ORDERS:
ORDER
STATEMENT
OF THE CASE
The above-captioned matter is
before the Administrative Law Court (“ALC” or “Court”) pursuant to S.C. Code
Ann. § 1-11-710(C) (2005) and 1-23-600(D) and (E) (as amended 2008) for an
administrative appeal.
In this matter, Appellant Michael Martin, Jr. (“Martin”) seeks review of a
decision (the “Decision”) by Respondent South Carolina Budget and Control
Board, Employee Insurance Program (“EIP”), denying his claim for long-term
disability (“LTD”) benefits under the State of South Carolina Long Term
Disability Income Benefit Plan (the “Plan”). Specifically, by letter dated October
3, 2007, EIP’s Long Term Disability Appeals Committee (“Appeals Committee”)
informed Martin that his claim did not qualify for LTD benefits under the terms
and conditions of the Plan.
Based
upon the record, the parties’ briefs and oral arguments, and applicable law, I
affirm the final decision of EIP to deny Martin’s claim for LTD benefits as
there is substantial evidence in the record to support EIP’s determination that
Martin is not disabled from performing his own occupation.
BACKGROUND
Procedural Background
Martin began working
as an Agricultural Chemical Inspector for Clemson University on November 11,
2004. As a result of various medical problems, Martin voluntarily resigned from
his position on October 11, 2005, and applied for LTD benefits under the Plan.
On August 10, 2006, Standard Insurance Company (“Standard”), the third-party claims
administrator for the Plan, informed Martin that his claim for LTD benefits had
been denied based upon its conclusion that his medical conditions did not
prevent him from performing his job, or “Own Occupation,” as defined by the
Plan. Specifically, Standard informed Martin that “there is insufficient
medical documentation to support limitations and/or restrictions of a severity
that would preclude you from performing your Own Occupation of Agricultural
Chemical Inspector with reasonabl[e] continuity.” (R. at 97). This decision
was based in part on the opinions of independent Physician Consultants who
reviewed Martin’s medical records and later determined that his conditions
would not prevent him from working in his own occupation.
Thereafter, Martin requested a
review of Standard’s decision to deny his LTD benefits claim, and on October 13,
2006, Standard notified him of its decision to affirm the initial denial of his
claim. Standard further informed Martin that it would be forwarding its file
on him to the Administrative Review Unit (“ARU”) for an objective review of its
decision to deny his claim. Subsequently, by letter dated November 16, 2006, the
ARU notified Martin that it had reviewed his claim, and that it affirmed the
earlier decision to deny his claim. As a result of Standard’s final
decision, Martin appealed to EIP for review of the decision. On October 3, 2007, the Appeals Committee issued the Decision, based upon Martin’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 [Martin’s] claim do not qualify him for disability
income benefits under the [basic] LTD Plan.” (R. at 26). On October 15, 2007,
Martin filed a Notice of Appeal with this Court to challenge EIP’s Decision.
Factual Background
I. Martin’s
Treating Physicians
A. Dr.
Meyer
Dr.
Meyer, a physician with Aiken Internal Medicine Associates, P.A., treated
Martin from April 1, 2005 through September 23, 2005. On April 1, 2005,
Martin’s complaints primarily centered around abdominal pain, which was
resolved with medication. In subsequent visits, Martin complained of “feeling
kind of cruddy,” unsteady, and fatigued. (R. at 246). Dr. Meyer noted that he
had “no idea what’s going on” with Martin and ordered several blood tests to
help determine the cause of Martin’s symptoms. Id. In a subsequent
visit, Dr. Meyer noted that the blood tests were normal and that he didn’t
think Martin had organophosphate poisoning. At Martin’s last visit, he noted that Martin was “feeling reasonably well,”
that “he is still just kind of unsteady and uncertain,” and that he’ll treat
Martin with “reassurance and see what happens.” Id.
