ORDERS:
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
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. 2005) upon the request for a
contested case hearing filed by Sherry Lazicki-Thomas (Petitioner). Petitioner
contests the Final Agency Determination issued by Respondent South Carolina
Budget and Control Board, South Carolina Retirement Systems (Respondent or
Retirement Systems), which found Petitioner was not entitled to disability
retirement benefits. Afterwards, the South Carolina Budget and Control Board,
South Carolina Retirement Systems (Retirement Systems), filed a Motion for
Summary Judgment on October 13, 2006.
The Retirement Systems contends that this case should be dismissed in light of the Court’s en banc decision in Anderson
v. South Carolina Budget and Control Board, South Carolina Retirement Systems,
06-ALJ-30-0008-CC.
STANDARD OF REVIEW
Rule 68 of the Administrative Law Court Rules provides that
“[t]he South Carolina Rules of Civil Procedure may, where practicable, be
applied in proceedings before the Court to resolve questions not addressed by
these rules.” Rule 56(c), SCRCP, provides that summary judgment shall be
granted if it is shown “that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” See also, Gadson v. Hembree, 364 S.C. 316, 613 S.E.2d 533 (2005); Cisson
Constr. Inc. v. Reynolds & Assoc. Inc., 311 S.C. 499, 429 S.E.2d 847
(Ct. App. 1993). In determining whether summary judgment is proper, the court
must construe all ambiguities, conclusions, and inferences arising from the
evidence against the moving party. Byers v. Wesinghouse Elec. Corp.,
310 S.C. 5, 425 S.E.2d 23 (1992). Because it is a drastic remedy,
summary judgment should be cautiously invoked to ensure that a litigant is not
improperly deprived of a trial on disputed factual issues. Helena Chem. Co.
v. Allianz Underwritters Ins. Co., 357 S.C. 631, 594 S.E.2d 455 (2004).
Summary judgment is also not appropriate where further inquiry into the facts
of the case is desirable to clarify the application of the law. Wogan, et
al. v. Kunze, et al., 366 S.C. 583, 623 S.E.2d 107 (2005). On the other
hand, the non-moving party may not rest upon the mere allegations or denials of
the pleadings, but a response by affidavit or otherwise as provided in the
rules must set forth specific facts creating a genuine issue for trial. S.C.R.
Civ. P. 56 (e); Moody v. McLellan, 295 S.C. 157, 163, 367 S.E.2d 449,
452-53 (Ct. App. 1988). Furthermore, summary judgment should be granted “when
plain, palpable and undisputed facts exist on which reasonable minds cannot
differ.” Bayle v. S.C. Dep’t of Transp., 344 S.C. 115, 120, 542 S.E.2d
736, 738 (Ct. App. 2001).
UNDISPUTED MATERIAL
FACTS
Petitioner was
employed as a firefighter for the City of North Charleston from May 3, 1999, to
January 28, 2005. During Petitioner’s employment as a firefighter for the City
of North Charleston, she accrued five years, three months, and sixteen days of
service credit in the Police Officers Retirement System (PORS).
On April 6, 2004, Petitioner allegedly
was injured on the job. Petitioner last physically worked on April 9, 2004.
As of January 28, 2005, Petitioner’s employment with the City of North Charleston was terminated. Petitioner has not worked for a covered employer since
January 28, 2005.
Petitioner
filed an application for disability retirement benefits on August 16, 2005. On
August 17, 2005, Respondent sent a letter to Petitioner notifying her that she
was ineligible to apply for disability retirement benefits because she was not
“in service” at the time she filed her application. Petitioner properly and
timely appealed the initial decision and exhausted her administrative
remedies. Respondent Retirement Systems ultimately issued its final
determination on December 6, 2005. Petitioner thereafter filed a request for
contested case hearing at the Administrative Law Court.
DISCUSSION
The
Retirement Systems contends that this case should be summarily dismissed
because there is no genuine issue as to any material fact and the Retirement
Systems is entitled to a judgment as a matter of law on the sole issue of
whether Petitioner met the statutory requirements of eligibility to file an
application for disability retirement benefits. The statute at issue in this
case provides in pertinent part:
On the application of a member in
service or the member’s employer, a member who has five or more completed years
of earned service or any contributing member who is disabled as a result of an
injury arising out of and in the course of the performance of the member’s
duties regardless of length of membership may be retired by the retirement
board 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.
S.C. Code Ann. §
9-11-80(1) (Supp. 2005) (emphasis added). The central issue in this case is
whether Petitioner was a “member in service” at the time she filed her
application for disability retirement benefits. The Court addressed this issue en banc in the case of Anderson v. South Carolina Budget and Control
Board, South Carolina Retirement Systems, 06-ALJ-30-0008-CC. In that
decision, the Court concluded the words “member in service” as applied to an
employee seeking disability retirement benefits, plainly mean “a person having
the status of an employee by virtue of a contract of employment that is in
effect at the time the application for disability benefits is filed,
specifically including those on accrued annual leave or sick leave.” This
conclusion is equally applicable in the case sub judice.
Pursuant
to Rule 70(F) of the Rules of Procedure for the Administrative Law Court,
“[t]he issue(s) addressed in en banc decisions by the administrative law judges
are binding upon all individual administrative law judges in all subsequent
cases, unless a majority of the judges determine otherwise.” Thus, not only
has the central issue of this case been determined in the Anderson en
banc decision, the Court’s conclusion in that decision is binding on the
facts of this case.
Here there is no genuine issue of material fact in this
case. Petitioner terminated employment on January 28, 2005, but did not file
an application for disability retirement benefits until August 16, 2005.
Petitioner was thus not an employee of the City of North Charleston at the time
she filed her application for disability retirement benefits. In fact,
Petitioner had not been on the City’s payroll in any status for six and a half
months by the time she filed her application.
I therefore find that Petitioner was not a “member in service” at the time she
filed her application for disability retirement benefits. Based on these
crucial facts and the en banc decision of this Court in the Anderson case, the Retirement Systems is entitled to judgment as a matter of law.
ORDER
IT IS THEREFORE
ORDERED that Respondent’s Motion for Summary
Judgment is GRANTED.
AND IT IS SO ORDERED.
____________________________________
Ralph
King Anderson, III
Administrative
Law Judge
November 13, 2006
Columbia, South Carolina
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