ORDERS:
FINAL ORDER
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. 2006) upon the request for a contested case hearing filed by Amy D. Martin (“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 denied her application for disability retirement
benefits. After notice to all of the parties, a hearing was conducted on June 14, 2006, at the offices of the ALC in Columbia, South Carolina. Based on the
testimony and evidence presented, this Court finds Petitioner is not entitled
to disability retirement benefits because she is not permanently incapacitated
from the further performance of her previous job duties as a Buyer II for Florence County.
ISSUES
The
sole issue in this case is whether Petitioner is entitled to disability
retirement benefits pursuant to S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006). To decide this issue, the Court must determine: (1) whether Petitioner is mentally
or physically incapacitated from the further performance of her job as a Buyer
II for Florence County; (2) whether the incapacity is likely to be permanent;
and (3) whether Petitioner should be retired. S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006).
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:
1. Notice of the date, time, place, and subject matter of the hearing was
provided to all parties in a timely manner.
2. Petitioner, who was 36 years of age when she stopped working, is a
member of the Retirement Systems with seven years and nine months of service in
the South Carolina Retirement System (“SCRS”), which is the general retirement
system.
3. On June 25, 2004, Petitioner was in an automobile accident. Petitioner
continued to work as a Buyer II for Florence County until February 10, 2005 but
complained of neck and shoulder pain radiating down her left arm. On February
11, 2005, Petitioner underwent a cervical epidural steroid injection and
subsequently began complaining of pain in her right arm and leg. On March 9,
2005, Petitioner underwent surgery, which included an anterior cervical
diskectomy and fusion at C5-6. In early May 2005, Petitioner began physical
therapy to restore her loss of flexibility and strength. By May 16, 2005,
Petitioner reported a significant reduction in signs and symptoms throughout
her right upper quadrant and cervical spine.
4. Petitioner did not work at anytime after February 10, 2005. Despite having worked for Florence County since May 1997, Petitioner apparently had no
leave accrued when she stopped working. As a result, Petitioner’s employment
was terminated on May 13, 2005.
5. On May 18, 2005, Petitioner filed an application for disability
retirement benefits alleging disability based on the adverse effects of the
automobile accident of June 2004. Specifically, Petitioner alleged disability
due to complications related to her cervical spine and adverse effects of an
epidural steroid injection.
6. After Petitioner filed an application for disability retirement
benefits, her file was sent to the South Carolina Vocational Rehabilitation
Department. The Disability Examiner gathered medical documents and obtained a
consultative opinion from Robert D. Kukla, M.D. Dr. Kukla concluded Petitioner
could occasionally lift/carry fifty pounds, frequently lift/carry twenty-five
pounds, stand and/or walk approximately six hours in an eight-hour day, sit for
approximately six hours in an eight-hour day, and push and/or pull unlimited.
7. Based on the medical records and Dr. Kukla’s assessment, the Disability
Examiner made a recommendation that the Medical Board deny Petitioner’s
application for benefits on the basis that she retains the residual functional
capacity to perform her job duties as a Buyer II for Florence County. On June 28, 2005, the Medical Board disapproved the disability as recommended by the
Disability Examiner.
8. Petitioner requested a reconsideration of the Medical Board’s action.
As a result, Petitioner’s file was sent to a second Disability Examiner at the
Vocational Rehabilitation Department. That Disability Examiner gathered
additional medical evidence and obtained an additional consultative opinion
from Joyce B. Lewis, M.D. Dr. Lewis concluded Petitioner could occasionally
lift/carry fifty pounds, frequently lift/carry twenty-five pounds, stand and/or
walk approximately six hours in an eight-hour day, sit for approximately six
hours in an eight-hour day, and push and/or pull unlimited.
9. Based on the previous information as well as any new medical records and
Dr. Lewis’s opinion, the second Disability Examiner recommended that Petitioner’s
application for benefits be denied on the basis that she retains the capacity
to perform her job duties. On August 12, 2005, the Retirement Systems
disapproved benefits as recommended.
