ORDERS:
FINAL ORDER AND DECISION
This
matter is before the Administrative Law Court (“ALC” or “Court”) for a
contested case hearing pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2006). Gary
D. Lawson (“Petitioner”) challenges the Final Agency Determination (“Determination”)
issued by the South Carolina Budget and Control Board, South Carolina
Retirement Systems (“Retirement Systems”) on July 26, 2006. After conducting a
periodic continuing review of Petitioner’s disability benefits, the Retirement
Systems discontinued Petitioner’s benefits under the South Carolina Retirement
System (“SCRS”).
After
notice to the parties, a hearing on the merits was held at the Court in
Columbia, South Carolina on November 18, 2008. After considering all the
evidence and testimony, I affirm the Determination by the Retirement Systems.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing, and having closely
passed upon their credibility and, after taking into consideration the burden
of proof of the parties, I make the following findings of fact by a
preponderance of evidence:
Petitioner
1. Petitioner
is fifty-one years (51) of age and is a retired member of the SCRS.
2. Petitioner
began his employment with Spartanburg Regional Medical Center (the “hospital”) as
a carpenter on September 22, 1986. On or about June 5, 1987, while in his
employment at the hospital, he fell from a ladder and injured his lower back. He
returned to work at the hospital in September 1988 and continuing working there
until November 9, 1990.
Procedural
History
Initial
Application (1992)
3. On
November 30, 1992, Petitioner submitted an application for disability
retirement benefits to the Retirement Systems. Petitioner stated in the
Disability Report, which was attached to his application, that he was
incapacitated from the further performance of his carpentry job with the
hospital as the result of “chronic lower back [pain], depression, anxiety,
sleep disorder, [and] suicidal/homicidal [thoughts].” (Resp’t Ex. 5, at 33).
4. After
receipt of the application the Retirement Systems forwarded Petitioner’s file
to the South Carolina Vocational Rehabilitation Department (“VR”) for an
evaluation of his medical and vocational records. The file was assigned to a VR
disability examiner who reviewed Petitioner’s medical records and the
vocational information submitted by Petitioner’s employer. Subsequently, the disability
examiner recommended approval of Petitioner’s disability claim.
The
disability examiner found that, although Petitioner sustained an injury to his lower
back and had evidence of some degenerative disc disease, he “retain[ed] the
residual functional capacity to perform the physical activities associated with
his past work as a carpenter.” (Resp’t Ex. 5, at 14). Notwithstanding, the disability
examiner found that Petitioner lacked the psychological capacity to perform his
job duties as a carpenter with the hospital because he “exhibited a long term
depression and anxiety disorder associated with chronic medication abuse as a
result of chronic pain syndrome.” (Resp’t Ex. 5, at 14). As a result of this conclusion,
the disability examiner recommended that Petitioner’s disability claim be
approved, subject to a continuing disability review of his claim in three
years.
The
disability examiner’s recommendation was approved by the Retirement Systems’
Medical Board (“Medical Board”), and Petitioner was retired on a disability
retirement allowance effective December 29, 1992.
First
Review (1999)
5. Petitioner
submitted a Continuing Disability Review Report to the Retirement Systems on
November 24, 1999 as part of his first disability review.
Petitioner stated in the report that he remained incapacitated from the
performance of his prior job duties with the hospital as the result of his “chronic
back trouble” and depression. (Resp’t Ex. 4, at 42). Further, he stated that the
only medical treatment he had received in the prior year consisted of visits with
his primary care physician, Dr. Richard Bannon, for “maintenance medication,”
and occasional visits to local emergency rooms when his maintenance medications
were insufficient to control his pain. (Resp’t Ex. 4, at 43).
After
receipt of this report, the Retirement Systems forwarded Petitioner’s file to VR
for an evaluation of his current disability status. A VR disability examiner
obtained records from Petitioner’s primary care physician and concluded that,
although Petitioner might “still be able to perform all the exertional
requirements of his former job,” a continuation of his claim was warranted due
to his anxiety and depression which remained chronic. (Resp’t Ex. 4, at 3).
On May 9, 2000, the Medical Board approved the continuation of Petitioner’s
disability benefits as recommended, with a review of those benefits scheduled
in eighteen months.