B. Dr. Hopkins
Dr. Hopkins is Martin’s chiropractor
who began treating Martin in September 2005. He ordered electronystagmographies (“ENG” or “ENGs”) to be performed on September 30, 2005 and January 27, 2006. Based
upon the results of the ENGs, Dr. Hopkins concluded that Martin had nystagmus.
C. Emergency
Room Visit
On
September 15, 2005, Martin visited an emergency room complaining of dizziness.
The emergency room physician that treated Martin did not observe any
abnormalities during Martin’s physical examination and noted that he “remained
relatively asymptomatic while here in the emergency department.” (R. at 221).
D. Clemson
Ophthalmology
Martin
was seen at Clemson Ophthalmology on October 15, 2005. The physician’s record
indicates that Martin has “some nystagmus” but later concludes that Martin has
“no nystagmus.” (R. at 299-300). These medical records further indicate that
Martin has normal vision and “no ocular abnormalities.” (R. at 300). Based
upon this visit, the physician referred Martin to an ENT specialist.
E. Dr.
Rao
Dr.
Rao, an otolaryngologist (commonly referred to as an ENT), began treating
Martin on October 19, 2005. He noted that Martin complained of neck pain and
vertigo which developed after he helped a friend move furniture in late July.
Dr. Rao noted that Martin appeared to suffer from vertigo and dysautonomia and recommended that he begin physical therapy. Based upon Martin’s complaints
of difficulty in driving, Dr. Rao also recommended that he “avoid it as much as
possible.” Notably, Dr. Rao states that Martin has “no facial asymmetry,
nystagmus, or gait disturbance.” (R. at 232). On December 5, 2005, Dr. Rao
referred Martin to Dr. Marshall, a pain specialist. Further, Dr. Rao ordered
an MRI to be performed on December 12, 2005; however, the MRI provided negative
results. On Martin’s last visit with Dr. Rao on December 22, 2005, Martin
continued to report neck pain, but reported some improvement of his vertigo.
Dr. Rao also referred Martin to Dr. Sherrill, a neurologist.
F. Dr. Marshall
Dr.
Marshall, a pain specialist, saw Martin on December 20, 2005. Based upon his
examination, Dr. Marshall could not definitively pinpoint the cause of Martin’s
vertigo and neck pain. In subsequent visits, Dr. Marshall performed several
epidural steroid trigger point injections on Martin to provide some relief for
his neck pain. Dr. Marshall recommended that Martin continue with physical
therapy and “strongly” urged him to consider seeing a neurologist. (R. at
217).
G. Dr.
Sherrill
Dr.
Sherrill, a neurologist, began treating Martin on December 29, 2005. Based
upon his examination, Dr. Sherrill concluded that Martin has a “mild lateral
beating nystagmus” and that he “may have a touch of BPPV.”
(R. at 363, 364). Dr. Sherrill deferred the possible treatment of BPPV to Dr.
Rao. Dr. Sherrill continued to see Martin and ordered a brain MRI and an
electromyography study of the arm. Both of these tests were normal, and Dr.
Sherrill found “no evidence [of] any neurological disease.” (R. at 358-359).
In his March 15, 2006 letter, Dr. Sherrill noted that “[t]here is no
neurological basis to give this patient permanent disability [].” (R. at 353,
355).
H. Dr.
Dillman and Seneca Medical Associates
Dr. Dillman, a family
physician with Seneca Medical Associates, began treating Martin on March 17,
2006. During his visits with Dr. Dillman, Martin complained of dizziness and trouble
with sleeping. Dr. Dillman noted that Martin had “no nystagmus,” but
recommended using a patch to cover his right eye while in a car. (R. at 306).
In a subsequent visit, Martin reported that using a patch over his eye helped
when riding in a car, but not while driving a car. On September 13, 2006, Dr.
Dillman submitted a letter to Standard which concluded that he had nystagmus.
(R. at 54-55); cf. R. at 306 (stating that Martin had “no nystagmus”). On
January 24, 2007, Dr. Dillman submitted an affidavit to Standard “to be used in
conjunction with [Martin’s] quest for long term disability benefits.” (R. at
52). In his affidavit, Dr. Dillman noted that Martin was diagnosed with
nystagmus by Dr. Andrew Hopkins.
