ORDERS:
FINAL ORDER AND DECISION
I.
STATEMENT OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. §
9-21-60 (Supp. 2007). Petitioner Thia Coleman-Brown (“Coleman-Brown”)
challenges the decision of Respondent South Carolina Budget and Control Board,
South Carolina Retirement Systems (“SCRS” or “System”) denying her application
for state disability retirement benefits based upon a determination that her
application was not timely because Coleman-Brown did not file it within ninety
days of the date she ceased being a member “in-service.” Coleman-Brown
contends that her application was timely because SCRS should deem her
application filed upon mailing, not upon receipt, and that her application was
therefore filed within ninety days of her last date of service.
After
notice to the parties, the court held a hearing on this matter on January 9, 2008. Upon carefully weighing all of the evidence and applying the applicable
law, the court finds that Coleman-Brown’s application for disability retirement
benefits was untimely.
II.
ISSUES
1. Did
Coleman-Brown file her application for disability retirement benefits while she
was a member “in service” pursuant to S.C. Code Ann. § 9-1-1540 (Supp. 2007)?
2. If
not, should the “in service” filing requirement be tolled based on
Coleman-Brown’s alleged mental disability?
III.
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.
Coleman-Brown
was last employed as a social worker with the Beaufort County School District (“the District”). She has twenty years, one month, and sixteen days of service
in the System. Coleman-Brown has been experiencing depression and manic or
bipolar episodes since 1985. When the episodes would occur, she would take
leave until her condition stabilized and then return to work. Coleman-Brown testified
that when she experienced these episodes or was “in crisis,” filling out the
disability retirement application seemed “monumental” and even supplying basic
information, such as her name, would be difficult.
In
the fall of 2004, Coleman-Brown met with Rosella Robinson (“Robinson”), a
benefits administration specialist with the District, and as a result began
working a reduced work schedule for medical reasons. At that time, Robinson
provided Coleman-Brown with a disability retirement application and submitted
an Employer’s Disability Employment Status Report to SCRS. The last day that
Coleman-Brown physically worked was December 17, 2004.
In
January 2005, the District granted Coleman-Brown extended leave under the federal
Family Medical Leave Act (“FMLA”) through April 7, 2005. Robinson provided Coleman-Brown with another disability retirement application and submitted a new
status report to SCRS. Coleman-Brown was unable to return to work following
her FMLA leave period. On March 22, 2005, the District paid Coleman-Brown for all accrued annual leave through March 31, 2005. Witnesses testified that it was necessary to terminate Coleman-Brown’s employment to “pay her out.” Coleman-Brown’s
employment was therefore terminated on March 31, 2005.
The
District’s leave policy provides that an employee with the District may request
an additional thirty days of leave following the expiration of her FMLA
period. This request has to be submitted in writing with medical
certification. Dr. Otis Smith, the former superintendent of the District,
stated that if Coleman-Brown had requested the additional thirty days, he would
have been required to grant it under the District’s policy. Coleman-Brown did
not request this extension.
Beginning
in March 2005, Coleman-Brown began to call SCRS periodically with questions
regarding disability retirement. SCRS mailed disability application packages
to Coleman-Brown on at least three occasions. Further, Coleman-Brown conversed
by phone with an SCRS representative on March 11, 2005; April 25, 2005; and July 1, 2005. Each time, the employee who spoke with Coleman-Brown
stressed the urgency of completing the application as soon as possible. During
the call in March, Coleman-Brown informed SCRS that she was being terminated
soon and inquired as to what needed to be done to apply for disability benefits.
During the July call, Coleman-Brown told the representative for SCRS that “she
has mental problems” and has not been “very capable.” (Respt.’s Ex. 2). The
representative noted that “she sounded as if this may be true” and urged
Coleman-Brown to send at least the one-page disability application as soon as
possible, informing her that she could send the additional forms in the packet later.
(Id.)
Coleman-Brown
mailed her application for disability retirement benefits to SCRS on June 29, 2005, which was exactly ninety days from March 31, 2005. However, SCRS did not receive her application until July 11, 2005, over ninety days from her date of termination.
IV.
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
A. Jurisdiction
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2007), S.C. Code Ann. § 1-23-600(B)
(Supp. 2007), and S.C. Code Ann. §§ 1-23-310 et seq. (2005). 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). 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).
In
presiding over this contested case, the court serves as the finder of fact and
makes a de novo determination regarding the matters at issue. See S.C. Code Ann. § 1-23-600(B) (Supp. 2007); Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595
S.E.2d 851, 853-54 (Ct. App. 2004); Brown v. S.C. Dep’t of Health &
Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).
B. Disability
Retirement Benefits Eligibility Requirements
S.C.
