ORDERS:
FINAL ORDER AND DECISION
This
case is before the Court pursuant to a request for contested case hearing filed
by Mary K. Hughes on November 12, 2004. Mrs. Hughes sought review of a Final
Agency Determination denying her application for disability retirement
benefits. Respondent South Carolina Retirement Systems (“Retirement Systems”) asserts
Mrs. Hughes is not entitled to disability retirement benefits because she is
not permanently incapacitated from performing her previous job duties as an
Instructional Assistant for Richland County School District One. A hearing was
held on March 2, 2005 at the Administrative Law Court with the parties present
as indicated. Based on the evidence presented at trial and the presentations
by the parties, I conclude by a preponderance of the evidence that Mrs. Hughes
is permanently incapacitated and continues to be entitled to disability
retirement benefits, subject to a three year review.
FACTUAL
BACKGROUND AND FINDINGS OF FACT
In
June 1993, Mary K. Hughes was a member of the general retirement system, SCRS, when
she was employed as an Instructional Assistant for Richland County School
District One. On June 3, 1993, Mrs. Hughes was in a motor vehicle accident,
and suffered multiple injuries to her face, hip, and wrist. At that time, Mrs.
Hughes, then thirty nine years old, applied for and received disability
retirement benefits from the Retirement Systems.
In
December 2003, the Retirement Systems contacted Mrs. Hughes and notified her
that the Medical Board was conducting a Continuing Disability Review in her
case. (Resp. Exh. 1, p. 0225). At the request of the Retirement Systems, Mrs.
Hughes submitted a Continuing Disability Review Report and Authorizations for
the Release of Information for current medical records. (Resp. Exh. 1, pp.
0226-0231).
After
this request, Mrs. Hughes’ file was sent to the South Carolina Vocational
Rehabilitation Department. (Resp. Exh. 1, pp. 0184-0185). The Disability
Examiner reviewed medical documents and recommended that the Medical Board deny
Mrs. Hughes’ application for continuation of benefits on the basis that she
retains the capacity to perform her previous job duties despite any
restrictions. (Resp. Exh. 1, pp. 0179-0181). As recommended by the Disability
Examiner, the Medical Board disapproved the disability claim. (Resp. Exh. 1, p.
0179).
Mrs.
Hughes requested a reconsideration of the Medical Board’s action. (Resp. Exh.
1, pp. 0175-0176). Her file was sent to a second Disability Examiner at the
Vocational Rehabilitation Department. (Resp. Exh. 1, pp. 0135-0136). That
Disability Examiner obtained a statement from Mrs. Hughes describing her daily activities,
which include cooking, doing light cleaning, assisting with handling financial
responsibilities, assisting in shopping for the household, making short visits
with family, going out to eat with family, attending church, singing in the
choir, driving her husband to and from work, and doing errands. (Resp. Exh. 1,
pp. 0160-0164).
The
Disability Examiner also scheduled an independent medical evaluation with
Mitchell H. Hegquist, M.D. (Resp. Exh. 1, 0155). Dr. Hegquist examined Mrs.
Hughes on May 4, 2004, and issued a report of his examination. (Resp. Exh. 1,
pp. 0140-0145). Dr. Hegquist investigated Mrs. Hughes’ numerous complaints which
included coronary artery disease, hypertension, anxiety and panic attacks,
injuries from the initial 1993 motor vehicle accident, injuries from another motor
vehicle accident in 2002, and thyroid problems. Dr. Hegquist also noted Mrs. Hughes’
past medical history, which included among other things hypercholesterolemia,
gastroesophageal reflux disease, and bilateral carpal tunnel syndrome. After
performing a physical and mental examination, Dr. Hegquist reported Mrs. Hughes
was overweight, complains of chronic frontal headaches, has well-controlled
gastroesophageal reflux disease, is untreated for hyperlipidemia, has a history
of coronary artery disease, has a vague history of hypertension, has a history
of anxiety and panic disorder, and a history of bilateral carpal tunnel
syndrome.
Based
on the medical documents including the report of Dr. Hegquist, the Disability
Examiner recommended that the Medical Board deny Mrs. Hughes’ application for
continuation of benefits on the basis that she retains the capacity to perform
her previous job duties despite any restrictions. (Resp. Exh. 1, pp.
0128-0130). The Medical Board again disapproved the disability claim as
recommended by the Disability Examiner. (Resp. Exh. 1, p. 0128).
