SC Administrative Law Court Decisions

I. Introduction

Colleen Marie Tebo (Tebo) seeks an order directing the South Carolina Budget and Control Board, South Carolina Retirement Systems (Retirement Systems) to grant her disability retirement benefits under S.C. Code Ann. Sec. 9-1-1540 (Supp. 2004). The Retirement System opposes Tebo's position on the ground that Tebo’s medical problems (whether considered individually or as a whole) do not result in a permanent impairment that incapacitates her from performing her job duties as a Correctional Officer Lieutenant at Leath Correctional Institution.

II. Issue

Is Tebo mentally or physically incapacitated in a manner that is likely to be permanent and to a degree that will prevent her from being be able to perform her job duties as a Correctional Officer Lieutenant at Leath Correctional Institution?

II. Analysis

A. Findings of Fact

I find by a preponderance of the evidence the following facts:

1. Procedural History

Tebo was employed as a correctional officer for the State Correctional System from July 1996 until September 2003 where she was a contributing member of the Police Officers Retirement System. The last position held with the correctional system was that of a Lieutenant at the Leath Correction Institution, a maximum security facility for female inmates.

As the result of a diagnosis of ovarian cancer in November 2002, Tebo underwent a total abdominal hysterectomy followed by six months of monthly chemotherapy treatments. The surgery and treatments yielded a conclusion from Tebo's doctors that she was in complete remission.

However, in a disability retirement application received by the BCB in October 2003, Tebo asserts an inability to perform her job duties due to a loss of memory and a loss of concentration. In addition, she asserts an inability to handle stress.

Her request was sent to the South Carolina Vocational Rehabilitation Department where a Disability Examiner gathered and reviewed medical documents. Based on those documents, the examiner recommended that the Medical Board deny Tebo's application since the complained of medical condition was not permanent. The Medical Board agreed with the Disability Examiner.

Tebo requested a reconsideration of the Medical Board's action. Thus, her file was sent to a second Disability Examiner at the Vocational Rehabilitation Department. The second examiner gathered and reviewed additional medical evidence as well as reviewing that which was already accumulated. The examiner recommended that the Medical Board deny Tebo' s application since the medical condition complained of was not severe enough to cause significant work-related restrictions. The Medical Board again agreed with the examiner.

Tebo requested an administrative review of the Medical Board's action. As a result, the Retirement Systems Director appointed a vocational consultant to review the file.

The consultant conducted an administrative conference with Tebo. In addition, the consultant reviewed the file along with additional documents submitted by Tebo. After his review, the consultant recommended denial of Tebo's disability application since he found insufficient medical evidence that Tebo's present conditions would permanently preclude her from performing the job duties of her previous position as a Correctional Officer at the Leath Correctional Institution.

On August 30, 2004, the Retirement Systems Director issued a Final Agency Determination adopting the consultant's recommendation and thereby denying Tebo's request for disability retirement benefits. On September 7, 2004, Tebo filed a request for a contested case hearing at the Administrative Law Court (ALC) seeking to reverse the Final Agency Determination. Thus, the Retirement Systems’ denial of benefits to Tebo coupled with her request for a contested case places jurisdiction in the ALC. S.C. Code Ann. Sec. 9-21-60 (Supp. 2004).

2. Job Duties

As a Correctional Officer at the Leath Correctional Institution, Tebo's job required her to walk for three hours per day, stand for three hours per day, and sit for two hours per day. The job also required her to bend frequently and reach occasionally. In addition, she was required to lift and/or carry fifty pounds. The job required her to use restraints, a gun, tools for key or lock repair, and fire extinguishers.

The facility at which she was employed was a maximum security facility for female inmates. As the Environmental Health and Safety Lieutenant, Tebo was responsible for all emergency training, fire and safety issues, workers compensation issues, and all keys in the prison. She also supervised inmates who cleaned the prison, and she was a trainer and firearms instructor as well as head of the Rapid Response Team.

3. Medical Conditions

Tebo does not assert any physical limitations preclude her from performing her previous job duties. Rather, she asserts that existing psychological conditions render her permanently unable to perform her previous job as a correctional officer.

Tebo suffers from Post Traumatic Stress Disorder (PTSD) and depression for which she has been taking Prozac, Wellbutrin, and Seroquel. These conditions have caused Tebo to experience anxiety, and have impacted her ability to concentrate and to focus.

