ORDERS:
FINAL ORDER AND DECISION
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. 2004) upon the request for a contested case hearing filed by Annie M. Williams
(Petitioner). Petitioner contests the Final Agency Determination issued by
Respondent South Carolina Budget and Control Board, South Carolina Retirement
Systems (Respondent or SCRS), which found Petitioner was not entitled to
disability retirement benefits. After notice to all of the parties, a hearing
was conducted on October 25, 2005, at the offices of the Court in Columbia, South Carolina.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
Background
1. Petitioner
is a member of the South Carolina Retirement Systems with more than twenty-five
years of service in SCRS, the general retirement system. She recently filed an
application for disability retirement benefits alleging that she is permanently
incapacitated from the further performance of her job. At the time she filed
for disability benefits, she was employed as an Instructional Aide with the Aiken County School District.
2. After
Petitioner filed an application for disability benefits, her file was sent to
the South Carolina Vocational Rehabilitation Department and assigned to a
Disability Examiner. The Disability Examiner gathered medical documents and
referred Petitioner’s file to Darla R. Mullaney, M.D., for a medical
consultation. Based on the medical documents, including Dr. Mullaney’s
evaluation, the Disability Examiner made a recommendation that the Medical
Board deny Petitioner’s application for disability benefits on the grounds that
her condition was not permanent. On October 5, 2004, the Medical Board
disapproved the disability application as recommended by the Disability
Examiner.
Petitioner
requested a reconsideration of the Medical Board’s action. Accordingly, her
file was sent to a second Disability Examiner at the Vocational Rehabilitation
Department. That Disability Examiner also ultimately made a recommendation
that the Medical Board disapprove Petitioner’s application for disability
benefits. On December 14, 2004, the Medical Board disapproved the disability application
as recommended by the Disability Examiner.
Petitioner
then requested an administrative review of the Medical Board’s action. As a
result, the South Carolina Retirement Systems’ Director appointed Joel D.
Leonard to review Petitioner’s disability claim. Mr. Leonard held an Administrative
Conference on March 22, 2005, during which he heard testimony from Petitioner regarding
her claim. Mr. Leonard subsequently concluded that although Petitioner may not
be able to do her job due to the recent nature of her cervical surgery, Petitioner’s
application for disability retirement benefits should be denied because her
condition was not permanent. On April 4, 2005, the Director adopted Mr. Leonard’s recommendation and denied
disability retirement benefits for Petitioner.
Petitioner’s
Job Duties
3. As
an Instructional Aide, Petitioner instructs students, stands at the chalk board
to write, sits with small groups of students, and walks with students throughout
the building. More specifically, her job requires her to sit for approximately
three hours, stand for three hours, and walk for one hour. Petitioner also infrequently
lifts or carries ten pounds.
Aside
from three sabbaticals for surgeries between October 2000 and early 2005, Petitioner
also has continued to work regularly until the present. In fact, there is no
indication that Petitioner is working a reduced-hours schedule or is taking
significant amounts of sick leave. Nevertheless, Petitioner testified that she
performs her job duties with great difficulty.
Petitioner’s
Medical Conditions
4. Petitioner
alleges an inability to perform her job due to paralysis on her left side.
According to Petitioner, she suffered a stroke during a motor vehicle accident on
April 20, 1976, and has experienced left-sided paralysis and pain as a result.
Although Petitioner has worked for more than twenty-five years with this
condition, she now claims she cannot work any longer due to the pain from this
condition. However, I find that her limited paralysis does not prevent
Petitioner from performing her job as an Instructional Aide. Furthermore, the
evidence did not establish that the pain emanating from her paralysis would be
disabling.
5. Petitioner
also alleges an inability to perform her job due to lower back pain.