10. Petitioner requested an administrative review of the denial of
disability retirement benefits. Director Peggy G. Boykin appointed Joel D.
Leonard, M.Ed., CRC, CVE, as the vocational consultant hired by the Retirement
Systems to review Petitioner’s file.
11. Mr. Leonard has a Masters in Rehabilitation Counseling. He is certified
not only as a Rehabilitation Counselor but also as a Vocational Evaluation
Specialist. Mr. Leonard has been providing vocational evaluation and
rehabilitation services since May 1993. For four years, Mr. Leonard worked for
the South Carolina Vocational Rehabilitation Department in this capacity. Since
February 1997, Mr. Leonard has provided these services while self-employed.
Mr. Leonard also has been recognized as a Vocational Expert by the Social
Security Administration, Railroad Retirement Board, and this Court. Based on
Mr. Leonard’s education and experience, this Court qualified him as a
Vocational Expert in this case. As such, Mr. Leonard is qualified to provide
expert testimony about a person’s ability to work in the face of various
medical conditions. In particular, as a Vocational Expert, Mr. Leonard does
not provide medical opinions but is qualified to provide a vocational opinion
based on a person’s medical records.
12. Mr. Leonard conducted an administrative conference on December 15, 2005, during which he heard testimony from Petitioner. Mr. Leonard reviewed
the entire file, including all documents obtained by the Disability Examiners
as well as all documents submitted by Petitioner, and issued a recommendation
that Petitioner’s application for disability retirement benefits be denied.
13. On January 5, 2006, Director Boykin issued a Final Agency Determination
adopting Mr. Leonard’s recommendation and denying disability retirement
benefits for Petitioner. On February 1, 2006, Petitioner filed a request for a
contested case hearing at the Administrative Law Court seeking review of the
Final Agency Determination.
14. Petitioner testified at the hearing regarding her daily job duties, which
included preparing purchase orders and preparing outgoing mail for the Florence County office building. Following the automobile accident, Petitioner experienced
pain in her neck and her left arm but continued to work. Petitioner eventually
saw Willie S. Edwards, Jr., M.D., an orthopedic surgeon in Florence, who
recommended conservative treatment prior to surgery. On February 11, 2005,
Petitioner underwent an epidural steroid injection at a surgery center in Florence. According to Petitioner, she experienced significant pain during the injection
and visited the Emergency Room that night. Soon thereafter, Petitioner saw Dr.
Edwards who decided to perform surgery “to get the pressure off of … the
nerve.” After the surgery on March 9, 2005, Petitioner’s left arm improved but
she continued to have pain in the right arm and chest area. Petitioner
participated in physical therapy until her health insurance expired due to the termination
of her employment. In July 2005, Petitioner started seeing Danny W. Nicholls,
D.O. regarding her right arm. Dr. Nicholls performed an injection in
Petitioner’s right shoulder but ultimately recommended surgery. Petitioner,
however, refused to have the surgery without a second opinion. As of the date
of the hearing, Petitioner had not seen a doctor since September 2005. Petitioner
testified she continues to experience sharp pains, tingling, spasms, and
swelling in her right arm.
15. Mr. Leonard testified at the hearing about his experience at the South
Carolina Vocational Rehabilitation Department first as a field counselor, then
as an evaluator, and finally as a special services coordinator. During his
experience working for the Vocational Rehabilitation Department, Mr. Leonard
would consider whether a person required a medical service to remove a barrier
to employment given the person’s transferable skills and whether that person
was unable to afford such required medical service. Mr. Leonard was familiar
with the practices and procedures of the Vocational Rehabilitation Department
regarding the provision of medical services in an attempt to rehabilitate a
person to perform gainful employment.
