COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
RUTH C. DALE
v. Record No. 2752-98-3
VIRGINIA RETIREMENT SYSTEM
LACY POTTER-MEADOWS
MEMORANDUM OPINION *
v. Record No. 2756-98-3 PER CURIAM
JUNE 22, 1999
VIRGINIA RETIREMENT SYSTEM
BARBARA C. McCLANAHAN
v. Record No. 2757-98-3
VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
(John M. Lamie; Browning, Lamie & Sharp,
P.C., on briefs), for appellants.
(Mark L. Earley, Attorney General; Michael K.
Jackson, Senior Assistant Attorney General;
James W. Osborne, Assistant Attorney General,
on briefs), for appellee.
Barbara C. McClanahan (McClanahan), Ruth C. Dale (Dale), and
Lacy Potter-Meadows (Potter-Meadows) appeal orders of the trial
court affirming decisions by the Virginia Retirement System (VRS)
denying their claims for permanent disability retirement.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
McClanahan, Dale, and Potter-Meadows contend that (1) the trial
court erred in finding that there was substantial evidence to
support VRS's denial of benefits on the ground that they failed to
prove that their disability was "likely to be permanent"; and (2)
Code § 51.1-156 is vague because it does not provide adequate
standards to guide the determination of whether a person is
"permanently" impaired, and, thereby, unconstitutionally delegates
to the Medical Review Board and private physicians the ability to
determine arbitrarily whether such person is permanently impaired.
Upon reviewing the records and the briefs of the parties, we
conclude that these appeals are without merit. Accordingly, we
summarily affirm the trial court's decisions. See Rule 5A:27.
I.
Standard of Review
"The burden shall be upon the party complaining of agency
action to designate and demonstrate an error of law subject to
review by the court." Code § 9-6.14:17. VRS is required to use a
Medical Review Board ("the Board") to certify that a claimant’s
disability "is likely to be permanent." Code § 51.1-156(E)(ii).
Our review of this determination asks only whether there was
substantial evidence in the agency record to support the holding
of the administrative agency. See Code § 9-6.14:17. "The phrase
'substantial evidence' refers to 'such relevant evidence as a
reasonable mind might accept as adequate to support a
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conclusion.'" Virginia Real Estate Comm'n v. Bias, 226 Va. 264,
269, 308 S.E.2d 123, 125 (1983) (citation omitted).
In accordance with well established principles, we view the
evidence in the light most favorable to the prevailing party
below, VRS in this instance. See R.G Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
McClanahan
McClanahan worked as a mineral license bookkeeper for
Buchanan County for eleven years, last working on November 27,
1993. McClanahan's job duties required that she maintain all
mineral cards and updates, generate correspondence, wait on the
public, answer telephones, and perform other general office tasks.
On April 6, 1994, McClanahan, then age 44, filed an
application with VRS seeking permanent disability retirement
benefits. In her application, McClanahan alleged that she could
no longer perform her job due to a nervous condition, heart
problems, high blood pressure, and herniated discs. McClanahan
had undergone back surgery in March 1993, was hospitalized for a
heart attack in November 1993, and had undergone heart by-pass
surgery in December 1993.
The Board reviewed medical records of Drs. Christopher J.
Kennedy, Thomas M. Bulle, Richard A. Feit, and J.P. Sutherland,
Jr. Those records revealed that McClanahan suffered from heart
disease with myocardial infarction. In December 1993, she
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underwent a revascularization. Both cardiologists, Drs. Bulle and
Kennedy, suggested that McClanahan undergo pulmonary function
tests and blood gases. The pulmonary function tests were not
performed, and the blood gases were normal.
In May 1994, Dr. Bulle noted that McClanahan had "some
perceived difficulty breathing," but he found normal lung fields
and heart size with no "cardiac basis for her dyspnea." Dr. Bulle
also noted that "based on her chest x-ray and clinic exam, I did
not see any primary pulmonary process either."
By letter dated October 27, 1994, the Board denied
McClanahan's application for permanent disability benefits.
McClanahan appealed that decision.
On appeal, McClanahan submitted additional medical evidence
including a psychological evaluation from Dr. L. Andrew Steward, a
licensed psychologist, dated September 29, 1994, and a physical
capabilities evaluation form completed by Dr. Steward. The Board
also reviewed Dr. Sutherland's office notes. Dr. Steward
diagnosed McClanahan as suffering from major severe depression,
recurrent, and a generalized anxiety disorder, consistent with
chronic pain syndrome due to a combination of major physical
problems, including a heart attack and back surgery. Dr. Steward
opined that "[t]he combination and severity of factors do make her
functionally disabled to work, and she will most likely be so
indefinitely."
