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DALE v. VA RETIREMENT SYSTEM


DALE

v.

VIRGINIA RETIREMENT SYSTEM

(unpublished)


JUNE 22, 1999

Record No. 2756-98-3, 2752-98-3, 2757-98-3

RUTH C. DALE

v.

VIRGINIA RETIREMENT SYSTEM


LACY POTTER-MEADOWS

v.

VIRGINIA RETIREMENT SYSTEM


BARBARA C. McCLANAHAN

v.

VIRGINIA RETIREMENT SYSTEM

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY

Keary R. Williams, Judge

Present: Judges Elder, Bumgardner and Lemons

MEMORANDUM OPINION* PER CURIAM

(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. 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
Sect. 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
Sect. 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
Sect. 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 Sect. 9-6.14:17. "The phrase ‘substantial
evidence’ refers to ‘such relevant evidence as a reasonable mind might
accept as adequate to support a 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 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."

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 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 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.

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 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 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, 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
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 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, 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.

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 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, 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 "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 Sect. 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 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 Sect. 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 Sect. 8-714 (now

Sect. 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.

*Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.

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