Second
Review (2001)
6. A
second review of Petitioner’s claim was conducted in 2001. Petitioner
submitted a Continuing Disability Review Report in August 2001 in which he once
again cited to his “injured back” as the basis for his claim for continued
disability benefits. He listed visits to his new internist, Dr. Suzanne
Kovacs, and visits to a hospital emergency room as his only treatment by
medical providers during the past year.
Upon
receipt of the report, the Retirement Systems forwarded Petitioner’s file to VR
for an evaluation of his eligibility for continued disability retirement
benefits. After it had obtained records from Petitioner’s primary care
physician and the hospital’s emergency room, a VR disability examiner recommended
that Petitioner’s retirement benefits be continued, subject to another
re-examination in three years. The disability examiner found that there had
not been any significant improvement in Petitioner’s medical condition, noting
Petitioner’s continued depression and hospitalization for an intentional
overdose of pain medication within the previous year. Based upon the
recommendation, the Medical Board approved the continuation of Petitioner’s
disability benefits, with a third review of Petitioner’s claim scheduled for
2004.
Third
Review (2004)
7. On
August 12, 2004, Petitioner submitted a third Continuing Disability Review
Report to the Retirement Systems. Again, he cited lower back pain as the basis
for his benefits claim. His file was forwarded to VR for an evaluation. After
review of his medical records (which included records from the South Carolina
Department of Corrections), the
disability examiner recommended a denial of Petitioner’s claim for continued
disability retirement and a cessation of the benefits. The disability examiner
noted that a South Carolina Department of Corrections physician, who had treated
Petitioner during the period he was incarcerated, had found no physical
evidence of disability. Further, the disability examiner found that Petitioner’s
prison medical records contained no history of any disabling psychiatric
condition.
Based
upon the disability examiner’s recommendation, the Medical Board denied
Petitioner’s claim for continued disability retirement benefits and held that
the benefits must be discontinued effective September 28, 2004.
8. Petitioner
requested an administrative review of the Medical Board’s finding by the
Director of the Retirement Systems, Peggy G. Boykin.
Upon receipt of the request, the Director appointed Joel D. Leonard, an
independent vocational consultant, to review Petitioner’s claim.
Mr.
Leonard conducted an administrative conference with Petitioner on July 13, 2006.
At the conference, Mr. Leonard reviewed Petitioner’s disability file and records
Petitioner brought to the conference. Subsequently, he found that the record
did not sufficiently support a finding of permanent incapacity and recommended
that Petitioner’s disability retirement benefits be discontinued. In
particular, Mr. Leonard found that the “modest references” to depression and
anxiety in Petitioner’s medical records did not demonstrate “the presence of
any symptoms or impairments that could be correlated to any permanent,
functional limitations.” (Resp’t Ex. 1, at 6). Similarly, with regard to
Petitioner’s lower back problems, Mr. Leonard agreed that Petitioner “may be
restricted in the performance of certain physical tasks” but, he found no “significant,
cumulative findings” to suggest that Petitioner was permanently incapacitated
within the parameters of his job as a carpenter. (Resp’t Ex. 1, at 6).
On
July 26, 2006, Director Boykin issued a Final Agency Determination in which she
discontinued Petitioner’s disability retirement benefits. On August 14, 2006,
Petitioner filed a request for a contested case hearing with the ALC to
challenge the Final Agency Determination.
Petitioner’s
Job Duties
9. Petitioner’s
duties as a carpenter at the hospital included various tasks associated with
construction renovation and remodeling. During his conference with Mr.
Leonard, he stated that he worked in a supervisory role and that his duties
primarily consisted of directing activities of a particular work crew. He characterized
his position as an “overseer” or “lead crewman.” (Resp’t Ex. 5, at 35; Resp’t
Ex. 7, at 24). Although he occasionally lifted significant weight, or
performed strenuous tasks in his job duties, the primary exertional demands of his
job involved moving about the hospital, climbing ladders, and monitoring the
activities of his crew. In his review, Mr. Leonard classified Petitioner’s job
within the “medium and skilled” designation. (Resp’t Ex. 1, at 5).
Medical
Condition of Petitioner
10. Petitioner
contends that he remains disabled from performing his duties as a carpenter at
the hospital due to a sleep disorder, depression, back pain, and the results of
chronic usage of prescription pain medication. Each of these conditions is
addressed below.
