SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the South Carolina Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2003) upon the request for a contested case hearing filed by Samuel T. Whatley (Petitioner). Petitioner contests the Final Agency Determination issued by Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems (Respondent) which found Petitioner was not entitled to disability retirement benefits. A hearing was conducted on January 26, 2005, at the office of the ALC in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments of both sides, I make the following Findings of Fact, taking into consideration the burden of proof and the credibility of the witnesses:

1.Notice of the date, time, place, and subject matter of the hearing was provided to all parties in a timely manner.

Background

2.Petitioner became a member of Respondent’s general retirement system in March 2000 when he started working at the South Carolina Department of Insurance. On April 2, 2000, he left the Department of Insurance and began working for the South Carolina Department of Public Safety (DPS). Beginning in January 2003, Petitioner worked in the Project Phoenix Division of DPS as a Senior Information Resource Consultant II. In that position, Petitioner was responsible for six job functions, including maintenance of the DMV Q-Matic traffic management system.

Effective May 17, 2003, Petitioner was transferred from the Project Phoenix Division of DPS to the DMV/Field Administration Section of DPS, where he was employed as a Senior Information Resource Consultant. That transfer was apparently made in light of the separation of Department of Motor Vehicles from the Department of Public Safety. See 2003 S.C. Acts 51. In the new position, Petitioner’s job functions were changed to focusing solely on the Q-Matic system.

Petitioner officially began working in his new position in the DMV/Field Administration Section of DPS on June 2, 2003 under his new supervisor, Beverly Hamilton. However, the Petitioner worked one day in that position and subsequently never returned to work. He filed an incident report alleging he was injured on the job on June 3, 2003, and explaining:

After being subjected to degrading and harassessing [sic] remarks by superiors, employee had to seek professional medical care to cope. A diagnosis of Job Stress, Severe Acute Situational Depression and Anxiety, which has manifested into physical injuries of irregular heart beat, elevated blood pressure, chest pains, and other physical characteristics of pain and suffering.

(Pet. Ex. 1, p. 0011). In September 2003, Petitioner learned he would be terminated due to a reduction in force. On September 30, 2003, he filed an application for disability retirement benefits. Petitioner’s employment at the Department of Motor Vehicles was ultimately terminated on October 1, 2003.

Petitioner’s file was forwarded to the South Carolina Vocational Rehabilitation Department. Dr. Subba Rao, M.D., examined the Petitioner on November 3, 2003, and issued a report in which he opined that “prognosis should be fair once the stress from his work-related problems are [sic] relieved.” The Disability Examiner also referred Petitioner’s file for a psychological consultation with W. Pearce McCall, Ph.D. After reviewing Dr. Rao’s report, Dr. McCall questioned whether Petitioner actually suffered from panic attacks, which typically happen “out of the blue,” surmising rather that the attacks seem to be breakthrough anxiety. Dr. McCall also questioned the diagnosis of panic disorder given that Petitioner’s symptoms did not meet the diagnostic criteria. To the contrary, Dr. McCall determined that based on Petitioner’s activities of daily living, Petitioner’s moderate clinical-level disorder would not prevent him from performing his previous job.

Based on the medical documents as well as Dr. Rao’s report and Dr. McCall’s evaluation, the Disability Examiner made a recommendation that the Medical Board deny Petitioner’s application for benefits on the basis that the medical condition was not permanent. The Medical Board subsequently disapproved Petitioner’s disability application.

Petitioner then requested a reconsideration of the Medical Board’s action. Accordingly, Petitioner’s file was sent to a second Disability Examiner at the Vocational Rehabilitation Department. That Disability Examiner gathered additional medical evidence and referred Petitioner’s file for a psychological evaluation by Edward D. Waller, Ph.D. Dr. Waller completed a Mental Residual Functional Capacity Assessment and concluded Petitioner would be moderately limited in: 1) his ability to complete a normal workday and workweek without interruption; 2) his ability to accept instructions and respond appropriately to criticism from supervisors; and 3) his ability to set realistic goals or make plans independently of others. Nevertheless, Petitioner was not significantly limited in any area of functioning. Dr. Waller also opined that Petitioner is able to understand and remember detailed instructions, is capable of performing simple and complex tasks for more than two hours without special supervision, is capable of maintaining a regular work schedule (missing an occasional workday due to anxiety), is able to sustain appropriate interaction with peers and coworkers without significant interference in work, can make simple work-related decisions, can request assistance from others, can use available transportation, and can adhere to basic standards of hygiene and safety.

