I represented Lazicki-Thomas. This was a case with a “roller coaster” issue for me. The case involved a disability claim under South Carolina Police Officers Retirement System. State, county and the municipal level government employees in South Carolina can participate in various of South Carolina’s Retirement Systems. The two primary Retirement Systems are the Police Officer Retirement Systems, which was specifically at issue in this case, and the South Carolina Retirement Systems which is the biggest of the three systems and which covers teachers and most other employees. The case involved an oft recurring issue which is whether a system participant must be actually employed (meaning on the payroll as opposed to actively working) when his or her application for disability benefits is filed. The relevant language of the statute states:

“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 . . .”

The corresponding South Carolina Retirement Systems statute has the identical language and is seen at § 9-1-1540.

With cases pending and claims waiting to be filed, there were at least ten (10) similar claims of which I was aware in the last two years. I assume there were just as many of which I was not aware and if you compound that over a number of years, you have an issue that affects many system participants. Strangely, Lazicki-Thomas was not the first (or the second) case to address the relevant issue, but it was the case that brought the issue before the South Carolina Supreme Court.

In all of the cases that were at issue, the system participant filed a claim for disability retirement benefits with the system after his or her employment was terminated. In such a situation, the State took the position that the Retirement System was not required to consider the claim for disability retirement benefits because it was untimely. I argued, based upon an old South Carolina Supreme Court case, that the State’s interpretation of the statute lead to arbitrary and extremely unconsistent results. I argued that the words “in service”, as used in the statutes, were ambiguous because it was not clear whether they pertained to the date on which the application must be filed or, instead, the date on which the disability arose.

The first case in which I represented the plaintiff to address the issue was Crooks v. South Carolina Budge and Control Board, South Carolina Retirement Systems, 2005 SC ALJ LEXIS 563 (2005). In Crooks, the South Carolina Administrative Law Court ruled with me that the statute was ambiguous and that the words “in service” should be interpreted to apply to the date of disability. (Click here to see the Crooks opinion) Thereafter, for only the second time in its history, the South Carolina Administrative Law Court convened an en banc hearing in Anderson v. South Carolina Budget and Control Board, South Carolina Retirement Systems, 06-ALJ-30-0008-CC, and ruled with the state that the term “in service” was unambiguous and clearly referred to the date the application was filed. (Click here to see the Anderson en banc opinion) I did not anticipate that Lazicki-Thomas would be the case to decide the issue. I assumed that Crooks or Anderson would be. However, based upon the Anderson en banc decision, the presiding Administrative Law Judge dismissed the Lazicki-Thomas case. I appealed on my client’s behalf to the South Carolina Court of Appeals. The South Carolina Supreme Court, sua sponte (on its own initiative), took the case from the Court of Appeals to decide the issue once and for all. South Carolina Appellate Rules allow the State’s Supreme Court to take cases from the Court of Appeals when they involve questions of exceptional public importance. I argued the case in March 2008 before the Court. It was rather apparent to me after oral argument that I would not prevail, but I had hoped that the court would, at least, find that the statute was ambiguous (because I still believe that it is) in some respects. This case was not the “test” case I would have chosen to argue before the South Carolina Supreme Court if I had had my pick. But, as it works out, it was the case I had to argue and on May 12, 2008, the South Carolina Supreme Court issued its order agreeing with the Anderson en banc Administrative Law Court that the statute was unambiguous and that the words “in service” clearly referred to the date of the application as opposed to the date of disability. (To view the South Carolina Supreme Court’s published opinion, click here.) I do not believe this issue is “dead”. The current system is unfair and completely arbitrary. There are no uniform rules or guidelines which mandate how long a participating employer must keep its employees on the payroll. Some employers might terminate an employee after a week while others might keep a person on for years after he or she ceases actively working. The system is completely arbitrary and I expect that somebody will find a way to successfully challenge the current system in the near future.