ORDERS:
FINAL ORDER AND DECISION
The above-captioned case is before the Court pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2009) for a contested case hearing. In this matter, Petitioner Roy T. Cooper (“Petitioner”) challenges the February 5, 2010 Final Agency Determination issued by Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems (“Retirement Systems”), in which the Retirement Systems denied his application for disability retirement benefits under the South Carolina Police Officers’ Retirement System. Petitioner appealed to the Administrative Law Court (“ALC” or “Court”). A hearing was held before me on April 20, 2010.
After considering all of the evidence before me, I uphold the denial of Disability Retirement Benefits for the reasons set forth below.
FINDINGS OF FACT
1. Petitioner Roy Cooper is a fifty-one-year-old member of the South Carolina Police Officers’ Retirement System (“PORS” or “System”), who has approximately five years and ten months of service credit in the System. Prior to leaving work on sick leave on October 24, 2009, Petitioner was employed as a Sergeant II Corrections Officer for the South Carolina Department of Corrections (“SCDC” or “Department”) at the Lee Correctional Institution.
2. On October 28, 2009, Petitioner filed an application for disability retirement benefits with the Retirement Systems. In the Member’s Disability Report accompanying the application, Petitioner alleged that he was disabled from performing his job duties as a Corrections Officer as the result of “hernia pain” that prevented him from bending, stooping, or performing “physical work” of any sort.
3. In addition to the Member’s Disability Report, Petitioner also attached to his application a Workers’ Compensation Physician’s Statement and two treatment notes from Dr. Jon L. Stanford; medical records from his treatment at Doctor’s Care; and records from his treatment at Progressive Physical Therapy.
4. After receiving Petitioner’s application forms, the medical records Petitioner attached to his application, and vocational documents from Petitioner’s employer, the Retirement Systems forwarded his file to the South Carolina Vocational Rehabilitation Department (“VR”) for an evaluation of his disability claim.
5. The VR Disability Examiner reviewed Petitioner’s medical and vocational records and submitted Petitioner’s medical records for review by a VR consulting physician, Dr. James Weston. Based upon those records and the physician’s review, the Disability Examiner issued a recommendation that Petitioner’s application for disability retirement benefits be denied. In particular, the Examiner found that, while the medical records contain reports of Petitioner’s complaints of “tenderness in the bilateral inguinal regions,” those records further reveal that “[n]o objective abnormalities have been found despite multiple evaluations.” Based upon that lack of evidence of a disabling medical condition, the Disability Examiner concluded that Petitioner “has no significant restrictions in his ability to work” and recommended the denial of his application.
6. On November 16, 2009, the Retirement Systems denied Petitioner’s claim for disability retirement benefits as recommended by the VR Disability Examiner.
7. On November 19, 2009, Petitioner requested an administrative review of the denial of his application for disability retirement benefits before Peggy G. Boykin, the Director of the Retirement Systems.
8. Pursuant to that appeal, Director Boykin appointed Leanna Hollenbeck, MS, CRC, CLCP, an independent vocational consultant, to review and make a recommendation on Petitioner’s disability claim. As part of her review of Petitioner’s claim, Ms. Hollenbeck conducted an administrative conference with Petitioner on January 26, 2010 and reviewed Petitioner’s entire disability file, including all of the medical and vocational records gathered by the VR Disability Examiner as well as the records submitted by Petitioner during the appeal of the denial of his claim.
9. After reviewing these records and the testimony offered at the administrative conference, Ms. Hollenbeck issued a recommendation on February 1, 2010, that Petitioner’s application for disability retirement benefits be denied. Ms. Hollenbeck found that there “is no evidence in [Petitioner’s] records that his medical condition is permanent or that it will permanently restrict him from performing the job duties required of [a] Sergeant II for the SC Department of Corrections.” In reaching this conclusion, Ms. Hollenbeck noted that none of the physicians who have examined Petitioner have found any physical cause for his complaints of hernia pain and that, in fact, a recent examination of Petitioner “revealed no palpable hernia defect.”