16. Regarding Petitioner’s particular circumstances, Mr. Leonard testified
that Petitioner’s job was mostly sedentary given the clerical nature of her
work but required some standing, moving, and occasional lifting up to twenty
pounds. As a result, based on the job description provided by the employer as
well as the descriptions provided by Petitioner both before and during the
hearing, Mr. Leonard determined Petitioner’s job was classified as modified
light rather than sedentary. Taking into consideration the classification of
Petitioner’s job as modified light, Mr. Leonard reviewed Petitioner’s medical
records to determine whether she suffered any medical conditions that
reasonably would preclude her from performing that job. Based on Petitioner’s
existing medical records through September 2005 and giving credibility to her
assertions of her functional impairments, Mr. Leonard concluded that even
though Petitioner’s medical records supported a finding that she suffered an
incapacity, the incapacity was not likely to be permanent. After hearing
Petitioner’s testimony during the hearing, however, Mr. Leonard questioned the
extent of Petitioner’s asserted functional limitations. Nonetheless, Mr.
Leonard testified that given her asserted functional limitations and her
particular job duties, it would not “take much for her to physically remove the
barrier” to perform her job as a Buyer II for Florence County. Mr. Leonard
ultimately testified in his expert opinion that Petitioner’s circumstances did
not meet the disability standard.
17. At the hearing, Petitioner testified about a future appointment with someone
at the South Carolina Vocational Rehabilitation Department. At the end of the
hearing, the parties agreed to stay the final record in the case for one month
in order to include the opinion of the Vocational Consultant regarding whether
further treatment would resolve Petitioner’s medical issues and render her able
to go back to her job as a Buyer II for Florence County. The Court also allowed
the parties to conduct additional discovery during the month.
18. Following the hearing, Petitioner met with Joni Williams of the South
Carolina Vocation Rehabilitation Department. Initially, Ms. Williams informed
Petitioner that the Vocational Rehabilitation Department could not provide
services to her. It is unclear from the record whether the Department was
unwilling to provide the services or simply believed the services to be
unnecessary in Petitioner’s situation. Petitioner thereafter obtained a second
opinion from David B. Fulton, M.D., an orthopedic surgeon agreed upon by both
parties. George M. Pullie, Jr., the Area Supervisor for the Vocational
Rehabilitation Department, indicated the Department would assess Petitioner for
services depending on the results of Dr. Fulton’s orthopedic evaluation. Mr.
Pullie emphasized that in order for the Department to provide its services, the
applicant “must be able to benefit from our services that will lead to an
employment outcome.”
19. Dr. Fulton reviewed Petitioner’s Disability Report, job description,
medication sheet dated 12/15/05, and all medical records entered into the
record at the hearing of this case. Dr. Fulton also reviewed Petitioner’s most
recent MRI of her right shoulder and indicated there “appeared to be some
fairly mild inflammation in the subacromial space” but there were no signs of
rotator cuff tearing. On September 21, 2006, Dr. Fulton examined Petitioner regarding
the pain in her right arm. Dr. Fulton noted full passive range of motion in
both shoulders and full active motion of both shoulders. Dr. Fulton also noted
full strength (5/5) in the rotator cuff, biceps, triceps, and wrist extensors
bilaterally. Dr. Fulton ultimately found Petitioner was experiencing chronic
subjective pain in the right upper extremity, etiology uncertain. Dr. Fulton
also found Petitioner’s clinical exam and MRI do not correlate with an
impingement problem. Based on the examination, Dr. Fulton concluded Petitioner
would not benefit from surgical intervention. Dr. Fulton also indicated “I do
not suspect that [Petitioner]’s current arm pain is permanent” and “I see no
evidence of definitive permanent partial impairment to her right upper
extremity at this point in time.” Dr. Fulton also noted Petitioner is able to
be gainfully employed. Dr. Fulton did recommend testing to rule out any
neurologic injury.
20. Upon reviewing Dr. Fulton’s report, Mr. Leonard issued a vocational
opinion incorporating the medical opinions contained in the report. Mr.
Leonard originally had determined Petitioner’s medical records supported a
finding that Petitioner suffered an incapacity but the incapacity was not
likely to be permanent. Based on Dr. Fulton’s medical opinion that Petitioner
does not suffer an impairment of her right upper extremity, however, Mr.