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On March 14, 1995, Dr. Eric Moffett, a psychiatrist,
evaluated McClanahan at VRS's request. Dr. Moffett reviewed
McClanahan's medical records and her job description. Dr. Moffett
diagnosed McClanahan as suffering from mild major depression,
single episode. Dr. Moffett opined that McClanahan's depression
would readily respond to medication. Dr. Moffett recommended that
McClanahan receive appropriate psychotropic medication treatment
from a psychiatrist. Dr. Moffett opined as follows:
Given that treatment, it would be my
expectation that she would return to full
psychological functioning within four to six
months. I see no reason she would be
permanently disabled from performing her job
duties at that time. I also feel that
returning to work would help with her issues
of self-esteem and self-confidence.
Therefore, I believe she should return to
work for her psychological well being.
By letter dated April 12, 1995, the Board again denied
McClanahan's application. The Board noted that it had
previously found that McClanahan was not disabled by her heart
condition. The Board accepted Dr. Moffett's opinion that
McClanahan was not permanently disabled from a psychiatric
standpoint. McClanahan appealed that decision.
On June 23, 1995, the Social Security Administration awarded
benefits to McClanahan for a period of disability beginning on
November 27, 1993 through at least the date of the decision.
On August 31, 1995, R. Louis Harrison, Jr., Esquire, hearing
officer for VRS, conducted a fact finding hearing. At that
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hearing, McClanahan described her heart attack and her back
surgery. McClanahan described continuing symptoms of chest pain,
shortness of breath, and depression.
On November 3, 1995, Harrison issued his written decision
finding that McClanahan was not permanently disabled, relying
upon Dr. Moffett's report. With respect to McClanahan's
psychological problems, Harrison noted that, "[i]t is difficult
to grant a disability for an item when the patient has not
attempted to treat the condition." Harrison also found that
McClanahan failed to prove that her heart attack or back
condition were permanently disabling. McClanahan appealed
Harrison's decision.
On December 21, 1995, the Board issued its final case
decision again denying McClanahan's application. McClanahan
appealed that decision to the circuit court. In her petition
for appeal, McClanahan contended that VRS's decision was not
supported by substantial evidence, represented an arbitrary and
capricious denial of benefits, and constituted an abuse of
discretion. On March 15, 1996, McClanahan moved for summary
judgment, indicating that there were no disputed facts in the
administrative record.
On October 8, 1998, the trial court issued its decision,
finding that substantial evidence existed in the record to
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support VRS's denial of benefits. McClanahan appealed to this
Court from that decision.
Applying the applicable standards of review to the record
made before the VRS, it is clear that although the physicians who
treated or examined McClanahan agreed that she sustained a heart
attack and back injury and that she suffers from depression, they
disagreed concerning the extent of her condition and her
disability. Dr. Moffett opined that McClanahan suffered from mild
depression and was not permanently disabled from a psychiatric
standpoint. He opined that with proper medication, she would be
able to work within four to six months. In addition, Dr. Bulle,
the cardiologist, found no cardiac basis for McClanahan's dyspnea
and opined that she could return to work as of March 2, 1994. VRS
chose to believe the opinions of Drs. Moffett and Bulle and to
lend less weight to Dr. Steward’s opinion, as it was entitled to
do. See Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407
S.E.2d 32, 35 (1991) ("The appellate court does not retry the
facts, reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses."). Guided by
the "substantial evidence" standard of review, we find that the
opinions of Drs. Bulle and Moffett, when considered with the
entire record, are adequate to support VRS's decision. Thus, the
trial court did not err in affirming VRS's denial of permanent
disability retirement benefits to McClanahan.
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Dale
Dale worked for the Buchanan County Health Department from
July 1, 1970 through October 14, 1994 as an office service
specialist. Her job duties required that she answer telephones,
register patients for clinics, pull and file charts for each
clinic, schedule appointments, work-up the charts after clinics,
pack materials needed for clinics outside of the office,
performing billing functions, make bank deposits, and pick up
mail.
On December 4, 1995, Dale, then age 45, filed an application
with VRS seeking permanent disability retirement benefits. She
alleged that neck, back, and head pain, as well as leg weakness
prevented her from performing her job. She also alleged that her
nerves were "messed up really bad" and that she suffered from
frequent panic attacks. Dale revealed that she had sustained the
neck, back, and right knee injuries in an October 14, 1994
automobile accident.
