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. 2005) upon the request for a contested case hearing filed by Sherry Lazicki-Thomas (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 found Petitioner was not entitled to disability retirement benefits. Afterwards, the South Carolina Budget and Control Board, South Carolina Retirement Systems (Retirement Systems), filed a Motion for Summary Judgment on October 13, 2006. The Retirement Systems contends that this case should be dismissed in light of the Court’s en banc decision in Anderson v. South Carolina Budget and Control Board, South Carolina Retirement Systems, 06-ALJ-30-0008-CC.[1]

STANDARD OF REVIEW

Rule 68 of the Administrative Law Court Rules provides that “[t]he South Carolina Rules of Civil Procedure may, where practicable, be applied in proceedings before the Court to resolve questions not addressed by these rules.” Rule 56(c), SCRCP, provides that summary judgment shall be granted if it is shown “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See also, Gadson v. Hembree, 364 S.C. 316, 613 S.E.2d 533 (2005); Cisson Constr. Inc. v. Reynolds & Assoc. Inc., 311 S.C. 499, 429 S.E.2d 847 (Ct. App. 1993). In determining whether summary judgment is proper, the court must construe all ambiguities, conclusions, and inferences arising from the evidence against the moving party. Byers v. Wesinghouse Elec. Corp., 310 S.C. 5, 425 S.E.2d 23 (1992). Because it is a drastic remedy, summary judgment should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial on disputed factual issues. Helena Chem. Co. v. Allianz Underwritters Ins. Co., 357 S.C. 631, 594 S.E.2d 455 (2004). Summary judgment is also not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Wogan, et al. v. Kunze, et al., 366 S.C. 583, 623 S.E.2d 107 (2005). On the other hand, the non-moving party may not rest upon the mere allegations or denials of the pleadings, but a response by affidavit or otherwise as provided in the rules must set forth specific facts creating a genuine issue for trial. S.C.R. Civ. P. 56 (e); Moody v. McLellan, 295 S.C. 157, 163, 367 S.E.2d 449, 452-53 (Ct. App. 1988). Furthermore, summary judgment should be granted “when plain, palpable and undisputed facts exist on which reasonable minds cannot differ.” Bayle v. S.C. Dep’t of Transp., 344 S.C. 115, 120, 542 S.E.2d 736, 738 (Ct. App. 2001).

UNDISPUTED MATERIAL FACTS

Petitioner was employed as a firefighter for the City of North Charleston from May 3, 1999, to January 28, 2005. During Petitioner’s employment as a firefighter for the City of North Charleston, she accrued five years, three months, and sixteen days of service credit in the Police Officers Retirement System (PORS).

On April 6, 2004, Petitioner allegedly was injured on the job. Petitioner last physically worked on April 9, 2004. As of January 28, 2005, Petitioner’s employment with the City of North Charleston was terminated. Petitioner has not worked for a covered employer since January 28, 2005.

Petitioner filed an application for disability retirement benefits on August 16, 2005. On August 17, 2005, Respondent sent a letter to Petitioner notifying her that she was ineligible to apply for disability retirement benefits because she was not “in service” at the time she filed her application. Petitioner properly and timely appealed the initial decision and exhausted her administrative remedies. Respondent Retirement Systems ultimately issued its final determination on December 6, 2005. Petitioner thereafter filed a request for contested case hearing at the Administrative Law Court.

DISCUSSION

The Retirement Systems contends that this case should be summarily dismissed because there is no genuine issue as to any material fact and the Retirement Systems is entitled to a judgment as a matter of law on the sole issue of whether Petitioner met the statutory requirements of eligibility to file an application for disability retirement benefits. The statute at issue in this case provides in pertinent part:

On the application of a member in service or the member’s employer, a member who has five or more completed years of earned service or any contributing member who is disabled as a result of an injury arising out of and in the course of the performance of the member’s duties regardless of length of membership may be retired by the retirement 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.

S.C. Code Ann. § 9-11-80(1) (Supp. 2005) (emphasis added). The central issue in this case is whether Petitioner was a “member in service” at the time she filed her application for disability retirement benefits. The Court addressed this issue en banc in the case of Anderson v. South Carolina Budget and Control Board, South Carolina Retirement Systems, 06-ALJ-30-0008-CC. In that decision, the Court concluded the words “member in service” as applied to an employee seeking disability retirement benefits, plainly mean “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.” This conclusion is equally applicable in the case sub judice.

Pursuant to Rule 70(F) of the Rules of Procedure for the Administrative Law Court, “[t]he issue(s) addressed in en banc decisions by the administrative law judges are binding upon all individual administrative law judges in all subsequent cases, unless a majority of the judges determine otherwise.” Thus, not only has the central issue of this case been determined in the Anderson en banc decision, the Court’s conclusion in that decision is binding on the facts of this case.

Here there is no genuine issue of material fact in this case. Petitioner terminated employment on January 28, 2005, but did not file an application for disability retirement benefits until August 16, 2005. Petitioner was thus not an employee of the City of North Charleston at the time she filed her application for disability retirement benefits. In fact, Petitioner had not been on the City’s payroll in any status for six and a half months by the time she filed her application.[2] I therefore find that Petitioner was not a “member in service” at the time she filed her application for disability retirement benefits. Based on these crucial facts and the en banc decision of this Court in the Anderson case, the Retirement Systems is entitled to judgment as a matter of law.

ORDER

IT IS THEREFORE ORDERED that Respondent’s Motion for Summary Judgment is GRANTED.

AND IT IS SO ORDERED.

____________________________________

Ralph King Anderson, III

Administrative Law Judge

November 13, 2006

Columbia, South Carolina