Mrs.
Hughes requested an administrative review of the Medical Board’s action. (Resp.
Exh. 1, pp. 0121-0122). Director Peggy G. Boykin appointed Joel D. Leonard,
CRC, CVE, as the vocational consultant hired by the South Carolina Retirement
Systems to review Mrs. Hughes’ file. (Resp. Exh. 1, p. 0120). Mr. Leonard
conducted an administrative conference and reviewed the entire file, including
all documents obtained by the Disability Examiners, in addition to all
documents submitted by Mrs. Hughes.
Mr.
Leonard recommended that Mrs. Hughes’ application for continuation of
disability retirement benefits be denied. (Resp. Exh. 1, pp. 0005-0009). Mr.
Leonard addressed each of the conditions alleged by Mrs. Hughes during the
Administrative Conference as conditions that preclude her from performing her
previous job as an Instructional Assistant. Mr. Leonard found that Mrs.
Hughes’ current medical records did not support the presence of any significant
impairments as a result of the alleged conditions of Carpal Tunnel Syndrome,
back pain, left leg pain, hip pain, Diabetes Mellitus, Hypertension, Coronary
Artery Disease, visual problems, Hiatal Hernia, and Acid Reflux. Regarding the
alleged nervous disorder and panic attacks, Mr. Leonard found there is a
question regarding the element of permanence. Mr. Leonard specifically noted
that Mrs. Hughes sought mental health care for the first time in July 2004. As
a result, Mr. Leonard concluded Mrs. Hughes’ claim for disability retirement
benefits did not satisfy the standard set forth in statute.
On
October 26, 2004, Director Boykin issued a Final Agency Determination adopting
Mr. Leonard’s recommendation and denying continuation of Mrs. Hughes’
disability retirement benefits. (Resp. Exh. 1, pp. 0004-0009). On November 12,
2004, Mrs. Hughes filed a request for a contested case hearing at the Administrative Law Court seeking review of the Final Agency Determination.
DISCUSSION
The South Carolina Administrative Law Court has original jurisdiction over this case pursuant to
S.C. Code Ann. § 9-21-60 (Supp. 2004) of the South Carolina Retirement Systems
Claims Procedures Act. The sole issue in this case is whether Mrs. Hughes is
entitled to disability retirement benefits pursuant to S.C. Code Ann. §
9-1-1540 (1986 & Supp. 2004). To decide this issue, the Court must
determine: (1) whether Mrs. Hughes is mentally or physically incapacitated from
the performance of her job as an Instructional Assistant; (2) whether the
incapacity is likely to be permanent; and (3) whether Mrs. Hughes should be
retired. S.C. Code Ann. § 9-1-1540 (1986 & Supp. 2004).
I. Job
Duties
As
of June 1993, Mrs. Hughes was employed as an Instructional Assistant for
Richland County School District One. For example, Mrs. Hughes assisted the
classroom teacher by making and putting up decorations on the walls of the
classroom, escorting students to other classes or to lunch, and writing on the
blackboard. (Pet. Exh. 14). According to the Job Descriptions provided by Mrs.
Hughes’ employer (Resp. Exh. 1, pp. 0427-0428), Mrs. Hughes’ job required her
to walk and stand for five hours per day and sit for two hours per day. The
job also required Mrs. Hughes to bend and reach frequently and to lift and/or
carry less than ten pounds. During the Administrative Conference, Mrs. Hughes
testified she sometimes had to lift and/or carry equipment weighing more than
ten pounds. (Resp. Exh. 11). At the Hearing, Mrs. Hughes introduced notes from
her treating physician that indicated that Mrs. Hughes “cannot stand for more
than a few minutes at a time without having to sit . . . [, and cannot] sit in
one position for very long.” (Pet. Exh. 14).
II.
Statutory Requirements
To
determine if Mrs. Hughes meets the statutory requirements that she is mentally
or physically incapacitated from performing her job duties and that the
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 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 doing the job must be “likely to be
permanent” in nature.
Conditions Alleged During Administrative
Conference
During
the Administrative Conference on August 19, 2004, Mrs. Hughes alleged an
inability to perform her previous job as a result of the following conditions:
back, left leg and hip pain; bilateral Carpal Tunnel Syndrome; vision problems;
Type II Diabetes Mellitus; Hypertension; Coronary Artery Disease; Nervous
Disorder; Panic Attacks; Hiatal Hernia; and Acid Reflux Disease. (Resp. Exh. 1,
pp. 0005-0009, Resp. Exh. 11).
