SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned case is before this Court pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2005) for a contested case hearing. Petitioner Eric Zacour seeks review of the March 16, 2006 Final Agency Determination of Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems (SCRS), in which SCRS denied his application for state disability retirement benefits under S.C. Code Ann. § 9-1-1540 (Supp. 2005). Petitioner contends that, because of his asthmatic condition, he is physically incapacitated from the further performance of his job as a forestry warden for the South Carolina Forestry Commission such that he is entitled to disability retirement benefits from the South Carolina Retirement System. SCRS concedes that Petitioner does suffer from asthma, a condition he has had since childhood, but further contends that Petitioner’s condition is not so severe as to permanently incapacitate him from performing his previous job duties as a forester, particularly in light of his ability to perform his job duties for eight years without missing work or needing emergency medical attention as a result of his asthmatic condition. Accordingly, SCRS argues that Petitioner is not entitled to disability retirement benefits under Section 9-1-1540.

After timely notice to the parties, a hearing of this matter was held on August 31, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented at that hearing and upon the applicable law, I find that Petitioner is not permanently, physically incapacitated from the further performance of his job as a forestry warden such that he should receive disability retirement benefits from SCRS.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner Eric Zacour is a forty-two-year-old man who is a member of the South Carolina Retirement System with ten years and one month of service in state employment.[1] Petitioner was employed between November 12, 1997, and May 11, 2005, as a forestry warden with the South Carolina Forestry Commission (Commission).[2]

2. Petitioner has suffered from asthma since childhood. As a result of his condition, Petitioner will periodically suffer asthma attacks that cause wheezing and shortness of breath. However, Petitioner has been able to control his condition with medication, including inhalers, and his asthma does not affect his activities of daily living. Petitioner did not disclose his condition to the South Carolina Forestry Commission during the application process for his forestry warden position and took steps to conceal his asthma from his co-workers and supervisors during the eight years he was employed with the Commission. By his own admission, Petitioner concealed his asthma from his employer because he believed that he would not have been hired, and would likely be fired, if the Commission learned of his pre-existing asthmatic condition.

3. Petitioner’s primary responsibility as a forestry warden with the Commission was to operate a medium-sized bulldozer-type tractor to suppress wildfires. In this capacity, Petitioner did not regularly report to a single work site, but was simply “on call” during scheduled work hours. When he would receive a call to respond to a fire, he would be responsible for transporting the bulldozer tractor to the site and operating the bulldozer to suppress the fire by creating fire breaks. In addition to these duties, Petitioner would also report to the Commission to assist in forest management work and perform other miscellaneous duties such as vehicle maintenance and employee training. Given the sporadic nature of his duties with the Commission, Petitioner was also self-employed as the owner-operator of a convenience store in Elgin, South Carolina, during the time he was employed as a forestry warden. Currently, Petitioner continues to work as a clerk at his convenience store.

4. The dust and smoke Petitioner would encounter when operating his bulldozer to suppress wildfires would often aggravate his asthma. However, Petitioner was able to control his condition with medication, and never had to leave his work unfinished or miss work as a result of his asthma. While Petitioner testified that he would sometimes over-medicate himself with his asthma medications, occasionally resulting in an allergic reaction that caused him to break out in hives, his condition never resulted in a situation that required emergent medical treatment and he has never been hospitalized for his asthma. And, as noted above, he never suffered an asthma attack that caused him to miss time from work. Further, during his employment with the Commission, Petitioner met all performance levels and passed several physical fitness tests related to his duties as a forestry warden.