Based on the medical documents as well as Dr. Waller’s evaluation, the Disability Examiner again recommended that the Medical Board deny Petitioner’s application for benefits on the basis that the medical condition was not permanent. The Medical Board unanimously disapproved Petitioner’s disability application.

Petitioner next requested an administrative review of the Medical Board’s determination. Director Peggy G. Boykin appointed vocational consultant Robert E. Brabham, Ph.D., to review Petitioner’s file on behalf of the South Carolina Retirement Systems. Dr. Brabham conducted an administrative conference with Petitioner and reviewed the entire file, including all documents obtained by the Disability Examiners as well as all documents submitted by Petitioner and his attorney. Afterwards, Dr. Brabham found that there was scarce evidence to support Petitioner’s claims of physical limitations, cardiac problems, and worsening anxiety attacks. Dr. Brabham ultimately concluded that there was insufficient medical evidence to suggest that Petitioner’s present psychiatric conditions would permanently preclude him from performing the job duties of his previous position as a Senior Information Resource Consultant at the Department of Motor Vehicles. Consequently, Dr. Brabham recommended that Petitioner’s application for disability retirement benefits be denied. On June 28, 2004, Director Boykin issued a Final Agency Determination adopting Dr. Brabham’s recommendation and denying disability retirement benefits for Petitioner.

Petitioner’s Job Duties

3.When Petitioner stopped working on June 3, 2003, he was employed as a Senior Information Resource Consultant with the Department of Motor Vehicles section of DPS. Petitioner’s official position description required him to spend half of his time advising management on the most strategic uses of technology to support agency activities specifically related to the DMV Q-Matic traffic management system. Petitioner was required to spend the remainder of his time assisting with planning and development of voice and data networks and data processing systems, performing system maintenance to file servers to ensure proper operating environments, hardware, and software upgrades, and preparing reports using data from the Q-Matic and phone systems as needed. His supervisor, Beverly Hamilton, stated that his job required him to use computer equipment, apply his technical skills related to Information Technology and the DMV Field Office queuing system, and design and provide reports related to the Q-Matic system. Performance of those job requisites required him to generally walk one hour per workday, stand one hour per workday, sit six hours per workday, bend and reach occasionally, occasionally lift and carry less than ten pounds, and frequently lift and carry less than ten pounds.

Petitioner’s Expert Testimony

4.Petitioner contends the examination and diagnosis by Subba M. Rao, M.D., supports his contention that he is permanently disabled. ^{Dr. Rao first saw Petitioner in November 2003 when he conducted a consultative examination for the South Carolina Vocational Rehabilitation Department. According to Dr. Rao, during that examination, Petitioner presented symptoms of panic attacks, claustrophobia, and depression. Dr. Rao testified that these symptoms were related to stress at work and he believed Petitioner did not have any of these symptoms prior to the work-related stress. Based on the November 2003 evaluation, Dr. Rao diagnosed Petitioner with Panic Disorder including Agoraphobia and Chronic Adjustment Disorder with Depressed Mood. Dr. Rao recommended that Petitioner seek mental health treatment and cognitive psychotherapy.}

^{In April 2004, Dr. Rao began treating Petitioner for his disorders. During Petitioner’s second treatment visit with Dr. Rao, he also diagnosed Petitioner with Posttraumatic Stress Disorder, chronic with delayed onset, based on work-related stress that Petitioner reported had been occurring for three years.}