Dr. Dillman concluded in his affidavit that Martin was “disabled from the
further performance of his occupation or any occupation which requires driving
or riding in a car.”
I. Dr. Moore
Dr. Moore, a physician with Aiken Integrated Medical Center, reviewed Martin’s September 30, 2006 ENG and noted that
Martin’s nystagmus “may be contributing to [his] ongoing complaints.” (R. at
266). He also suggested an MRI of the brain be conducted to further evaluate
Martin’s condition. Id. In a subsequent visit on January 25, 2006,
Martin continued to complain of vertigo. Dr. Moore noted that Martin “has seen
multiple physicians for this, all with unsatisfactory results from the
standpoint of a conclusive diagnosis.” (R. at 254). He further noted that
Martin received a “clean bill of health” from his ophthalmologist and that
Martin’s ENT (ear, nose and throat specialist) “didn’t believe the vertigo was
inner ear, but he thought he had a neurologic issue.” Id.
J. Dr.
Forgnoni
Dr. Forgnoni, an optometrist,
examined Martin on January 8, 2007. During this visit, Dr. Forgnoni noted that
Martin had convergence insufficiency, double vision, hyperopia, and astigmatism. Dr. Forgnoni
did not note that Martin had nystagmus. Based upon his examination, Dr.
Forgnoni concluded that Martin should receive “full disability benefits as a
visually impaired person.” (R. at 60).
II. Standard’s
Physician Consultants
A. Dr.
Dickerman
As part of its review of Martin’s
claim, Standard obtained an independent medical opinion from Dr. Dickerman, a
board-certified neurologist. In his initial report dated July 28, 2006, Dr.
Dickerman noted that he had reviewed all of Martin’s available medical records,
and that all the tests performed by Martin’s physicians had revealed normal
results. Dr. Dickerman also noted that Martin’s neurologist, Dr. Sherrill,
could not determine the cause of Martin’s vertigo symptoms. Dr. Dickerman
concluded that, based upon his review of these available medical records,
Martin was not “precluded from full-time light-level work activity.” (R. at
329). Subsequently, Martin provided additional medical records to Standard for
its review of his claim for benefits. After reviewing the additional medical
records, Dr. Dickerman again concluded that Martin’s medical records did not
support a finding of disability.
B. Dr.
Zivin
Following the initial denial of Martin’s
claim, Standard’s ARU conducted another review and obtained a medical opinion
from Dr. Zivin, a board-certified neurologist. In his report dated November 1,
2006, Dr. Zivin discussed, in detail, the medical records submitted by Martin.
Based upon the absence of any objective findings or observations to support
Martin’s subjective complaints, Dr. Zivin concluded that Martin was not
disabled. Subsequently, Martin furnished additional medical records to the ARU
for its review. After reviewing the additional medical records, Dr. Zivin
again concluded that Martin’s medical records did not support a finding of
disability.
C. Dr.
Silverstein
In light of the additional
records submitted by Martin, the ARU asked Dr. Silverstein, a board-certified ophthalmologist,
to review the records and provide it with an independent medical opinion. Dr.
Silverstein noted that the “purpose of this evaluation is to determine if the
assessment and recommendations of the claimant’s optometrist are based on the
clinical record on file.” (R. at 153). After reviewing Martin’s medical
records, Dr. Silverstein concluded that there was no evidence in the record to
support a finding of restrictions or limitations that would prevent Martin from
performing the duties of his job.
