Ruth A. Fifer v. Virginia Retirement System ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
RUTH A. FIFER
MEMORANDUM OPINION *
v. Record No. 2924-97-3 PER CURIAM
AUGUST 25, 1998
VIRGINIA RETIREMENT SYSTEMS
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
(Grant A. Richardson, on brief), for
appellant.
(Mark L. Earley, Attorney General; Michael K.
Jackson, Senior Assistant Attorney General &
Chief; Brian J. Goodman, Assistant Attorney
General, on brief), for appellee.
Ruth A. Fifer, appellant, was denied disability retirement
from the Virginia Retirement System (VRS) pursuant to Code
§ 51.1-156(E). On appeal, appellant contends that there was
insufficient evidence in the record to support the VRS's decision
that her disability was not likely to be permanent. Because we
find that there is substantial evidence to support the VRS's
finding, we summarily affirm. See Rule 5A:27.
Background
Appellant was employed as a school teacher for about thirty
years when she obtained an unpaid leave of absence to care for
her elderly parents. During the leave of absence, appellant had
one or more operations for various sinus conditions. On April
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
20, 1996, in her first application for disability, appellant
asserted that she suffered from fibromyalgia and leukoaraiosis.
She stated that she was unable to perform her teaching duties
because she was in bed eighteen hours per day, she suffered
dizziness, nausea, constant body aches, chronic fatigue,
unpredictable vision, uncontrollable seizure-like chills,
fluctuating fever, thumping headaches, watery diarrhea, and
dry-mouth. She also said that she was unable to concentrate.
Reports from her treating neurologist, Glen E. Deputy, M.D.,
confirmed most of these complaints.
On June 6, 1996, the VRS denied appellant disability based
on the Medical Board's finding that "[n]o evidence of disabling
disease is presented." The Medical Board also found that
appellant was not "felt to be permanently disabled." Appellant
appealed this decision, and the Medical Board requested that
Morris E. McCrary, III, a neurologist, examine appellant.
Dr. McCrary examined appellant on or about September 17,
1996. He noted that she reported a large number of complaints,
but that she had "a relatively normal objective neurologic
examination." He further stated:
I am hard pressed to say that I have physical
findings, consistent history or studies that
would denote a degree of function or specific
limitation that would permanently prevent her
from performing her duties as a teacher as
described in her disability information
questionnaire. As to the question of chronic
fatigue syndrome and fibromyalgia, I find
little to support this, but I would defer to
evaluation by a qualified rheumatologist if
indicated.
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The VRS again denied appellant's request for disability
benefits based on the Medical Board's recommendation, and
appellant appealed. On April 2, 1997, an informal fact-finding
hearing was held. The hearing examiner examined medical records
and heard oral testimony from appellant and another witness who
had observed appellant's behavior over the past eight years.
Appellant presented evidence of treatment notes and
diagnoses performed by Dr. Deputy. Dr. Deputy opined that
appellant suffered from fibromyalgia, carpal tunnel syndrome,
chronic fatigue syndrome, and neuropathy. However, Dr. Deputy
did not state whether, in his opinion, her illnesses were
permanent in nature. Over the course of his treatment of
appellant, Dr. Deputy prescribed numerous medications for
appellant, many of which appellant claimed caused side effects.
He noted after her April 18, 1996 visit, that he was "hopeful we
can get her feeling better over the next few months." His notes
from February 20, 1997 indicated that her "[r]ight peroneal
neuropathy, [had] improved from a previous study obtained last
April." He also stated in this report that "[h]er conditions are
improving" and that she was "improving symptomatically" with the
use of a certain prescription, with which he continued to treat
appellant.
On December 6, 1996, Carolyn M. Brunner, M.D., a
rheumatology specialist, examined appellant. Dr. Brunner did not
comment on the permanency of appellant's condition, but noted
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that she found "no gross motor or sensory deficits." She also
recommended a continuation of appellant's "supportive care" and
suggested that appellant begin an exercise program.
Appellant also presented evidence of her treatment by John
T. Glick, M.D., who administered acupuncture treatments on
appellant. In a letter to appellant's counsel, Dr. Glick wrote:
As my approach to [appellant's] complaints
was based on the acupuncture model of health
and illness, the information you request is
not likely to be of use to you. Be that as
it may, I certainly can speak to the high
degree of disability that she experiences and
the weakness along with diminished vitality
she evidences. She is, by my experience with
her, unable to do more than sedentary
activity and ambulates very slowly with a
cane. Unless breakthroughs in the treatment
of fibromyalgia and chronic fatigue occur, I
feel she is permanently disabled.
