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2008-UP-598 - Causey v. SC Budget and Control Board

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Lisa Kay Causey, Appellant,

v.

South Carolina Budget and Control Board, South Carolina Retirement Systems, Respondents.


Appeal From the Administrative Law Court
 Marvin F. Kittrell, Administrative Law Judge


Unpublished Opinion No. 2008-UP-598
Submitted October 1, 2008 – Filed October 17, 2008


AFFIRMED


Lisa Kay Causey, pro se, for Appellant.

Justin R. Werner and David K. Avant, of Columbia,  for Respondents.

PER CURIAM: Lisa K. Causey appeals the denial of her claim for disability retirement, arguing the Administrative Law Court (ALC) erred (1) in finding the reliable, probative, and substantial evidence on the record supported denial, (2) in assigning weight to expert testimony, and (3) in excluding her medical literature as inadmissible hearsay.  Causey further argues her inability to secure counsel placed her at an unconstitutional disadvantage.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities. 

1.  As to the question whether the ALC erred in finding the reliable, probative, and substantial evidence on the record supported denial:  S.C. Code Ann. § 1-23-600(B) (Supp. 2007) (providing a party who has exhausted administrative remedies and obtained a final agency determination from an executive-branch agency may seek a contested case hearing from the ALC); S.C. Code Ann. § 9-1-1540 (Supp. 2007) (rendering a member eligible for disability retirement benefits when South Carolina Retirement Systems, “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.”); Terry v. S.C. Dep’t of Health & Envtl. Control, 377 S.C. 569, 573, 660 S.E.2d 291, 293 (Ct. App. 2008) (“In administrative law cases, the ALC serves as the fact-finder and is not restricted by the findings of the administrative agency.”).  

2.  As to whether the ALC erred in assigning weight to expert testimony:  In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (“An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court.”).    

3.  As to whether the ALC erred in excluding Causey’s medical literature as inadmissible hearsay:  S.C. Code Ann. § 1-23-330(1) (2005) (requiring the ALC to exclude “[i]rrelevant, immaterial or unduly repetitious evidence” from contested case hearings and otherwise follow the South Carolina Rules of Evidence applicable in civil cases in the court of common pleas); Rule 801(c), SCRE (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”); Rule 803(18), SCRE (excluding learned treatises from introduction as exhibits but providing a limited exception for their admissibility when read into evidence during examination of an expert witness). 

4.  As to whether Causey’s inability to secure counsel placed her at an unconstitutional disadvantage:  DuRant v. S.C. Dep’t of Health & Envtl. Control, 361 S.C. 416, 424-25, 604 S.E.2d 704, 709 (Ct. App. 2004) (holding constitutional issues not raised to and ruled on by a lower court are not preserved for appellate review). 

5.  As to all remaining issues:  In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (“An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court.”); DuRant v. S.C. Dep’t of Health & Envtl. Control, 361 S.C. 416, 424-25, 604 S.E.2d 704, 709 (Ct. App. 2004) (holding constitutional issues not raised to and ruled on by a lower court are not preserved for appellate review). 

AFFIRMED.

SHORT, THOMAS, and PIEPER, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.