Code Ann. § 9-1-1540 (Supp. 2007) provides the requirements to be eligible for
disability retirement benefits:
Upon the
application of a member in service or of his employer, a member in
service on or after July 1, 1970, who has had five or more years of earned service or a contributing member who is disabled as a result of an injury
arising out of and in the course of the performance of his duties regardless of
length of membership on or after July 1, 1985, may be retired by the 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.
Id. (emphasis added). In Anderson v. S.C. Budget and Control Board, S.C.
Retirement Systems, 06-ALJ-30-0008-CC (S.C. Admin. Law Ct., Aug. 21, 2006), this court, in an en banc decision, interpreted § 9-1-1540’s language requiring that an application be filed by a
member “in service” to include “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.” Further, Anderson found that “in service” may include “employee[s] on [an]
employer’s payroll in a paid or approved unpaid capacity.” Id.
The
Petitioner bears the burden of establishing, by a preponderance of the
evidence, that she is entitled to the disability retirement benefits that she
seeks. See Leventis v. S.C. Dep’t of Health & Envtl. Control,
340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the
burden of proof in administrative proceedings generally rests upon the party
asserting the affirmative of an issue). The South Carolina Supreme Court has
held that “retirement statutes should be liberally construed in favor of those to
be benefitted.” Stuckey v. State Budget & Control Bd., 339 S.C.
397, 401, 529 S.E.2d 706, 708 (2000) (citing King v. S.C. Ret. Sys., 319
S.C. 373, 461 S.E.2d 822 (1995)).
C. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds that Coleman-Brown’s application for disability retirement benefits
was untimely.
To
find Coleman-Brown eligible to apply for disability retirement benefits, this
court must find that one of the following situations exists. In the first, the
court must conclude: (1) that Coleman-Brown is entitled to the 90-day grace
period typically applied by SCRS, and (2) that the filing of her
application was effective upon mailing. Alternatively, Coleman-Brown’s
application would be timely if (1) she is entitled to the 90-day grace period
typically applied by SCRS, and (2) she was in service with the District
until April 30, 2005. Should the court find that these prerequisites to
eligibility are not met, it must determine whether § 9-1-1540’s requirement that a member file a disability application while “in service” can be tolled due to
mental incompetence.
1. Eligibility
Based on Timely Filing
a. 90-Day Grace Period
SCRS
has typically construed § 9-1-1540’s requirement that an application for disability retirement benefits be filed while the member is “in service” to permit
its consideration of applications filed within ninety days of the member’s last
day of service. (See, e.g., Respt.’s Pre-Hr’g Br.). However, as
this court noted in the en banc decision in Anderson, the grace
period has not been promulgated as a regulation and therefore does not have the
force and effect of law. Anderson v. S.C. Budget & Control
Board, S.C. Ret. Sys., 06-ALJ-30-0008-CC (S.C. Admin. Law Ct., Aug. 21, 2006). As further noted in Anderson, the plain language of the statute
requires that the member be in service – “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” – when the
application is filed. Anderson, 06-ALJ-30-0008-CC at 12-13. While SCRS’s
practice of accepting applications filed within ninety days of the member’s
last day of service is laudable, there is simply no statutory or regulatory
basis for it. Accordingly, despite SCRS’s concession that Coleman-Brown’s
application would have been timely had it been received by SCRS within ninety
days of her last day of service, Coleman-Brown is not entitled to have
the grace period applied in this case.
b. Last Day of Service
The
parties take diverging views as to Coleman-Brown’s last date of service, with
Coleman-Brown contending that she was “in service” until at least April 7, 2005 (and also arguing that she was entitled to be in service until April 30, 2005 pursuant to the District’s leave policy), while SCRS argues that her last
day of service was March 31, 2005.
As
an initial matter, the court finds Coleman-Brown’s argument that she was
entitled to stay in service under the FMLA until the end of April to be
unavailing. Whether or not she could have extended her FMLA leave until
April 30, the evidence uncontrovertibly shows that she did not do so.
Further,
whether Coleman-Brown’s last date of service was March 31 or April 7 makes no
difference to this court’s analysis. Even if the court were to accept the
April 7 date, Coleman-Brown would not meet all of the prerequisites for eligibility,
since she is not entitled to the ninety-day grace period and, even if she were,
SCRS did not receive her application until more than ninety days after April
7. See discussion infra part IV.C.1.c (Date of Filing). However,
to the degree such a finding is necessary to the court’s decision, it finds, as
discussed above, that Coleman-Brown’s last date of service was March 31, 2005,
the effective date she was terminated from the payroll and compensated for all
accrued paid leave.
c. Date
of Filing
To
determine whether Coleman-Brown’s application was timely filed, the court must
also determine the effective date of its filing with SCRS. The South Carolina
Supreme Court has held that “[i]t is clear under South Carolina law that mailing does not constitute filing. When a statute requires the filing
of a paper or document, it is filed when delivered to and received by the
proper officer.” Gary v. State, 347 S.C. 627, 557 S.E.2d 662
(2001). The Court further noted that a statute or rule may define “filing”
otherwise. Id. at n.1.
