Sherri A. Artrip v. Virginia Retirement System ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
SHERRI A. ARTRIP
MEMORANDUM OPINION *
v. Record No. 2711-98-3 PER CURIAM
JUNE 22, 1999
VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Donald A. McGlothlin, Jr., Judge
(John M. Lamie; Browning, Lamie &
Sharp, P.C., on briefs), for appellant.
(Mark L. Earley, Attorney General; James W.
Osborne, Assistant Attorney General, on
brief), for appellee.
Sherri A. Artrip (Artrip) appeals an order of the trial court
which affirmed a decision by the Virginia Retirement System (VRS)
denying her claim for permanent disability retirement. Artrip
contends that (1) the trial court erred in finding that there was
substantial evidence to support VRS's denial of benefits on the
ground that she failed to prove that her 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 whether such person is
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
permanently impaired. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the trial court’s decision. See
Rule 5A:27.
I.
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).
Artrip, who was born on May 13, 1961, worked for the
Department of Motor Vehicles (DMV) from 1988 through September 21,
1995. She has not worked since that date. Artrip's job as an
administrative assistant to the District Manager required that she
handle miscellaneous administrative duties for the DMV.
On September 26, 1995, Artrip applied for retirement benefits
from VRS. She cited chronic fatigue syndrome ("CFS"),
Epstein-Barr virus infection, and fibromyalgia as her disabling
conditions. Her treating physician, Dr. Dwight L. Bailey, and a
rheumatologist, Dr. Christopher R. Morris, opined that Artrip
suffered from CFS or fibromyalgia. Dr. Bailey noted Artrip's
positive Epstein-Barr test. In his October 3, 1995 physician's
report, Dr. Bailey stated that Artrip was totally disabled, but
that "disability is undeterminable at this time." Dr. Morris did
not comment on the extent of Artrip's disability.
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In response to Artrip's application, the Medical Review Board
("the Board") reviewed the medical evidence and held in its
February 14, 1996 letter opinion that "'[t]he information
submitted does not meet the criteria for a chronic or disabling
condition and [Artrip] is not felt to be permanently disabled.'"
On March 2, 1996, Dr. Bailey opined in a letter to VRS that
Artrip suffered from CFS and fibrositis. Dr. Bailey stated that
"it appears that [Artrip] is going to be permanently disabled from
this illness. She has been on multiple medical regimens requiring
physical therapy and multiple steroid injections with little
improvement." On March 20, 1996, Artrip appealed the Board's
February 14, 1996 denial of benefits.
On May 13, 1996, pursuant to VRS's request, Dr. Eric Moffett,
a psychiatrist, examined Artrip. Moffett also reviewed the
medical records of Drs. Bailey and Morris. Dr. Moffett opined
that Artrip's "current level of psychiatric disturbance is not
significant enough to warrant her remaining off work." Dr.
Moffett declined to comment on the fibromyalgia and/or CFS, as he
is not an expert in those areas. Dr. Moffett recommended that
Artrip "be encouraged to return to some type of employment to aid
with issues of self-esteem and improve her overall psychiatric
functioning."
On June 6, 1996, the Board again denied Artrip's claim for
benefits finding that she had failed to prove that her conditions
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resulted in permanent disability. Again, Artrip appealed VRS's
decision. On September 25, 1996, Artrip submitted additional
evidence from Dr. Bailey. However, that medical evidence did not
shed any light on the precise issue of the extent of Artrip's
disability.
On October 14, 1996, R. Louis Harrison, Jr., Esquire, hearing
officer for VRS, conducted a fact finding hearing. At that
hearing, Artrip described her CFS and fibromyalgia symptoms.
In a December 28, 1996 psychological evaluation performed by
Sharon J. Hughson, Ph.D., a licensed clinical psychologist for the
Social Security Administration, Hughson recommended a referral of
Artrip to an inpatient Chronic Pain Management Program, but she
did not specifically comment on the extent of Artrip's disability.
On March 14, 1997, Dr. Daniel M. Camden examined Artrip at
the request of VRS. Dr. Camden opined that Artrip was currently
disabled, but that her disorders were treatable and she was not
permanently disabled. Dr. Camden opined that with appropriate
medical and psychiatric treatment, an exercise program, and a
reduction in the multiple medications consumed by Artrip, that she
had the capacity to return to a reasonably functional state.
On April 2, 1997, the Social Security Administration awarded
benefits to Artrip for a period of disability beginning on August
17, 1995 through at least the date of the decision.
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Harrison issued his written decision on June 2, 1997.
Harrison reviewed the record in detail and determined "that
[Artrip] was not likely to be permanently disabled," a finding
that VRS adopted in its "final case decision" on June 20, 1997.
In affirming VRS's action on appeal, the trial court ruled that
"substantial evidence" supported the ruling.
"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
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 conclusion.'" Virginia Real
Estate Comm'n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125
(1983) (citation omitted).
Applying these standards to the record made before the VRS,
it is clear that although the physicians who treated or examined
Artrip agreed that she suffers from some type of condition, they
disagreed concerning the extent of her disability. Significantly,
Dr. Moffett opined that Artrip was not permanently disabled from a
psychiatric standpoint, and Dr. Camden opined that Artrip's
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conditions were treatable and not permanently disabling. VRS
chose to believe the opinions of Drs. Moffett and Camden and to
lend less weight to Dr. Bailey's opinions, 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."). The
remaining physicians did not directly comment upon the extent of
Artrip's disability. Guided by the "substantial evidence"
standard of review, we find that the opinions of Drs. Moffett and
Camden, 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 Artrip.
II.
Artrip raises this issue for the first time on appeal.
Contrary to her contention on appeal, nothing in the record
indicates that at any time before the Board, VRS, or the trial
court did she argue that Code § 51.1-156 is vague and
unconstitutionally delegates authority to the Board and private
physicians, as she does now before this Court. Accordingly,
Rule 5A:18 bars our consideration of this issue. See also
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
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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.
Artrip's reliance upon the Supreme Court's holding in
Almond v. Day, 197 Va. 419, 89 S.E.2d 851 (1955), in support of
her argument that this Court should consider her 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
decision.
Affirmed.
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