ORDERS:
CONSENT ORDER OF REMAND
In
the above-captioned matter, Petitioner Karen Shuler requested a contested case
hearing to challenge the decision of Respondent South Carolina Budget and
Control Board, South Carolina Retirement Systems, to deny her application for
disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1540 (Supp.
2006). By a Notice of Hearing dated January 31, 2007, this matter was scheduled to be heard before the Administrative Law Court on Thursday, April 5, 2007. However, as discussed below, the parties now come before the Court seeking to have
this matter remanded to the South Carolina Retirement Systems for further
proceedings.
BACKGROUND
On March 31, 2006, Petitioner Karen Shuler filed an application for disability retirement
benefits with Respondent South Carolina Retirement Systems, in which she
alleged that she was permanently disabled from her position as a school teacher
with the Orangeburg County Consolidated School District #3 as a result of
severe pain in her lower back, left hip, and left leg. After her application
was initially denied by the Retirement Systems on April 10, 2006, Petitioner requested administrative review of her disability claim before the Director of the
Retirement Systems, Peggy G. Boykin. Director Boykin appointed Robert E.
Brabham, Ph.D., an independent vocational consultant, to conduct the
administrative review of Petitioner’s disability claim, and, by a letter dated May 23, 2006, the Retirement Systems scheduled a conference for Petitioner with Dr.
Brabham on June 28, 2006.
At
the request of counsel for Petitioner in a June 26, 2006 telephone call, Petitioner’s administrative conference with Dr. Brabham was postponed until September 13, 2006, to allow counsel to secure additional medical evidence regarding
Petitioner’s disability claim. However, because Petitioner’s counsel
understood the September 13, 2006 date to only be a tentative date for the new
hearing, and not a formally scheduled hearing date, Petitioner and her counsel did
not appear at the rescheduled hearing on September 13, 2006. When the Retirement Systems did not receive a response to its September 28, 2006 letter seeking to reschedule the missed hearing, it requested that Dr. Brabham
issue his recommendation based solely upon the medical records already held by
the Retirement Systems regarding Petitioner’s alleged disability.
In his recommendation issued on October 10, 2006, Dr. Brabham found that “there is insufficient medical evidence to confirm that [Petitioner] is
permanently unable to perform her job duties” and recommended that Petitioner’s
application for disability retirement benefits be denied. On October 31, 2006, Director Boykin issued a Final Agency Determination adopting Dr.
Brabham’s recommendation and denying Petitioner’s claim for disability
retirement benefits. On November 30, 2006, Petitioner filed a request for a
contested case hearing with the Administrative Law Court seeking review of the
Final Agency Determination.
During
the time Petitioner’s disability claim has been pending before the Retirement
Systems and this Court, Petitioner has undergone additional medical treatment
for her back pain. In particular, Petitioner had additional surgery on her
back on May 1, 2006, and made several follow-up visits to her neurosurgeons at
MUSC throughout the remainder of 2006. At the request of counsel for the
Retirement Systems, counsel for Petitioner provided records for this additional
treatment to the Retirement Systems on February 16, 2007.
DISCUSSION
AND ORDER
Based
upon the new medical records recently submitted by Petitioner—records that were
not made available to Dr. Brabham at the time he made his recommendation in
this matter—Respondent Retirement Systems finds that it would be appropriate to
remand this matter to the Retirement Systems so that its vocational consultant
can conduct an administrative conference with Petitioner, evaluate her updated
medical records, and issue a new recommendation based upon all of the available
evidence. Upon such a remand, Petitioner agrees to pay the Retirement Systems a
one-hundred-and-thirty-dollar ($130.00) “no show” fee to reimburse the
Retirement Systems for the vocational consultant’s time at the earlier missed
conference and understands that a new administrative conference will not be
scheduled and a new recommendation will not be issued until the fee is received
by the Retirement Systems. Petitioner further agrees to attend the
administrative conference scheduled pursuant to this remand and to provide the
vocational consultant will all medical records that she deems relevant to her
disability claim.
NOW,
THEREFORE, upon the motion of the parties to the above-captioned matter,
IT
IS HEREBY ORDERED that the hearing of this case scheduled for Thursday, April 5, 2007, is CANCELED and this matter is REMANDED to
Respondent South Carolina Retirement Systems for further review of Petitioner’s
application for disability retirement benefits.
IT
IS FURTHER ORDERED that, as this remand extinguishes the instant contested
case proceeding, this case is hereby DISMISSED. If Petitioner wishes to
challenge a subsequent Final Agency Determination issued by the Retirement
Systems pursuant to this remand, she will have to request a new contested case
before this Court.
AND
IT IS SO ORDERED.
____________________________
Honorable
Ralph King Anderson, III
Administrative
Law Judge
March 21, 2007
Columbia, South Carolina
WE CONSENT:
___________________________ ____________
Michael P. Hörger
Date
Attorney for Petitioner
____________________________ ____________
Justin R. Werner
Date
Attorney for Respondent
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