^{Nevertheless, Dr. Rao testified that based on Petitioner’s lack of previous psychological problems, Petitioner would be considered a well-adjusted person. He surmised that a well-adjusted person is likely to recover from the diagnosed disorders within the next thirty years. More importantly, Dr. Rao testified that Petitioner’s psychiatric condition was not permanent in nature. Similarly, Dr. Rao testified that while Petitioner could not return to work in his previous job as of October 11, 2004, he was unable to say with any certainty, much less a reasonable degree of medical certainty, that Petitioner would never be able to return to his previous job.}

^{Furthermore, though Dr. Rao has certainly spent far more time accessing Petitioner than the other experts who evaluated him, I nevertheless find that his opinion is not persuasive. In that regard, Dr. Rao testified that Agoraphobia is the same as Claustrophobia or a fear of enclosed spaces. However, Agoraphobia is not the same condition as Claustrophobia. Agoraphobia is a fear of leaving home whereas Claustrophobia is a fear of being confined in a space. Dr. Rao also testified that according to DSM-IV, Posttraumatic Stress Disorder can result either from chronic stress or from a single stressful event where a person’s life is in danger and there is an actual fear of death. The DSM-IV defines Posttraumatic Stress Disorder as resulting from “exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury.” Therefore, according to DSM-IV, Posttraumatic Stress Disorder is triggered by a single event. Contrary to Dr. Rao’s testimony, Posttraumatic Stress Disorder does not result from experiencing chronic stress. This oversight is especially important in light of the fact that the diagnosis of Posttraumatic Stress Disorder is based upon experiencing chronic stress.}

^{Medical Conditions}

^{5.Petitioner contends he has Posttraumatic Stress Disorder. In that regard, he testified that his involuntary transfer was a precipitating stressful event. It is clear from the evidence, however, that the transfer was not hostile or retaliatory. Petitioner’s major responsibility was to maintain the Q-Matic system. Because the Q-Matic system operated only in field offices, it was only logical to transfer Petitioner from the Department of Public Safety to the Department of Motor Vehicles. This is particularly evident given that the Department of Motor Vehicles was preparing to separate from the Department of Public Safety.}

^{Petitioner also testified that he had a hostile work environment in that his supervisors yelled at him in person and/or via e-mails.} The evidence simply did not substantiate that claim. There were discussions with Petitioner about his inadequate work but those discussions were not hostile. Petitioner also testified that he was insulted when the Department of Motor Vehicles relocated him from an office with windows to a cubicle. Petitioner, however, provided no testimony to substantiate why he was traumatized by this particular situation.

The DSM-IV diagnostic criteria require that there be a single event or combination of events that involved actual or threatened death or serious injury to cause Posttraumatic Stress Disorder. It is glaring that Petitioner did not experience a single event or a combination of events involving actual or threatened death or serious injury that would have caused Posttraumatic Stress Disorder during the time he worked at the Department of Public Safety. Therefore, I find that the evidence does not support a diagnosis of Posttraumatic Stress Disorder.

Petitioner also alleges he is precluded from performing his previous job due to his Panic Disorder with Agoraphobia. A person suffering from Panic Disorder will have unexpected and repeated episodes of intense fear along with physical symptoms such as chest pain, heart palpitations, shortness of breath, dizziness, or abdominal distress. Though Petitioner testified about his history of panic attacks, he has stated that his panic attacks are stable. This testimony is supported by Dr. Rao’s testimony that Petitioner’s panic attacks have decreased in frequency and intensity as of late 2004.

Regarding Petitioner’s allegations of Agoraphobia, he goes to the Post Office every two or three days, goes grocery shopping with his wife, takes his son to school, and goes to church. He also attended First Baptist Church, one of the largest churches in Columbia. Therefore, the evidence does not establish that Petitioner has Agoraphobia. Moreover, even if Petitioner has Panic Disorder with Agoraphobia, many people with this disorder are able to cope and function in an office workplace. By taking medication and learning coping mechanisms, people who suffer from this disorder can learn to function normally in most aspects of their lives. Accordingly, taking into consideration Petitioner’s particular job, he could perform those tasks even if he suffered symptoms of Panic Disorder with Agoraphobia.