Psychological
Conditions
11. Petitioner’s
initial approval for disability retirement benefits was based upon a finding of
long term depression and anxiety disorder associated with chronic medication
abuse, not from issues related to the lower back injury.
The
medical records of Petitioner’s primary care physicians since 2001 contain general
references to anxiety and depression, with treatment consisting of antidepressant
medications, such as Zoloft. However, beyond such general references, his
medical records contain no findings that Petitioner is suffering from anxiety,
depression, or any other psychological disorder to such a degree that he is
incapacitated from performing his prior job duties as a carpenter.
Similarly, the medical records associated with the time he was incarcerated contain
no suggestion that he suffered from a serious, disabling psychological
disorder. Moreover, although Petitioner has been treated for depression on
occasion by his internists, he is not being treated by a psychiatrist, or other
mental health specialist, is not involved in any therapy or other mental health
treatment, and does not appear to have sought any such treatment in recent
years for his allegedly disabling psychological condition(s).
There
are no findings or treatment in Petitioner’s medical records associated with this
claim for disability retirement benefits which suggest that he currently
suffers from depression or anxiety of such severity to prevent him from
performing the job duties of a carpenter or, that any such psychological
problems he may have are incapable of treatment and are permanently disabling.
Lower
Back Pain
12. Petitioner
contends that since he fell off of a ladder at work in 1987, he has suffered
from chronic and severe lower back pain which has impaired his ability to
engage in physical tasks, such as walking and standing. There is no question
that the residual effects from his work-related back injury in 1987 limit his
ability to perform certain physical tasks. However, similar to his
psychological complaints, there are no clinical findings or other objective
evidence in the medical records which establish that Petitioner’s lower back
condition currently precludes him from performing his past job duties.
Although his medical records are replete with references to his chronic lower back
pain, those references are based almost entirely upon his subjective reports of
pain and are not supported by any objective diagnostic findings, such as X-ray
or MRI results. Further, these references are essentially limited to
Petitioner’s occasional trips to the emergency room and regular visits to his
primary care physicians during the late 1990s and early 2000s.
Further,
Petitioner’s records contain no reports from any orthopedic specialists
regarding the nature or severity of his lower back condition. In addition, there
are no recent medical records, from any source, providing significant
commentary concerning his lower back condition. However, a Department of
Corrections physician found in 2003 that Petitioner was able to touch his toes
and had no physical evidence of disability. Put simply, whatever the severity
of Petitioner’s 1987 accident, the medical records submitted in connection with
his claim for continued disability retirement benefits do not support a finding
that Petitioner is presently permanently incapacitated from the further
performance of his former job duties as a lead crewman carpenter as a result of
lower back pain.
Sleep
Disorder
13. In
his Pre-Hearing Statement, Petitioner also cites to a “sleep disorder” as a
basis for his claim for continued disability benefits. (Pet’r Pre-Hearing
Statement of Nov. 13, 2008, ¶ 6.) Petitioner also refers to a “sleep disorder”
in the Disability Report that accompanied his initial application for
disability retirement benefits. (Resp’t Ex. 5, at 33). While there are some
scattered mentions of insomnia in his medical records, there are no medical
records in Petitioner’s file which suggest or opine that any insomnia or other
“sleep disorder” that Petitioner may have is of such severity that it
incapacitates him from performing his prior job as a carpenter, either in the
short term or on a permanent basis.
Chronic
Abuse of Prescription Pain Medication
14. Dating
back to the initial approval of Petitioner’s disability claim in 1993, Petitioner’s
claim for disability benefits have been colored by his chronic abuse of
prescription pain medications. Petitioner’s medical records contain at a
minimum a thirteen-year history of chronic abuse of prescription pain
medications, including Lortab (a mixture of aacetaminophen and
hydrocodone also sold as Vicodin), Valium, and Oxycontin. Petitioner has developed
a dependence on these medications, has engaged in drug-seeking behavior, has overdosed
on medications, and has engaged in criminal activity in efforts to acquire
medications. Given this history, it is difficult to assess the extent to which
Petitioner’s physical complaints of lower back pain and psychological
complaints of depression and anxiety are based upon an underlying medical
condition or are merely products of his chronic medication abuse.
