South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Lavinia White vs. SCBCB

AGENCY:
South Carolina Budget & Control Board

PARTIES:
Appellant:
Lavinia White

Respondents:
South Carolina Budget & Control Board, Employee Insurance Program
 
DOCKET NUMBER:
07-ALJ-30-0567-AP

APPEARANCES:
For the Appellant:
Nathaniel W. Bax, Esquire

For the Respondent:
James T. Hedgepath, Esquire
 

ORDERS:

ORDER

This matter is before the Administrative Law Court (“ALC”) in its appellate jurisdiction pursuant to S.C. Code Ann. § 1-23-600(D) (as amended by 2008 S.C. Act No. 334)[1] and § 1-11-710(C) (2005). Lavinia White (“White”) appeals the decision of the South Carolina Budget and Control Board, Employee Insurance Program (“EIP”) closing her claim for basic long-term disability (“LTD”) benefits under the State of South Carolina’s Basic Long Term Disability Income Benefit Plan (“Plan”). By letter dated October 12, 2007, EIP’s Long Term Disability Appeals Committee (“Appeals Committee”) informed White that her medical conditions did not qualify her for continued disability income benefits under the terms and conditions of the Plan.

BACKGROUND

White was employed as a communications specialist for the Charleston County Detention Center. Her occupation was considered a sedentary occupation. On February 14, 2004, White was informed that Charleston County could not permanently accommodate her doctor’s order for a day-shift work restriction and thereafter terminated White from her position. After filing a claim for LTD benefits, Standard Insurance Company (“Standard”), the third-party claims administrator for the Plan, initially approved White for LTD benefits beginning on May 14, 2004 based in part on Dr. Steven Beeson’s[2] medical opinion that he did not believe that White “can work in any occupation that requires significant visual acuity, particularly for fine tasks such as reading.” (R. at 00672-73.) However, Dr. Beeson also determined that White’s eye conditions “will probably wax and wane over time, and may well be treatable conditions.” (Id.) Therefore, Dr. Beeson recommended that White’s claim be reviewed again in six months.

On July 2, 2005, upon considering additional medical evidence submitted by White, Dr. Beeson issued a report stating that “[i]t is difficult to find anything that would prevent White from working.” (R. at 00513.) Based in part on Dr. Beeson’s report, Standard determined that White’s condition no longer disabled her from performing her “Own Occupation” under the Plan’s definition and therefore closed White’s claim for LTD benefits with payment through July 12, 2005. Specifically, Standard concluded that

there is insufficient medical documentation to support continued impairment due to visual acuity and/or restrictions due to hip, back, leg and shoulder pain to preclude [you] from performing your own occupation. Rather, the medical documentation supports that you should be capable of performing the material duties of your own occupation of Police Aide[3] with reasonable continuity.

(R. at 00504.) Standard acknowledged that White’s vision would prevent her from working in occupations that require very fine visual acuity but not in an occupation that required significant visual effort. Standard determined that White’s job required frequent near visual acuity, but not very fine visual acuity.

Following Standard’s decision, White requested that Standard further review its decision and submitted additional medical information. In January 2006, Dr. Beeson reviewed the additional medical evidence submitted and again concluded that White had no limitations on light or sedentary work on a full-time basis. Dr. Beeson stated that White may have difficulty with occupations that require a high level of visual acuity, but that there is no evidence that normal visual requirements would be restricted. (See R. at 00270.) On January 26, 2006, Standard upheld the closure of White’s LTD benefits and forwarded White’s claim to the Quality Assurance Unit (“QAU”) for independent review. QAU requested that another independent physician consultant, Dr. Bradley Fancher, review White’s medical records. Dr. Fancher determined that White was not prevented from performing sedentary work, but was uncertain how much her visual impairment affected her ability to perform her job. Dr. Fancher thought it would be helpful to have the ophthalmologist comment on her ability to read computer screens and documents of a normal font size. He also noted that White did not stop working due to a visual impairment and that there was no indication that White’s eye condition had worsened; rather, he noted that it may have improved. (See R. at 00255-56.)

Based in part on Dr. Fancher’s opinion, on March 1, 2006, Standard notified White that the QAU affirmed the earlier decision to close White’s claim. On May 26, 2006, White appealed this decision to EIP and submitted additional medical documentation. EIP forwarded the additional information back to Standard for a follow-up review of White’s claim. Standard requested Dr. Fancher to conduct a second review and opine as to White’s limitations and restrictions. Upon follow-up review, Dr. Fancher did not change his opinion. On February 13, 2007, Standard informed White that the additional medical evidence did not change Standard’s decision to close White’s claim. White then submitted a statement from Dr. Frederick H.D. Weidman, III, her treating ophthalmologist. On February 13, 2007, Standard informed White that the review of this statement did not change the decision and that EIP would proceed with its review. Standard then forwarded White’s file to EIP to enable the Appeals Committee to conduct a de novo review of White’s claim. On October 12, 2007, the Appeals Committee unanimously determined, based on White’s medical evidence, the relevant provisions of the Plan, and the medical opinions of Standard’s physician consultants, that “the facts and circumstances of [White’s] claim do not qualify her for continued disability income benefits under the Plan.” (R. at 00029.)

