Phyllis M. Baumann v. Virginia Retirement System ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
PHYLLIS M. BAUMANN
MEMORANDUM OPINION * BY
v. Record No. 1194-99-4 JUDGE ROBERT P. FRANK
AUGUST 29, 2000
VIRGINIA RETIREMENT SYSTEM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
Julian Karpoff (Karpoff & Title, on briefs),
for appellant.
Brian J. Goodman, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Phyllis M. Baumann (appellant) appeals the circuit court's
ruling that she was not entitled to disability retirement from the
Virginia Retirement System (Agency). On appeal, she contends the
circuit court erred in: 1) denying her leave to depose certain
witnesses, 2) denying admission of certain exhibits, 3)
"re-casting" the Agency's Medical Review Board findings, 4)
finding substantial evidence supporting the Agency's findings, and
5) failing to find the Agency's decision had been impermissibly
influenced by bias and arbitrariness. We disagree and affirm the
judgment of the trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Appellant was employed as an art teacher by the public
schools of Fairfax County from 1989 to 1996 and taught
kindergarten through sixth grade. She alleges that severe
reactions caused by art supplies and other materials present in
the school and her home environment incapacitated her from
performance of her job duties. As a result, she applied to the
Agency for disability retirement upon the basis of Multiple
Chemical Sensitivities Syndrome (MCS) and related conditions.
Upon filing of the application, appellant's medical records were
reviewed by the Medical Review Board 1 and subsequently she was
examined by an independent medical examiner, Dr. George W. Ward,
Jr.
In a letter dated October 23, 1996, Dr. Robert O. Williams,
coordinator for the Medical Review Board, opined that "multiple
chemical sensitivities" has been rejected as an established
organic disease by the American Academy of Allergy and
1
Code § 51.1-124.23(B) mandates that the Board shall:
1. Review all reports of medical
examinations required by this chapter.
2. Investigate all essential health
and medical statements and certificates
filed in connection with disability
retirement.
3. Submit to the Board a written
report of its conclusions and
recommendations on all matters referred to
it.
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Immunology and other medical organizations. He wrote, "However,
since the applicant is obviously deeply invested in this
concept, it may well constitute some active delusion." Dr.
Williams then referred appellant for an independent psychiatric
consultation. The consultation revealed no evidence of a
disabling psychiatric illness. Based on the consultation and
the medical records before it, the Medical Review Board found no
evidence of a disabling condition. The Agency, in its letter to
appellant, dated February 5, 1997, found no evidence of a
disabling condition.
In July 1997, Dr. Ward, the independent medical examiner,
evaluated appellant. He concluded appellant could not function
as an art teacher in the classroom. He wrote, "It would appear
unlikely and dubious that this patient with longstanding chronic
medical problems, will be able to perform effectively and
reliably as a teacher." Dr. Ward noted symptoms consistent with
bilateral conjunctivitis and bilateral rhinitis. Additionally,
Dr. Ward noted obesity, chronic fatigue, and elevated blood
pressure. Dr. Ward did not name the disabling disease and did
not mention MCS as a diagnosis.
The Medical Review Board rejected Dr. Ward's finding of
disability, and, in its August 15, 1997 letter, found the
evidence was limited to obesity, rhinitis and conjunctivitis.
The Board found none of these problems constituted evidence of
permanent disability.
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In accordance with the provisions of the Administrative
Process Act, the Agency designated a hearing officer to conduct
a hearing and submit a recommendation. See Code § 9-6.14:12.
The evidence submitted by appellant included medical reports by
Drs. Grace Ziem, James N. Baraniuk, Rosemary K. Sokas, Sheldon
Kress, Laura S. Welch, Frank R. Crantz, and Kimball J. Beck, and
the testimony of Dr. Ziem. 2 Also, the record included a report
of the independent medical examiner, Dr. Ward. The Agency
adduced no evidence other than the referenced independent
medical examination.
The independent fact finder, David D. Elsberg, reviewed the
report of Dr. Grace Ziem. Dr. Ziem diagnosed appellant as
suffering from MCS and chronic fatigue syndrome and a number of
other illnesses. Dr. Ziem stated that appellant has improved
"somewhat" since leaving her job. Dr. Ziem, as of her report,
had not completed all of the testing and therapy. Dr. Ziem
opined that appellant suffers from at least three severe
diseases, MCS, chronic fatigue syndrome, and fibromyalgia, any
one of which could be disabling. Elsberg was not persuaded by
Dr. Ziem's testimony that appellant was incapacitated, finding
2
These reports and Dr. Ziem's testimony are not included in
the record before this Court. While appellant recites
permanency findings of Drs. Beck, Welch and Baraniuk in her
brief, we will not consider those findings. Appellant must
provide an adequate record enabling this Court to determine
whether the trial court erred. See Smith v. Commonwealth, 16
Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).
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that Dr. Ziem saw appellant infrequently and was unsure of
appellant's medications. Further, Elsberg referred to the
Medical Review Board's position that MCS is not a disabling
disease. He recommended against disability benefits for
appellant.
