Mickey L. Rhoades v. Virginia Retirement System ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Malveaux
Argued at Richmond, Virginia
UNPUBLISHED
MICKEY L. RHOADES
MEMORANDUM OPINION* BY
v. Record No. 2104-17-2 JUDGE MARY BENNETT MALVEAUX
DECEMBER 18, 2018
VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Joi J. Taylor, Judge
Bruce K. Billman for appellant.
Brian J. Goodman, Legal Affairs & Compliance Coordinator,
Virginia Retirement System (Mark R. Herring, Attorney General;
Stephen A. Cobb, Deputy Attorney General; Heather Hays
Lockerman, Senior Assistant Attorney General/Section Chief, on
brief), for appellee.
Mickey L. Rhoades appeals a decision of the Circuit Court of the City of Richmond
affirming the final case decision of the Virginia Retirement System (“VRS”) denying her claim for
disability retirement benefits. She contends the circuit court erred in ruling that the denial by VRS
was supported by substantial evidence. We affirm the decision.
I. BACKGROUND
“We view the evidence in the light most favorable to VRS, the prevailing party below.”
Hedleston v. Va. Ret. Sys., 62 Va. App. 592, 594 (2013).
In January 2012, Rhoades developed extreme headaches. She woke up one day with
intense pain in her right ear, which rapidly progressed to complete facial paralysis on the right
side of her face. Rhoades’ hearing in her right ear was temporarily reduced, but it improved.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
She visited an emergency room and was treated with steroids and antiviral medication. Rhoades
was diagnosed with Bell’s palsy. In February 2012, Rhoades continued to experience extreme
headaches and eye strain. In April 2012, she had acupuncture treatments, which she stated “may
have helped her some.” In June 2012, Rhoades made “some recovery” from the January 2012
episode, and was able to start to close her right eye and draw her face up on the right side. Later
that month, Dr. Bruce Redmon, an ear, nose, and throat specialist (“ENT”), reported that
Rhoades was “making slow progress.” She had voluntary movement of the mid-face and could
close her right eye, but she had no significant movement of her forehead or the corner of her
mouth.
In August 2012, Rhoades was evaluated by Dr. Christopher Moore at the University of
Virginia Health System. She reported less pain and mild improvement in the movement of her
face, but still noted some facial weakness and eye watering.
In January 2013, Rhoades saw Dr. Redmon for a follow-up appointment. He reported
that she still had some residual weakness of the right side of the face, but her facial tone at rest
had improved significantly, and she also had significant improvement in the movement of her
right face.
Rhoades saw Dr. Kofi Boahene, an ENT at Johns Hopkins Medicine, in December 2013.
He opined that her January 2012 episode was more likely Ramsay Hunt syndrome1 than Bell’s
palsy. He reported that Rhoades had chronic right-sided facial paralysis and wanted to approach
the condition in a “conservative manner.” Boahene recommended facial retraining exercises
followed by Botox treatments of muscles in the neck and around the eye.
1
Ramsay Hunt syndrome is characterized in part by severe facial palsy and may result in
deafness, tinnitus, and vertigo. Taber’s Cyclopedic Medical Dictionary 1992 (23d ed. 2017)
(defining “Ramsay Hunt syndrome”).
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Rhoades received physical therapy at Johns Hopkins Hospital, The National
Rehabilitation Hospital, and The Jackson Clinics. A therapist’s record from Rhoades’ visit to
The Jackson Clinics on January 1, 2014, noted that her “rehab potential is fair to make
significant functional gains in a reasonable length of time with the skilled intervention of the
physical therapist.”
However, in a letter to VRS dated June 20, 2014, Rhoades stated that no treatment she
had received since developing right side facial paralysis had been successful and that the
condition caused her severe and constant pain and headaches, along with reduced right side
peripheral vision.
