South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Clarene Freeman vs South Carolina Budget and Control Board

AGENCY:
South Carolina Budget and Control Board

PARTIES:
Appellant:
Clarene Freeman

Respondent:
South Carolina Budget and Control Board

 
DOCKET NUMBER:
08-ALJ-30-0334-AP

APPEARANCES:
 

ORDERS:

STATEMENT OF THE CASE

            The above-captioned matter is before this Court on an administrative appeal pursuant to S.C. Code Ann. § 1-11-710(C) (2008) and S.C. Code Ann. §1-23-600(D) (2008).  Appellant Clarene Freeman (Freeman) seeks review of a decision by Respondent South Carolina Budget and Control Board, Employee Insurance Program (EIP) denying her claim for long-term disability (LTD) benefits under the State of South Carolina Basic Long Term Disability Income Benefit Plan (Plan).  Specifically, by letter dated June 13, 2008, EIP’s Long Term Disability Appeals Committee informed Freeman that her medical conditions did not qualify for LTD benefits under the terms and conditions of the Plan.

STANDARD OF REVIEW

            As set forth above, this case is before the Court as an appeal from a Final Order of EIP.  The Plan provides that EIP has “full and exclusive authority to control and manage the Plan, to administer claims, and to interpret the Plan and resolve all questions arising in the administration, interpretation and application of the Plan.  Our authority includes . . .  the right to determine  . . . entitlement to benefits.”  The Plan further provides:  “Any decision we make in the exercise of our authority is conclusive and binding, subject only to appellate judicial review consistent with the standards provided in Section 1-23-380, Code of Laws of South Carolina.” 

            In addition, the enabling legislation for the Plan provides as follows: 

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 [State Budget and Control Board], which shall constitute the exclusive remedy for these claims, subject only to judicial review consistent with the standards provided in Section 1-23-380.

S.C. Code Ann. § 1-11-710(C) (2008). 

            Therefore, the Administrative Law Court’s review of this case is in an appellate capacity under the standards of S.C. Code Ann. §1-23-380 (as amended by 2008 S.C. Act No. 334), rather than as an independent finder of fact.  Specifically, Section 1-23-380(5) sets forth:

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).  The well settled case law in this state has also interpreted the substantial evidence rule to mean 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).  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.  Waters v. S.C. Land. Res. Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996). 

            When applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct.  Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996).  Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact.  Grant v. S.C. Coastal Council, 319 S.C 348, 461 S.E.2d 388 (1995).  Finally, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence.  Waters, 467 S.E.2d at 913.

BACKGROUND

Procedural Background

            Freeman was formerly employed by the town of Hilton Head as an accounting clerk.  As an employee of the State of South Carolina, she participated in the Plan.  Freeman stopped working on June 17, 2005 and claimed total disability due to degenerative joint disease, degenerative disc disease, osteoarthritis of the knees, depression, monocular blindness, diabetes, tendonitis in her right wrist, two protruding discs in her lumbar spine, hypertension, and bursitis in her shoulder.  After Freeman submitted her LTD claim, Standard Insurance Company (Standard), the third-party claims administrator for the Plan, considered her claim.

            Based on its review of all the available medical information, Standard denied Freeman’s claim on November 18, 2005.  Freeman requested a review of Standard’s decision.  After reviewing additional medical records submitted by Freeman, and considering Dr. Beeson’s second opinion, Standard upheld the initial denial decision and informed Freeman of its decision in an October 6, 2006 letter.  Standard also informed Freeman that its Administrative Review Unit (ARU) would conduct an independent review of her claim.

            The ARU independently reviewed all of the medical records and information submitted by Freeman and her treating physicians. They also requested an additional independent medical opinion from Dr. Carlson, a board-certified physiatrist. After considering all of the available information, including Dr. Beeson’s second opinion and Dr. Carlson’s opinion, the ARU denied Freeman’s claim.  The ARU informed Freeman of its decision on October 25, 2006.