Petitioner underwent a lumbar laminectomy in 1985. After taking time off to
recuperate, she returned to work and continued to perform her job duties. In
November 2001, Petitioner complained of occasional low back pain. An MRI of her
lumbar spine revealed moderate disc space narrowing and changes of spondylosis (spinal
osteoarthritis) at L4-5. In January 2002, Petitioner had a myelogram of the
lumbar spine, which revealed anterior defects at L4-5 and L5-S1 as well as some
nerve root asymmetry to the left at L4-5 and on the right at L5-S1. At that
time, the neurologist recommended Petitioner follow-up with her primary
physician and return to the neurologist for surgical evaluation if necessary.
In
September 2003, Petitioner complained of intermittent back pain and indicated
she thought it was related to the physical therapy. Dr. Muniz recommended
exercises, a heating pad, and massage therapy for six weeks with the plan to do
an MRI if there was no improvement. Petitioner continued to complain of low
back pain in December 2003 and February 2004, but did not have an MRI at that
time. Ultimately in March 2005, Petitioner had an MRI of the lumbar spine.
The MRI revealed some degenerative and post-operative changes but no acute
surgical indications, stenosis, or canal compromise.
Petitioner
has back pain which results in an impaired ability to perform her job without
difficulty. That impairment, however, does not preclude her from performing her
job especially given the duties of her particular job. Therefore, though Petitioner
appears to suffer back pain resulting in some vocational limitations, she has
not been incapacitated from performing her job by that pain.
6. Petitioner
alleges she is also precluded from performing her job due to the presence of
pain in her left foot. Petitioner had surgery on her left foot (triple
arthrodesis with posterior tibial transfer) in October 2000. After the surgery, Petitioner
participated in physical therapy and progressed from using a CAM-walker to
using no assistive devices. By March 16, 2001, Petitioner reported marked
improvement over her preoperative state. At that time, Petitioner reported
“greater stability with stance and ambulation” and “little, if any, pain in the
foot.” By May 11, 2001, Petitioner reported she had returned to virtually full
activity with less pain and discomfort.
During
follow-up appointments from May 2002 to May 2003, Petitioner reported
occasional pain in her left foot. Dr. Smith opined that the chronic foot pain
she was experiencing at that time was likely related to her back discomfort
rather than her foot. In December 2002, Dr. Smith also noted arthritic
concerns in her foot that likely will result in ongoing “discomfort” at times.
During the May 2003 follow-up appointment, Petitioner reported occasional pain
in her left foot but indicated she was pleased overall with the results of her
surgery. Dr. Smith prescribed a foot orthotic to help with shock absorption during
stance and ambulation in her work as an Instructional Aide. In July 2003,
Petitioner reported marked improvement due to the use of the foot orthotic and
an ability to walk and stand with greater comfort.
In
February 2004, Petitioner saw Dr. Smith in a follow-up appointment. During
that appointment, Petitioner reported she was maintaining her work
responsibilities with mild to moderate discomfort in the left foot as a result
of prolonged standing and ambulation. She also reported that she was being encouraged
by her primary physician, Dr. Muniz, to file for permanent disability. Dr.
Smith opined that it would not be unreasonable for Petitioner to seek
disability but noted “her left lower extremity would only be a small percentage
factor in her overall disability evaluation.”
I
find that Petitioner experiences pain in her left foot which is a vocational
limitation. The evidence, however, did not establish that her impairment rises
to the level of a vocational preclusion in the context of Petitioner’s
particular job. In other words, though Petitioner has foot pain, the evidence
did not show that she is not capable of performing her job despite that pain.
7. Petitioner
alleges an inability to perform her job due to a cardiac condition. In
preparation for surgery in late 2004, testing revealed abnormal cardiac
results. On October 27, 2004, Petitioner had a stent placed in her artery to
correct her cardiac condition. Subsequently, the cardiologist placed
Petitioner on Plavix for one month and released her to have the neurosurgical
procedure approximately ten days after discontinuing the medication.
Petitioner’s
medical records regarding her cardiac condition are limited to a diagnosis
supporting the need for a stent placement. Petitioner's diagnosis also
indicates some chest discomfort at various times. This past condition,
however, does not rise to the level of a vocational limitation or incapacity to
perform her job.
8. Petitioner
alleges an inability to perform her job due to headaches and cervical pain.
