ORDERS:
Dr. Dodds noted in her report that her impressions of Petitioner were: major depressive
disorder, with back injury, breast cancer, reflux, coping with back injury. She noted that Petitioner
had a GAF of 50. Dr. Dodds increased Petitioner’s Effexor to 150 mg. and prescribed Xanax 1 mg
for use when needed for panic attacks. She referred Petitioner to a neurologist for a workup of her
vertigo and back pain and considered referring Petitioner to a pain clinic.
Petitioner was continued on Effexor 150 mg at her subsequent visit with Dr. Dodds on
October 17, 2002.
42.On October 10, 2002, Petitioner told Dr. Bethea that her psychologist, Dr. Leonhardt, had
kept her out of work until October 9, 2002. Further, she told Dr. Bethea that she had seen Dr. Dodds
on September 30, 2002 and that Dr. Dodds had increased the dosage of her antidepressant
medication. Dr. Bethea noted in Petitioner’s chart that Petitioner was taking medicine to prevent
panic attacks. He noted that she planned to see her pastoral counselor. He discontinued her use of
Skelaxin.
43.At her visit with Dr. Ackerman on December 17, 2002, Petitioner related that she had lost
her job and was looking at disability. Petitioner told Dr. Ackerman that she was no longer able to
see a psychiatrist due to financial reasons and the loss of her insurance. The records show that she
was continuing on Effexor with a dosage of 150 mg daily. Petitioner was continued on Tamoxifen
therapy and on Effexor “to help both with the depression and generally, sometimes those agents help
with the vasomotor hot flashes.”
44.Since the hearing before the Retirement System conference officer, and as suggested by
the conference officer, Petitioner has visited regularly with and receives treatment from the local
mental health clinic in Spartanburg County.
Psychological and Vocational Evaluation of Petitioner
by Dr. Robert E. Brabham
45.On November 4, 2003, Petitioner saw Dr. Robert E. Brabham who conducted an independent
psychological and vocational evaluation of Petitioner to determine if she had any functional limitations
or vocational implications. His evaluation report was made a part of the record. Dr. Brabham
testified at the hearing and was qualified as an expert witness in the area of vocational evaluation and
consulting.
After reviewing various sources of information, including Petitioner’s personal, educational
and work history background, as well as her activities of daily living, medical problems, and mental
status with their accompanying impairments, with due consideration given for pain that she
experiences and the negative side effects of pain medication, Dr. Brabham opined that to a high
degree of professional certainty, based on his nearly forty years of experience in this area, that
Petitioner is unable to engage in full time gainful, competitive employment. He explained his opinion
further by ascribing Petitioner as being credible in her previous work activity (only three jobs in over
24 years of work experience). He felt that the physical limitations described by Petitioner in her
previous job with the DSN Board were truthful and he based this opinion in part upon his years of
prior work history with the state Department of Disabilities and Special Needs, as well as his work
history with the South Carolina Department of Vocational Rehabilitation. Dr. Brabham noted the
need to consider pain factors and their limitations, as described by Petitioner. He testified that he
also doubted the potential of Petitioner being able to comply with the stressors of her previous job
and the ability to function at optimal levels, noting the complications from the side effects of her pain
medication, as well as her fatigue and the limitations on sitting, standing and lifting. He also noted
that Petitioner has a urinary incontinence problems which would limit her in carrying on her job.
Dr. Brabham opined that with all these problems and physical limitations, without any major
improvement, Petitioner was unable to perform any substantial, gainful work activity that exists in
either South Carolina or the national economy. Dr. Brabham opined that Petitioner’s long-term
vocational prognosis was quite poor.
The court has reviewed the curriculum vitae of Dr. Brabham and assigns great credibility to
his evaluation, as well as to his opinion expressed in the report and as provided at the trial. Dr.
Brabham has an extensive background in teaching, private practice and government service, as well
as having served as an expert witness before many administrative law tribunals. The court notes that
he also serves as an administrative appeals officer for the Retirement System.
by Mr. Joel D. Leonard
46.Mr. Leonard served as the administrative appeals officer for the Retirement System in this
case. In his report (Conference Recommendation) dated June 13, 2003, two days following the
hearing, Mr. Leonard concluded, after reviewing Petitioner’s employment and vocational status, as
well as the evidence presented at the hearing, that he did not appreciate any meaningful findings that
support a determination that the Petitioner is incapacitated from the further performance of duty on
a permanent basis. He stated that based upon the record and the testimony of Petitioner, he was
“unable to draw a sensible union between the severity of her reported limitations and the functional
standing of the record.”
Mr. Leonard questioned the credibility of Petitioner for “lying” to collect unemployment
benefits for several months in order to purchase medicines and for the “substantial discrepancy
between her reported and expected job duties” as compared with those duties as submitted by her
employer. Mr. Leonard noted that from a physical standpoint, Petitioner’s job “would be considered
modestly demanding while temperamental tasks would be considered moderate in nature.”
Mr. Leonard states in his report that he failed to find any clinical findings or evidence to
support any active swelling of Petitioner’s upper extremities or complaints of low back and hip pain
running to her thigh and knee which would prevent her from functioning in her job. As to her breast
surgeries, he opined that such would not preclude her from working at her job either. He noted that
Petitioner has subjective complaints regarding her vocational dysfunction, but he felt they were not
supported by the record. He gave no credibility to Petitioner’s complaints of pain and its affect on
her ability to work.
Mr. Leonard testified at the hearing and was qualified as an expert witness in the area of
vocational evaluation and consulting.