Leonard amended his vocational opinion and found Petitioner is not
incapacitated from performing her previous job as a Buyer II for Florence County.
21. Petitioner’s job as a Buyer II for Florence County was modified light
and semi-skilled. Her job duties included preparing purchase orders, assisting
in requests for proposals, maintaining inventory of department supplies,
maintaining department fixed assets inventory, handling outgoing mail, and
performing data entry. Petitioner’s job required her to stand for one hour,
walk for two hours, sit for four hours, and bend/stoop for one hour. Petitioner
was required to lift or carry less than ten pounds frequently and less than
twenty pounds occasionally. Petitioner’s job required her to bend and reach
frequently.
22. Petitioner alleges disability solely due to the pain and swelling in her
right upper extremity. There are no medical opinions contained in the evidence
of record that indicate Petitioner is unable to perform her job. On March 3, 2005, Dr. Edwards indicated Petitioner was unable to return to work “until
further notice.” On March 9, Dr. Edwards performed surgery on Petitioner’s
neck. On March 10, Dr. Edwards wrote a note that Petitioner would be out of
work for approximately four to six weeks due to surgery. At the follow-up
appointment on March 22, Petitioner reportedly was pleased with the results of
the surgery and was not experiencing radicular pain. Dr. Edwards wrote her out
of work until her next appointment in April. At the appointment on April 21,
Dr. Edwards indicated Petitioner was ready to begin physical therapy.
23. The record contains notes regarding three physical therapy sessions. On
May 16, 2005, during the last physical therapy session contained in the medical
records, Petitioner reported “significant reduction in signs and symptoms noted
throughout the [right upper extremity] quadrant and cervical spine.” During a
follow-up visit, Dr. Edwards noted Petitioner’s “radicular pain has resolved
though she has some right upper extremity symptoms that have been unresponsive
to extensive therapeutic efforts by Mario in our therapy department.” Dr. Edwards
concluded Petitioner’s complaints were not related to her cervical spine but
instead were likely signs of impingement and rotator cuff tendonitis and
bursitis related to her right shoulder. At that point, Dr. Edwards thought it
was necessary to refer Petitioner to another doctor in his practice, Dr.
Nicholls, because “as it relates to her neck there is nothing else that needs
to be done at this time.”
24. On July 19, 2005, Dr. Nicholls examined Petitioner and gave her an
injection in her right shoulder. According to Dr. Nicholls’s records,
Petitioner reported experiencing 100% resolution of her pain with full active
range of motion, a negative impingement sign, no evidence of painful arc, and
5/5 strength. During the follow-up visit on September 1, 2005, however,
Petitioner reported the relief lasted no longer than 48 hours. Dr. Nicholls
recommended Petitioner follow-up with Dr. Edwards and also recommended she
consider surgical intervention. Petitioner reported she would discuss the
surgical intervention with her husband and would contact Dr. Nicholls if she
wanted to schedule the surgery. This is the last medical report contained in
the record. However, based on Petitioner’s testimony at the hearing, she never
had the surgery.
25. There is a an absence of medical records supporting a finding that
Petitioner is incapacitated from performing her previous job due to pain and
swelling in her right upper extremity. Furthermore, there is nothing in
Petitioner’s medical records indicating her alleged incapacity is likely to be
permanent.
CONCLUSIONS
OF LAW
Based
on the foregoing Findings of Fact, the court concludes the following as a
matter of law:
1. The Court has jurisdiction to decide the issues in this case pursuant to
S.C. Code Ann. § 9-21-60 (Supp. 2006) of the South Carolina Retirement Systems
Claims Procedures Act.
2. As the trier of fact, the Court must weigh and pass upon the credibility
of the evidence presented. See South Carolina Cable Television Ass’n
v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).