Upon receiving additional information, the Medical Review
Board, in its June 3, 1998 letter, concluded, "[T]he Board and
its examiners have failed to find evidence of disease that would
be definable under Virginia Code Section 51.1-156(E) as
constituting grounds for permanent disability."
In its "final case decision," dated October 29, 1998, the
Agency denied disability retirement benefits, finding that
"[t]he medical evidence has not proven that your incapacity is
likely to be permanent." The Agency further found "no basis to
disagree with the independent fact finder." The Agency found
that appellant failed to meet her burden of proof.
She appealed the Agency's decision to the circuit court,
and moved for leave, pursuant to Rule 2A:15, to depose certain
witnesses, which motion was denied by an order entered February
26, 1999. On April 30, 1999, at the hearing on the petition,
appellant proffered certain exhibits, which were rejected, and
the court denied the petition by its order of the same date.
Appellant's proffered exhibits were: 1) the Agency's
interrogatory answer in a companion case involving MCS, 2) a
journal article that addressed MCS, 3) an Agency representation
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report in a case where the Agency awarded disability retirement
for MCS. The Circuit Court for Fairfax County affirmed the
denial of benefits, and this appeal followed.
II. ANALYSIS
Appellant's assignments of error 1, 2, 3 and 5 involve
identical issues. In four different arguments, appellant
contends the Agency expressed a "policy" that MCS is not a
recognized disease and the Agency acted in a biased and
arbitrary manner. A determination of whether there was such
bias and arbitrariness will resolve these four assignments.
Appellant first contends the circuit court erred in not
granting her leave to depose the Agency's Medical Review Board
Chief, Robert O. Williams, M.D., and Susan Weiss, who was
granted retirement disability based on MCS. Appellant claims
Dr. Williams and the Agency were biased and arbitrary and that
deposing them would confirm her position. 3
Part Two A of the Rules of the Virginia Supreme Court
governs appeals from a case decision of an agency pursuant to
the Virginia Administrative Process Act. Rule 2A:5 provides as
follows:
Further proceedings shall be held as in a
suit in equity and the rules contained in
Part Two, where not in conflict with the
3
Appellant claims that since the two reports of Dr. Ward
were in conflict, he must have been prejudiced by "command
influence." However, the record includes only one of Dr. Ward's
reports so we cannot compare the two for conflict, and we,
therefore, will not consider this issue on appeal.
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Code of Virginia or this part, shall apply,
but no matter shall be referred to a
commissioner in chancery. The provisions of
Part Four shall not apply and, unless
ordered by the court, depositions shall not
be taken.
Rule 2A:5 clearly excludes discovery for administrative
appeals. Depositions may only be taken with leave of court.
Therefore, the standard of review is whether the trial court
abused its discretion in denying appellant's motion to take the
depositions of Dr. Williams and Ms. Weiss.
The Administrative Process Act confers jurisdiction upon
the circuit court to review agency case decisions. See Code
§ 9-6.14:16.
Upon judicial review of agency action in accordance with
the Administrative Process Act, the court must examine the
entire record to "[ascertain] whether there was substantial
evidence . . . upon which the agency as the trier of the facts
could reasonably find them to be as it did." Code § 9-6.14:17.
"Cases subject to the standard of review outlined in Code
§ 9-6.14:17 cannot be considered a trial de novo since the
factual issues on appeal are controlled solely by the agency
record." School Bd. of County of York v. Nicely, 12 Va. App.
1051, 1062, 408 S.E.2d 545, 551 (1991).
The Supreme Court of Virginia in State Bd. of Health v.
Godfrey, 223 Va. 423, 290 S.E.2d 875 (1982), recognized that it
is within the trial court's discretion to take evidence to
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resolve claims of arbitrary action or bad faith, "but such
evidence should be limited to that purporting to show that the
agency denied the applicant a fair and impartial review of his
application in accordance with proper procedures." Id. at
433-34, 290 S.E.2d at 880 (citations omitted). "Where the
proffered evidence tends to show that the fact-finding procedure
was tainted by unfair prejudice or animosity, the agency may be
said to have decided the case on factors irrelevant to the
issues of fact before it." Id. at 434, 290 S.E.2d at 881
(citation omitted).
In this case, there was no proffer of what Dr. Williams or
Ms. Weiss would have testified to in the requested depositions.
Where a party alleges error based on the exclusion of evidence,
he or she must make a proffer of proof for the court to
determine if he or she has been prejudiced. See City of
Richmond Police Dep't v. Bass, 26 Va. App. 121, 130, 493 S.E.2d
661, 665 (1997). Because there was not a proper proffer, we are
unable to consider this issue.
Appellant bases her argument of arbitrariness and bad faith
on several grounds. Primarily, she contends the Agency found
that MCS is not a disabling disease for her but found that it
was for Susan Weiss. Appellant misstates the Agency's position.
Although the Medical Review Board did find that MCS has
been rejected as an established organic disease, the Board and
the Agency ultimately found that appellant's diagnosis was not
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consistent with permanent disability. In its final case
decision, the Agency found that the medical evidence did not
prove that appellant's incapacity is likely to be permanent, as
required by Code § 51.1-156(E). At no time did the agency
express a "policy" that MCS was not a recognized disease.