In a letter dated November 17, 1995, Dr. D.N. Patel indicated
that Dale had been under his care for accidental injury with neck
and back pain with "HNP C spine," low back syndrome with chronic
lumbar sprain, right knee sprain, severe anxiety neurosis and
depression associated with her pain syndrome, and cardiac
arrhythmia with angina pectoris. Dr. Patel noted that Dale
continued to suffer from severe neck and back pain. He opined
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that he did "not anticipate any gainful employment out of her. I
believe that she is totally and permanently disabled to work."
In December 1994, Dr. Matthew W. Wood, Jr., a neurosurgeon,
examined Dale upon referral from Dr. Patel. Dr. Wood found that
Dale had mild degenerative bulges of the C4, C5, and C6 discs.
Dale's CT scan of the lumbar spine was normal. Dr. Wood opined
that Dale had "typical musculoskeletal pain subsequent to a rear
ending accident."
On January 26, 1995, Dr. Wood examined Dale, who complained
of constant neck and left arm pain. Dr. Wood counseled Dale on
the "benign nature of her pain" and told her that he did not
believe she required surgery. He noted that an EMG suggested
early carpal tunnel syndrome and he placed Dale in a nocturnal
wrist splint and began vitamin B6 for that condition. Dr. Wood
recommended that Dale try cervical traction for her neck pain,
which he believed would gradually resolve with time.
On January 26, 1996, Dr. Jim C. Brasfield, a neurosurgeon,
examined Dale at the request of the Board. Dr. Brasfield reviewed
Dale's medical records and prior x-rays. Dr. Brasfield found no
evidence of cervical disc rupture and opined that Dale had a
cervical strain. Dr. Brasfield stated that Dale's left arm
discomfort was due to mild carpal tunnel syndrome. Dr. Brasfield
indicated that "[f]rom a purely physical standpoint, she has
absolutely no abnormalities that I can discern as being
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restrictive or disabling." Dr. Brasfield suggested that Dale
return to work in order to improve her neck symptoms. He
recommended that she undergo a bone scan and possibly a cervical
epidural block, and physical therapy, stating that "this would
bring the patient back to the full state of work without a
significant neck discomfort, and restore what appears to be a very
valuable employee to her pre-injury status."
Based upon this medical evidence, the Board denied Dale's
application by letter dated February 27, 1996. Dale appealed that
decision.
On appeal, Dale submitted additional medical evidence from
Donald W. Hodock, a licensed professional counselor, filing an
additional application alleging that her chronic pain had also
caused her to suffer severe depression. In a January 31, 1996
report, Hodock diagnosed Dale as suffering from a generalized
anxiety disorder and a dysthymic disorder. He recommended that
she engage in individual counseling and that her status be
re-evaluated in six months. Hodock indicated that "the prognosis
for her to do well is fair to poor."
On April 2, 1996, Dale was evaluated by William Brezinski, a
licensed psychologist, to obtain information for her application
for Social Security disability benefits. Brezinski diagnosed
major depression, moderately severe to severe, post-traumatic
stress disorder, moderate, generalized anxiety disorder, moderate,
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panic disorder with developing agoraphobia and multiple sequelae
from motor vehicle accident by history. Brezinski opined that
Dale was "disabled for all substantial gainful employment at the
present time."
On September 23, 1996, Dr. Moffett evaluated Dale at VRS's
request. Dr. Moffett diagnosed Dale as suffering from major
depression, panic disorder, and cervical strain. Dr. Moffett
noted that Dale was not on any medication to treat her depression
and panic disorder. Dr. Moffett noted that Dale was not able to
work at the current time because she had not received appropriate
psychiatric treatment. He opined that if Dale were provided such
treatment, her symptoms would significantly improve and possibly
totally remit within six to twelve months. Dr. Moffett did not
believe that Dale was disabled from a psychiatric standpoint and
opined that it would be beneficial for her to return to work.
By letter dated October 21, 1996, the Board again denied
Dale's application, relying upon Dr. Brasfield's normal
neurological examination and Dr. Moffett's psychiatric
consultation. Dale appealed that decision and submitted
additional medical evidence from Dr. Joshua P. Sutherland, Jr.
Dr. Sutherland indicated that Dale suffered from multiple complex
problems including irritable bowel syndrome, reflux esophagitis,
severe musculoskeletal disorder associated with the cervical
spine, lumbar spine, and right knee, panic disorder with
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agoraphobia, post-traumatic migraines, and severe synotenovitis
and traumatic arthralgia of the right knee. Sutherland opined
that Dale's "overall prognosis is extremely poor" and that
"[t]here is a strong indication that the type of injury is a
permanent injury and the patient will have to deal with it on both
a physical and emotional status."
On April 16, 1997, Harrison conducted a fact finding hearing.
At that hearing, Dale described her neck, back, leg and arm
symptoms, as well as her emotional difficulties.