3. It is within the Court’s sound discretion whether to qualify a witness
as an expert in a particular field. Smoak v. Liebherr-America, Inc.,
281 S.C. 420, 315 S.E.2d 116 (1984). When the expert’s testimony is based on
facts sufficient to form the basis of an opinion, the Court as the trier of
fact determines the probative weight of the opinion. Berkeley Elec.
Coop. v. S.C. Pub. Serv. Comm’n, 304 S.C. 15, 402 S.E.2d 674 (1991).
4. The standard of proof in an administrative proceeding is a preponderance
of the evidence. Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371,
496 S.E.2d 17 (1998). Petitioner, therefore, must prove by a preponderance of
the evidence that she is entitled to the disability retirement benefits for
which she has applied.
5. The Retirement Systems provides lifetime disability retirement benefits
to its members who file a timely application and meet the disability standard
provided by statute. See S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006).
6. According to S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2006), Petitioner is entitled to disability retirement benefits if:
a. She is mentally or physically incapacitated from the further performance
of her job as a Buyer II for Florence County;
b. The incapacity is likely to be permanent; and
c. She should be retired.
To determine if
Petitioner is mentally or physically incapacitated from performing her job
duties and whether that 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 permanent in nature.
Finally,
once a determination is made about whether Petitioner is mentally or physically
incapacitated from performing her job duties and whether the incapacity is
likely to be permanent, the Court must make the additional determination
regarding whether Petitioner should be retired. The statute requires an
analysis of whether an award of disability retirement benefits would be proper
based on the particular facts of the case.
7. The Vocational Expert, and ultimately this Court, must base its opinion
on the subjective claims asserted by Petitioner as well as the objective
evidence contained in Petitioner’s medical records. With respect to the
subjective claims of the member, the credibility of the member who is claiming
disability is an important aspect in assessing the claims asserted.
8. There were several instances during the hearing when Petitioner
contradicted the reports contained in her medical records, even though the
records were made at the time of the appointment and, therefore, were more
likely to be accurate than distant memory. According to Dr. Nicholls’s
records, as a result of the shoulder injection on July 19, 2005, Petitioner
reported experiencing 100% resolution of her pain with full active range of
motion, a negative impingement sign, no evidence of painful arc, and 5/5
strength. According to Dr. Nicholls’s records from the follow-up visit on September 1, 2005, Petitioner reported the relief lasted 24-48 hours. Contrary to Dr.
Nicholls’s records, however, Petitioner testified at the hearing that she
called Dr. Nicholls’s office the afternoon of the injection and reported that
the numbness had worn off and the pain was returning only a few hours after the
injection. There is no record of this phone call and Petitioner’s testimony directly
contradicts the statements that are contained in Dr. Nicholls’s records.
Petitioner also testified she experienced no relief as a result of the physical
therapy sessions she attended. The records of the occupational therapist,
however, indicate “Patient reports that she is able to do all the exercises in
routine as she has been instructed in and she states that she is doing better”
after only four visits. The records of this visit also indicate “Significant
reduction in signs and symptoms noted throughout the RUE [right upper extremity]
quadrant and cervical spine on this date. Decreased tenderness of trigger
points was noted in the anterior, lateral and posterior musculature of the
cervical spine and RUE.” This is contrary to Petitioner’s testimony as well. These
two examples are not allegations that Petitioner’s doctor and therapist merely
left statements out of their records. Instead, the allegations are that the
doctor and therapist included reports that Petitioner alleges she did not make.
Given that the records were made at the time of the appointments and that
Petitioner insists that statements contained in the records of not one but two
separate individuals are patently false, the Court believes the records are the
accurate reports of what occurred. The Court also must take this into
consideration when determining whether Petitioner met her burden in this case.
9. As a Vocational Expert, Mr. Leonard must issue a vocational opinion
based on the medical records provided to him. As the medical records change, it
only follows that his vocational opinion would change as well. When Mr.