5. On May 11, 2005, Petitioner went on medical leave from his employment with the Commission as a result of his hospitalization for pancreatitis. While hospitalized for his pancreatitis (from which he has since completely recovered), Petitioner decided that he would discontinue his forestry job because of his asthma. Accordingly, on October 12, 2005, Petitioner filed an application for disability retirement benefits with SCRS, in which he alleged that the physical impairment caused by his asthma prevents him from resuming his job as a forestry warden with the Forestry Commission. After receiving Petitioner’s application, SCRS forwarded his file to the South Carolina Department of Vocational Rehabilitation for review of his disability claim.[3] Disability Examiner Martha Spangler reviewed the medical documents regarding Petitioner’s asthma, and, on November 22, 2005, issued a recommendation to SCRS that Petitioner’s disability retirement application be denied because he retained the capacity to perform his job duties. In particular, Ms. Spangler found that, while Petitioner did suffer from asthma, he had no significant lung problems that would preclude him from continuing with his usual activities as a forest warden. On November 28, 2005, SCRS accepted Ms. Spangler’s recommendation and denied Petitioner’s claim for disability retirement benefits.

6. Petitioner then requested administrative review of that initial denial before the Director of SCRS, Peggy Boykin. Ms. Boykin appointed Leanna Hollenbeck, an independent vocational rehabilitation consultant, to review Petitioner’s claim. As part of her review, Ms. Hollenbeck conducted an administrative conference with Petitioner on February 28, 2006, and reviewed Petitioner’s entire medical file. After conducting this review, Ms. Hollenbeck recommended that Petitioner’s disability claim be denied because, despite his asthma, Petitioner was still able to perform his job duties as a forestry warden. Specifically, she found that, “[a]lthough [Petitioner] does have asthma attacks and smoke aggravates his condition, he was able to perform his job duties without interruption or need for emergency medical assistance for eight years.” Resp’t Ex. #1, at 52. Ms. Hollenbeck also noted that “there is no documentation from [Petitioner’s] employer or his physician that [he] was unable to perform his job for the past eight years due to asthma or any other condition.” Resp’t Ex. #1, at 52.

7. On March 16, 2006, Ms. Boykin, the Director of SCRS, issued a Final Agency Determination adopting Ms. Hollenbeck’s recommendation and denying Petitioner’s application for disability retirement benefits. On April 13, 2006, Petitioner filed a request for a contested case hearing before this Court to challenge that final agency determination.

8. Based upon the greater weight of the evidence presented in this matter, I find that, while Petitioner does suffer from asthma, there is no medical or other credible evidence to support his contention that his condition prevents him from further performing the job duties of a forestry warden with the South Carolina Forestry Commission.

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. 2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).

2. S.C. Code Ann. § 9-1-1540 (Supp. 2005) 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 system, 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 his asthmatic condition, including shortness of breath with exertion, a productive cough, and constant wheezing, has rendered him permanently, physically incapacitated from the further performance of his duties as a forestry warden with the South Carolina Forestry Commission such that he should be entitled to disability retirement benefits from SCRS. This claim, however, cannot be sustained.[4]

4. In the instant case, there is no question that Petitioner suffers from asthma and no doubt that his asthma can be aggravated by exposure to the smoky and dusty conditions faced by forestry wardens when they are called upon to suppress wildfires. In fact, Petitioner’s asthma and the damage it has caused to his lungs are well-documented in the medical records submitted as evidence in this case. Rather, the question presented in this matter is whether Petitioner’s asthma is so severe that it has permanently physically disabled him from further performing the job duties of a forestry warden. On that question, the evidence is uncontroverted that, even with his condition, Petitioner was able to fulfill his duties as a forestry warden with the Commission for nearly eight years without incident. While his asthma may have occasionally caused him some difficulty and inconvenience in performing his job duties, Petitioner was never unable to complete his work as a result of his condition, never missed work because of his asthma, and never failed to meet all of the performance requirements, including physical fitness requirements, of his position as a forestry warden. Therefore, although Petitioner suffers from asthma, the record does not support a finding that Petitioner is permanently incapacitated from the further performance of his job duties as forestry warden such that he is entitled to disability retirement benefits from SCRS.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that the decision of SCRS to deny Petitioner’s application for disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1540 (Supp. 2005) is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

November 8, 2006

Columbia, South Carolina