There are indications in the medical records that Petitioner reported headaches
to Dr. Smith in 2001 and Dr. Muniz in 2003. As a result, Dr. Muniz referred
Petitioner to a neurologist for an evaluation in July 2003. However,
Petitioner did not see a neurologist as ordered.
Petitioner
again reported headaches to Dr. Muniz in June 2004 after she had applied for
disability. In June 2004, Petitioner saw Dr. Meeks for a neurosurgical
evaluation regarding her disability application. Dr. Meeks recommended several
tests including x-rays of the cervical spine. In August and September 2004,
Petitioner returned to Dr. Meeks’ practice, Neurological Associates of Augusta,
P.A., but saw Dr. Guitton. During those visits, Petitioner complained of
headaches as well as pain in her neck, left arm and shoulder, and right arm and
shoulder. Dr. Guitton ordered an MRI of the cervical spine which revealed a
spur at the C4-C5 level with impression on the spinal cord as well as the nerve
root on the left. According to Dr. Guitton, the MRI results were consistent
with Petitioner’s complaints.
On
December 28, 2004, Dr. Guitton performed a cervical discectomy and fusion at
C4-5. During
follow-up appointments with Dr. Guitton, Petitioner reported some residual neck
and arm pain but generally relief of her pain. Dr. Guitton noted that she was
making good progress and doing well. Dr. Guitton also noted he would consider
Petitioner completely disabled from performing any type of work “at this point”
due to the multitude of her problems.
Petitioner
experienced physical impairments as a result of her cervical surgery. As a
result, for a period of time after the surgery, Petitioner was incapacitated
from performing her job as an Instructional Aide. That incapacity, however,
was not permanent. During follow-up appointments with the neurologist,
Petitioner reported good relief of her pain and has received no ongoing
treatment regarding her headaches. Since March 2005, Petitioner has returned
to work as an Instructional Aide.
I
find that Petitioner is currently experiencing periodic headaches. Those
headaches, however, do not rise to the level of a vocational limitation in the
context of Petitioner’s particular job and have not resulted in an inability to
perform her job.
9. In conclusion, Petitioner’s disability claim
should also be examined in light of the cumulative impact of each of these medical
conditions upon her ability to perform her job. In that regard, a review of
her medical history certainly reveals that Petitioner has faced numerous
painful medical procedures and has limitations resulting from those procedures
and her past injuries. She currently has left-sided paralysis, lower back pain,
left foot pain, occasional headaches, and some cervical pain. Nevertheless,
though her conditions make the performance of her job more difficult, the
evidence presented at this hearing did not establish that Petitioner is
incapacitated or disabled from performing her job as an Instructional Aide as a
result of those conditions.
CONCLUSIONS
OF LAW
Based
on the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The
ALC has jurisdiction to decide the issues in this case pursuant to S.C. Code
Ann. § 9-21-60 (Supp. 2004) of the South Carolina Retirement Systems Claims
Procedures Act. As the trier of fact, the ALC 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). In that regard, when the expert’s testimony is based on
facts sufficient to form the basis of an opinion, the court 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). Furthermore, 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 she is entitled to the disability retirement benefits for which she
has applied.
2. 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. 2004).
3. According
to Section 9-1-1540, Petitioner is entitled to disability retirement benefits
if:
a. She is
mentally or physically incapacitated from the further performance of her job as
an Instructional Aide;
b. The incapacity is
likely to be permanent; and
c. She should be
retired.
To determine if
Petitioner is mentally or physically incapacitated from performing her job
duties and whether that incapacity is likely to be permanent, the ALC 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 her job. Fourth, a person is incapacitated if the vocational
limitations prevent a person from doing her job. Fifth, the impairment that
incapacitates a person from performing the job must be permanent in nature.
4. The evidence does not support a finding that
Petitioner is permanently incapacitated from performing her job as an
Instructional Aide at this time. Petitioner, therefore, failed to meet her
burden of proving that she 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
December 13, 2005
Columbia, South Carolina
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