15. Despite
Petitioner’s chronic dependence upon prescription pain killers, it is not
evident that Petitioner has received comprehensive treatment for his substance
abuse, either on an inpatient or outpatient basis. Rather, the record reflects
that Petitioner changed physicians when his drug abuse was questioned by his treating
physician. As a consequence, Petitioner’s file contains no records which
demonstrate that his dependence on prescription pain medication incapacitates
him from the performance of his prior carpentry job, and, in particular, no
records establishing that, even if he is currently incapacitated, his substance
abuse is so intractable that he could not, with proper treatment, resume his
prior position as a carpenter.
Conclusion
In
sum, the medical records applicable to Petitioner’s claim for continued
disability retirement benefits do not establish that he is at the present time permanently
incapacitated from the further performance of his prior job duties as a
supervising carpenter at the hospital.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
General
1. This
Court has jurisdiction over this contested case pursuant to S.C. Code Ann. §§
9-21-60 (Supp. 2007), S.C. Code Ann. §1-23-600(A) (as amended 2008 Act No. 334),
and S.C. Code Ann. §§ 1-23-310 et seq. (2005 and as amended 2008
Act No. 334).
2. The
basic question in this matter is whether the medical evidence related to Petitioner’s
capacity to perform his prior job duties demonstrates that he is entitled to
continue to receive disability retirement benefits pursuant to S.C. Code Ann. §
9-1-1540 (Supp. 2007). That section provides that qualifying members of the
South Carolina Retirement System:
may be retired by
the [State Budget and Control] [B]oard 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).
3. Pursuant
to S.C. Code Ann. § 9-1-1570 (1986), the Retirement Systems may condition the
continuation of disability benefits awarded under § 9-1-1540 upon a periodic
re-examination of a disability retiree’s medical condition to determine whether
he or she still meets the requirements for disability retirement benefits.
4. As
the moving party in this matter, Petitioner bears the burden of establishing,
by a preponderance of the evidence, that he satisfies the requirements of §
9-1-1540 and is entitled to the disability retirement benefits he 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); see also 73A C.J.S. Public Administrative
Law and Procedure § 128, at 35 (1983) (“In administrative proceedings, the
general rule is that an applicant for relief, benefits, or a privilege has the
burden of proof, and the burden of proof rests upon one who files a claim with
an administrative agency to establish that required conditions of eligibility
have been met.”). Specifically, Petitioner must demonstrate (1) that he is
mentally or physically incapacitated from the further performance of his job
duties as a carpenter at the hospital, (2) that any such incapacity is “likely
to be permanent,” and (3) that the circumstances are such that he “should be
retired.” S.C. Code Ann. § 9-1-1540.
5. The
South Carolina General Assembly has established various procedures for members
to comply with when seeking a resolution of disputes and claims with the SCRS.
A member may ask the Director to review an initial decision by the SCRS, which
is unfavorable. The claimant has the opportunity to present his or her claim
in writing. The Director, or a person designated by the Director, may conduct
a conference concerning the claim prior to the issuance of a final agency
determination by the Director. The Director must make a final agency
determination in writing concerning the claimant’s appeal. S.C. Code Ann. §
9-21-50 (Supp. 2007).
6. The
written decision by the Director is the final decision of the SCRS concerning
the claimant’s appeal. S.C. Code Ann. § 9-21-50 (Supp. 2007). If this final
agency determination is unfavorable to the member, the member may request a
hearing with the ALC. S.C. Code Ann. § 9-21-60 (Supp. 2007).
7. The
chief administrative law judge of the ALC assigns each case to an
administrative law judge who hears the case de novo in accordance with
the rules of procedure of the ALC. S.C. Code Ann. §§ 1-23-600(B) (as amended
2008 Act No. 334) and 9-21-60 (Supp. 2007).
8. After
conducting a hearing, the assigned administrative law judge issues a final
decision in a written order which must contain separate findings of fact and
conclusions of law. S.C. Code Ann. § 1-23-350 (Supp. 2007) and ALC Rule 29©.
9. An
agency decision must be reached utilizing reasoned judgment and must be based
upon adequate determining principles and a rational basis. City of
Columbia v. Bd. Of Health and Envtl. Control, 292 S.C. 199, 355 S.E.2d 536
(1987).
