ORDERS:
FINAL ORDER
STATEMENT
OF THE CASE
The
above-captioned matter is before this court pursuant to S.C. Code Ann. §
1-11-710(C) (2005) and S.C. Code Ann. § 1-23-600(D) (Supp. 2007) for an
administrative appeal. In this matter, Appellant Ann Connelly seeks review of
a decision of Respondent South Carolina Budget and Control Board, Employee
Insurance Program (EIP), denying her claim for benefits under the State of
South Carolina Long Term Disability (LTD) Plan. Based upon the Record on
Appeal, the parties’ briefs, and the applicable law, I find that EIP’s denial
of long term disability benefits to Connelly must be affirmed.
BACKGROUND
Appellant
is a sixty-one-year-old woman who applied for disability benefits through EIP.
Appellant was employed as an Administrative Specialist II, or receptionist, for
the Department of Health and Environmental Control (DHEC). She ceased
employment on December 28, 2005 because of her medical conditions: degenerative
disc disease, coronary artery disease, fatigue, and osteoarthritis in her
knees. Connelly had been working a reduced 30-hour week since September 2,
2004, due to her medical conditions.
Standard
Insurance Company, the third-party claims administrator for the Plan, informed Connelly
that her claim for LTD benefits had been denied based upon its conclusion that
her medical conditions were not completely limiting. Specifically, Standard
informed Connelly that her medical records and vocational information on file
“lack[ed] compelling evidence of limitations and restrictions so severe as to
preclude [her] from performing [her] Own Occupation[]
on a reasonably continuous basis” as required under the Plan. R.52. She
submitted additional documentation, some of which was duplicative of records
submitted earlier, and Standard again denied her claim, stating that her
impairments would not prevent her from doing her job as a receptionist. Standard
informed Connelly that it would be forwarding her file to the Administrative
Review Unit to ensure an objective review of its decision to deny her claim.
Subsequently, Standard’s Administrative Review Unit notified Connelly that
after reviewing her claim, it affirmed the earlier decision to deny her LTD
claim. R.98. This decision was based in part on the opinions of Dr. Theodore
Kleikamp and Dr. Bradley Fancher, Physician Consultants, who reviewed
Connelly’s medical records and determined that her conditions were not
completely limiting.
As
a result of Standard’s final decision, Connelly appealed to EIP. The Long Term
Disability Appeals Committee of EIP (Committee) met to consider Connelly’s request
for review. The Committee issued a final agency determination, based upon Connelly’s
medical records as submitted, the relevant provisions of the Plan, and the
medical opinions of Standard’s physician consultants, and concluded that the
“facts and circumstances of [Connelly’s] claim do not qualify her for
disability income benefits under the Plan.” R.25. The Committee provided an
extensive and detailed review of each of Connelly’s medical conditions based on
review of her medical records by her own physician and by the Committee’s
independent physician consultants. Connelly appealed to this court to
challenge EIP’s final agency determination.
MEDICAL
HISTORY
Based
upon the medical records as submitted and the opinion of Connelly’s primary
treating physician, her principal medical problems are coronary artery
disease, degenerative disk disease, and fatigue. However, she has also been
diagnosed with hyperlipidemia, high blood pressure, back pain, depression,
obesity, osteoarthritis in the knees and shoulders, right knee medial meniscus
tear, type II diabetes controlled by diet, headaches, fatty liver, GERD, and
carpal tunnel syndrome. She also has a history of pulmonary emboli with
two-vessel bypass surgery in 2001.
It
appears from their extensive recommendations that both reviewing physicians
thoroughly reviewed Connelly’s medical records and additional documentation. Dr.
Theodore Kleikamp opined, based on his review of her medical records, that Connelly
would not be limited from performing a sedentary job, particularly in light of
her excellent results on a Cardiolite stress test. He noted some poorly
reproduced information and the absence of a cardiac catheterization report.
However, the cardiac cath notes indicate her heart problems are medically
managed and stable. Of her degenerative disc disease, he could not read the
MRI report and found little description of her symptoms and no
electrodiagnostic testing on file. The other problems he found did not rise to
the level of being limiting. Dr. Kleikamp also noted that Connelly’s blood
pressure is not well controlled. Connelly’s knee problems had previously been
treated with a cortisone injection. He noted her lower back pain appears to be
a muscle sprain, which is aggravated by her obesity and being treated with
physical therapy and muscle relaxers.
Of
Dr. Kozacki’s letter in support of disability, Dr. Kleikamp noted several
contradictions with Connelly’s prior medical records. The letter specifically
noted heart blockages but her performance on the Cardiolite test was
excellent. The letter also noted her excellent medical compliance on diabetes
in contradiction of chart notes that show her failure to stop smoking and poor monitoring of blood glucose and poor dietary compliance. Dr.
Kozacki’s letter also noted active angina, which Dr. Kleikamp dismissed as
unlikely, and coronary artery disease, whereas her November 2005 discharge
summary concluded chest pain was noncardiac. Dr. Kozacki’s chart note from
8/17/2001 states: “She mentioned a very high job stress level previous to her
diagnosis of coronary artery disease. She mentions that she could actually
make more money on disability than she would going back to work. I have
encouraged her to continue her diet and exercise and at least consider going
back to work part time.”
Dr.