Leonard issued his original recommendation, he based it on the medical records
provided to him, which included everything provided to this Court as of the
date of the hearing. Mr. Leonard reviewed the medical records taking into
consideration all of the medical opinions contained therein. After having a
conference with Petitioner, Mr. Leonard considered those medical opinions in
light of Petitioner’s statements at the conference and concluded that although
Petitioner may not have been able to perform her job at that time, Petitioner’s
medical records did not support a finding of permanence. After hearing
Petitioner’s testimony at the hearing, Mr. Leonard began to question the extent
of Petitioner’s asserted functional limitations. After Dr. Fulton issued his
report, Mr. Leonard issued a modified recommendation to deny Petitioner’s
application for disability on the basis that Dr. Fulton indicated an absence of
any impairment relevant to Petitioner’s right upper extremity. Without
evidence of functional limitations, it is impossible for Petitioner to prove
incapacitation that is likely to be permanent. As such, there was a legitimate
basis for Mr. Leonard to modify his original recommendation given that he must assess
and rely on the medical opinions provided to him. Furthermore, this Court
agrees that Dr. Fulton’s report removes any doubt about whether Petitioner
actually could perform her previous modified-light job.
10. Even without Dr. Fulton’s report, Petitioner failed to meet her burden.
If Petitioner’s medical records could support a finding of incapacity,
Petitioner cannot prove that she suffers an incapacity that is “likely to be
permanent.” The term “likely” means “possessing or displaying the qualities or
characteristics that make something probable.” The American Heritage College Dictionary, Third Edition. The term “likely” should be used to mean
“probable” or “expected.” Roget’s New Millennium Thesaurus, First Edition
(v 1.3.1) (http://thesaurus.reference.com/browse/likely).
In the context of the disability standard provided by statute, Petitioner has
the burden of proving that she suffers an incapacity and it is expected that
the incapacity will be permanent. In this case, Petitioner did not see a
doctor between September 2005 and the hearing in June 2006; not surprisingly, Petitioner
testified her condition had not changed. Petitioner now asserts the Court
should assume that regardless of any future treatment she may or may not choose
to undergo, she will not see any medical improvement. Although “retirement
statutes should be liberally construed in favor of those to be benefited and
the objectives sought to be accomplished,” Stuckey v. State Budget and
Control Board, 339 S.C. 397, 529 S.E.2d 706 (2000), the statutes should not
be contorted to pay a 36-year-old person lifetime disability benefits based on
unsubstantiated complaints that may or may not impair her from performing her
previous job, even without further treatment. Petitioner essentially argues
that rather than imposing the burden on her of proving an incapacity is
expected to be permanent that should be the Court’s default assumption. That
is not the standard provided by law.
11. Petitioner has provided no medical records or doctor’s reports or
letters wherein her treating physicians have indicated her condition is likely
to be permanent. Petitioner has not provided any evidence that her doctors
believe her functional limitations, if any, could not be removed with proper
treatment. In the last report from Dr. Edwards, he indicates that any pain she
may be experiencing has nothing to do with her neck. In the last report from
Dr. Nicholls, he indicates there may be a problem with her shoulder but given
her most recent complaints is “not sure what to make of it.” After reviewing
those records and performing an examination, Dr. Fulton reports “chronic
subjective pain in the right upper extremity, etiology uncertain” and
recommends testing to make sure the alleged problem is not neurological. (Dr.
Fulton’s Report). As a result of the medical opinions available to this Court,
there is no objective medical evidence to support Petitioner’s subjective
allegations of pain and functional limitations. This Court, therefore, must
conclude that Petitioner failed to prove her incapacity, if any, is expected to
be permanent.
12. This Court is not issuing a medical opinion regarding Petitioner’s
alleged medical conditions. Instead, this Court is concluding Petitioner has
not met her burden of proving that she meets the disability standard provided
by § 9-1-1540.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that Petitioner is not entitled to disability retirement
benefits and the Retirement Systems determination denying Petitioner’s
application for disability retirement benefits is affirmed.
AND
IT IS SO ORDERED.
November 6, 2007
Columbia, South Carolina |
__________________________________
Carolyn C. Matthews
Administrative Law Judge |
|