ALJDEC decisions subject to certification as final

19F-005-ARB · Arizona State Retirement System · 2019-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2019 APPEARANCES: Appellant Walter Taite appeared on behalf of himself. Mark Fuller, Esq. appeared on behalf of Respondent Arizona State Retirement System. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. From November 12, 1996 to June 12, 1999, Appellant Walter Taite served in the United States Army. See Exhibit G, Bates 000045. 2. In September of 1999, Mr. Taite began working for the Flagstaff Unified School District (“FUCSD”) and became a contributing member of Respondent Arizona State Retirement System (“ASRS”). See Exhibits A and F. 3. On October 26, 2004, Mr. Taite ended his employment with FUCSD because of a disability that significantly prevented Mr. Taite from performing his job duties. See Exhibit C, Bates 000008. Mr. Taite’s last contribution date to the ASRS was October 26, 2004. 4. On or about April 6, 2018, Mr. Taite filed a claim for Arizona Long Term Disability benefits (“LTD”). See Exhibit F. Mr. Taite submitted a Veterans Administration (“VA”) Rate Decision and a Social Security Administration (“SSA”) Decision with his claim to verify his disability. See Exhibit G, Bates 000023. Mr. Taite submitted no other evidence regarding his disability. 5. Mr. Taite received SSA and VA disability benefits at the time that he filed the ASRS LTD claim. 6. On or about November 16, 2018, the ASRS notified Mr. Taite that he was eligible for disability benefits under the ASRS LTD program. See Exhibit I. 7. On February 13, 2019, the ASRS notified Mr. Taite that 100% of his VA disability benefits would be subject to an offset from his ASRS LTD benefit. See Exhibit M. The February 13, 2019 letter provided, in relevant part, as follows:[1] The ASRS reviewed the documentation regarding your VA disability benefits along with Broadspire and our review does not support your claim that the VA disability benefits are not subject to be offset from your ASRS LTD benefit. ln reviewing Broadspire's records, they indicate you meet the statutory definitions of disability due to your diagnoses of seizures, migraines, PTSD, major depression, depression and anxiety, and idiopathic hyper somnolence. Based on the medical information provided relating to these conditions, you were determined to meet the definition of disability. These conditions match the disabling conditions detailed by both the VA records and by the SSA records in determining your eligibility for disability under their systems, thereby meeting the first requirement under A.R.S. § 38-797 .07(A)(1)(f)(i).

The VA records also reflect that your disabilities stem from a Humvee accident while you were serving in the military, and specifically refer to the motor vehicle accident in 1998, while you were in the military, and indicate that you then developed symptoms consistent with head trauma, along with PTSD and a mood disorder. Moreover, although you started having petit mal seizures in 2002, the VA summary specifically refers to seizures as a factor in rating your daytime hyper somnolence as 60% disabling and nothing indicates that these were unrelated to your earlier injuries. ………………………………………………….

8. On June 3, 2005 and April 18, 2006, Mr. Taite applied for SSA disability benefits. See Exhibit C, Bates 000006. Mr. Taite was granted SSA disability benefits after filing an appeal. The SSA Administrative Law Judge (“ALJ”) found that Mr. Taite sustained a head trauma injury in the military in connection with a motor vehicle accident. The ALJ found that after the injury, Mr. Taite began experiencing symptoms of petit mal seizures and experienced symptoms of depression, panic, and anxiety. The ALJ concluded that based upon Mr. Taite’s symptoms, “it seems that [Mr. Taite] is experiencing posttraumatic stress disorder and a mood disorder due to a general medical condition….” See id at Bates 000009. 9. The ALJ found that Mr. Taite was diagnosed with seizures at the VA Medical Center in December 2004 and that the VA rated his disability at 60%. See Exhibit C, Bates 000009. The ALJ also found that a medical professional diagnosed Mr. Taite with “posttraumatic stress disorder, mood disorder due to a general medical condition and cognitive disorder, not otherwise specified, consistent with head trauma.” See id. The ALJ found that the medical records showed that Mr. Taite experienced suicidal ideations, depressive disorder, not otherwise specified, moderate difficulty in social, occupation, or school functioning, memory problems, difficulty being around people, and difficulty maintaining employment due to possible conflicts with co-workers and supervisors. See Exhibit C, Bates 000009 and 000010. 10. On April 6, 2018, the VA issued a letter to Mr. Taite which served as an official record of Mr. Taite’s VA entitlement. See Exhibit E. The VA determined that Mr. Taite had one or more service-connected disabilities and that his combined service-connected evaluation was 100%. The VA also determined Mr. Taite was totally and permanently disabled due solely to his service- connected disabilities. See id. 11. On April 6, 2015, the VA issued a Rating Decision based on a new claim for veterans benefits filed by Mr. Taite on January 20, 2015. See Exhibit D. The VA assigned a 100% evaluation for mood disorder with depression and anxiety based on Mr. Taite’s total occupational and social impairment, disorientation to place, disoriented to time, difficulty in adapting to work, difficulty in adapting to stressful circumstances, suicidal ideation, difficultly in adapting to a work like setting, disturbance of motivation and mood, mild memory loss, chronic sleep impairment difficulty in establishing and maintaining effective work and social relationships, panic attacks more than once a week, impairment of short and long term memory, depressed mood, and anxiety. See id at Bates 000015. According to the Rating Decision, the VA determined that Mr. Taite was eligible for a special monthly compensation based on Aid and Attendance. 12. The VA determined in the Rating Decision that the evaluation of daytime hyper somnolence was continued as 60% disabling. The VA noted, “A higher evaluation of 80 percent is not warranted unless evidence demonstrates an average of at least one major seizure in three months over the last year, or more than ten minor seizures weekly.” See id at Bates 000016. 13. On or about March 14, 2019, the ASRS received Mr. Taite’s request for an appeal. See Exhibit N. Mr. Taite argued that he is only paid by the VA for his mood disorder. Mr. Taite acknowledged in his appeal request that his seizures and related health problems may be related to the military, but that the VA would not compensate him for those problems. See id at Bates 000089. Mr. Taite’s appeal request provided, in relevant part, as follows: [2] This letter will serve as my official request for a hearing to appeal the finding of ASRS as it pertains to the use of my VA disability offset for my LTD claim (Case# c-2018-075435/Policy 22082 ASRS).” …………………………………… I do believe my seizures and their resulting issues did steam [sic] form [sic] a Humvee accident. The SSA and most of my doctors agree the seizures where [sic] probably a result of the accident, but the VA would disagree. I concede the seizures where [sic] probably service related. Because of that I meet the requirements for A.R.S. § 38-797.07(A)(1)(f)(ii). With that said, the VA does not compensate me for these medical issues, so I do not meet the requirements of A.R.S. § 38- 797.07(A)(A)(f)(i). I must meet both subsections for ASRS and Broadspire to use my VA compensation as an offset.