Bradley Fancher also reviewed Connelly’s medical records, Dr. Kozacki’s notes
and report, and Dr. Kleikamp’s memos. He states he is in complete agreement
with Dr. Kleikamp. His analysis follows here. She should have no work
impairment from fatty liver, acid reflux, or hyperlipidemia, and there is no
documentation of limitations from carpal tunnel. She has poorly controlled
high blood pressure that needs to be medically managed but would not interfere
with work. Although she takes Prozac, nothing suggests a mental health
disorder. Her diet-controlled diabetes would not interfere with work, nor is
there any indication her employer would not allow three meals a day plus snacks
in between as medically required. She would reasonably be precluded from
strenuous physical activity and prolonged walking based on her orthopedic and
heart conditions, but nothing would prevent her from doing sedentary work.
STANDARD
OF REVIEW
Pursuant
to S.C. Code Ann. § 1-11-710(C) (2005), this court’s appellate review of EIP’s
final decision is governed by the standards provided in S.C. Code Ann. §
1-23-380 (Supp. 2007). Section 1-11-710(C) authorizes the Board to establish
the procedure by which claims under EIP are heard and resolved:
Notwithstanding
Sections 1-23-310 and 1-23-320 or any other provision of law, claims for
benefits under any self-insured plan of insurance offered by the State to state
and public school district employees and other eligible individuals must be resolved
by procedures established by the board, which shall constitute the exclusive
remedy for these claims, subject only to appellate judicial review consistent
with the standards provided in Section 1-23-380.
S.C. Code Ann. §
1-11-710(C) (2005). Section 1-23-380 provides that this court “may not
substitute its judgment for the judgment of the [Board] as to the weight of the
evidence on questions of fact.” S.C. Code Ann. § 1-23-380(A)(5), (B) (Supp.
2007); see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304
(1981) (stating “‘[s]ubstantial evidence’ is not a mere scintilla of evidence
nor the evidence viewed blindly from one side of the case, but is evidence
which, considering the Record as a whole, would allow reasonable minds to reach
the conclusion that the administrative agency reached or must have reached in
order to justify its action.” Id. at 135, 276 S.E.2d at 306.
Accordingly, “[t]he ‘possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Grant v. S.C. Coastal Council, 319
S.C. 348, 461 S.E.2d 388 (1995) (citing Palmetto Alliance, Inc. v. S.C. Pub.
Serv. Comm’n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984)).
DISCUSSION
Appellant
essentially raises a single issue on appeal. She argues she is disabled from
doing her own occupation as a receptionist because her conditions are not mild
but rather degenerative conditions that limit her ability to do even sedentary
work. Specifically, the gist of her argument is twofold: (1) that her primary
physician opined she is totally disabled; and (2) that the totality of her
medical problems, primarily her coronary artery disease and degenerative disc disease, are progressive conditions that worsen over time,
leading to the necessary conclusion that Connelly is disabled. She relies
heavily in her argument on her primary treating physician’s unsupported medical
conclusions contained in the letter in support of Connelly’s request for
disability to the exclusion of the rest of the record. In doing so, she
ignores this court’s standard of review. This court may not substitute its
judgment for that of the agency.
The
reviewing bodies carefully considered Connelly’s treating physician’s letter in
support of her LTD application. As both reviewing physicians noted, Dr.
Kozacki’s letter contains inconsistencies and contradictions with Connelly’s
own medical records and the findings of Connelly’s cardiologist. Connelly’s
coronary artery disease was the primary basis for her LTD claim. As the
reviewing physician consultants noted, her ejection fraction (EF) of 50%
denotes only mild impairment, which should render her capable of even light
work. Her cardiologist sees her only annually and does not suggest her
coronary artery disease would limit orthopedic surgery to correct knee
problems. Connelly has pain only once every two to three months with no
ongoing ischemia. She showed good exercise tolerance on the cardiac stress
test, and Dr. Fancher, one of the physician consultants, opined that she would
even benefit from active exercise. Dr. Kozacki’s notes indicate poor dietary
compliance to control her diabetes and an unwillingness to exercise. She
argues that her chest discomfort may occur at rest and is thus unpredictable;
however, there is no evidence showing that this would impact her ability to do
her job.
Connelly
argues her receptionist position is not purely sedentary. However, there is no
evidence in the record that it is not. Moreover, the determination that her
position was properly classified as sedentary was not appealed. An unappealed
ruling, right or wrong, becomes the law of the case. See, e.g., Charleston
Lumber Co. v. Miller Housing Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871
(2000); Unisun Ins. v. Hawkins, 342 S.C. 437, 544, 537 S.E.2d 559, 563
(Ct. App. 2000); ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche,
327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997). She points to Dr. Fancher’s
comment that she could not stand or walk for prolonged periods of time due to
her arthritis. But there is no evidence in the record that her job requires
her to stand or walk for prolonged periods of time. Under the clear terms of
the policy, the burden of proof is on Connelly to show she is disabled from
performing her own occupation.
Further,
she argues the pain medication her condition warrants affects her ability to do
her job. There is no evidence to support her assertion. Her primary treating
physician’s letter opines that pain medications may interfere with her
ability to do her job. However, there is no evidence it has actually done so.
As such, in view of the whole record, this opinion is unsupported and
speculative.
The
record contains documentation that South Carolina Retirement Systems (SCRS) has
approved her for disability retirement. However, there is no argument that
this determination is binding or even persuasive on this case. Moreover, clearly
the burden is on Connelly to bring herself within the terms of the LTD policy,
which sets a different standard for disability than that used by SCRS.
ORDER
Based
on the foregoing, substantial evidence supports the Committee’s decision. For
the reasons set forth above, IT IS HEREBY ORDERED that EIP’s final
agency determination upholding the denial of Appellant’s claim for long term
disability benefits is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
April 21, 2008 JOHN
D. GEATHERS
Columbia, South Carolina Administrative
Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
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