Procedural Background and History of the Claim
47.On May 23, 2002, Petitioner prepared a disability retirement application which was filed that
same day. In it, she stated that her last day at work was May 13, 2002. Further, she stated that her
sick leave began on May 14, 2002 and that she would be on leave without pay beginning May 27,
2002. Petitioner returned to her job in August 2002.
48.While working in her office on August 22, 2002, Petitioner attempted to sit in her chair and
fell to the concrete floor which was covered by a thin layer of industrial carpet. She suffered injuries
to various parts of her body resulting from the fall. This is an admitted accident while working on
her job. See Respondent Exhibit at p. 049. On October 1, 2002 Petitioner was terminated from her
job.
49.On January 21, 2003, the Retirement System issued a written decision in which it denied
Petitioner’s claim for disability benefits.
50.Petitioner prepared a Reconsideration Disability Report on March 10, 2003 which was filed
with the Retirement System on March 14, 2003. It was referred by the Retirement System on April
18, 2003 for a medical evaluation. On April 18, 2003, Dr. Charles C. Jones issued a report stating
there was “no objective evidence of any severe limiting effects significant enough to impair” the
ability of Petitioner “to perform substantial gainful activity”
On April 29, 2003, the Medical Board, composed of Dr. James England, Dr. Jack L. Shelburg
and Dr. W. E. Gause, recommended that the disability request be disapproved, stating “that the
claimant’s impairments are not expected to prevent her from performing her job for a continuous
period of 12 months.” The Medical Board noted that Petitioner had severe medical problems but
felt they could be controlled through medication and therapy.
51.The Retirement System prepared a written denial of Petitioner’s Disability Claim
Reconsideration request on April 29, 2003. On July 21, 2003, Petitioner filed a request for a
contested case hearing.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, applicable law, and the evidence, this court
concludes, as a matter of law, the following:
General
1.A state employee who, after July 1, 1970, has had five or more years of earned service or
a contributing member who is disabled as a result of an injury arising out of and in the course of
the performance of his duties, regardless of length of membership on or after July 1, 1985, may be
retired by the board not less that 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
duty, that the incapacity is likely to be permanent, and that the member should be retired. S.C.
Code Ann. § 9-1-1540 (Supp. 2003).
2.The South Carolina General Assembly has established various procedures for members to
comply with to seek resolution of disputes and claims with the Retirement System. A member may
ask the Director to review an initial decision by the Retirement System which is unfavorable. The
claimant has the opportunity to present his or her claim in writing. The Director, or a person
designated by the Director, may conduct a conference concerning the claim prior to the issuance of
a final agency determination by the Director. The Director must make a final agency determination
concerning the claimant’s appeal which must be in writing.
3.The written decision by the Director is the final decision of the Retirement System and the
State Budget and Control Board concerning the claimant’s appeal. If the final agency determination
is unfavorable to the member, the member may request a hearing by an Administrative Law Judge.
S.C. Code Ann. § 9-21-50 (Supp. 2003).
4.The Administrative Law Judge Division assigns each case as filed to an Administrative Law
Judge who hears the case de novo in accordance with the rules of procedure of the Division. S.C.
Code Ann. §§ 9-21-60 (Supp. 2003) and 1-23-650 (1976)(as amended).
5.After conducting a hearing, the assigned Administrative Law Judge issues a final decision
in a written order containing separate findings of fact and conclusions of law. S.C. Code Ann. § 1-23-350 (1976)(as amended) and ALJD Rule 29 (c).
6.The standard of proof in weighing the evidence and making a decision on the merits of a
contested case hearing is by a preponderance of the evidence. Anonymous v. State Board of Medical
Examiners, 329 S.C. 371, 796 S.E.2d 17 (1998); National Health Corp. v. South Carolina
Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).
To qualify for disability retirement benefits under the Retirement System a claimant must prove by
a preponderance of the evidence that she is mentally or physically incapacitated from performing
his/her job duties and the incapacity is likely to be permanent.
7.An agency decision must be reached utilizing reasoned judgment and must be based upon
adequate determining principles and a rational basis. City of Columbia v. Board of Health and
Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).
8.The trier of fact must weigh and pass upon the credibility of the evidence presented.. S.C.
Cable Television Association v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge who observes a witness is in the best position to judge the witness’ demeanor
and veracity and evaluate his testimony. McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322
(1982).
9.A court construing a statute must first seek to ascertain and effectuate legislative intent.
Koenig v. South Carolina Dep’t of Public Safety, 325 S.C. 400, 480 S.E.2d 98, 99 (Ct. App. 1996).
The cardinal rule of statutory construction is to give words used in a statute their plain and ordinary
meaning without resort to subtle or forced construction. Id. The language must be read to
harmonize its subject matter with its general purpose. Id. “In construing statutory language, the
statute must be read as a whole, and sections which are part of the same general statutory law must
be construed together and each one given effect, if it can be done by any reasonable construction.”
Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992).
10.While an award must be based upon evidence and not upon surmise, speculation or
conjecture, it is not necessary that the percentage of disability or loss of use be shown with
mathematical exactness. Roper v. Kimbrell’s of Greenville, Inc., 231 S.C. 453, 99 S.E.2d 52, 57
(1957); citing Parrott v. Barfield Used Parts, 206 S.C. 381, 34 S.E.2d 802; Dickey v. Springs Cotton
Mills, 209 S.C. 204, 39 S.E.2d 501. However, an award must be founded on evidence of sufficient
substance to afford it a reasonable basis. Bundrick v. Powell’s Garage, 248 S.C. 496, 151 S.E.2d 437
(1966).
Additionally, our Court of Appeals in Cropf v. Pantry, Inc., 289 S.C. 106, 344 S.E.2d 879
(Ct. App. 1986), cited Professor Larson in determining that “as to issues touching disability, it has
been held that the fact-finders may find disability when the medical testimony denies its existence, or
may find a degree of disability different from any degree supported by medical testimony....” 3 A.