14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 15. On September 24, 2020, the ASRS issued a Notice of Hearing setting the matter for hearing on October 19, 2020. The Notice of Hearing provided that the issue set for determination was, “to determine whether grounds exist to justify the ASRS’s appealable agency action and its application of A.R.S. § 38-797.07(A)(7)(b).” 16. At hearing, Ms. Wikman testified on behalf of herself and submitted Exhibit A. The ASRS presented the testimony of Member Advocate, Ryan Guerra, and submitted exhibits 1 through 26. 17. Mr. Taite asserted that he is not being compensated by the VA for seizures and that part of his benefit is for “Aid and Attendance.” Mr. Taite also contended that his mood disorder did not become 100% disabling until January of 2015. Mr. Taite asserted that the VA attributed his disabilities to his service in the military and not to an accident. 18. Ms. Galob explained that Mr. Taite receives monthly veteran’s benefits in the amount of $3,974.49 and monthly social security amounts of at least $700 per month. Ms. Galob explained that if Mr. Taite’s only source of income were the ASRS retirement benefits, the amount of monthly ASRS retirement benefits would be $702.34. Mrs. Galob explained that Mr. Taite earned $1,053 per month when he worked for FUSD. Ms. Galob explained that the intent of the offset is to make sure that a member does not receive a greater disability benefit through the ASRS LTD program that the member would have received working. 19. The ASRS contended that it is required to offset Mr. Taite’s LTD benefit because the VA determined that Mr. Taite has a permanent disability that is 100% service related. CONCLUSIONS OF LAW 1. ASRS has jurisdiction over the subject matter in this case. 2. Mr. Taite bears the burden of proof and, as such, must establish by a preponderance of the evidence that ASRS improperly determined that 100% of Mr. Taite’s VA benefits were subject to be offset from his ASRS LTD benefit. 3. A.R.S. § 38-797.07 provides, in relevant part, as follows: A. The LTD program is subject to the following limitations: ……………………………………………………………

1. Except as provided in paragraph 9 of this subsection, monthly LTD program benefits shall not exceed two-thirds of a member's monthly compensation, reduced by:

(f) All of any payments for a veteran's disability if both of the following apply:

(i) The veteran's disability payment is for the same condition or a condition related to the condition currently causing the member's disability.

(ii) The veteran's disability is due to, or a result of, service in the armed forces of the United States.

4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[4] 5. Based on the evidence of record, the Administrative Law Judge concludes that Appellant has not sustained his burden to establish by a preponderance of the evidence that ASRS improperly determined 100% of his VA benefits were subject to an offset from his ASRS LTD benefit. The evidence presented at hearing shows that Mr. Taite suffered a traumatic brain injury as the result of a motor vehicle accident which occurred when Mr. Taite was in the military. The evidence presented shows that Mr. Tatie began to experience seizures and other mental health conditions as a result of the accident. Mr. Taite even stated in his appeal request that most of his medical doctors agree that the seizures and the resulting issues were a result of the Humvee accident. Mr. Taite failed to establish that his seizures were unrelated to any of his other disabilities. 6. The Based on the foregoing, the Administrative Law Judge concludes that the ASRS determination that 100% of Mr. Taite’s VA benefits are subject to be offset from his ASRS LTD benefit was justified and was in accordance with the applicable laws pursuant to A.R.S. § 38- 797.07(A)(1)(f), ASRS is required to make the offset.

RECOMMENDED ORDER IT IS RECOMMENDED the ASRS Board affirm the ASRS determination that 100% of Mr. Taite’s VA disability benefits are subject to offset from his ASRS LTD benefit. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification. Done this day, May 21, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Paul Matson, Director Arizona State Retirement System

----------------------- [1] See id at 000084. [2] See id at Bates 000088 and 000091. [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary 1182 (6th ed. 1990).

-----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826