Appellant also presented evidence from her family doctor,
D.L. Perry, M.D. On March 28, 1997, Dr. Perry wrote, "It is my
opinion that [appellant] is fully disabled at this time and most
likely will continue well into the future unless technology
advances to the point where these conditions can be treated
successfully."
Pamela Collins, a home health care nurse, testified at the
hearing. Collins had never treated appellant, but had been to
her home approximately every other week for eight years, treating
appellant's bedridden father. Collins opined that appellant was
totally disabled, but did not comment on the permanency of her
condition.
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The hearing officer found that, while the medical evidence
was "not overwhelming," it evidenced problems that appellant was
experiencing. He found that "[t]he problem is that her
physicians can't find the correct combination of treatment in
which to help her." The hearing officer also found that, while
the evidence showed that appellant was unable at that time to
return to her position, "it is not clear that her condition is
one of permanency." Thus, the hearing officer found that
appellant failed to carry her burden of proof to show that her
incapacity is "likely to be permanent." See Code
§ 51.1-156(E)(ii).
On June 11, 1997, the VRS again denied appellant disability
benefits. Appellant appealed this decision to the circuit court.
The trial court stated:
In reviewing the agency record in this
case, it is clear that there are two somewhat
opposed views on the question of the
permanency of [appellant]'s disability. Her
treating neurologist, Dr. Deputy, and the
specialist[s] to whom she's been referred,
Dr. McCrary and Dr. Brunner, have never
opined that her disability is permanent in
nature. In fact, the totality of their
medical records appears to basically analyze
the multitudinous complaints of [appellant]
and conclude that they do not appear to be
based on any objective findings and have
proven to be resistant to any drug regimens
that have been prescribed to her. . . . The
conclusion of these doctors appears to be as
stated in the record, that since they cannot
really determine the exact identity of the
medical illnesses of which [appellant] is
suffering, they do not have the requisite
knowledge upon which to base a conclusion
that the disability is permanent.
The evidence on the opposite side
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consists of Dr. Glick, the family
practitioner and acupuncturist, who
administered a regimen of acupuncture
treatment to [appellant] and based on his
observations of [appellant] during that
period of time concluded that she was in all
likelihood permanently disabled. Dr. Perry,
the general practitioner, who was her
personal physician, also rendered a short
opinion to the effect that he thought her
disability was permanent.
Therefore, the record is clearly one
where there i[s] considerable evidence on
both sides of the issue of whether or not the
disabilities currently being suffered by
[appellant] are permanent in nature. The
Medical Review Board of the VRS has reviewed
the record on three separate occasions and
each time has concluded that there is no
medically sufficient evidence to prove
disability. The VRS has, in turn, adopted
the position of the Medical Review Board and
denied the disability benefits.
The trial court concluded that there was substantial
evidence in the record upon which the VRS could base a denial of
appellant's claim. Therefore, the trial court denied appellant's
appeal.
Analysis
"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. The VRS is required to
use a Medical 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
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'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).
Dr. Glick was the only physician who opined that appellant
was permanently disabled. However, he qualified his opinion,
stating that it was based on "the acupuncture model of health and
illness." Dr. Perry opined that appellant was "fully disabled at
this time and most likely will continue well into the future."
However, this opinion falls short of a conclusion that
appellant's incapacity is "likely to be permanent." Dr. McCrary
was "hard pressed to say that [he] had physical findings,
consistent history or studies that would denote a degree of
function or specific limitation that would permanently prevent
[appellant] from performing her duties as a teacher . . . ."
Also, Drs. Deputy and Brunner did not opine that appellant's
disability was permanent in nature. In fact, Dr. Deputy's notes
of February 20, 1997 indicated that appellant showed improvement
in certain conditions.
The VRS chose to believe the opinions of Drs. McCrary and
Deputy and to lend less weight to Dr. Glick'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) ("[T]he appellate court does
not retry the facts, reweigh the preponderance of the evidence,
or make its own determination of the credibility of the
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witnesses."). The opinions of Drs. McCrary and Deputy are
adequate to support the VRS's decision.
For the foregoing reasons, the denial of claimant's
application for disability retirement is affirmed.
Affirmed.
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