Larson, The Law of Workmen’s Compensation § 79.52 (c) n. 33 at 15-426.126–15-426.127 (1983).
Both lay and expert testimony may be considered in determining partial loss of use. Linen v. Ruscon
Construction Co, et al, 286 S.C. 67, 332 S.E.2d 211 (1985). Although an impairment rating may
not rest on speculation or conjecture, it need not be shown by mathematical precision and it may rely
on lay testimony. The Workers’ Compensation Commission may find the degree of disability different
from that suggested by expert testimony by considering the testimony of the claimant and the
vocational expert. Lyles v. Quantum Chemical Co. (Emery), 315 S.C. 440, 434 S.E.2d 292 (1994).
Loss of use or partial loss of use (of a body part) are simple, everyday, unambiguous words,
and are to be given their ordinary, generally accepted meaning. McCollum v. Snipes, 213 S.C. 254,
49 S.E.2d 12 (1948). A finding of loss of use of a body member (not directly injured in an accident
but resulting from an injury to another body part) can be awarded by the trier of fact where there is
nothing in a statute requiring that such part of the body be the direct result of an injury. Roper v.
Kimbrell’s of Greenville, Inc., 99 S.C. 52, 231 S.E.2d 453 (1957), citing In re Burns, 218 Mass. 8,
105 N.E. 601.
Retirement Systems Claims Procedures Act
11.In 2003 the South Carolina General Assembly passed Act 12 which established the Retirement
Systems Claims Procedures Act. This Act required the Budget and Control Board to adopt
procedures for handling these cases. That procedure was adopted by the Budget and Control Board
on July 1, 2003 and was followed in this case.
DISCUSSION
Disability
S.C. Code Ann. § 9-1-1540 (Supp. 2003) provides that a state employee who, after July 1,
1970, has had five or more years of earned service or a contributing member who is disabled as a
result of an injury arising out of and in the course of the performance of his duties, regardless of
length of membership on or after July 1, 1985, may be retired by the board not less that 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 duty, that the incapacity is likely to be
permanent, and that the member should be retired.
The statutes dealing with disability and qualification for disability benefits do not provide
any definition of the word “duty.” Nor do they define the word “incapacitated.” Thus, this court
must resort elsewhere for guidance in ascertaining their meaning. Duty is defined as “any action,
task, etc. required by or relating to one’s occupation or position.” Webster’s New World College
Dictionary, Third Edition, p. 423. “Capacity” is defined as “a condition of being qualified or
authorized; position, function, status, etc.” Id. at 207. There is no argument that Petitioner suffered
an injury while employed and at her job on August 22, 2002.
Corollary with Workers’ Compensation law
Since Petitioner claims disability partially as a result of an injury on the job and, since there
is no guidance for the definition of disability in the Retirement Systems, except for the provision
stating that an employee must be mentally or physically incapacitated for duty and that incapacity is
likely to be permanent, it is helpful to look at the statutory and decisional law governing
compensation for injured workers in this State.
Disability in workers’ compensation law is the incapacity because of an injury to earn the
wages which the employee was receiving at the time of the injury in the same or any other
employment. Our Supreme Court has held that total disability in compensation law does not require
complete helplessness. Wynn v. Peoples Natural Gas Co., 238 S.C. 1, 118 S.E.2d 812 (1961), citing
Colvin v. E. I. DuPont De Nemours Co., 88 S.E.2d 581 (1955). It is a relative term and must be
related to the occupation of the claimant. If one is disabled to perform common labor, cannot obtain
employments as such and is not qualified by training or experience for any other job, then he is
disabled. Stated another way, disability is an inability to perform services other than those that are
so limited in quality, dependability, or quantity that no reasonably stable market exists for them.
“When the incapacity for work resulting from an injury is total, the employer shall pay...to the
injured employee during the total disability....” Singleton v. Young Lumber Co., 236 S.C. 464, 114
S.E.2d 837 (1960). (emphasis added).
Justice Toal, in writing the opinion in Stephenson v. Rice Services, Inc., 473 S.E.2d 699
(1996), described workers’ compensation law in South Carolina as a combination of two competing
models, one economic and the other medical. The economic model compensates workers for
reductions in their earning power/capacity caused by work-related injuries or accidents. The medical
model compensates workers for a physical disability and impairment caused by work-related injuries
or accidents. Wigfall v. Tideland Utilities, Inc. 354 S.C. 100, 580 S.E.2d 100 (2003).
In looking at both of these two statutorily-mandated disability programs, it is evident that a
member or claimant must be totally disabled to qualify for disability benefits from either disability
system. As to the workers’ compensation system, a claimant can recover disability benefits if he/she
has a loss in earning capacity or has a partial disability, i.e., injury to a specific body part. There is
no similar provision in the Retirement System. Further, the workers’ compensation system provides
by statute that certain physical conditions/impairments resulting from work-related injuries carry a
presumption of total disability and no loss of earning capacity must be proved (e.g., where a claimant
has 50 % or more impairment to the back). There is no such provision in the Retirement System for
this type of disability, either. The general disability provisions in the workers’ compensation system
require the claimant to prove by a preponderance of the evidence the claimed total disability by
showing that he is unable to earn the wages which he was receiving at the time of the injury in the
same or any other employment, or that he can perform only limited tasks which are so limited
in quality, dependability, or quantity that no reasonably stable market for them exists.
Stephenson v. Rice Services, Inc., supra, at 702; McCollum v. Singer Co., 300 S.C. 103, 386 S.E.2d
471 (Ct. App. 1989); Coleman v. Quality Concrete Prods., Inc., 245 S.C. 625, 142 S.E.2d 43, 44
(1965). This court believes that this last analysis for total disability, as used in the workers’
compensation system, is in keeping with the intent of the legislature when it passed the disability
benefits section in the Retirement System provisions. However, the Retirement System statutory
provision only requires incapacity from the further performance of duty. See S.C. Code Ann.