Back, Leg, and Hip Pain
Mrs.
Hughes alleged that back pain, left leg pain, and hip pain make it difficult
for her to walk, stand, or sit. The medical record supports a diagnosis of
pain; Mrs. Hughes has taken Darvocet regularly since 1993, usually twice daily.
(Resp. Exh. 1, p. 0140). Pain in the back, leg, and hip can cause difficulty
walking, standing, or sitting. Mrs. Hughes’ particular job as an Instructional
Assistant, although not significantly physically demanding, required freedom
of movement and various degrees of walking, standing, or sitting. At the
hearing at the ALC, Mrs. Hughes introduced a note from Dr. David C. Morris,
Family Medicine, which stated that Mrs. Hughes requires the use of a wheelchair
and has since September 2, 1993. (Pet. Exh. 20) The Respondent and its
experts felt that when considering the physical demands of Mrs. Hughes’
particular job, her generalized complaints of pain in the back, leg and hip were
not sufficient to indicate any vocational limitation. Moreover, any possible
vocational limitation would not rise to the level of an incapacitation to
perform her previous job duties. Furthermore, Dr. Brandt of Palmetto Health Pain Management Center has recommended Mrs. Hughes enter the Full Pain
Program, which Mrs. Hughes indicated she does not want to do. Pet. Exh. 60. The
pain management program might help or even resolve Mrs. Hughes’ complaints of
alleged back, leg, and hip pain.
Bilateral Carpal Tunnel Syndrome
At
the time of the Administrative Conference, there was no medical evidence in the
record supporting a diagnosis of carpal tunnel syndrome. Mrs. Hughes, however,
provided such support in her recent Exchange of Evidence. By letter dated November 5, 2004, Dr. Ugino of Midlands Orthopaedics, P.A. indicated he treated Mrs.
Hughes for moderately severe carpal tunnel syndrome in 1998. (Pet. Exh. 19). Mrs.
Hughes underwent a carpal tunnel release on her right hand in June 1998. Mrs.
Hughes decided not to have surgery on the left hand and ultimately was
discharged from Dr. Ugino’s care in July 1998. (Resp. Exh. 11; Pet. Exh. 19).
According
to Mrs. Hughes and her available medical records, no one is currently treating
her for carpal tunnel syndrome. In fact, there is an absence of complaints by Mrs.
Hughes in the records of her primary care physician, Dr. Rita Patel.
Furthermore, in May 2004, Dr. Hegquist noted Mrs. Hughes had a full range of
motion in both wrists as well as a normal grip strength. (Resp. Exh. 1, p.
0143). Based on the medical evidence, Mrs. Hughes does not suffer any current
impairments as a result of carpal tunnel syndrome.
Visual Problems
In
1994, Mrs. Hughes was diagnosed with nystagmus, which is a condition causing eyes
to move rapidly or jump. According to Mrs. Hughes, her eyes will jump
continuously when she is upset or nervous. (Resp. Exh. 11). As a result, Mrs.
Hughes alleges that her vision is blurred and it is difficult for her to see.
(Resp. Exh. 11). Although nystagmus can cause some possible impairment, it
would not rise to the level of a vocational limitation. It is not a continuous
condition. Moreover, according to Dr. Hegquist’s examination in May 2004, Mrs.
Hughes’ visual acuity was 20/40 OD, 20/40 OS, and 20/30 OU with correction.
(Resp. Exh. 1, p. 0143).
Type II Diabetes Mellitus
Mrs.
Hughes was first diagnosed with diabetes by Dr. Patel in June 2004. (Resp. Exh.
1, p. 0106). As of June 15, 2004, Mrs. Hughes’ fasting blood sugar was 182.
Dr. Patel, therefore, increased Mrs. Hughes’ medication in an attempt to
control her blood sugar. (Resp. Exh. 1, p. 0101). On June 24, 2004, Mrs. Hughes’ blood sugar was 127 and her microalbuminuria results were normal. (Resp.
Exh. 1, p. 0097). Mrs. Hughes’ diabetes appears to be well-controlled with
medication. As a result, there are no physical impairments or functional
limitations as a result of this condition.