Having exhausted her administrative remedies with EIP, White now appeals EIP’s decision to this court pursuant to S.C. Code Ann. § 1-23-600(D) (as amended by 2008 S.C. Act No. 334) and § 1-11-710(C) (2005). Upon consideration of the record, the briefs, and oral arguments, the court affirms the decision of EIP to close White’s claim for LTD benefits.

ISSUE

Did EIP err in determining that White is no longer disabled from performing her own occupation and therefore not entitled to continued LTD benefits?

STANDARD OF REVIEW

As set forth above, this matter is before the ALC in its appellate jurisdiction pursuant to S.C. Code Ann. § 1-11-710(C) (2005) and § 1-23-600(D) (as amended by 2008 S.C. Act No. 334).  Accordingly, the Administrative Procedures Act’s standard of review governs this appeal.  See S.C. Code Ann. §§ 1-23-600(E), -380 (as amended by 2008 S.C. Act No. 334); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995).  The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. § 1-23-380(5) (as amended by 2008 S.C. Act No. 334).  See S.C. Code Ann. § 1-23-600(E) (as amended by 2008 S.C. Act No. 334) (directing Administrative Law Judges to conduct appellate review in the same manner prescribed in Section 1-23-380).  This section provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.  The court may affirm the decision of the agency or remand the case for further proceedings.  The court may reverse or modify the decision [of the agency] 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 agency;

(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.

S.C. Code Ann. § 1-23-380(5) (as amended by 2008 S.C. Act No. 334). 

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency.  Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984).  Further, substantial evidence means that a decision will not be set aside simply because reasonable minds may differ on the judgment.  Lark v. Bi-Lo, 276 S.C.130, 276 S.E.2d 304 (1981).  Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s finding from being supported by substantial evidence.  Id.; Waters v. S.C. Land Res. Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). However, § 1-23-380(5) requires the reviewing tribunal to consider not only the amount of evidence, but also the quality of that evidence; it must be both “reliable” and “probative,” as well as “substantial.” See S.C. Code Ann. § 1-23-380(5) (as amended by 2008 S.C. Act No. 334).

An abuse of discretion occurs when a decision 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 judge 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. Ex Parte Capital U-Drive-It, Inc., 369 S.C. 1, 5, 630 S.E.2d 464, 467 (2006). A decision is arbitrary or capricious when no rational basis for the conclusion exists, when it is based on one’s will and not upon any course of reasoning and exercise of judgment. Converse Power Corp. v. S.C. Dep’t of Health & Envtl. Control, 350 S.C. 39, 564 S.E.2d 341 (Ct. App. 2002); Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985). A decision may be arbitrary or capricious when it is made at one’s pleasure without adequate determining principles, or is governed by no fixed rules or principles. Deese, 286 S.C. at 184-85, 332 S.E.2d at 341. Non-uniform, inconsistent, or selective application of authority can indicate arbitrariness. See Mungo v. Smith, 289 S.C. 560, 571, 347 S.E.2d 514, 521 (Ct. App. 1986).

It is helpful to note that the standard of review in this case is analogous to the standard used in cases arising under the federal Employee Retirement Income Security Act (“ERISA”). See, e.g., Bynum v. Cigna Healthcare of N.C., Inc., 287 F.3d 305 (4th Cir. 2002) (holding that an insurer’s decision could be overturned if “a coverage decision is unreasonable” and the insurer “abused its discretion”); see also Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 342 (4th Cir. 2002); Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 522 (4th Cir. 2000). Accordingly, although not binding, ERISA case law provides guidance in analyzing the issue before the court.


DISCUSSION

I. Applicable Plan Language

The Plan provides LTD benefits for twenty-four months, after a ninety-day waiting period, when it is found that the employee is disabled and may not perform the material duties of her own occupation with reasonable continuity. The Plan further provides:

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 00009.) The Plan defines “Material Duties” as “the essential task, functions and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation.” (R. at 00010.) Based on the evidence presented, the Appeals Committee found that the documentation in White’s claim file did not support her claim that she met the “Own Occupation” definition to continue receive benefits under the Plan.

II. Evidence

White asserts that EIP’s decision was “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, was arbitrary and capricious, and was an abuse of discretion.” Specifically, White contends that (1) EIP abused its discretion in relying on the opinions of the independent medical consultants over White’s treating physicians, and (2) EIP abused its discretion in failing to consider the totality of White’s medical conditions.