§ 9-1-1540. Thus, a claimant for disability benefits in the Retirement System need only prove total
disability or incapacity from his tasks at the time of the injury or disability.
Analysis
This court would suggest that in any total disability claim in the Retirement System, as
considered in total disability claims in the workers’ compensation system, the following concepts must
be considered and analyzed:
(1) medical diagnosis;
(2) mental or physical impairment;
(3) vocational limitation;
(4) incapacitation; and
(5) permanency.
A medical diagnosis exists if sufficient medical records indicate that an individual suffers from
a particular physical or mental medical condition. If such is present, then one looks at the extent of
the impairment of the condition, i.e., does it interfere with the claimant’s ability to perform his/her
daily work tasks. Third, the functional or vocational limitation exists if the physical impairment is job
related and it interferes with the claimant’s ability to perform his/her daily tasks at their job. Fourth,
the claimant is incapacitated if the vocational limitations prevent the claimant from doing his/her job.
Lastly, the impairment must incapacitate the claimant from performing his/her job permanently.
As to Petitioner’s medical condition, she continues to suffer with problems related to her
breast cancer. Notwithstanding the surgeries on both breasts, she needs reevaluation from time to
time and possibly some additional reconstructive surgery on her left breast. She has pain in and some
loss of use of her left upper extremity.
As a result of the fall on August 22, 2002, Petitioner continues to have problems in her right
shoulder and lower back, with tenderness in and pain radiating into her right posterior lateral thigh.
Dr. Robert Ringel last saw her on March 3, 2003. His clinical findings were consistent with a
myofascial (fibrous tissue under the skin which separates the muscles) pain syndrome. Further, Dr.
Ringel stated that he could not rule out a right cervical radiculopathy or right lumbar radiculopathy.
He could not state when her disability would end.
In combination with the above, Petitioner suffers with depression. The stressors caused by
her lack of financial resources, as well as those stressors directly related to her back, cervical area,
upper extremities, right hip, right thigh, and breast conditions, have caused her to seek help both from
a psychiatrist and the mental health clinic in Spartanburg. She has episodes of crying and feelings of
hopelessness. She has difficulty sleeping and worries about having panic attacks. She is no longer
able to seek the help of a psychiatrist because she lacks both the funds and the insurance to do so.
She was required to seek employment compensation payments for a period of several months until
she could get qualified through the local mental health clinic in order to purchase needed medications.
She lives with a sister to minimize her living expenses. The evidence is overwhelming that Petitioner
suffers with both physical and mental conditions which are severe enough to prevent her from
performing her tasks at her previous place of employment.
As stated to in his report and as alluded to in his testimony, Dr. Brabham, a vocational expert
for almost forty years in the field of functional and vocational limitations evaluations, testified that
Petitioner is unable to engage in any full-time, gainful, competitive employment. He spent three
hours evaluating her and ascribed credibility to her complaints of pain and their effect on her ability
to work. He noted Petitioner’s limitations on sitting, using her arms and hands, as well as her
complaints of urinary incontinence. He reviewed the job requirements of Petitioner which required
that she document consumer needs, complete service plans for individuals with disabilities and special
needs, specifically autism, and answer requests for information. From his previous work at the
Department of Disabilities and Special Needs, he was acquainted with both the physical limitations
and the emotional demands of the job. Considering her medical problems and her functional
limitations, Dr. Brabham opined that Petitioner could not perform any substantial gainful work that
exists in either South Carolina or the national economy. Joel Leonard, the vocational consultant
hired by the Retirement System to conduct the conference and issue the report, opined that Petitioner
could resume her job as a service coordinator and that her physical or mental condition was more
likely than not permanent in nature. Due to the extensive background of Dr. Brabham, as well as the
time he spent with Petitioner testing and evaluating her, this Court gives much greater credibility to
his opinion.
There is no doubt that Petitioner is permanently unable to return to her previous employment.
Further, when reviewing the entire record, the more credible evidence is that when both her physical
and mental conditions are combined, she is permanently disabled from returning to her previous job.
Petitioner continues to seek counseling at the local mental health clinic due to many stressors which
affect her emotionally. She also suffers from numerous physical problems as documented in the
record, including residual effects from her breast cancer surgeries as well as pain in both the cervical
and lumbar areas of her back. She continues on the following medications: Tylox 500 mg daily for
pain, Tamoxifen for her breast conditions (hormonal therapy), Paxil (an anti-anxiety drug), Prilosec
(for her acid reflux problem), and Allegra-D. These medications cause Petitioner to become drowsy,
tired and lethargic and affect her ability to work as well.
The Retirement System and Mr. Leonard challenged Petitioner’s credibility because she filed
for unemployment benefits. However, the evidence indicates that Petitioner filed for benefits so she
could purchase required medicines. Furthermore, the Retirement System discounted not only the
opinion of Dr. Brabham, but also Petitioner’s numerous subjective complaints of pain and tenderness.
Disability claims are not based solely upon clinical findings. As previously discussed herein, the trier
of fact can consider the entire record. I find and conclude that the record, taken as a whole, supports
a finding that the Petitioner is disabled.
Conclusion
Based upon the analysis contained in the Findings of Fact, Conclusions of Law, and
Discussion, this court concludes that Petitioner has both physical and mental conditions which are
permanent and which cause her to be incapable from performing her previous work. Accordingly,
the decision of the Retirement Systems is reversed and disability benefits must be forthwith paid to
Petitioner.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Petitioner is awarded disability retirement benefits; and
the decision of the Retirement System is reversed.