On May 5, 1997, Harrison issued his written opinion,
concluding that the psychiatric evidence failed to show a
permanent disability due to the lack of treatment thus far to
address the problem and the fact that Dale believed that her
emotional difficulties were largely due to her physical problems.
Harrison also found that Dale's physical problems were not
permanently disabling, although "aggravating." In rendering his
decision, Harrison relied heavily upon the opinions of Drs.
Moffett and Brasfield. Dale appealed from Harrison's decision.
On May 22, 1997, VRS issued its final case decision, finding
again that Dale had failed to prove that her disability was likely
to be permanent. Dale appealed that decision to the circuit
court. In her petition for appeal, Dale alleged that VRS's
decision was not supported by substantial evidence, represented an
arbitrary and capricious denial of benefits, and constituted an
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abuse of discretion. On October 9, 1997, Dale moved for summary
judgment.
On October 19, 1998, the trial court issued its written
opinion affirming VRS's denial of benefits on the ground that
"[t]he record . . . does not reveal a sound or valid reason why
[VRS] was not entitled to accept the medical evidence of Dr.
Moffett." Dale appealed from that decision to this Court.
Applying the applicable standard of review to the record made
before the VRS, it is clear that although the physicians who
treated or examined Dale agreed that she suffers from various
physical ailments and emotional problems, they disagreed about the
severity of her condition and her disability. Dr. Moffett opined
that although Dale suffered from depression, her condition was
treatable and was not permanently disabling from a psychiatric
standpoint. He opined that with proper medication, she would be
able to return to full duty within six to twelve months. In
addition, Dr. Brasfield, the neurologist, opined that from a
physical standpoint Dale's condition was not permanently disabling
and that she should return to work in order to improve her neck
symptoms. VRS chose to believe the opinions of Drs. Moffett and
Brasfield and to lend less weight to the opinions of Drs. Patel
and Brezinski and the professional counselor, Hodock, as it was
entitled to do. See Wagner Enters., Inc., 12 Va. App. at 894, 407
S.E.2d at 35 ("The appellate court does not retry the facts,
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reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses."). Guided by
the "substantial evidence" standard of review, we find that the
opinions of Drs. Moffett and Brasfield, when considered with the
entire record, are adequate to support VRS's decision. Thus, the
trial court did not err in affirming VRS's denial of permanent
disability retirement benefits to Dale.
Potter-Meadows
Potter-Meadows worked for Buchanan County Public Schools as a
teacher from August 1, 1976 through January 20, 1995.
On June 16, 1995, Potter-Meadows filed an application with
VRS seeking permanent disability retirement benefits.
Potter-Meadows alleged that bronchial asthma, frequent bronchial
pneumonia, high blood pressure, chronic diarrhea, depression,
anxiety attacks, headaches, arthritis, memory loss, and a short
concentration span prevented her from performing her job. The
medical records submitted by Potter-Meadows from Dr. Vinod Modi
indicated that Potter-Meadows suffered from asthmatic bronchitis
and chest pains of unknown etiology. Dr. Modi advised Potter-
Meadows to stop smoking.
By letter dated August 30, 1995, the Board denied
Potter-Meadows' application, finding that she was not permanently
disabled by her bronchial asthma. Potter-Meadows appealed that
decision and submitted additional medical records.
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Those records revealed that Potter-Meadows underwent
umbilical hernia repair on April 19, 1995. On August 22, 1995,
Dr. James Eden, a psychiatrist, evaluated Potter-Meadows. Dr.
Eden diagnosed a major affective disorder and generalized anxiety
disorder. He opined that her prognosis was poor. On September 5,
1995, Brian E. Warren, a licensed clinical psychologist, evaluated
Potter-Meadows for symptoms of depression. Warren opined that
Potter-Meadows' "loss of ability to work in many respects have
precipitated a major depressive episode." Warren opined that she
needed individual and group psychotherapy, as well as chemotherapy
to control her symptoms. Warren concluded that Potter-Meadows
should be re-evaluated in six to twelve months to assess her
progress.
On March 19, 1996, Dr. Moffett evaluated Potter-Meadows at
VRS's request. Dr. Moffett noted that Potter-Meadows had a
history of asthma and bronchitis and that she had been advised to
quit smoking, but that she continued to smoke one and one-half
packs of cigarettes per day. Dr. Moffett diagnosed major
depression, panic disorder, and asthma. Although Dr. Moffett
believed that Potter-Meadows was currently disabled from her job,
he opined that she had not had an adequate course of treatment
with psychiatric medications. Dr. Moffett opined that "with
adequate psychotropic mediation management in combination with
psychotherapy, [Potter-Meadows] should be able to return to her
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full functioning within the next six to twelve months." Dr.