However, neither § 9-1-1540 nor any SCRS regulation alters the general rule that filing requires delivery and receipt. Therefore,
Coleman-Brown’s application for disability retirement benefits was filed on the
date SCRS received it, which was July 11, 2005, and not on the date that Coleman-Brown deposited it in the mail. Accordingly, Coleman-Brown’s
application was not timely filed, even if the ninety-day grace period could be
enforced.
2. Eligibility
Based on Tolling
Having
determined that Coleman-Brown’s application was not timely filed, the court
must turn to the question of whether her alleged mental incompetence during her
last months of employment with the School District tolls the statutory
requirement that the application be filed by a member “in service.” Coleman-Brown
acknowledges that she did not file her application while she remained in
service. However, she argues that she was incapable of doing so due to her
disabling bipolar disorder. For Coleman-Brown to prevail on this argument, the
court must find: (1) that the statutory requirement that a member file for
disability retirement benefits while in service can be tolled on the basis of a
disability such as mental incapacity; and (2) that Coleman-Brown proved by a
preponderance of the evidence that she meets the legal standard for such
tolling to apply.
a. Applicability
of Tolling
The
law of South Carolina recognizes that certain statutory deadlines can be tolled
due to disability. For example, pursuant to S.C. Code Ann. § 15-3-40, statutes
of limitation may be tolled for certain civil actions if the person is insane.
However, § 15-3-40 unquestionably does not apply to
Coleman-Brown’s claim for retirement disability benefits. See §
15-3-40 (tolling the statute of limitations for a person “entitled to bring an
action mentioned in Article 5 of this chapter [Actions Other than for Recovery
of Real Property] or an action under Chapter 78 of this title [the South
Carolina Tort Claims Act]”).
Furthermore,
our Supreme Court has suggested that in the absence of a statutory provision
expressly tolling a limitations period because of a disability (such as
insanity), the limitations period is not tolled on that basis. See Norris
v. State, 335 S.C. 30, 515 S.E.2d 523 (1999); Carter v. State, 337 S.C. 17, 522 S.E.2d 342
(1999).
Such a rule would be consistent with federal law on this issue. See, e.g., Vogel v. Linde, 23 F.3d 78, 79 (4th Cir. 1994) (affirming the district
court’s refusal to toll the statute of limitations found in the federal
Emergency Medical Treatment and Active Labor Act due to the plaintiff’s infancy
and incompetency because the statute did not expressly provide for such
exceptions). In Vogel, the United States Court of Appeals for the
Fourth Circuit stated: “The blackletter rule, recognized by the [United States] Supreme Court since at least 1883, is that a statute of limitations runs
against all persons, even those under a disability, unless the statute
expressly provides otherwise.” Id. at 79 (citing Vance v. Vance,
108 U.S. 514, 521 (1883) (noting that the exceptions from the operation of
statutes of limitation usually accorded to infants and married women do not
rest upon any general doctrine of the law but upon express statutory
language)).
Further,
viewing the issue from a different vantage point, the Retirement Code’s
requirement that a member file while “in service” is not a statute of
limitations as that term is used for civil actions. The New York Supreme
Court, in a case indistinguishable from the case at bar, has squarely addressed this
issue and found that the “in service” requirement in its retirement code was
not a statute of limitations but rather a condition precedent that could not be
tolled. Callace v. New York State Employees’ Ret. Sys., 528 N.Y.S.2d
175, 176 (N.Y. App. Div. 1988) (“[T]he statutory requirement that an applicant
must be in service or discontinued from service for not more than 90 days is
not a Statute of Limitations, but is a condition precedent to the existence of
a substantive right to ordinary disability retirement.”). In Callace,
the court specifically rejected the petitioner’s argument that an exception to
the “in service” filing requirement should be recognized where, as in the case
at bar, the disability which gives rise to the petitioner’s claim has also
rendered her allegedly incapable of asserting that claim in a timely fashion. Id. at 176. While recognizing the injustice of its decision, the Callace court
found that any remedy to the situation must rest with the legislature. Id. at 177.
In
the present case, the court observes that the Retirement Code contains no
provision for tolling based upon a disability such as mental incompetence.
Like the Callace court, this court is aware of the irony and potential
injustice that a statute conferring a right to disability retirement
benefits does not contain a tolling provision for members who suffer from a disability.