            Freeman appealed Standard’s decision to the EIP Long Term Disability Appeals Committee (Committee) for a de novo review of the decision to deny her LTD claim.  In that appeal, she also submitted additional information about her right eye blindness from her family physician, Dr. Shealy.  As a result, Standard reconsidered its decision in light of the new information.  Standard also requested an independent medical opinion from Dr. Silverstein, a board-certified ophthalmologist.  After reviewing the additional information along with Dr. Silverstein’s opinion, Standard upheld the denial of Freeman’s claim and informed Freeman of its decision in a March 23, 2007 letter.  The Committee then moved forward with its review.

            The Committee determined that the medical evidence did not demonstrate that Freeman qualified for LTD benefits under the terms of the plan.  On or about July 9, 2008, Freeman filed her Notice of Appeal with this Court. 

Applicable Plan Terms

            The Plan contains the following definition of disability:

                        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.

The Plan also contains the following provision:

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.

Medical Evidence In The Record On Appeal

            Freeman stopped working on June 17, 2005.  Prior to that, she visited Dr. Shealy on April 28, 2005, complaining of lower back pain and of being tired and weak.  Dr. Shealy ordered an x-ray of Freeman’s spine which was performed by Dr. Corley.  Dr. Corley noted hypertrophic spurring, posterior spurring, slight disc narrowing at L3-4 and mild disc narrowing at L5-S1.  Freeman then met with Dr. Shealy on May 18, 2005 to discuss her x-rays.  On June 20, 2005 Freeman again visited Dr. Shealy complaining of hand and back pain.  The record indicates that she did not have leg pain; however she was having trouble with prolonged sitting. 

            Dr. Shealy referred Freeman to Dr. Nivens for her spinal problems.  She also underwent an MRI on June 27, 2005.  The MRI revealed that Freeman had degenerative disc disease in the L5-S1 level.  She then saw Dr. Nivens on June 30, 2005.  He made note that her chief complaint was low back pain and assessed that she had intervertebral disc disorder, degenerative disc disease and spondylosis all of the lumbar spine.  He prescribed an epidural steroid injection of the lumbar spine.  Freeman visited Dr. Shealy again on July 11, 2005 and July 20, 2005.  On both occasions she reported that her pain was improving.  Her follow up with Dr. Nivens was on August 11, 2005.  Dr. Nivens noted that her leg pain was 90% improved but that she was still having back pain.

            In support of her LTD claim, Freeman submitted an Attending Physician’s Statement (APS) from Dr. Shealy, her treating physician.  Dr. Shealy listed a primary diagnosis of low back pain with spondylosis of the lumbar spine and intervertebral disc disorder.   Dr. Shealy concluded that Freeman was confined to the house, could not walk or stand for any length of time and could only sit for one hour in an eight hour work day.  Dr. Shealy determined that Freeman could never return to work because her duties require that she sit, file, and be ambulatory.

            For the remainder of 2005, both Dr. Nivens and Dr. Shealy continued to note that Freeman complained of back pain.        Freeman also complained of right knee pain, therefore Dr. Shealy ordered an MRI.  The MRI showed medial compartment spurring and bi condylar arthritis.  Dr. Shealy authored two separate letters, both of which concluded that Freeman was unable to work.  

            In addition to the medical records of Freeman’s treating physicians, the Record on Appeal also contains detailed medical opinions from Dr. Beeson, Dr. Carlson and Dr. Silverstein, from whom Standard obtained independent medical opinions regarding Freeman’s ability to continue working given her physical and mental conditions.

            In his first assessment, Dr. Beeson acknowledged that Freeman has degenerative joint and disc disease of the lumbar spine.  He noted that the pain appears to be moderate in severity in that she does not require narcotic pain medications or exhibit typical signs that would indicate the pain was severe.  With respect to a future prognosis, Dr. Beeson concluded:

This patient clearly has significant degenerative joint and disc disease of the lumbar spine, which will continue to affect her for quite some time to come.  However, there is still more than [sic] can be done in the way of both medication and active therapy, including physical therapy and an established home-exercise program.  I would not anticipate that this should be a permanently limiting condition.  Sedentary or light work would probably be reasonable in the future.