At the time of her initial episode in January 2012, Rhoades was employed as a housing
advocate for the City of Manassas. She left that position in June 2013 not because of her health,
but “because the grant ran out.” On August 12, 2013, she became employed as a zoning
administrator/planner for the Town of Round Hill. A job description for the position noted that
its primary job duties included the following: analyzing and reviewing development plans;
interpreting and enforcing the town’s zoning ordinance; reviewing, updating, and revising the
town’s planning, zoning, and land use documents; preparing background information for public
hearings; preparing staff reports; researching and writing grant applications; and performing
special projects and studies as requested.
In November 2013, Rhoades’ supervisor told her that the town council was dissatisfied
with her performance and that she was disorganized and did not pay attention at meetings.
During a January 2014 disciplinary meeting, she was given an improvement plan. In the plan,
Rhoades was informed that her “performance in the areas of organization, preparation, and
assuming responsibility ha[d] not met the [c]ouncil’s expectations” and that her performance in
these areas needed to improve within a three-month period.
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On April 29, 2014, Rhoades was terminated from her position with the Town of Round
Hill. In a June 2014 letter to VRS, Rhoades stated that the Town of Round Hill had terminated
her employment because she was not “meeting the requirements of the job.” However, on June
16, 2014, a human resources representative for the Town of Round Hill completed a form stating
that Rhoades was performing all of the duties listed on the job description for her position.
On May 12, 2014, Rhoades filed an application with VRS for disability retirement
benefits pursuant to the provisions of Code § 51.1-156(E). She cited facial paralysis and
headaches due to the paralysis as her disabling conditions and indicated that these conditions
prevented effective oral presentation and hindered her ability to concentrate and make clear
decisions.
In the physician’s report section of the application, Dr. George Stergis, a neurologist,
stated that Rhoades had a diagnosis of Ramsay Hunt syndrome with a date of onset of January
2012. Dr. Stergis also opined that Rhoades’ “uncontrolled facial pain” prevented her from
performing her work duties and that she became unable to work beginning May 7, 2014. When
asked to indicate what improvement Rhoades could expect within one year of treatment,
Dr. Stergis stated, “None.” He checked a box indicating “yes” when asked if he considered
Rhoades to be permanently disabled from performing her work duties.
On July 10, 2014, the Medical Board conducted an initial review of Rhoades’ case.2 The
Medical Board recommended denying Rhoades’ application for disability, noting that Rhoades’
disabling condition was “self-limiting” and that she did not have a permanent neurological
2
The Medical Board is “composed of physicians or other health care professionals who
are not eligible to participate in” VRS. Code § 51.1-124.23(A). Among other duties, the
Medical Board is charged, by statute, with “[i]nvestigating all essential health and medical
statements and certificates filed in connection with disability retirement” and “[s]ubmitting to
[VRS] a written report of its conclusions and recommendations on all matters referred to it.”
Code § 51.1-124.23(B)(2) and (B)(3).
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disability which would prevent her from performance of her work duties. VRS denied Rhoades’
application on July 14, 2014. Rhoades sought review within VRS, submitting new letters and
medical records from Dr. Stergis and Dr. Stefan Dupont.
The letter submitted from Dr. Stergis was dated July 14, 2014, and in it he wrote that
Rhoades “remained symptomatic as [her] recovery has been incomplete” and “requires
medications that have unfortunately caused her to become forgetful and inattentive.” Dr. Stergis
wrote that alternative pain management strategies had proven “useless,” and as a result Rhoades
was unemployable “as she cannot learn new information.”3
Rhoades submitted new medical records from an August 15, 2014 visit to Dr. Stefan
Dupont, a vascular neurologist in Akron, Ohio. The notes from this visit indicate that Rhoades’
facial pain had worsened and that the frequency of this pain was persistent. The notes further
indicate that Botox treatments had not been helpful. The recommended treatment was for
Rhoades to enroll in a chronic pain rehabilitation program at Cleveland Clinic Hospital. In a
letter dated September 2, 2014, Dr. Dupont opined that Rhoades’ facial paralysis would not
improve and that she had a permanent neurological disability which would prevent her from
adequately performing her previous duties.