10. On February 5, 2010, Director Boykin issued a Final Agency Determination adopting Ms. Hollenbeck’s recommendation and denying Petitioner’s claim for disability retirement benefits. Petitioner now seeks review of that Determination in this contested case proceeding.
11. Petitioner then appealed that decision to the Administrative Law Court on February 9, 2010.
12. Petitioner contends that he is disabled from performing his prior job duties as a Sergeant II Corrections Officer with the Department of Corrections. In his position as a Sergeant II Corrections Officer, Petitioner was responsible for “assist[ing] in instructing and directing officers in a program of discipline, safety, security and rehabilitation of inmates in a medium/maximum security correctional facility.” Petitioner supervised approximately seven corrections officers who maintained the security, custody, and control of inmates at the Lee Correctional Institution, ensured the security of the building, controlled security devices, trained and instructed subordinate officers, made up schedules and announced inspections, maintained weapons certifications, and prepared and submitted various reports. As a Sergeant II, Petitioner spent most of his workday standing and walking, with occasional periods of sitting. While his job did not require any frequent lifting, he did occasionally bend and reach and would occasionally lift items such as paperwork, inmate property, and equipment. In addition, as a corrections officer, Petitioner was required occasionally to exert himself to restrain uncooperative or disruptive inmates. Based upon these job duties, Ms. Hollenbeck classified the physical demands of Petitioner’s job as falling within the “Medium” category.
13. In the Member’s Disability Report filed with his disability retirement application and throughout the review of his claim before the Retirement Systems, Petitioner stated that he is disabled from performing his job duties with SCDC as the result of “hernia pain” in his groin that limits his ability to bend, stoop, or do any physical work.
14. Petitioner contends that his disabling hernia pain initially arose from an on-the-job injury he sustained on January 16, 2009, while breaking up an altercation between inmates at the Lee Correctional Institution. In connection with his workers’ compensation claim related to the incident, Petitioner began a course of treatment from the physicians at Doctors’ Care in Sumter, South Carolina, on January 17, 2009. In Petitioner’s initial visits to Doctors’ Care, the physicians found that Petitioner had a tender right groin with no evidence of a hernia and diagnosed a right groin sprain. As treatment, the doctors advised Petitioner to restrict his lifting and bending activities to rest his groin and prescribed Motrin for pain. According to the notes from Doctors’ Care, by January 23, 2009, Petitioner had experienced a “50% improvement” in his symptoms, with only “mild groin tenderness” remaining and, by January 30, 2009, he had only “very mild [symptoms] at this point” and was released by the physicians to return to full duty at work
15. Petitioner returned to Doctors’ Care on February 5, 2009, with a “non-specific tender lower abdomen and groin.” As a result of these additional complaints of, the physicians at Doctors’ Care continued to diagnose Petitioner with a groin sprain; and, as further treatment, the physicians again restricted Petitioner’s lifting and bending and prescribed Motrin and a warm compress. In addition to these treatments, Petitioner’s doctors also referred him for a course of physical therapy at Progressive Physical Therapy, beginning on February 16, 2009, to treat his groin pain. As reflected in the treatment notes from Doctors’ Care and Progressive Physical Therapy, Petitioner’s groin pain steadily improved with his physical therapy, such that, by March 12, 2009, he no longer reported any groin pain and was released to return to work without restrictions by both his physicians at Doctors’ Care and by his physical therapists
16. On April 3, 2009, Petitioner returned to Doctors’ Care, reporting that “his pain started again immediately upon return to full duty” work with the Department. Based upon these additional complaints of pain, the physicians at Doctors’ Care diagnosed Petitioner with “inguinal pain” and a possible hernia, although they found “no palpable inguinal hernia.” The doctors did, however, note Petitioner’s history of a bilateral hernia repair in 1984 and referred him to a surgeon, Dr. Jon L. Stanford with Sumter Surgical Associates for evaluation of his inguinal pain.
17. In his initial review of Petitioner on May 19, 2009, Dr. Stanford noted Petitioner’s complaints of bilateral inguinal pain, which he concluded could be caused by “either [a] musculoskeletal strain or early developing inguinal hernias,” and he recommended that “a bilateral groin ultrasound be done to evaluate for the presence of hernias.” The recommended ultrasound, which was completed on May 28, 2009, revealed “[n]o evidence of hernia or mass” and, aside from some small lymph nodes, was considered an “otherwise normal inguinal ultrasound.”