Moffett did not believe that Potter-Meadows' current disability
was a "permanent condition."
By letter dated April 17, 1996, the Board again denied
Potter-Meadows' application, relying upon Dr. Moffett's opinion
that she needed more intensive treatment and that her disability
was not permanently disabling. Potter-Meadows appealed that
decision.
On December 23, 1996, Harrison conducted a fact finding
hearing. At that hearing, Potter-Meadows described her asthma
symptoms, as well as her depression symptoms, which she believed
prevented her from performing her job.
On February 19, 1997, Harrison issued his written decision,
finding that the evidence did not show that any of Potter-Meadows'
physical problems were permanently disabling. With respect to her
psychiatric problems, Harrison agreed that Potter-Meadows suffered
from depression, but relied upon Dr. Moffett's opinion that her
condition, if treated properly, was not permanently disabling.
Potter-Meadows appealed that decision, submitting a physical
capabilities evaluation from Dr. Lois March.
On March 6, 1997, VRS issued its final case decision, finding
that the medical evidence did not prove that Potter-Meadows'
incapacity was likely to be permanent. Potter-Meadows appealed
that decision to the circuit court. In her petition for appeal,
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Potter-Meadows alleged that VRS's decision was not supported by
substantial evidence, represented an arbitrary and capricious
denial of benefits, and constituted an abuse of discretion. On
June 16, 1997, Potter-Meadows moved for summary judgment.
On October 19, 1998, the trial court issued its written
opinion affirming VRS's denial of benefits and relying upon its
reasoning in the McClanahan and Dale cases. The trial court
determined from its review of the record "that there was credible
evidence that might lead a reasonable person to come to the same
conclusion that [VRS] reached." Potter-Meadows appealed from that
decision to this Court.
Applying the applicable standards of review to the record
made before VRS, it is clear that although the physicians who
treated or examined Potter-Meadows agreed that she suffers from
various physical ailments and emotional problems, they disagreed
concerning the severity of her condition and her disability. Dr.
Moffett opined that although Dale suffered from depression, her
condition was treatable and was not permanently disabling from a
psychiatric standpoint. Moreover, from a physical standpoint, no
evidence showed that her bronchial asthma and umbilical hernia
were permanently disabling. VRS chose to believe Dr. Moffett's
opinion and to lend less weight to the opinions of Drs. Eden,
Warren, and March, as it was entitled to do. See Wagner Enters.,
Inc., 12 Va. App. at 894, 407 S.E.2d at 35. Guided by the
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"substantial evidence" standard of review, we find that Dr.
Moffett's opinion, when considered with the entire record, is
adequate to support VRS's decision. Thus, the trial court did not
err in affirming VRS's denial of permanent disability retirement
benefits to Potter-Meadows.
II.
McClanahan, Dale, and Potter-Meadows raise this issue for
the first time on appeal. Contrary to their contention on
appeal, nothing in the record indicates that at any time before
the Board, VRS, or the trial court did they argue that Code
§ 51.1-156 is vague and unconstitutionally delegates authority
to the Board and private physicians. Accordingly, Rule 5A:18
bars our consideration of this issue. See Overhead Door Co. of
Norfolk v. Lewis, 29 Va. App. 52, 61-62, 509 S.E.2d 535, 539-40
(1999) (claimant who failed to raise due process argument before
workers' compensation commission barred from raising it for
first time on appeal); Parnell v. Commonwealth, 15 Va. App. 342,
349, 423 S.E.2d 834, 838 (1992) (defendant who failed to
challenge constitutionality of statute in trial court barred
from raising that issue on appeal). Moreover, the record does
not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.
The reliance of McClanahan, Dale, and Potter-Meadows upon
the Supreme Court's holding in Almond v. Day, 197 Va. 419, 89
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S.E.2d 851 (1955), in support of their argument that this Court
should consider their constitutional argument for the first time
on appeal, is misplaced. In Almond, the Attorney General
petitioned for a writ of mandamus pursuant to Code § 8-714
against the State Comptroller "to determine the validity of [a
statute] which appropriat[ed] funds for the 'education of
orphans of soldiers, sailors and marines' who were citizens of
Virginia and were 'killed in action or died, or who were totally
and permanently disabled as a result of service during the World
War.'" Id. at 420, 89 S.E.2d at 852. Code § 8-714 (now
§ 8.01-653) requires consideration of constitutional questions
on a writ of mandamus, thereby distinguishing Almond from this
case.
For the reasons stated, we affirm the trial court's
decisions in all three cases.
Affirmed.
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