On October 29, 2014, the Medical Board reviewed Rhoades’ submitted documentation in
its second review of her claim. The Medical Board continued to recommend the denial of
Rhoades’ application. It stated that Rhoades’ recommended treatment was facial exercises and
Botox and that she had not provided additional objective treatment documentation regarding her
response to this treatment. It also noted that Rhoades had reported memory impairment, but her
reported pain medication did not have a typical adverse reaction of memory impairment.
3
Dr. Stergis had previously opined in notes from a visit by Rhoades on May 20, 2014,
that Rhoades was “unable to commute to a job” and “unemployable.”
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Further, she had not had any objective testing of her cognitive functions such as a neurocognitive
evaluation. Additionally, the Medical Board stated that Rhoades might benefit from
interventional pain management for her facial pain and that there were different surgical options
to correct for facial asymmetry. It concluded that Rhoades had not had “all therapeutic options
which may provide significant improvement in her condition.” On October 30, 2014, VRS again
denied Rhoades’ application.
Rhoades again sought review of this decision within VRS. She submitted additional
evidence, including medical records from Cleveland Clinic Hospital and a questionnaire
completed by Dr. Stergis.
The medical records from Cleveland Clinic Hospital’s Pain Management Center indicate
that on October 6, 2014, Rhoades was evaluated by Dr. Robert Bolash. Rhoades reported
right-sided facial pain and numbness in her upper arm and hand. She also stated that she was
unable to fully close her mouth, had difficulty concentrating, and had tremors in her neck, right
eye, and anterior facial muscle when she was exhausted. The records from this visit indicate that
Rhoades reported that she had Botox treatments in November 2013 at Johns Hopkins and that the
Botox relieved 90% of her pain symptoms but wore off after six months.
The records from Cleveland Clinic Hospital also indicated that on November 7, 2014,
Rhoades had a spinal MRI which revealed mild degenerative changes in the cervical spine.
On December 29, 2014, Rhoades again visited Cleveland Clinic Hospital’s Pain
Management Center. She reported cervical spasms and pain in her neck and right face. She also
reported that her facial pain had worsened two months earlier, at which point she visited the
emergency room. The notes reflect that Rhoades did not respond well to Lyrica medication, but
that she had responded to Botox injections to cervical muscles in the past “with > 75% pain
reduction for 9 months.” Rhoades was given Botox injections during the visit. Dr. Bolash
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reported that Rhoades’ right-sided facial droop had improved since her last visit. He also
changed her medication from Lyrica to another medication.
In a questionnaire completed on March 17, 2015, Dr. Stergis indicated that he last saw
Rhoades on May 20, 2014, after which she moved to Ohio. When asked whether, to a
reasonable degree of medical probability, Rhoades’ condition was expected to improve in the
future, Dr. Stergis checked “yes.” However, he checked “no” when asked if Rhoades’ ability to
function on an eight-hour day, five-day per week basis was expected to improve in the future.
He noted that his answers were “based on [Rhoades’] last exam.”
On April 16, 2015, the matter was heard before a hearing officer. During the hearing,
Rhoades stated that physical therapy did not really help her condition and “[s]ometimes it made
it worse.” Rhoades testified that when she appeared confused at her job, it was because she was
“concentrating on the pain” rather than the job. She stated that she was terminated because “at
that point [she] couldn’t do [her] job.”
On May 18, 2015, the Medical Board completed a third review of Rhoades’ claim. The
Medical Board noted that Rhoades had an MRI which showed only mild degenerative changes.
It also noted that Rhoades had received Botox injections and reported having 75% improvement
in her symptoms. The Medical Board continued to find no objective evidence of a permanent
neurological impairment, and again recommended denial of Rhoades’ application.