10. The
trier of fact must weigh and pass upon the credibility of the evidence
presented. S.C. Cable Television Ass’n v. S. Bell Tel. and Tel. Co., 308
S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in
the best position to judge the witness’ demeanor and veracity and evaluate his
testimony. McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322
(1982).
DISCUSSION
In
the instant matter, Petitioner contends that he should continue to receive
disability retirement benefits as the result of his depression, back pain, and
a sleep disorder. However, neither Petitioner’s current nor his historical
medical records demonstrate that he satisfies the eligibility requirements for
the continuation of his disability retirement benefits. As noted above, while
Petitioner did suffer a lower back injury on the job in 1987 and has been
diagnosed with depression and anxiety in the past, the medical records
presented in this matter do not present any concrete, medical evidence that
these conditions are so severe as to incapacitate him from performing his prior
– largely supervisory – duties as a lead crewman carpenter at the hospital. In
particular, the record is devoid of any commentary from medical specialists—for
example, orthopedic surgeons or psychiatrists—that would establish the nature
or extent of Petitioner’s conditions. Further, the only recent medical records
submitted in connection with Petitioner’s claim for the continuation of his
disability benefits are the medical records from his incarceration between 2003
and 2005; these records do not reveal any basis for a disability claim, and, in
fact, suggest just the opposite. Further, the medical records from Dr. Ronald
Littlefield, who treated Petitioner in 2005 and 2006, outline a fairly mundane
course of medical treatment for conditions such as hypertension, sinusitis,
bronchitis, and back pain.
To
the extent any of Petitioner’s historical medical records predating 2001 which suggest
that his conditions may presently incapacitate him from performing the job
duties of a carpenter, they do not support a finding that any such incapacity
is likely to be permanent. Those records do not establish that the
psychological complaints that formed the basis for the prior approval of
Petitioner’s disability claim are of “such nature that [they] will, regardless
of medical and other treatment, continue throughout his lifetime” so as to deprive
him of the ability to perform his prior job duties. See Ex parte
McFaddin, 254 S.C. 270, 274, 175 S.E.2d 218, 221 (1970). In McFaddin,
the South Carolina Supreme Court denied disability retirement to a judge who
claimed disability based upon chronic anxiety and depression and resulting
alcohol abuse because he had made “no showing that medical treatment is not
available to provide relief from the emotional discomforts and other conditions
described in the medical reports” and thus had not demonstrated that his
disability was permanent in nature as required by statute. Id. at 274,
175 S.E.2d at 220. Such is the case here. Even if this Court were to conclude
that Petitioner suffers from depression or a dependence upon prescription pain
medication that currently precludes him from resuming his prior employment,
there is no support in Petitioner’s medical records from which this Court could
make a finding that there is no treatment available that could improve
Petitioner’s condition such that he could return to his carpentry work.
Finally,
in view of Petitioner’s failure to pursue meaningful treatment for his
psychological conditions, sleep disorder, and chronic prescription drug abuse,
he must also be found to have failed to demonstrate that he “should be retired”
as a result of those conditions. It has been recognized under the “should be
retired” element of the statutory criteria for disability retirement benefits
that “[i]t is axiomatic that [a member] should not be entitled to receive
disability retirement benefits on the basis of a condition for which [the
member] refuses to seek treatment.” Graham v. S.C. Budget & Control Bd.,
S.C. Retirement Sys., No. 04-ALJ-30-0160-CC, at 15 (S.C. Admin. Law Ct.
Dec. 30, 2004). In Graham, the court found that a member seeking
disability retirement benefits “should not be retired,” because, among other
things, she was not compliant with taking her medications as prescribed and did
not seek treatment for her alleged psychological conditions. Id. The
same holds true here. Petitioner has often been noncompliant with his
physicians’ orders and has consistently refused to seek treatment for his
psychological complaints and substance abuse problem. Accordingly, Petitioner is
not entitled to receive disability retirement benefits.
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law, Petitioner has not
met his burden of demonstrating that he satisfies the requirements for the
continued award of disability retirement benefits, and as such, the Court finds
that Petitioner is not entitled to any further disability retirement benefits
pursuant to § 9-1-1540. Accordingly, it is hereby
ORDERED that Petitioner’s claim for continued disability retirement benefits is DENIED.
AND
IT IS SO ORDERED.
______________________________
Marvin F.
Kittrell
December 22, 2008 Chief
Judge
Columbia, South Carolina
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