Hypertension
There
are several references in the medical record to a diagnosis of hypertension.
As recently as June 1, 2004, Mrs. Hughes’ blood pressure was 144/94, which is
considered to be high. (Resp. Exh. 1, p. 0105). Dr. Patel increased Mrs.
Hughes’ medication in an effort to control her blood pressure. (Resp. Exh. 1,
p. 0106). On June 24, 2004, Mrs. Hughes’ blood pressure was 106/78. (Resp.
Exh. 1, p. 0097). On January 7, 2005, Mrs. Hughes’ blood pressure was 128/76.
(Pet. Exh. 59). Mrs. Hughes’ hypertension appears to be well-controlled with
medication. Thus, there are no physical impairments or functional limitations
as a result of this condition.
Coronary Artery Disease
There
is a reference in Mrs. Hughes’ medical records that she was diagnosed with
coronary artery disease in 2000. (Resp. Exh. 1, p. 0034). During the
Administrative Conference, Mrs. Hughes also mentioned this diagnosis.
According to Mrs. Hughes, however, the latest stress test in 2004 showed no
problems with the functioning of her heart. (Resp. Exh. 11). Mrs. Hughes
apparently reports “chest pain” to her doctor approximately once per year.
(Resp. Exh. 1, pp. 0056, 0041, 0034).
Hiatal Hernia and GERD
There
is a reference in Mrs. Hughes’ medical records that she was diagnosed by Dr.
Cate with gastroesophageal reflux disease, which is also known as acid reflux
disease, and hiatal hernia. (Resp. Exh. 1, p. 0043). In May 2004, Dr. Hegquist
noted that Mrs. Hughes’ GERD was well-controlled with medication. (Resp. Exh.
1, p. 0142). In June 2004, Dr. Patel advised Mrs. Hughes to continue current
treatment regarding GERD and hiatal hernia. (Pet. Exh. 39). Notwithstanding
that these conditions appear to be controlled by medication, there is no
functional impairment or vocational limitation that would result from a
diagnosis of hiatal hernia and GERD.
Additional Conditions Referenced in
Petitioner’s Exhibits
On February 7, 2005, the Retirement Systems received Mrs. Hughes’ Exchange of Evidence and
Foundation for Documents. Besides the medical conditions previously alleged by
Mrs. Hughes to be job-preclusive, the documents exchanged refer to the
additional medical conditions of Hyperlipidemia (high cholesterol and high
triglycerides), Osteoarthritis, and chronic frontal headaches.
Hyperlipidemia
During
the Administrative Conference, Mrs. Hughes did not allege hyperlipidemia would
preclude her from performing her previous job. The medical records, however,
support a diagnosis of hyperlipidemia, which means Mrs. Hughes has high
cholesterol and high triglycerides. (Resp. Exh. 1, p. 0106). Dr. Patel
prescribed and Mrs. Hughes continues to take Crestor in order to control the
hyperlipidemia. (Resp. Exh. 1, p. 0106; Pet. Exh. 57). There was no testimony
from Mrs. Hughes and there is no evidence in the medical record that this
condition causes any impairment.
Osteoarthritis
During
the Administrative Conference, Mrs. Hughes did not allege osteoarthritis in her
feet would preclude her from performing her previous job. There is medical
evidence to support a recent diagnosis (November 2004) of osteoarthritis in Mrs.
Hughes’ feet. (Pet. Exh. 49-50). The references in the record indicate there are
minimal degenerative changes. Again, it is significant to determine if there
are any impairments resulting from the condition and whether those impairments
rise to the level of a vocational limitation for Mrs. Hughes’ particular job.
As
recently as August 2004, Mrs. Hughes did not cite any specific impairments
resulting from osteoarthritis in her feet. Any potential impairments that
might result from the condition of osteoarthritis would not rise to the level
of a vocational limitation for Mrs. Hughes. When assessing the physical
demands of Mrs. Hughes’ previous job, this condition and potential impairments
therefrom are not sufficient to indicate any vocational limitation.
Chronic Frontal Headaches
During
the Administrative Conference, Mrs. Hughes did not allege that headaches would
preclude her from performing her previous job. There was no testimony from Mrs.
Hughes and there is no evidence in the medical record that this condition
causes any impairment.