18. In his follow-up examination of Petitioner on June 17, 2009, Dr. Stanford again acknowledged Petitioner’s complaints of bilateral groin pain, but could not “appreciate any inguinal hernias” during his examination and found “[n]o physical evidence to suggest inguinal hernias.” Accordingly, Dr. Stanford concluded with regard to Petitioner’s condition that “[l]ikely this is [a] groin strain which should improve over time” and referred Petitioner to a pain specialist for his ongoing complaints. Petitioner has not received any further treatment from Dr. Stanford since this follow-up visit on June 17, 2009.
19. A second opinion was obtained from Dr. Randal L. Croshaw and Dr. Stephen A. Fann with the Department of Surgery at the University of South Carolina School of Medicine on December 8, 2009. Like Dr. Stanford, the surgeons at the USC School of Medicine found that, while Petitioner had “a small umbilical hernia defect that is easily reducible” and “well-healed, bilaterally inguinal hernia scars” from his hernia repair in 1984, Petitioner “has no palpable hernia defect, nor diastasis with Valsalva or cough” and they noted that all previous exams had “failed to reveal [a] hernia defect.” The surgeons did, however, recommend a CT scan of Petitioner’s inguinal region to conclusively “rule out [a] small hernia defect.” It is unclear, though, whether the recommended CT scan was ever obtained, and there are no further treatment or examination records in Petitioner’s file from Doctors’ Care, Dr. Stanford, or the surgeons at USC regarding his groin pain after the USC examination on December 8, 2009.
20. In support of his claim for disability retirement benefits, Petitioner has submitted two forms completed by Dr. Stanford regarding his medical condition, a questionnaire prepared by Petitioner’s attorneys in his workers’ compensation case and a workers’ compensation Physician’s Statement. On each form, Dr. Stanford indicates that, as of his last examination of Petitioner June 17, 2009, Petitioner had complained of bilateral groin pain resulting from the incident at work on January 16, 2009, and that, because of those complaints of pain, he had restricted Petitioner from lifting more than thirty pounds and from restraining inmates at work. However, on both forms, Dr. Stanford further states that Petitioner had not reached maximum medical improvement with regard to his groin pain and, on the attorneys’ questionnaire, he indicates that Petitioner “would need [a] new eval[uation] now before any assessment of future disability be made”
21. While the record contains considerable documentation of Petitioner’s symptomatic complaints of groin pain, the surgeons and other physicians who have examined Petitioner have found no physical or radiographic evidence of an inguinal hernia defect or other objective abnormality in his lower abdomen that would permanently incapacitate Petitioner from performing his prior job duties as a Sergeant II with the Department of Corrections.
22. Moreover, while Dr. Stanford did recommend certain restrictions on Petitioner’s physical exertion as a result of his complaints of pain, Dr. Stanford has emphasized that Petitioner has not reached maximum medical improvement and, in his last examination of Petitioner, Dr. Stanford diagnosed Petitioner as likely having only a “groin strain which should improve in time.”
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this contested case pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2009), S.C. Code Ann. § 1-23-600(A) (Supp. 2009), and S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2009).
2. The issue 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 receive disability retirement benefits pursuant to S.C. Code Ann. § 9-11-80(1) (Supp. 2009). That section provides that qualifying members of the South Carolina Police Officers’ Retirement System may be retired by the [Retirement Systems] 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. As the moving party, Petitioner bears the burden of establishing, by a preponderance of the evidence, that he satisfies the requirements of Section 9-11-80(1) 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.”). Therefore, Petitioner must establish (1) that he is mentally or physically incapacitated from the further performance of his job duties as a Sergeant II Corrections Officer with SCDC, (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. § 9-11-80(1).