However, it must agree with the Callace and Vogel courts that it
cannot carve out an exception to the statute where the legislature did not
provide one. See 51 Am. Jur. 2d § 219 at 591
(2000). As the Fourth Circuit commented in Vogel, “It is our
duty to apply, rather than attempt to improve upon, the clear commands of [the
legislature].” Vogel, 23 F.3d at 80.
b. Standard
for Tolling Based Upon Mental Incapacity
Even
if § 9-1-1540’s time limit could be tolled due to disability, Coleman-Brown has
not proven by a preponderance of the evidence that it should be. Applying §
15-3-40, the South Carolina Supreme Court has stated:
The general rule as to the standard for insanity under
tolling statutes is that:
Insanity
or mental incompetency that tolls the statute of limitations consists of a
mental condition which precludes understanding the nature or effects of one’s
acts, an incapacity to manage one’s affairs, an inability to understand or
protect one’s rights, because of an over-all inability to function in society,
or the mental condition is such as to require care in a hospital.
Wiggins v. Edwards,
314 S.C. 126, 129, 442 S.E.2d 169, 170 (1994) (quoting 54 C.J.S. § 117 at
159-69). “To be ‘insane,’ within the meaning of a tolling provision applicable
to a person suffering from such a disability, the [person] must suffer from
such a condition of mental derangement as actually prevents the sufferer from
understanding his or her legal rights or instituting a legal action.” 54
C.J.S. § 149 at 201 (2005). The disability must be such that the person is
unable to manage her business affairs, or to comprehend her legal rights. 51
Am. Jur. 2d § 230 at 597-98 (2000). It is well settled that a formal
adjudication of incompetence is not necessary. Id. at 597. However,
where one is capable of managing one’s own affairs, the mere psychiatric
inability to bring suit is not alone sufficient to establish mental impairment
for purposes of tolling a filing deadline. See, e.g., Parks
v. Kownacki, 737 N.E.2d 287, 295 (Ill. 2000). Courts have found other
conditions similarly insufficient, including: a condition that makes a person
stay in her room and be unable to concentrate; impaired judgment alone;
post-traumatic stress disorder or major depression; alcohol or drug abuse; and
confusion and disorientation. 51 Am. Jur. 2d § 231 at 599 (2000). Further,
courts have found cursory allegations and unsupported assertions that a bipolar
disorder prevented a litigant from filing a claim to be insufficient for
tolling. See, e.g., Ellis v. Stephens, 2006 WL 871125, *5
(M.D. Ga. 2006) (unreported) (“Petitioner has [not] presented any legal
authority that a bipolar disorder is recognized as a condition which
significantly affects his competence or capacity to act in his own interest
regarding matters of importance . . . .”); Price v. Jamrog, 2003 WL
22435645 (6th Cir. 2003) (unreported).
Against this legal framework, the court turns to the
evidence presented at trial. As noted above, at the contested case hearing
Coleman-Brown testified that she did not remember much from 2005, but that she
could not complete the application for disability retirement benefits due to
her mental state at that time. She further testified that she could not have
completed any form even if all that was required was to fill in her name.
However, other witnesses testified that she came into the District office more
than once during the time she was on leave and did not request any assistance
in completing the application on any of those occasions. Moreover,
Coleman-Brown requested and was provided copies of the disability retirement
benefits application form on numerous occasions. While still in service with
the School District, or during the ninety-day period following her termination
from service, she called SCRS at least three times regarding her application,
although she never completed one. Thus, although the evidence demonstrates
some confusion on Coleman-Brown’s part during this timeframe, it nevertheless
shows that she was aware of and able to appreciate her potential right to
disability retirement benefits and the requirement to file an application to
secure them. Moreover, Coleman-Brown did not produce any evidence that she was
hospitalized during that period. Nor did she present any admissible medical
expert testimony that she was incapable of understanding the nature or effects
of her acts, managing her own affairs, protecting her rights, or functioning in
society.
Accordingly, even if the “in service” requirement could be tolled,
Coleman-Brown has not proven by preponderance of the evidence that her
condition met the requisite legal standard.
V. ORDER
Coleman-Brown has not established by a preponderance of the
evidence that her application was timely or that, alternatively, the time
requirement should be tolled. Accordingly, based upon the Findings of Fact and
Conclusions of Law stated above, it is hereby
ORDERED that SCRS’s decision to deny Coleman-Brown’s application for disability
retirement benefits on the ground that it was untimely is upheld.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
February 11, 2008
Columbia, South Carolina
In Carter, the Supreme Court questioned
whether the limitations period established in the Post-Conviction Relief (“PCR”)
statute could be tolled based on disability in the absence of a provision
expressly so allowing, but did not answer that question because it found that
the limitations period should be equitably tolled based upon representations
made by the State when the inmate agreed to dismiss his first PCR application. Carter, 337 S.C. 17, 522 S.E.2d 342.
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