AND IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Administrative Law Judge
February 26, 2004
Columbia, South Carolina Dr. Dodds noted in her report that her impressions of Petitioner were: major depressive
disorder, with back injury, breast cancer, reflux, coping with back injury. She noted that Petitioner
had a GAF of 50. Dr. Dodds increased Petitioner’s Effexor to 150 mg. and prescribed Xanax 1 mg
for use when needed for panic attacks. She referred Petitioner to a neurologist for a workup of her
vertigo and back pain and considered referring Petitioner to a pain clinic.
Petitioner was continued on Effexor 150 mg at her subsequent visit with Dr. Dodds on
October 17, 2002.
42. On October 10, 2002, Petitioner told Dr. Bethea that her psychologist, Dr. Leonhardt, had
kept her out of work until October 9, 2002. Further, she told Dr. Bethea that she had seen Dr. Dodds
on September 30, 2002 and that Dr. Dodds had increased the dosage of her antidepressant
medication. Dr. Bethea noted in Petitioner’s chart that Petitioner was taking medicine to prevent
panic attacks. He noted that she planned to see her pastoral counselor. He discontinued her use of
Skelaxin.
43. At her visit with Dr. Ackerman on December 17, 2002, Petitioner related that she had lost
her job and was looking at disability. Petitioner told Dr. Ackerman that she was no longer able to
see a psychiatrist due to financial reasons and the loss of her insurance. The records show that she
was continuing on Effexor with a dosage of 150 mg daily. Petitioner was continued on Tamoxifen
therapy and on Effexor “to help both with the depression and generally, sometimes those agents help
with the vasomotor hot flashes.”
44. Since the hearing before the Retirement System conference officer, and as suggested by
the conference officer, Petitioner has visited regularly with and receives treatment from the local
mental health clinic in Spartanburg County.
Psychological and Vocational Evaluation of Petitioner
by Dr. Robert E. Brabham
45. On November 4, 2003, Petitioner saw Dr. Robert E. Brabham who conducted an independent
psychological and vocational evaluation of Petitioner to determine if she had any functional limitations
or vocational implications. His evaluation report was made a part of the record. Dr. Brabham
testified at the hearing and was qualified as an expert witness in the area of vocational evaluation and
consulting.
After reviewing various sources of information, including Petitioner’s personal, educational
and work history background, as well as her activities of daily living, medical problems, and mental
status with their accompanying impairments, with due consideration given for pain that she
experiences and the negative side effects of pain medication, Dr. Brabham opined that to a high
degree of professional certainty, based on his nearly forty years of experience in this area, that
Petitioner is unable to engage in full time gainful, competitive employment. He explained his opinion
further by ascribing Petitioner as being credible in her previous work activity (only three jobs in over
24 years of work experience). He felt that the physical limitations described by Petitioner in her
previous job with the DSN Board were truthful and he based this opinion in part upon his years of
prior work history with the state Department of Disabilities and Special Needs, as well as his work
history with the South Carolina Department of Vocational Rehabilitation. Dr. Brabham noted the
need to consider pain factors and their limitations, as described by Petitioner. He testified that he
also doubted the potential of Petitioner being able to comply with the stressors of her previous job
and the ability to function at optimal levels, noting the complications from the side effects of her pain
medication, as well as her fatigue and the limitations on sitting, standing and lifting. He also noted
that Petitioner has a urinary incontinence problems which would limit her in carrying on her job.
Dr. Brabham opined that with all these problems and physical limitations, without any major
improvement, Petitioner was unable to perform any substantial, gainful work activity that exists in
either South Carolina or the national economy. Dr. Brabham opined that Petitioner’s long-term
vocational prognosis was quite poor.
The court has reviewed the curriculum vitae of Dr. Brabham and assigns great credibility to
his evaluation, as well as to his opinion expressed in the report and as provided at the trial. Dr.
Brabham has an extensive background in teaching, private practice and government service, as well
as having served as an expert witness before many administrative law tribunals. The court notes that
he also serves as an administrative appeals officer for the Retirement System.
by Mr. Joel D. Leonard
46. Mr. Leonard served as the administrative appeals officer for the Retirement System in this
case. In his report (Conference Recommendation) dated June 13, 2003, two days following the
hearing, Mr. Leonard concluded, after reviewing Petitioner’s employment and vocational status, as
well as the evidence presented at the hearing, that he did not appreciate any meaningful findings that
support a determination that the Petitioner is incapacitated from the further performance of duty on
a permanent basis. He stated that based upon the record and the testimony of Petitioner, he was
“unable to draw a sensible union between the severity of her reported limitations and the functional
standing of the record.”
Mr. Leonard questioned the credibility of Petitioner for “lying” to collect unemployment
benefits for several months in order to purchase medicines and for the “substantial discrepancy
between her reported and expected job duties” as compared with those duties as submitted by her
employer. Mr. Leonard noted that from a physical standpoint, Petitioner’s job “would be considered
modestly demanding while temperamental tasks would be considered moderate in nature.”
Mr. Leonard states in his report that he failed to find any clinical findings or evidence to
support any active swelling of Petitioner’s upper extremities or complaints of low back and hip pain
running to her thigh and knee which would prevent her from functioning in her job. As to her breast
surgeries, he opined that such would not preclude her from working at her job either. He noted that
Petitioner has subjective complaints regarding her vocational dysfunction, but he felt they were not
supported by the record. He gave no credibility to Petitioner’s complaints of pain and its affect on
her ability to work.
Mr. Leonard testified at the hearing and was qualified as an expert witness in the area of
vocational evaluation and consulting.