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 (as amended
2008). Section 1-23-380 provides that this Court “may not substitute its
judgment for the judgment of the [Respondent] as to the weight of the evidence
on questions of fact.” § 1-23-380(5). However, this Court, pursuant to §
1-23-380(5),
may reverse or modify the
decision if substantial rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions or decisions are:
(a) in violation of
constitutional or statutory provisions;
(b) in excess of the statutory
authority of the [Respondent];
(c) made upon unlawful procedure;
(d) affected by other error of
law;
(e) clearly erroneous in view of
the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
Id.; 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. “The
findings of the agency are presumed correct and will be set aside only if
unsupported by substantial evidence.” Hull v. Spartanburg County Assessor,
372 S.C. 420, 424, 341 S.E.2d 909, 911 (Ct. App. 2007) (citing Kearse v.
State Health and Human Servs. Fin. Comm'n, 318 S.C. 198, 200, 456
S.E.2d 892, 893 (1995). 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., 282 S.C. 430, 432, 319 S.E.2d 695,
696 (1984)).
Further, an
abuse of discretion occurs when an administrative agency’s ruling is based upon
an error of law, such as application of the wrong legal principle; or, when
based upon factual conclusions, the ruling is without evidentiary support; or,
when the trial court is vested with discretion, but the ruling reveals no
discretion was exercised; or, when the ruling does not fall within the range of
permissible decisions applicable in a particular case, such that it may be
deemed arbitrary and capricious. State v. Allen, 370
S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (application of standard to circuit
court) (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566
(1987); see also Converse
Power Corp, 350 S.C. 39, 47 564 S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese
v. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct.
App. 1985) (“A decision is arbitrary if it is without a rational basis, is
based alone on one's will and not upon any course of reasoning and exercise of
judgment, is made at pleasure, without adequate determining principles, or is
governed by no fixed rules or standards.”).
DISCUSSION
Applicable Plan Language
Definition of Disability
The
Plan includes the following relevant provisions:
A. Own
Occupation Definition of Disability
During the Benefit Waiting Period
and the Own Occupation Period you are required to be Disabled only from your
Own Occupation.
You are Disabled from your Own
Occupation if, as a result of Physical Disease, Injury, Pregnancy or Mental
Disorder, you are unable to perform with reasonable continuity the Material
Duties of your Own Occupation.
Own Occupation means any
employment, business, trade, profession, calling or vocation that involves
Material Duties of the same general character as your regular and ordinary
employment with the Employer. Your Own Occupation is not limited to your job
with your Employer.
(R. at 9).
C. Proof
Of Loss
Proof Of Loss means written proof
that you are Disabled and entitled to LTD Benefits. Proof Of Loss must be
provided at your expense.
For claims of Disability due to
conditions other than Mental Disorders, we may require proof of physical
impairment that results from anatomical or physiological abnormalities which
are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.
(R. at 19).
Substantial Evidence
The
issue before the Court is whether there is substantial evidence in the record to
support EIP’s decision in this matter. As set forth in the Plan, to qualify
for benefits, the objective medical information submitted by Martin must
demonstrate that he is unable to perform with reasonable continuity the
material duties of his occupation. If a reasonable mind can reach a conclusion
that Martin’s condition does not satisfy the Plan’s Definition of Disability,
then the Court must uphold EIP’s decision. Martin has been treated by numerous
doctors over the past several years; and, the medical records and opinions of
his treating physicians, as well as the opinions of Drs. Dickerman, Zivin, and
Silverstein, certainly would allow a reasonable mind to conclude that his
conditions do not prevent him from being able to perform the material duties of
his occupation.