She underwent a neuropsychological evaluation in January 2004 administered by Dr. Randel R. Jones, Ph.D., clinical psychologist. The evaluation was designed to measure Tebo's level of functioning. The evaluation concluded that Tebo's "cognitive focus, attention, and concentration were normal." In addition, the evaluation held that Tebo "demonstrated average ability for maintaining attention and concentration and for rapidly acquiring, internally manipulating, and retrieving new information without significant loss or distortion." Further, she "demonstrated average attention to detail within the environment and average psychomotor speed [with t]hese skills [being] significant for endeavors that require maintenance of attention and concentration . . . and rapid respond speed." Finally, the evaluation concluded that Tebo demonstrated "good flexibility in that she can rapidly alter courses of action when establish (sic) procedures become ineffective for achieving results."

The evaluation concluded that Tebo could function on an average level in all aspects of cognition, memory, and visual-motor coordination. Further, the evaluation found that allegations of anxiety and nervousness "were not reflected in the review of symptomatic behavior through the Personality Assessment inventory."

A somewhat contrary position is presented by Candace L. Dorsey, a licensed professional counselor. She explains that she does not "believe Ms. Tebo is currently capable of consistently functioning in the prison system well enough to assure her safety or that of others nor do I believe it is likely she will improve sufficiently to be able to do so at any time in the foreseeable future." Similarly, Dr. Rhett Myers, a psychiatrist, stated that he "recommend[s] finding employment in another line of work." Similarly, Dr. James Hunter of Gynecologic Oncology Associates states that it is his "recommendation at this time that Ms. Tebo not return to her position in the prison system."

B. Conclusions of Law

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

1. Controlling Statute

The controlling statute explains in pertinent part that "a member . . . may be retired by the board . . . on a disability retirement allowance if the medical board . . . 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." S.C. Code Ann. Sec. 9-1-1540 (Supp. 2004). Thus, the instant case turns on whether Tebo is "mentally or physically incapacitated for the further performance of duty" and whether "the incapacity is likely to be permanent."

2. Application to Facts

In making factual determinations, the judge must both weigh the evidence and evaluate witness credibility. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995). Weighing of evidence is purely a discretionary matter for the judge; for example, even when evidence is uncontradicted, the trial judge is not required to accept such evidence if the judge finds the evidence unconvincing. All v. Prillaman, 200 S.C. 279, 20 S.E.2d 741 (1942). Likewise as to credibility; even for expert testimony, the judge must give the testimony the credibility the judge determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980).

Here, the evidence does not contain any testimony by a medical professional who conducted a neuropsychological evaluation of Tebo. Rather, the evidence consists of written documentation. Given such a record, the most persuasive evidence is that presented on behalf of Dr. Jones. That evidence presents objective and detailed findings related to intelligence, cognition, memory, and behavioral characteristics. On the other hand, the documentation from Dr. Rhett Myers, Dr. James Hunter, and Candace Dorsey is general in scope and anecdotal in nature. Thus, the findings of Dr. Jones are given the greatest weight here.

The evidence provided via Dr. Jones and his evaluation establishes that Tebo's current level of functioning is average and within normal limits. While perhaps such a level of functioning is less than the optimum efficiency at which Tebo has operated in the past, she is not precluded from performing her previous job as a Correctional Officer.

Furthermore, the record does not establish that even the diminished level of performance is permanent. For example, the record shows that Tebo's anxiety was not evident at the time of her follow-up appointments at Gynecologic Oncology Associates, P.A. Further, during a visit with Dr. James Hunter of the Cancer Treatment Center on January 3, 2003, Dr. Hunter noted that "Ms. Tebo appears healthy, and she is in no distress." Likewise, during an appointment with Lynette Kemp, CNS, the nurse noted that Tebo "is in no distress at the time of today's visit [and s]he is cheerful at times during our conversation." Thus, the evidence does not establish that the complained of vocational limitations are of such a degree as to produce a permanent disability. Therefore, Tebo is not precluded from performing her previous job as a Correctional Officer.

III. Order

Accordingly, whether considered individually or as a whole, the medical conditions of Colleen Marie Tebo do not mentally or physically incapacitate her from the further performance of her duties as a Correctional Officer with the South Carolina Department of Corrections. Thus, disability retirement benefits under S.C. Code Ann. Sec. 9-1-1540 (Supp. 2004) must be denied.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: May 25, 2005

Columbia, South Carolina