            After an appeal of Standard’s initial decision, Appellant was given an opportunity to present additional information in support of her claim.  In light of the additional information, Dr. Beeson again reviewed Appellant’s claim and made the following conclusions:

·          “This patient has chronic low back pain due to degenerative joint and disc disease of the lumbar spine.  She also has osteoarthritis of the knee.  Sedentary work would be reasonable as long as she is allowed to change position frequently; anything greater than sedentary work would not be appropriate.” 

·          “She also has apparently monocular blindness.  However, she has clearly demonstrated an ability to work with this condition in the past and this should not be a limiting condition.”

            Standard furthermore consulted with Dr. Carlson, a board-certified physiatrist, who gave the following opinion:

Reasonable limitations and restrictions in a 59-year-old individual with chronic low back pain and moderate to severe lower lumbar degenerative changes would preclude the individual from any light or heavier level lifting, as well as from any frequent bending, stooping, twisting, crouching or squatting activities.  It is reasonable to anticipate an individual with lower lumbar spine degenerative changes without neurologic deficits would be capable of performing sedentary work on a full-time basis with further limitations and restrictions on repositioning.

            Lastly, Dr. Silverstein, a board-certified ophthalmologist was consulted regarding Appellant’s right eye blindness and epiphora.  Dr. Silverstein concluded that “[t]his claimant’s condition of epiphora as documented in the medical chart does not place any restrictions or limitations on the claimant’s ability to perform her work.”  He furthermore stated “I can find no evidence in the medical records by specific notation or by frequency of complaint and/or examination, which would imply that the claimant suffers with any substantive eye condition, which would present any limitations on her ability to continue to perform her work from an ophthalmic perspective.”

 

DISCUSSION

            Freeman argues that the decision of EIP was “capricious and arbitrary” because there is no substantial evidence to support their decision.  In support of this argument, Freeman argues that the opinions and diagnoses of her own physicians, Drs. Shealy and Nivens, were not considered.  Nevertheless, as noted the above, appellate review of this case is made not from the perspective of what evidence supports Appellant’s view of the evidence, but whether there is reasonable evidence to support EIP’s decision to deny her LTD claim.  I find that there is substantial evidence in the Record to support that decision.

            EIP based its determination on the medical opinions of Dr. Beeson, Dr. Carlson and Dr. Silverstein, all of whom determined that Appellant was not disabled.  The Doctor’s opinions are supported by Appellant’s medical records.  It is noteworthy that Dr. Beeson concluded that there is more Appellant could be doing to resolve her problems, including “both medication and active therapy, including physical therapy and an established home-exercise program.”

            Appellant argues that the decision is arbitrary and capricious and based solely on the “will” of the Respondent and its hired doctors.  She furthermore argues that Dr. Shealy, on several occasions, stated that Appellant is permanently and totally disabled and that the three consulting physicians chose to ignore this.  However, “[o]nce admitted, expert testimony is to be considered just like any other testimony.” Tiller v. Nat’l Health Care Ctr. of Sumter, 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999).  Therefore, “while medical testimony is entitled to great respect, the fact finder may disregard it if there is other competent evidence in the record.”  513 S.E.2d at 846.  Here, there clearly was other competent medical evidence supporting EIP’s conclusion.  Thus, the substantial evidence in the Record on Appeal support a determination that Appellant failed to provide satisfactory proof of loss to support her claim.

ORDER

            For the reasons set forth above,

            IT IS HEREBY ORDERED that EIP’s final agency determination denying Appellant’s claim for LTD benefits is affirmed.

            AND IT IS SO ORDERED.

                                                                       

                                                                        __________________________

                                                                        Ralph King Anderson, III

                                                                        Administrative Law Judge

 

May 28, 2009

Columbia, South Carolina

 


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