In
the record (consisting of over four hundred pages) there is little evidence,
medical or otherwise, to support the conclusion that Martin is disabled from
his occupation as an Agricultural Chemical Inspector. Although Martin argues that
his treating physicians concluded that he has vertigo, BPPV, fibromyalgia, and that
he is visually impaired, there is little in the record affirming these
conclusions. Rather, his treating physicians discuss possible diagnoses
related to his complaints. For instance, Martin asserts that Dr. Sherrill
diagnosed him with fibromyalgia and BPPV. However, this is a
mischaracterization of Dr. Sherrill’s medical notes. Dr. Sherrill noted that Martin
“may have a touch of BPPV . . . . I defer the treatment of that possibility to Dr. Rao, his ENT,” and he “may also have fibromyalgia.” (R. at
355, 357) (emphasis added). Although Dr. Sherrill notes in a February 6, 2006 letter that “Martin has BPPV,” it does not reflect the findings noted throughout his
chart notes. Furthermore, a month later, Dr. Sherrill stated in his March 15,
2006 chart notes that Martin “still has bizarre complaints” and that “[a]s
always his focus is on obtaining notices so that he will be able to be ‘excused
from work.’ It raises the question of secondary gain issues.” (R. at 352). In
these notes Dr. Sherrill states that all of Martin’s tests were normal and that
Martin “states that he is slightly better compared to when I saw him
previously.” Id. Dr. Sherrill further suggested that Martin seek the
treatment of a psychiatrist and then concluded that “[t]here is no neurological
basis to give this patient permanent disability.” Id.
Martin
also argues that “Dr. Rao determined that [he] had vertigo.” (Appellant’s Br. at 7). While Dr. Rao does note in his medical records that Martin complains of “neck
pain, which may be causing his vertigo,” in each instance Dr. Rao also states
that Martin will need to be evaluated by other physicians (Dr. Marshall and Dr.
Sherrill) about his vertigo and neck pain issues. (R. at 230-231). Notably,
Dr. Sherrill concludes in his chart notes that he is deferring treatment of
Martin’s possible condition of BPPV to Dr. Rao. However, there is no mention
of BPPV in any of Dr. Rao’s medical records submitted to Standard.
Next,
Martin argues that Dr. Forgnoni conclusively determined that he “should receive
full disability benefits as a visually impaired person.” (R. at 175). Dr.
Forgnoni based his conclusion upon his assessment that Martin had convergence
insufficiency, visual field defects, hyperopia, and astigmatism. However, Dr.
Forgnoni’s report does not accurately reflect the contents of his examination
report or records. Based solely upon a finding of double vision at six inches
and Martin’s subjective complaints, Dr. Forgnoni stated that Martin was
disabled from work of any kind. The record simply does not support this
finding: Martin’s double vision clears at 8 inches; and, none of Martin’s
treating physicians have ever documented witnessing any of his subjective
complaints such as dizziness, stumbling, nausea, or any other symptoms
consistent with his complaints. Further, Dr. Sherrill questioned the validity
of Martin’s complaints in his March 15, 2006 medical record.
Finally,
Martin argues that Dr. Marshall and Dr. Hopkins diagnosed him with nystagmus.
While it is true that Drs. Marshall and Hopkins referenced nystagmus in
Martin’s medical notes, there is nothing further in the record on appeal to
substantiate this finding and whether the nystagmus was the cause of his
complaints of vertigo. Although Dr. Marshall performed several epidural
steroid trigger point injections to provide relief to Martin for his complaints
of neck pain, he neither diagnosed Martin as having vertigo, BPPV, or
fibromyalgia nor did he observe or document any symptoms of vertigo, such as
dizziness.
In
sum, Martin argues that EIP’s physician consultants failed to consider the
findings of his treating physicians. However, EIP properly considered the
opinions of Martin’s treating physicians and its Consulting Physicians, Dr. Dickerman,
Dr. Zivin, and Dr. Silverstein. The record simply does not support Martin’s
contention that he is disabled due to vertigo, BPPV, fibromyalgia, or visual
impairments. In fact, it is unclear – from the records of Martin’s treating
physicians – whether he has any of the previously mentioned conditions. Accordingly,
because the medical records and the opinions of all physicians – treating and
independent – offer significant evidence to support EIP’s decision, the Court
finds that EIP did not abuse its discretion in denying Martin’s LTD claim.
ORDER
For the reasons set
forth above,
IT IS HEREBY
ORDERED that EIP’s final agency determination denying Martin’s claim for
LTD benefits is affirmed.
AND IT IS SO
ORDERED.
__________________________
Marvin
F. Kittrell
Chief
Judge
July 24, 2008
Columbia, South Carolina
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