1. Treating Physician

Under the “treating physician rule,” the opinion of the physician treating the patient is entitled to greater deference because of that physician’s firsthand knowledge of the patient’s specific injury; in other words, a court can afford special weight to the opinion of a claimant’s treating physician. See, e.g., Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983). Whether the treating physician rule should be applied can depend on the context of the case. For example, the treating physician rule is applied in determining whether a claimant is entitled to federal social security disability benefits. See 20 C.F.R. § 404.1527(d) (“Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.”). By contrast, the United States Supreme Court has held that the treating physician rule does not apply in ERISA cases. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“[C]ourts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.”) (emphasis added). The Nord Court further explained:

The treating physician rule has not attracted universal adherence outside the Social Security context. Some courts have approved a rule similar to the Social Security Commissioner’s for disability determinations under the Longshore and Harbor Workers’ Compensation Act, and the Secretary of Labor has adopted a version of the rule for benefit determinations under the Black Lung Benefits Act. One Court of Appeals, however, has rejected a treating physician rule for the assessment of claims of entitlement to veterans’ benefits for service-connected disabilities, and another has rejected such a rule for disability determinations under the Railroad Retirement Act of 1974. Furthermore, there appears to be no uniform practice regarding application of a treating physician rule under state workers’ compensation statutes.

Nord, 538 U.S. at 830 n.3 (citations omitted).

Although South Carolina has not expressly addressed whether the treating physician rule should be applied in EIP cases, case law suggests that it may be appropriate in some cases to accord greater weight to opinions of treating physicians. In James v. S.C. Employee Insurance Program, 371 S.C. 637, 640 S.E.2d 474 (Ct. App. 2006), the South Carolina Court of Appeals upheld the circuit court’s determination[4] of coverage for a medical device known as a Dynamic Orthotic Cranioplasty (“DOC”) Band to correct a claimant’s child’s conditions of plagiocephaly (assymetrical head shape) and torticollis (twisted neck syndrome). In that case, EIP based its denial upon the Plan exclusionary language, finding that the DOC Band treatment was for cosmetic purposes and not medically necessary. The Court of Appeals found that EIP erred in denying coverage, emphasizing the fact that “the only physician who personally examined and treated the [patient] stated unequivocally that the treatment was medically necessary.” James, 371 S.C. at 646, 640 S.E.2d at 479.

More recently, by contrast, the Court of Appeals implicitly gave no particular deference to the treating physicians of a claimant seeking long-term disability benefits in Wilson v. State Budget and Control Board Employee Insurance Program, 374 S.C. 300, 648 S.E.2d 310 (Ct. App. 2007). In that case, Wilson applied for long-term disability benefits from EIP based upon injuries to her back and knee. Wilson claimed she was unable to continue performing her job duties, which required “light to sedentary work.” Wilson, 374 S.C. at 305, 648 S.E.2d at 313. The record in Wilson included opinions from six physicians: three treating physicians, including a family doctor, a radiologist, and a neurologist; another neurologist who examined Wilson’s records upon referral from her treating family doctor; an internist who provided an opinion for EIP’s third-party insurer; and finally, an independent surgeon who examined Wilson during the pendency of her appeal to the circuit court. This examination was conducted at the court’s suggestion and with the agreement of the parties.

The evidence in the record as to whether Wilson was disabled clearly diverged. The tests performed by two of her treating physicians revealed “no abnormalities.” Wilson, 374 S.C. at 305, 648 S.E.2d at 313. Although the opinions of the third-party insurer’s expert and that of Wilson’s treating neurologist flatly contradicted each other, the Court of Appeals noted that “both parties consented to allowing Dr. Johnson to perform an independent medical examination of Wilson for the circuit court’s benefit. Dr. Johnson’s opinion reaffirmed the opinion of [EIP] that Wilson was capable of performing light work.” Id. at 305, 648 S.E.2d at 313. Accordingly, the Court of Appeals found that EIP’s determination was supported by substantial evidence.

Reading Wilson and James together, it is apparent that South Carolina has not adopted a rule of per se deference to the opinions of treating physicians; rather, the amount of deference that should be given to a treating physician’s opinion depends on the evidence and issue presented in a particular case. Accordingly, whether to accord more weight to the opinions of treating physicians than to that
of some other medical expert must be determined on a case-by-case basis. On appeal, the ALC must review EIP’s determination regarding the medical experts within the parameters of § 1-23-380(5) requiring the evidence, viewed in light of the record as a whole, to be reliable, probative, and substantial.


