retirement benefits from SCRS.

4. 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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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).

5. In general, “expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence . . . [;] the triers of fact cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported finding to the contrary of the opinion.” 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the trier of fact may give an expert’s testimony the weight he or she determines it deserves. Florence County Dep’t of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992). Further, the trier of fact may accept the testimony of one expert over that of another. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

6. In the case at hand, Petitioner has alleged several limitations as a result of her injury which would prevent her from performing her prior duties. Her own treating orthopaedic specialist, however, noted in September 2004 that she had reached maximum medical improvement from the injuries sustained following the accident. He also indicated that Ms. Neals appeared to be prone to injuries to her spine for unknown reasons, possibly including her slight stature and frame.

7. As the trier of fact in this matter, this tribunal is charged with weighing all of the evidence presented in this case and with resolving the conflicts in that evidence, including conflicting opinions between experts. Here, the medical experts who have evaluated Petitioner have concluded that she suffers from recurring back pain. It does not appear, however, that the Petitioner has carried her burden of proof to show that the statutory requirements have been met. Specifically, Ms. Neals has not presented any concrete, medical evidence that she is physically incapacitated for the performance of her duties as a Trades Specialist II, nor that any incapacity is permanent. It appears from the record that Ms. Neals has a propensity to back pain or injury, but not that it rises to the level necessary to establish that she is eligible for retirement.

ORDER

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

IT IS HEREBY ORDERED that the decision of SCRS to deny Petitioner’s application for disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1570 (1986 & Supp. 2004) is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Carolyn C. Matthews

Administrative Law Judge

June 16, 2006

Columbia, SC