Procedural Background and History of the Claim
47. On May 23, 2002, Petitioner prepared a disability retirement application which was filed that
same day. In it, she stated that her last day at work was May 13, 2002. Further, she stated that her
sick leave began on May 14, 2002 and that she would be on leave without pay beginning May 27,
2002. Petitioner returned to her job in August 2002.
48. While working in her office on August 22, 2002, Petitioner attempted to sit in her chair and
fell to the concrete floor which was covered by a thin layer of industrial carpet. She suffered injuries
to various parts of her body resulting from the fall. This is an admitted accident while working on
her job. See Respondent Exhibit at p. 049. On October 1, 2002 Petitioner was terminated from her
job.
49. On January 21, 2003, the Retirement System issued a written decision in which it denied
Petitioner’s claim for disability benefits.
50. Petitioner prepared a Reconsideration Disability Report on March 10, 2003 which was filed
with the Retirement System on March 14, 2003. It was referred by the Retirement System on April
18, 2003 for a medical evaluation. On April 18, 2003, Dr. Charles C. Jones issued a report stating
there was “no objective evidence of any severe limiting effects significant enough to impair” the
ability of Petitioner “to perform substantial gainful activity”
On April 29, 2003, the Medical Board, composed of Dr. James England, Dr. Jack L. Shelburg
and Dr. W. E. Gause, recommended that the disability request be disapproved, stating “that the
claimant’s impairments are not expected to prevent her from performing her job for a continuous
period of 12 months.” The Medical Board noted that Petitioner had severe medical problems but
felt they could be controlled through medication and therapy.
51. The Retirement System prepared a written denial of Petitioner’s Disability Claim
Reconsideration request on April 29, 2003. On July 21, 2003, Petitioner filed a request for a
contested case hearing.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, applicable law, and the evidence, this court
concludes, as a matter of law, the following:
General
1. A state employee who, after July 1, 1970, has had five or more years of earned service or
a contributing member who is disabled as a result of an injury arising out of and in the course of
the performance of his duties, regardless of length of membership on or after July 1, 1985, may be
retired by the board not less that 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
duty, that the incapacity is likely to be permanent, and that the member should be retired. S.C.
Code Ann. § 9-1-1540 (Supp. 2003).
2. The South Carolina General Assembly has established various procedures for members to
comply with to seek resolution of disputes and claims with the Retirement System. A member may
ask the Director to review an initial decision by the Retirement System which is unfavorable. The
claimant has the opportunity to present his or her claim in writing. The Director, or a person
designated by the Director, may conduct a conference concerning the claim prior to the issuance of
a final agency determination by the Director. The Director must make a final agency determination
concerning the claimant’s appeal which must be in writing.
3. The written decision by the Director is the final decision of the Retirement System and the
State Budget and Control Board concerning the claimant’s appeal. If the final agency determination
is unfavorable to the member, the member may request a hearing by an Administrative Law Judge.
S.C. Code Ann. § 9-21-50 (Supp. 2003).
4. The Administrative Law Judge Division assigns each case as filed to an Administrative Law
Judge who hears the case de novo in accordance with the rules of procedure of the Division. S.C.
Code Ann. §§ 9-21-60 (Supp. 2003) and 1-23-650 (1976)(as amended).
5. After conducting a hearing, the assigned Administrative Law Judge issues a final decision
in a written order containing separate findings of fact and conclusions of law. S.C. Code Ann. § 1-23-350 (1976)(as amended) and ALJD Rule 29 (c).
6. The standard of proof in weighing the evidence and making a decision on the merits of a
contested case hearing is by a preponderance of the evidence. Anonymous v. State Board of Medical
Examiners, 329 S.C. 371, 796 S.E.2d 17 (1998); National Health Corp. v. South Carolina
Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).
To qualify for disability retirement benefits under the Retirement System a claimant must prove by
a preponderance of the evidence that she is mentally or physically incapacitated from performing
his/her job duties and the incapacity is likely to be permanent.
7. An agency decision must be reached utilizing reasoned judgment and must be based upon
adequate determining principles and a rational basis. City of Columbia v. Board of Health and
Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).
8. The trier of fact must weigh and pass upon the credibility of the evidence presented.. S.C.
Cable Television Association v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge who observes a witness is in the best position to judge the witness’ demeanor
and veracity and evaluate his testimony. McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322
(1982).
9. A court construing a statute must first seek to ascertain and effectuate legislative intent.
Koenig v. South Carolina Dep’t of Public Safety, 325 S.C. 400, 480 S.E.2d 98, 99 (Ct. App. 1996).
The cardinal rule of statutory construction is to give words used in a statute their plain and ordinary
meaning without resort to subtle or forced construction. Id. The language must be read to
harmonize its subject matter with its general purpose. Id. “In construing statutory language, the
statute must be read as a whole, and sections which are part of the same general statutory law must
be construed together and each one given effect, if it can be done by any reasonable construction.”
Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992).
10. While an award must be based upon evidence and not upon surmise, speculation or
conjecture, it is not necessary that the percentage of disability or loss of use be shown with
mathematical exactness. Roper v. Kimbrell’s of Greenville, Inc., 231 S.C. 453, 99 S.E.2d 52, 57
(1957); citing Parrott v. Barfield Used Parts, 206 S.C. 381, 34 S.E.2d 802; Dickey v. Springs Cotton
Mills, 209 S.C. 204, 39 S.E.2d 501. However, an award must be founded on evidence of sufficient
substance to afford it a reasonable basis. Bundrick v. Powell’s Garage, 248 S.C. 496, 151 S.E.2d 437
(1966).
Additionally, our Court of Appeals in Cropf v. Pantry, Inc., 289 S.C. 106, 344 S.E.2d 879
(Ct. App. 1986), cited Professor Larson in determining that “as to issues touching disability, it has
been held that the fact-finders may find disability when the medical testimony denies its existence, or
may find a degree of disability different from any degree supported by medical testimony....” 3 A.