White contends that the opinion of her treating ophthalmologist, Dr. Weidman, warrants a determination that she is disabled from any occupation.[5] Dr. Weidman’s statement[6] opines that White is disabled based on various ocular conditions including sarcoidosis, diabetic macular edema, uveitis, and iritis. His opinion is based on treating White from April 2006 through January 2007. White asserts that it was error for EIP to rely on the opinions of Dr. Beeson and Dr. Fancher, who specialize in internal medicine, rather than White’s treating ophthalmologist, Dr. Weidman. In response, EIP argues that Dr. Weidman’s opinion fails to indicate whether White was disabled as of July 2005 when EIP closed White’s claim. EIP further points out that it was Dr. Beeson, not one of White’s treating physicians, who initially opined that White’s vision would prevent her from working.

The Record on Appeal contains numerous opinions from Dr. Beeson and Dr. Fancher as well as from White’s treating physicians. In fact, White submitted medical documentation from numerous physicians who treated White at various points from 2002 through 2007. During that time, White received medical care from four different ophthalmologists regarding her vision, four physicians regarding her pain conditions, and three physicians regarding her sleep disorders—one of which is White’s family physician who treats her diabetes. Of those physicians only one, Dr. Weidman, expressly stated that White was disabled from performing any occupation. However, he did not begin treating White until 2006. In 2004, Dr. Peggy S. Lindsey limited White’s employment by indicating that White cannot work in an occupation that requires fine visual acuity, but that she anticipated White’ condition to improve. Based on that statement, Standard granted White LTD benefits subject to a review in six months. In 2005, White sought treatment from Dr. Pamela S. Chavis who stated that she could not comment on White’s ability to return to work, but her report showed improved visual acuity for White. Dr. Beeson considered her report, as well as reports from other doctors, in determining that White could return to work.

Under the facts of this case, the court finds that EIP did not err in accepting the opinions of the non-examining physicians over those of Dr. Weidman. Considering the fact that Dr. Weidman did not examine White until six months after EIP determined that White no longer qualified for LTD benefits, his opinion is not entitled to any additional deference. Furthermore, the opinions from other physicians upon which White relies did not unequivocally state whether or not White was able to work. Therefore, the court finds that reversal of EIP’s decision is not warranted on this ground.

2. Totality of White’s Conditions

White also claims that she entitled to LTD disability benefits based on numerous medical conditions that considered independently or as a whole render her disabled. On appeal, she contends that EIP failed to consider the totality of her conditions and that EIP’s decision was “illogical and unreasonable.” With regard to White’s pain conditions and sleep disorder, most of White’s physicians did not comment on whether White was capable of working and one expressly indicated that, from a rheumatology standpoint, White was capable of performing her occupation. (See R. at 489.)

There is no evidence in the record that White’s conditions are expected to worsen. In fact, there is evidence that White’s eye conditions may improve. Additionally, the record demonstrates that the Appeals Committee reached its determination after considering all of White’s medical evidence as well the opinions of Standard’s physician consultants. Furthermore, the physician consultants considered all of White’s medical conditions in making their determinations. Accordingly, the court determines that EIP did not fail to consider the totality of White’s conditions.

CONCLUSION AND ORDER

The court concludes that there is sufficient evidence in the record to demonstrate that EIP’s decision to close White’s LTD claim was reasonable. Furthermore, there is no evidence that EIP’s decision was arbitrary and capricious or an abuse of discretion. It is therefore

ORDERED that EIP’s decision to close White’s claim for LTD disability benefits is affirmed.

IT IS SO ORDERED.

______________________________________

PAIGE J. GOSSETT

Administrative Law Judge

September 22, 2008

Columbia, South Carolina



[1] The Administrative Procedures Act (“APA”) was amended and renumbered via 2008 S.C. Act No. 334 (eff. June 16, 2008). Accordingly, all citations to the APA in this Order are to the recently amended and renumbered sections enacted by 2008 S.C. Act No. 334.

[2] Dr. Beeson is an independent physician consultant hired by Standard to review this claim. Dr. Beeson specializes in internal medicine.

[3] Applying the descriptions found in The U.S. Department of Labor Dictionary of Occupational Titles, Standard determined that White’s position as communication specialist most closely matched the job description of “police aide.” (R. at 00894.)

[4] James arose prior the enactment of 2006 S.C. Act No. 387, which changed the appeals process for Employee Insurance Program determinations, providing for appellate review by the ALC rather than the circuit court.

[5] The Record on Appeal contains medical records from approximately eleven different doctors. Of those eleven, only Dr. Weidman concluded that White is totally disabled from performing any occupation.

[6] While Dr. Weidman’s statement is entitled “Affidavit,” it is actually an undated, signed statement that is not notarized. It appears that the statement was submitted to EIP in January 2007. The Appellant agrees that Dr. Weidman’s statement should not be considered sworn testimony despite its title.


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