CONCLUSIONS
OF LAW
Based
upon the foregoing Findings of Fact, I conclude the following as a matter of
law:
1. This
court has jurisdiction over this matter pursuant to S.C. Code Ann. § 9-21-60
(Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§
1-23-310 et seq. (2005).
2. S.C.
Code Ann. § 9-1-1540 (Supp. 2004) provides that qualifying members of the South
Carolina Retirement System
may be retired by
the [State Budget and Control] [B]oard 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 medical board, 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. In
the case at hand, Petitioner claims that the permanent physical effects
following her automobile accidents, her ongoing depression, and other numerous
health issues have rendered her physically and mentally incapacitated for the
further performance of her duty as a special education teaching assistant such
that she should be entitled to disability retirement benefits from SCRS.
4. The
weight and credibility assigned to evidence presented at the hearing of a
matter is within the province of the trier of fact. See S.C. Cable
Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417
S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502,
478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as
finder of fact, “has the authority to determine the weight and credibility of
the evidence before him”). Furthermore, a trial judge who observes a witness
is in the best position to judge the witness’s demeanor and veracity and to
evaluate the credibility of his testimony. See, e.g., Woodall v.
Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken
& Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
5. In
general, “expert opinion evidence is to be considered or weighed by the triers
of the facts like any other testimony or evidence . . . [;] the triers of fact
cannot, and are not required to, arbitrarily or lightly disregard, or
capriciously reject, the testimony of experts or skilled witnesses, and make an
unsupported finding to the contrary of the opinion.” 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the trier of fact may give an expert’s
testimony the weight he or she determines it deserves. Florence County Dep’t of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App.
1992). Further, the trier of fact may accept the testimony of one expert over
that of another. See S.C. Cable Television Ass’n v. S. Bell Tel.
& Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).
6. In
the case at hand, Petitioner has many physical limitations as a result of her
injuries which would prevent her from performing her prior duties as a special
education teaching assistant. In addition, Petitioner’s physical injuries have
led to mental impairment, i.e., depression and chronic pain that also affect
her ability to resume her teaching position. The record reveals a report from
Dr. Gal G. Margalit who opined that Petitioner was fully disabled. Further,
Petitioner’s depression, memory loss and the resulting impairment to her
cognitive abilities are likely to be permanent. Several physicians noted that
the Petitioner had difficulty relating her medical history and attendant memory
loss. The conclusions of these medical professionals were confirmed by
Petitioner’s testimony at the hearing of this case, during which the cognitive
deficits recognized by the physicians were evident and the ongoing, unimproving
nature of Petitioner’s depression was apparent. In addition, the limited
mobility, the difficulty in concentrating and the uncontrolled eye movements
were all readily apparent.
7. As
the trier of fact in this matter, this tribunal is charged with weighing all of
the evidence presented in this case and with resolving the conflicts in that
evidence, including conflicting opinions between experts. Here, the medical
and psychological experts who have evaluated Petitioner have concluded that she
suffers from diagnosable anxiety and depressive mood disorders. And, while some
of those experts disagree as to the severity and permanence of those disorders,
I find that the weight of the evidence in this case suggests that Petitioner’s
severe depression as the result of her car accident, her ongoing physical pain
and mobility difficulty and her other attendant physical problems (diabetes,
GERD, heart disease, etc.) have incapacitated her from the further performance
of her job duties as a special education teaching assistant, and that
Petitioner’s depression and physical impairments are likely to be permanent. See S.C. Code Ann. § 9-1-1540 (Supp. 2004) (not requiring an absolute finding that
the applicant’s disability is permanent, but rather only a finding that the
“incapacity is likely to be permanent” in order for the applicant to
receive disability retirement benefits) (emphasis added). Even though the
experts for the Respondent have looked at each alleged malady of the Petitioner
and concluded that each complaint would not permanently preclude Mrs. Hughes
from performing her job as an Instructional Assistant, the Court must look at
the totality of the circumstances. In reviewing this particular case, the
testimony and evidence before me, I find that the Petitioner is disabled, but
may improve. Therefore, I further find that Petitioner’s application for
disability retirement benefits from SCRS should be granted with a provision for
review three years from the date of this order.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that SCRS shall GRANT Petitioner’s application for
disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1570 (1986 & Supp. 2004) with a review three years from the date of this order.
AND
IT IS SO ORDERED.
______________________________
Carolyn
C. Matthews
Administrative
Law Judge
January 6, 2006
Columbia, SC
|