Petitioner also testified that Chronic Adjustment Disorder with Depressive Features precludes him from performing his previous job. Chronic Adjustment Disorder is an abnormal and excessive reaction to a life stressor. The supplemental diagnosis of “depressive features” references symptoms of depression. Depressive features, however, refers to the mildest form of depression. Though I find that Petitioner does have Chronic Adjustment Disorder with Depressive Features, this condition does not incapacitate Petitioner from performing his previous job. With proper medications and therapeutic treatment, a person suffering from Chronic Adjustment Disorder can function normally. With respect to the depressive features, one of the best treatments is activity. Petitioner already participates in activities as directed by his treating psychiatrist. Working in a normal office environment would not be detrimental to Petitioner’s recovery or ability to cope with the depressive features. Based on Petitioner’s current activities of daily living, Petitioner can do his previous job, particularly the job with reduced responsibilities that he was performing when he stopped working.

Conclusion

6.The evidence supports a diagnosis of Chronic Adjustment Disorder with Depressive Features. I find, however, that this diagnosis does not establish vocational limitations for Petitioner to the extent of incapacitating him from performing his previous job. Therefore, he is not currently disabled from performing his previous job as a Senior Information Resource Consultant.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

1.The Court has jurisdiction to decide the issues in this case pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2003) of the South Carolina Retirement Systems Claims Procedures Act.

2.As the trier of fact, the Court must weigh and pass upon the credibility of the evidence presented. See South Carolina Cable Television Ass’n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The standard of proof in an administrative proceeding is a preponderance of the evidence. Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998). Petitioner, therefore, must prove by a preponderance of the evidence that he is entitled to the disability retirement benefits for which he has applied.

In making that determination, it is within the Court’s sound discretion whether to qualify a witness as an expert in a particular field. Smoak v. Liebherr-America, Inc., 281 S.C. 420, 315 S.E.2d 116 (1984). When the expert’s testimony is based on facts sufficient to form the basis of an opinion, the Court as the trier of fact determines the probative weight of the opinion. Berkeley Elec. Coop. v. S.C. Pub. Serv. Comm’n, 304 S.C. 15, 402 S.E.2d 674 (1991).

3.Respondent provides disability retirement benefits to qualifying members who work for an employer covered by one of its retirement systems at, or within ninety days of, the time the member files an application for benefits. See S.C. Code Ann. § 9-1-1540 (Supp. 2003). Pursuant to Section 9-1-1540, Petitioner is entitled to receive those disability retirement benefits if:

a.He is mentally or physically incapacitated from the further performance of his job as a Senior Information Resource Consultant;

b.The incapacity is likely to be permanent; and

c.He should be retired.

To determine if Petitioner is mentally or physically incapacitated from performing his job duties and whether that incapacity is likely to be permanent, the Court should examine whether there is: (1) a medical diagnosis; (2) a mental or physical impairment; (3) a vocational limitation; (4) incapacitation; and (5) permanency. First, a medical diagnosis exists if sufficient medical records indicate that an individual suffers from a particular physical or mental medical condition. Second, a mental or physical impairment exists if the diagnosed medical condition interferes with a person’s ability to perform certain tasks. Third, a vocational limitation exists if the impairment is job related and the tasks that cannot be performed interfere with a person’s ability to do his job. Fourth, a person is incapacitated if the vocational limitations prevent a person from doing his job. Fifth, the impairment that incapacitates a person from doing the job must be permanent in nature.

4.The evidence supports a diagnosis of Chronic Adjustment Disorder with Depressive Features. The evidence, however, does not support a finding that Petitioner is permanently incapacitated from performing his previous job duties as a Senior Information Resource Consultant. Petitioner, therefore, failed to meet his burden of proving that he is entitled to disability retirement benefits.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law:

IT IS HEREBY ORDERED that Petitioner’s application for disability retirement benefits is denied.

AND IT IS SO ORDERED.

________________________________

Ralph King Anderson, III

Administrative Law Judge

May 24, 2005

Columbia, South Carolina