4. In the instant matter, Petitioner contends that he should be awarded disability retirement benefits as the result of his symptomatic complaints of “hernia pain” in his groin. However, the medical records presented fail to demonstrate that Petitioner satisfies the eligibility requirements for the receipt of disability retirement benefits based upon those complaints. As set forth above, Petitioner’s medical records contain ample documentation of his complaints of groin pain, which began with an incident that occurred at work in January 2009. However, multiple physical examinations by the physicians at Doctors’ Care, physical examinations by surgeons both in Sumter and at the USC School of Medicine, and an ultrasound of Petitioner’s inguinal region have all failed to reveal any hernia condition or other abnormality to which his complaints of pain could be attributed and which would preclude him from performing the duties of his job with the Department of Corrections. In particular, the physicians have not only found no physical evidence of any new hernias, but also no evidence of any defect in Petitioner’s prior hernia repair from 1984, some twenty-five years ago. The physicians that have examined Petitioner have diagnosed him with a groin sprain that should improve over time.
5. Moreover, to the extent that any of Petitioner’s medical records, such as the workers’ compensation forms completed by Dr. Stanford, may suggest that he is currently incapacitated from performing his duties as a corrections officer as a result of his symptomatic complaints of groin pain, those records cannot support a finding that any such incapacity is likely to be permanent. In order for Petitioner’s complaints to be considered permanently disabling, the condition must be “of such nature that it 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. Ex parte McFaddin, 254 S.C. 270, 274, 175 S.E.2d 218, 221 (1970).
6. If Petitioner does suffer from an as-yet-undiscovered hernia condition or other groin problem, there is nothing in the record to demonstrate that the hernia or other condition cannot be corrected with surgery like his early hernia or is otherwise unable to be treated such that it would continue to incapacitate him from performing his job duties for the rest of his life. The records reflects that Petitioner’s groin pain is capable of treatment. For example, although he contends that he subsequently re-aggravated his injury, Petitioner reported at one point that his pain had been eliminated with less than a month of physical therapy treatments between February and March 2009. Further, the surgeon who placed restrictions upon Petitioner’s physical activity in June 2009 has also indicated that Petitioner’s condition is most likely a “groin strain which should improve in time” and has twice stated that Petitioner has not reached maximum medical improvement with regard to his pain.
7. Finally, to the extent that Petitioner has failed to pursue certain treatments and diagnostic testing recommended by his physicians, he must also be found to have failed to demonstrate that he “should be retired” as a result of his complaints of groin pain. 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., Docket No. 04-ALJ-30-0160-CC, at 15 (S.C. Admin. Law Ct. Dec. 30, 2004); see also, e.g., Lawson v. S.C. Budget & Control Bd., S.C. Retirement Sys., Docket No. 06-ALJ-30-0681-CC, at 10-12 (S.C. Admin. Law Ct. Dec. 22, 2008).
8. In the present case, upon diagnosing Petitioner with a groin strain, and not a hernia, Dr. Stanford referred Petitioner to a pain specialist on June 17, 2009, for the further treatment of his complaints of groin pain. However, Petitioner has not submitted any record that he pursued Dr. Stanford’s referral to the pain specialist for treatment, nor has he otherwise indicated that he acted upon that referral. Similarly, in the second opinion obtained from the surgeons at USC, the surgeons recommended that Petitioner obtain a CT scan of his inguinal region to conclusively rule out any small hernia defects and requested that he return for further evaluation once the CT scan was completed. Yet Petitioner has not submitted any record that he obtained the CT scan of his inguinal region or that he received further evaluation from the surgeons at USC or any other physicians based upon the results of such a scan. Therefore, to the extent that Petitioner failed to pursue Dr. Stanford’s referral for treatment from a pain specialist and did not obtain the CT scan recommended by the surgeons at USC, he has failed to pursue reasonable treatments for the alleviation of his complaints of groin pain and, thus, cannot demonstrate that he “should be retired” as a result of that groin pain.
ORDER
For the reasons set forth above, Petitioner is not entitled to disability retirement benefits from PORS pursuant to Section 9-11-80(1). Therefore, IT IS HEREBY ORDERED that Petitioner’s claim for disability retirement benefits is denied.
AND IT IS SO ORDERED.
____________________________
Carolyn C. Matthews
SC Administrative Law Judge
May 19, 2010
Columbia, South Carolina
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