Larson, The Law of Workmen’s Compensation § 79.52 (c) n. 33 at 15-426.126–15-426.127 (1983).
Both lay and expert testimony may be considered in determining partial loss of use. Linen v. Ruscon
Construction Co, et al, 286 S.C. 67, 332 S.E.2d 211 (1985). Although an impairment rating may
not rest on speculation or conjecture, it need not be shown by mathematical precision and it may rely
on lay testimony. The Workers’ Compensation Commission may find the degree of disability different
from that suggested by expert testimony by considering the testimony of the claimant and the
vocational expert. Lyles v. Quantum Chemical Co. (Emery), 315 S.C. 440, 434 S.E.2d 292 (1994).
Loss of use or partial loss of use (of a body part) are simple, everyday, unambiguous words,
and are to be given their ordinary, generally accepted meaning. McCollum v. Snipes, 213 S.C. 254,
49 S.E.2d 12 (1948). A finding of loss of use of a body member (not directly injured in an accident
but resulting from an injury to another body part) can be awarded by the trier of fact where there is
nothing in a statute requiring that such part of the body be the direct result of an injury. Roper v.
Kimbrell’s of Greenville, Inc., 99 S.C. 52, 231 S.E.2d 453 (1957), citing In re Burns, 218 Mass. 8,
105 N.E. 601.
Retirement Systems Claims Procedures Act
11. In 2003 the South Carolina General Assembly passed Act 12 which established the Retirement
Systems Claims Procedures Act. This Act required the Budget and Control Board to adopt
procedures for handling these cases. That procedure was adopted by the Budget and Control Board
on July 1, 2003 and was followed in this case.
DISCUSSION
Disability
S.C. Code Ann. § 9-1-1540 (Supp. 2003) provides that a state employee who, after July 1,
1970, has had five or more years of earned service or a contributing member who is disabled as a
result of an injury arising out of and in the course of the performance of his duties, regardless of
length of membership on or after July 1, 1985, may be retired by the board not less that 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 duty, that the incapacity is likely to be
permanent, and that the member should be retired.
The statutes dealing with disability and qualification for disability benefits do not provide
any definition of the word “duty.” Nor do they define the word “incapacitated.” Thus, this court
must resort elsewhere for guidance in ascertaining their meaning. Duty is defined as “any action,
task, etc. required by or relating to one’s occupation or position.” Webster’s New World College
Dictionary, Third Edition, p. 423. “Capacity” is defined as “a condition of being qualified or
authorized; position, function, status, etc.” Id. at 207. There is no argument that Petitioner suffered
an injury while employed and at her job on August 22, 2002.
Corollary with Workers’ Compensation law
Since Petitioner claims disability partially as a result of an injury on the job and, since there
is no guidance for the definition of disability in the Retirement Systems, except for the provision
stating that an employee must be mentally or physically incapacitated for duty and that incapacity is
likely to be permanent, it is helpful to look at the statutory and decisional law governing
compensation for injured workers in this State.
Disability in workers’ compensation law is the incapacity because of an injury to earn the
wages which the employee was receiving at the time of the injury in the same or any other
employment. Our Supreme Court has held that total disability in compensation law does not require
complete helplessness. Wynn v. Peoples Natural Gas Co., 238 S.C. 1, 118 S.E.2d 812 (1961), citing
Colvin v. E. I. DuPont De Nemours Co., 88 S.E.2d 581 (1955). It is a relative term and must be
related to the occupation of the claimant. If one is disabled to perform common labor, cannot obtain
employments as such and is not qualified by training or experience for any other job, then he is
disabled. Stated another way, disability is an inability to perform services other than those that are
so limited in quality, dependability, or quantity that no reasonably stable market exists for them.
“When the incapacity for work resulting from an injury is total, the employer shall pay...to the
injured employee during the total disability....” Singleton v. Young Lumber Co., 236 S.C. 464, 114
S.E.2d 837 (1960). (emphasis added).
Justice Toal, in writing the opinion in Stephenson v. Rice Services, Inc., 473 S.E.2d 699
(1996), described workers’ compensation law in South Carolina as a combination of two competing
models, one economic and the other medical. The economic model compensates workers for
reductions in their earning power/capacity caused by work-related injuries or accidents. The medical
model compensates workers for a physical disability and impairment caused by work-related injuries
or accidents. Wigfall v. Tideland Utilities, Inc. 354 S.C. 100, 580 S.E.2d 100 (2003).
In looking at both of these two statutorily-mandated disability programs, it is evident that a
member or claimant must be totally disabled to qualify for disability benefits from either disability
system. As to the workers’ compensation system, a claimant can recover disability benefits if he/she
has a loss in earning capacity or has a partial disability, i.e., injury to a specific body part. There is
no similar provision in the Retirement System. Further, the workers’ compensation system provides
by statute that certain physical conditions/impairments resulting from work-related injuries carry a
presumption of total disability and no loss of earning capacity must be proved (e.g., where a claimant
has 50 % or more impairment to the back). There is no such provision in the Retirement System for
this type of disability, either. The general disability provisions in the workers’ compensation system
require the claimant to prove by a preponderance of the evidence the claimed total disability by
showing that he is unable to earn the wages which he was receiving at the time of the injury in the
same or any other employment, or that he can perform only limited tasks which are so limited
in quality, dependability, or quantity that no reasonably stable market for them exists.
Stephenson v. Rice Services, Inc., supra, at 702; McCollum v. Singer Co., 300 S.C. 103, 386 S.E.2d
471 (Ct. App. 1989); Coleman v. Quality Concrete Prods., Inc., 245 S.C. 625, 142 S.E.2d 43, 44
(1965). This court believes that this last analysis for total disability, as used in the workers’
compensation system, is in keeping with the intent of the legislature when it passed the disability
benefits section in the Retirement System provisions. However, the Retirement System statutory
provision only requires incapacity from the further performance of duty. See S.C. Code Ann.