On June 15, 2015, the hearing officer issued his decision. He concluded that the medical
reports and the evidence adduced at the informal fact-finding hearing demonstrated that Rhoades
did not satisfy the disability retirement requirements of Code § 51.1-156. The hearing officer
noted that “[s]everal doctors have concluded that [Rhoades] is disabled due to RHS [Ramsay
Hunt syndrome]; however, their reports do not explain why several treatment options noted
elsewhere in the record will not work and alleviate her pain and blurred vision.” Further, the
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hearing officer found that Rhoades was terminated “for disorganization, lack of professional
image in public meetings, poor preparation, failure to forward emails and lack of responsibility,”
and thus “the case record documents inadequate job performance, not incapacity from a medical
condition.” The hearing officer also noted that after her January 2012 episode of Ramsay Hunt
syndrome, Rhoades returned to work at the City of Manassas and was later hired by the Town of
Round Hill; “[i]n view of these facts, her facial pain and blurred vision cannot be said to have
incapacitated her.”
On August 25, 2015, VRS issued a final case decision denying Rhoades’ application. In
its final case decision, VRS found that Rhoades was not incapacitated for the further
performance of duty and that even if it were to find that she was incapacitated, the medical
evidence does not demonstrate that such incapacity was likely to be permanent.
On October 22, 2015, Rhoades filed a petition for appeal of the final case decision to the
circuit court. The circuit court affirmed VRS’s final case decision denying Rhoades’ application
for disability retirement benefits. The court found substantial evidence in the administrative
record to support VRS’s findings that Rhoades was not disabled under Code § 51.1-156 and that
her condition lacked permanency.
Rhoades now appeals the decision of the circuit court.
II. ANALYSIS
On appeal, Rhoades argues that the circuit court erred in finding that substantial evidence
supported VRS’s findings that (1) she was not incapacitated for the further performance of her
duties as a zoning administrator/planner, and (2) if she was incapacitated, her incapacity was not
likely to be permanent.4
4
On appeal to this Court, Rhoades also assigned error to VRS’s determination that she
was not entitled to disability retirement because her condition existed at the time she became a
VRS member and the medical evidence did not indicate that her condition substantially
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In an appeal of an agency decision, “the party complaining of the agency action must
demonstrate an error of law, which error may include ‘the substantiality of the evidentiary
support for findings of fact.’” Va. Ret. Sys. v. Blair, 64 Va. App. 756, 763 (2015) (quoting Code
§ 2.2-4027).
The meaning and application of the substantial evidence standard
in the context of appellate review have been long established. As
we have stated on numerous occasions, an appellate court applying
the substantial evidence standard may “reject an agency’s factual
findings only if, considering the record as a whole, a reasonable
mind would necessarily come to a different conclusion.
“Substantial evidence” refers to such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”
Id. at 765 (quoting Doctors’ Hosp. of Williamsburg, LLC v. Stroube, 52 Va. App. 599, 607
(2008)). In making the substantial evidence determination, “the reviewing court shall take due
account of the presumption of official regularity, the experience and specialized competence of
the agency, and the purposes of the basic law under which the agency has acted.”
Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242 (1988).
A. Incapacitated for Further Duty
Code § 51.1-156(E) sets the standard for disability retirement for VRS. The statute
provides, in pertinent part, that a member may be retired for disability after the Medical Board
certifies that “the member is and has been continuously since the effective date of retirement if
prior to filing of the notification, mentally or physically incapacitated for the further performance
of duty.” Code § 51.1-156(E)(i).
worsened during her employment. However, as both parties acknowledged at oral argument, the
circuit court found that VRS had abused its discretion in finding that her condition pre-existed
her membership in VRS. Therefore, as the circuit court has already ruled in Rhoades’ favor on
this issue, we do not consider Rhoades’ argument regarding the existence of her condition at the
time she became a VRS member.