Appellant's application for disability was denied, not because
of MCS, but because there was no evidence of permanency.
Ms. Weiss' claim was granted because the Agency found
permanency in her disability. In the Weiss case, Dr. Grace Ziem
made a finding of permanency. In appellant's case, Dr. Ziem did
not make such a finding. The findings in each case explain the
different results.
This Court agrees with appellant that agency bias and
arbitrariness are serious allegations. Yet, appellant proffered
no evidence to substantiate her bare allegations. Indeed,
nothing before this Court indicates arbitrariness or bad faith.
We, therefore, find the trial court did not abuse its discretion
in refusing to allow Dr. Williams and Ms. Weiss to be deposed.
Appellant also contends that her proffered exhibits are
necessary to prove that the Agency acted arbitrarily and in bad
faith. Appellant makes the same argument as she did for the
depositions. For the reasons stated above, we find that the
trial court did not abuse its discretion in not admitting the
proffered exhibits.
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Likewise, appellant maintains the trial court erred in
failing to find that the Agency's decision had been
impermissibly "infected" by bias and arbitrariness. We have
addressed this issue above and find that there was no bias or
arbitrariness in the Agency decision.
Appellant further asserts the circuit court erred in
"re-casting" the Medical Review Board's report. Appellant
argues that while the Medical Review Board's recommendation to
deny the application because MCS is not a recognized disabling
disease, the trial court ignored the "policy" finding and
reviewed the decision simply to determine whether there was
substantial evidence to support the Agency's ruling. As we
stated above, there was no statement of "policy" by either the
Board or the Agency. Indeed, the Agency denied appellant's
application benefits because it found no permanency.
We find that the circuit court did not "re-cast" the
Board's report and applied the correct standard of review, as we
discuss below.
Appellant finally contends the trial court erred in finding
substantial evidence to support the Agency decision. Appellant
does not claim any errors of law. The standard of review
applicable to this appeal is governed by the Administrative
Process Act. See Code § 9-6.14:17. Applying the Act, we have
ruled as follows:
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In reviewing an agency decision, "[t]he
scope of court review of a litigated issue
under the APA is limited to determination
[of] whether there was substantial evidence
in the agency record to support the
decision." The substantial evidence
standard is "designed to give great
stability and finality to the fact-findings
of an administrative agency." A trial court
may reject the findings of fact "only if,
considering the record as a whole, a
reasonable mind would necessarily come to a
different conclusion." The burden of proof
rests upon the party challenging the agency
determination to show that there was not
substantial evidence in the record to
support it.
Smith v. Deparment of Mines, Minerals & Energy, 28 Va. App. 677,
684-85, 508 S.E.2d 342, 346 (1998) (citations omitted). We have
held that this standard of review requires courts to give great
deference to the agency's factual findings.
The determination of an issue of fact
is to be made solely on the basis of the
whole evidentiary record provided by the
agency and the reviewing court is limited to
that agency record. "A reviewing court may
not, however, use its review of an agency's
procedures as a pretext for substituting its
judgment for the agency on factual issues
decided by the agency." A reviewing court
"must review the facts in the light most
favorable to sustaining the [agency's]
action," and "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, 263, 369 S.E.2d
1, 18-19 (1988) (citations omitted).
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We have also ruled that a "'question raised by conflicting
medical opinion is a question of fact.'" WLR Foods, Inc. v.
Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)
(citation omitted). 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 to choose between conflicting
expert medical opinions.'" Stancill v. Ford Motor Co., 15 Va.
App. 54, 58, 421 S.E.2d 872, 874 (1992) (citation omitted).
The Medical Review Board is "a neutral evaluatory mechanism
for the Retirement System to gather and analyze medical opinions
and reports." Johnson v. Virginia Retirement Sys., 30 Va. App.
104, 112, 515 S.E.2d 784, 788 (1999).
In this case, the Board reviewed all of the medical reports
and concluded there was no evidence of permanent disability.
Dr. Ziem, the greatest proponent of MCS, failed to diagnose
appellant as having a permanent disability. Dr. Ziem has not
completed all of the testing and therapy. She is still
fine-tuning appellant's treatment. Dr. Ziem opined appellant
was improving "somewhat" since leaving her job. Dr. Ziem only
treats appellant on an "as needed" basis. The hearing officer
found that Dr. Ziem's treatment on an "as needed" basis, was
inconsistent with a chronic disabling disease. Therefore, the
fact finder could conclude that it was premature to find
permanency.
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The hearing officer also was not persuaded by the
independent medical examiner, Dr. Ward. Dr. Ward never named a
disabling disease and did not give an adequate medical reason
for his conclusion that appellant cannot "reliably function as
an art teacher." The hearing officer accepted the Medical
Review Board's position that MCS is not a disabling disease.
According to Dr. Ward's report, none of appellant's
experts, Dr. Ziem, Dr. Welch, Dr. Beck, or Dr. Baraniuk, opined
that appellant's disease is likely to be permanent as required
by Code § 51.1-156(E).
We, therefore, find that there was substantial evidence in
the record to support the Agency's decision and affirm the
denial of disability retirement benefits.
Affirmed.
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