§ 9-1-1540. Thus, a claimant for disability benefits in the Retirement System need only prove total
disability or incapacity from his tasks at the time of the injury or disability.
Analysis
This court would suggest that in any total disability claim in the Retirement System, as
considered in total disability claims in the workers’ compensation system, the following concepts must
be considered and analyzed:
(1) medical diagnosis;
(2) mental or physical impairment;
(3) vocational limitation;
(4) incapacitation; and
(5) permanency.
A medical diagnosis exists if sufficient medical records indicate that an individual suffers from
a particular physical or mental medical condition. If such is present, then one looks at the extent of
the impairment of the condition, i.e., does it interfere with the claimant’s ability to perform his/her
daily work tasks. Third, the functional or vocational limitation exists if the physical impairment is job
related and it interferes with the claimant’s ability to perform his/her daily tasks at their job. Fourth,
the claimant is incapacitated if the vocational limitations prevent the claimant from doing his/her job.
Lastly, the impairment must incapacitate the claimant from performing his/her job permanently.
As to Petitioner’s medical condition, she continues to suffer with problems related to her
breast cancer. Notwithstanding the surgeries on both breasts, she needs reevaluation from time to
time and possibly some additional reconstructive surgery on her left breast. She has pain in and some
loss of use of her left upper extremity.
As a result of the fall on August 22, 2002, Petitioner continues to have problems in her right
shoulder and lower back, with tenderness in and pain radiating into her right posterior lateral thigh.
Dr. Robert Ringel last saw her on March 3, 2003. His clinical findings were consistent with a
myofascial (fibrous tissue under the skin which separates the muscles) pain syndrome. Further, Dr.
Ringel stated that he could not rule out a right cervical radiculopathy or right lumbar radiculopathy.
He could not state when her disability would end.
In combination with the above, Petitioner suffers with depression. The stressors caused by
her lack of financial resources, as well as those stressors directly related to her back, cervical area,
upper extremities, right hip, right thigh, and breast conditions, have caused her to seek help both from
a psychiatrist and the mental health clinic in Spartanburg. She has episodes of crying and feelings of
hopelessness. She has difficulty sleeping and worries about having panic attacks. She is no longer
able to seek the help of a psychiatrist because she lacks both the funds and the insurance to do so.
She was required to seek employment compensation payments for a period of several months until
she could get qualified through the local mental health clinic in order to purchase needed medications.
She lives with a sister to minimize her living expenses. The evidence is overwhelming that Petitioner
suffers with both physical and mental conditions which are severe enough to prevent her from
performing her tasks at her previous place of employment.
As stated to in his report and as alluded to in his testimony, Dr. Brabham, a vocational expert
for almost forty years in the field of functional and vocational limitations evaluations, testified that
Petitioner is unable to engage in any full-time, gainful, competitive employment. He spent three
hours evaluating her and ascribed credibility to her complaints of pain and their effect on her ability
to work. He noted Petitioner’s limitations on sitting, using her arms and hands, as well as her
complaints of urinary incontinence. He reviewed the job requirements of Petitioner which required
that she document consumer needs, complete service plans for individuals with disabilities and special
needs, specifically autism, and answer requests for information. From his previous work at the
Department of Disabilities and Special Needs, he was acquainted with both the physical limitations
and the emotional demands of the job. Considering her medical problems and her functional
limitations, Dr. Brabham opined that Petitioner could not perform any substantial gainful work that
exists in either South Carolina or the national economy. Joel Leonard, the vocational consultant
hired by the Retirement System to conduct the conference and issue the report, opined that Petitioner
could resume her job as a service coordinator and that her physical or mental condition was more
likely than not permanent in nature. Due to the extensive background of Dr. Brabham, as well as the
time he spent with Petitioner testing and evaluating her, this Court gives much greater credibility to
his opinion.
There is no doubt that Petitioner is permanently unable to return to her previous employment.
Further, when reviewing the entire record, the more credible evidence is that when both her physical
and mental conditions are combined, she is permanently disabled from returning to her previous job.
Petitioner continues to seek counseling at the local mental health clinic due to many stressors which
affect her emotionally. She also suffers from numerous physical problems as documented in the
record, including residual effects from her breast cancer surgeries as well as pain in both the cervical
and lumbar areas of her back. She continues on the following medications: Tylox 500 mg daily for
pain, Tamoxifen for her breast conditions (hormonal therapy), Paxil (an anti-anxiety drug), Prilosec
(for her acid reflux problem), and Allegra-D. These medications cause Petitioner to become drowsy,
tired and lethargic and affect her ability to work as well.
The Retirement System and Mr. Leonard challenged Petitioner’s credibility because she filed
for unemployment benefits. However, the evidence indicates that Petitioner filed for benefits so she
could purchase required medicines. Furthermore, the Retirement System discounted not only the
opinion of Dr. Brabham, but also Petitioner’s numerous subjective complaints of pain and tenderness.
Disability claims are not based solely upon clinical findings. As previously discussed herein, the trier
of fact can consider the entire record. I find and conclude that the record, taken as a whole, supports
a finding that the Petitioner is disabled.
Conclusion
Based upon the analysis contained in the Findings of Fact, Conclusions of Law, and
Discussion, this court concludes that Petitioner has both physical and mental conditions which are
permanent and which cause her to be incapable from performing her previous work. Accordingly,
the decision of the Retirement Systems is reversed and disability benefits must be forthwith paid to
Petitioner.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Petitioner is awarded disability retirement benefits; and
the decision of the Retirement System is reversed.
AND IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Administrative Law Judge
February 26, 2004
Columbia, South Carolina |