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Rhoades argues that substantial evidence did not support VRS’s decision that she is not
incapacitated for the further performance of her duties as a zoning administrator/planner. In
support of her argument, Rhoades points to the job description she provided and the
improvement plan she was given by the Town of Round Hill which stated that she was not
“meeting the [c]ouncil’s expectations.” Rhoades argues that the evidence established that her
termination was for a medical reason rather than for performance reasons. She notes that several
doctors concluded that she was disabled by Ramsay Hunt syndrome and several medical reports
acknowledged that her condition is capable of producing pain, which she stated caused her poor
work performance because she was “concentrating on the pain rather than [her] job.”
However, we find that the administrative record supports VRS’s finding that Rhoades
was not incapacitated for the further performance of duty under Code § 51.1-156(E). At the time
of her initial episode in January 2012, Rhoades was employed as a housing advocate for the City
of Manassas. She left that position in June 2013 not because of her health, but “because the
grant ran out.” On August 12, 2013, she began work as a zoning administrator/planner for the
Town of Round Hill. While Rhoades continued to seek treatment for her condition during this
time period, the hearing officer noted that after Rhoades’ January 2012 episode of Ramsay Hunt
syndrome, she returned to work at the City of Manassas and was later hired by the Town of
Round Hill. She still was able to return to work and obtain a new job while experiencing
symptoms of her medical condition. In addition, following her termination, a human resources
representative of the Town of Round Hill filled out a form stating that Rhoades was performing
all of the duties listed on the job description for her position when she was terminated.
Further, Dr. Stergis opined Rhoades was “unemployable” and “permanently disabled” in
May and July 2014, after Rhoades’ termination from employment in April 2014. None of
Rhoades’ treating physicians opined that she was unable to work due to her disabling condition
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prior to her termination in April 2014. Dr. Stergis specifically opined that the date Rhoades
“became unable to work” was May 7, 2014.
While there may be contrary evidence in the record in the form of Rhoades’ testimony
that her poor job performance was due to her pain, this does not compel the conclusion that there
was not substantial evidence to support VRS’s alternate conclusion. Rather, we examine
whether substantial evidence supported VRS’s determination. See Blair, 64 Va. App. at 769
(“The existence of evidence in the record supporting a contrary conclusion does not establish that
there is not substantial evidence in the record to support an agency’s determination.”). Under the
substantial evidence standard, this Court “reject[s] an agency’s factual findings only if,
considering the record as a whole, a reasonable mind would necessarily come to a different
conclusion.” Id. at 765 (quoting Stroube, 52 Va. App. at 607). Considering the record as a
whole, we cannot say that a reasonable mind necessarily would come to a different conclusion
from the one reached by VRS. Further, we have “also observed that ‘the deference that we give
to the [agency’s] fact finding on medical questions is based upon the “unwisdom of an attempt
by . . . [courts] uninitiated into the mysteries [of the medical science debate] to choose between
conflicting expert medical opinions.”’” Johnson v. Virginia Ret. Sys., 30 Va. App. 104, 111
(1999) (alterations in original) (quoting Stancill v. Ford Motor Co., 15 Va. App. 54, 58 (1992)).
Therefore, we find that substantial evidence supports VRS’s finding that Rhoades was not
incapacitated for the further performance of her duties as a zoning administrator/planner.
B. Likelihood of Permanency
Rhoades further argues substantial evidence did not support VRS’s decision that she
failed to show that her condition is likely to be permanent. Code § 51.1-156(E) provides that, for
a member to qualify for disability retirement benefits, the Medical Board “shall certify that
(i) the member is and has been continuously since the effective date of retirement if prior to
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filing of the notification, mentally or physically incapacitated for the further performance of
duty, (ii) the incapacity is likely to be permanent, and (iii) the member should be retired.” We
have already held under Rhoades’ first assignment of error that VRS did not err in determining
that she was not incapacitated. Because this holding is dispositive as to whether VRS erred in
denying Rhoades’ application for disability retirement benefits, we need not address her
argument regarding permanency.
III. CONCLUSION
For the reasons set forth above, we conclude that the circuit court did not err in affirming
VRS’s decision denying Rhoades’ application for disability retirement benefits.
Affirmed.
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